Laborers' Int'l. Union of N. America, Local 169 v. Office of the Labor Comm'r. ( 2015 )

 send "the complaint to the awarding body" for the public works project—in
this case, the City of Sparks—for investigation; and (2) due to the ongoing
investigation, Frazier was not required to file an answer at that time.
The Labor Commissioner further denied the union's motion for
reconsideration, citing "the more specific procedure for processing
complaints arising under NRS Chapter 338" and "the statutory imperative
that an awarding body conduct an initial investigation into such
allegations." The Commissioner concluded by stating that "it is the
interpretation of this Office that the provisions of NAC Chapter 607 are
deferred until such time as a Chapter 338 complaint may proceed to an
administrative hearing. This interpretation is plainly codified at NAC
338.116."
The Commissioner also asserted authority under NAC 607.040
to deviate from NAC Chapter 607's procedural requirements whenever
compliance would be impractical or unnecessary, and he specifically found
that requiring Frazier to answer while the matter is being investigated by
the awarding body would be both impractical and unnecessary. Finally,
the Commissioner held that entering a default simultaneous to an
investigation "undermines the recognized public policy of the State of
Nevada to decide controversies on the merits when possible."
The City of Sparks completed its NRS Chapter 338
investigation of the wage claims and issued a determination. Following
Local 169's objection, the Commissioner returned the matter to the City of
Sparks for additional investigation. Approximately two months later, the
City of Sparks issued its revised determination on the wage claims. In the
meantime, Local 169 filed a petition for a writ of mandamus in the district
court, asking the court to order the Labor Commissioner both to require
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Frazier to file an answer and enter default against Frazier. The district
court exercised its discretion to hear the petition, and the parties briefed
the issues.
In June 2014, the district court denied Local 169's petition for
writ of mandamus, agreeing with the Labor Commissioner that NAC
338.110 "defers the application of NAC 607 to the second stage (the
hearing stage) of the process for complaints concerning a violation of NRS
338," and concluding that "giving deference to the Labor Commissioner's
interpretation is appropriate." The court concluded that even if the
Commissioner's interpretation of the regulations was incorrect,
mandamus would nevertheless be inappropriate because the entry of
default• is discretionary, not mandatory. Finally, the district court found
that mandamus was improper because Local 169 may file a petition for
judicial review, thus it has a plain, speedy, and adequate remedy at law.
Local 169 appealed to this court.
At issue is whether NAG 607.210(1), which requires that an
NRS Chapter 608 wage complaint be answered, overrides the requirement
in NRS Chapter 338 that all wage complaints on public works projects be
referred to the project's awarding body for investigation, such that if no
answer is filed, the Labor Commissioner must enter default despite an
ongoing investigation of the claims. We conclude that ample Nevada law
demonstrates that the failure to answer does not mandate a default under
these or any other circumstances. Accordingly, we affirm the district
court's denial of Local 169's petition for a writ of mandamus in this case.
This court reviews the district court's denial of Local 169's
petition for a writ of mandamus for an abuse of discretion. Kay v. Nunez,
122 Nev. 1100, 1105, 146 P.3d 801, 805 (2006). The district court
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generally reviews an agency's administrative decisions for an abuse of
discretion. City Plan Dev., Inc. v. Office of the Labor Comm'r, 121 Nev.
419, 426, 117 P.3d 182, 186-87 (2005). The court reviews questions of law
de novo. S. Cal. Edison v. First Judicial Dist. Court, 127 Nev. 276, 280,
255 P.3d 231, 234 (2011).
I. Denial of default was a proper exercise of the Commissioner's discretion
A writ of mandamus "may be issued. . . to compel the
performance of an act which the law especially enjoins as a duty resulting
from an office, trust or station." NRS 34.160. It may• "issue when the
respondent has a clear, present legal duty to act. Mandamus will not lie to
control discretionary action, unless discretion is manifestly abused or is
exercised arbitrarily or capriciously." Round Hill Gen. Improvement Dist.
v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (internal
citations omitted).
A. The Commissioner's decision was discretionary
Local 169 argues that Frazier was required to answer its
complaint within 15 days pursuant to NAC 607.210(1). Because Frazier
did not file an answer, the union argues (1) that the Labor Commissioner
should have entered default against Frazier, and (2) when the Labor
Commissioner declined to enter default, the district court should have
issued a writ of mandamus ordering him to do so.
The Labor Commissioner argues that regardless of whether an
answer is required, the plain language of NAC 607.210(3) makes entry of
default discretionary, not mandatory. We agree. NAG 607.210(3) provides
that "Mt' the respondent fails to answer within 15 days, the Commissioner
may determine that the respondent is in default and issue a decision and
order based solely on the facts as presented in the complaint." (Emphasis
added.) This regulation follows Nevada's Administrative Procedure Act,
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which states that contested cases "may be" resolved by default. NRS
233B.121(5).
This court has previously held that provisions of NRS Chapter
607 that "use the word 'may,' not 'shall,' do not set forth mandatory
prehearing procedures that the Labor Commissioner was required to
follow . . . but rather delineate the• general prosecutorial authority of the
Labor Commissioner . . . in carrying out his duties under all of the labor
laws." City Plan Dev., 121 Nev. at 427, 117 P.3d at 187; see Roventini v.
First Judicial Dist. Court, 81 Nev. 603, 605, 407 P.2d 725, 725-26 (1965)
(contrasting the limited availability of mandamus for summary judgment
rulings, which order that the court "shall" act under certain
circumstances, with the unavailability of mandamus for setting aside a
default, which invokes the court's discretion); see also Dyno v. Rose, 687
N.Y.S.2d 497, 501 (App. Div. 1999) (holding that where a court "may"
enter a default judgment, "it does not follow that the trial court has a
mandatory, ministerial duty to grant a motion for default judgment").
Local 169 presents no authority mandating the Commissioner
to enter default under certain circumstances or otherwise purporting to
impose on the Commissioner a duty to enter default. It merely "submits"
that (1) NAC 607.210(1)'s requirement of an answer divests the
Commissioner of the discretion to disregard it, and (2) NAC 607.210(3)'s
discretionary language applies only when no motion for default has been
filed and the Commissioner is acting sua sponte.
In the absence of authority to support Local 169's positions, we
are not persuaded. The plain language of all provisions relating to default
in administrative labor proceedings demonstrates that the Commissioner's
decision is discretionary without qualification. Therefore, mandamus is
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unavailable to Local 169 unless it shows that when the Commissioner
declined to enter default against Frazier, he committed a manifest abuse
of his discretion, or that his discretion was exercised arbitrarily or
capriciously.
B. The Commissioner did not manifestly abuse his discretion or
exercise it arbitrarily or capriciously
A manifest abuse of discretion requires a "clearly erroneous
interpretation of the law or a clearly erroneous application of a law or
rule." State v. Eighth Judicial Dist. Court, 127 Nev. 927, 932, 267 P.3d
777, 780 (2011) (quoting Steward v. McDonald, 958 S.W.2d 297, 300 (Ark.
1997)). "An arbitrary or capricious exercise of discretion is one 'founded on
prejudice or preference rather than on reason,' or 'contrary to the evidence
or established rules of law." Id. at 931-32, 267 P.3d at 780 (internal
citation omitted) (quoting Black's Law Dictionary 119, 239 (9th ed. 2009)).
1. The Commissioner reasonably interpreted the regulations to
allow a two-stage process for processing complaints on public
works projects
The Labor Commissioner is charged with adopting necessary
regulations under both NRS Chapters 338 and 607. NRS 338.012; NRS
607.160. NAC Chapters 338 and 607 contain the attendant procedural
regulations for processing wage claims. Well-established Nevada law
requires the courts to defer to the agency's interpretation of its own
regulations or statutes where the interpretation is within the legal text.
See Wynn Las Vegas, LLC v. Baldonado, 129 Nev., Adv. Op. 78, 311 P.3d
1179, 1182 (2013) (citing Dutchess Bus. Servs., Inc. v. Nev. State Bd. of
Pharmacy, 124 Nev. 701, 709, 191 P.3d 1159, 1165 (2008)). In Collins
Discount Liquors & Vending v. State, 106 Nev. 766, 768, 802 P.2d 4, 5
(1990), the court explained that deference is proper because "the agency,
and not the judicial system, is given the job of creating regulations that
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serve to carry out legislative policy. Thus courts should not substitute
their own construction of a statutory provision for a reasonable
interpretation made by an agency."
a. NAG 338.112 and 338.116 expressly recognize a two-
stage process
The Labor Commissioner contends that NAC Chapters 338
and 607, read together, form a two-stage process for resolving wage claims
arising in the public works arena. He does not argue that NAC Chapter
607's procedures do not apply to public works cases; he contests only the
propriety of exercising NAC 607.210 discretion to default a party while the
violations alleged are first being investigated by the awarding body. The
Commissioner's interpretation is reasonable and within the language of
the relevant statutes and regulations, as set forth below. Thus, the
Commissioner did not manifestly abuse his discretion, nor did he exercise
it arbitrarily or capriciously, and his ruling is entitled to deference.
NRS 338.070(1) mandates that "[Any public body awarding a
contract shall: (a) [i]nvestigate possible violations" of the wage law
provisions of the public works statutes. NAC 338.110(1) describes the
nature of the investigation, including the requirement that it "must
commence and conclude within a reasonable time," which is specified to be
no more than 30 days unless the Labor Commissioner grants an extension.
The awarding body must issue a written determination that is served on,
among others, the person who filed the complaint. NAC 338.110(4)(d). All
persons served with a copy of the determination have the right to file a
written objection with the Labor Commissioner. NAC 338.110(8).
In this case, Local 169 filed an objection to the City of Sparks's
determination, and the Commissioner returned it for further
investigation, which is specifically permitted by NAC 338.112(1)(a). When
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the City of Sparks filed its revised determination, Local 169 had already
filed its petition for a writ of mandamus. However, the procedures that
follow an awarding body's determination are set forth in NAC 338.112,
and all roads lead to the Commissioner's determination whether to
schedule a hearing.'
Regardless of the process by which the Labor Commissioner
schedules a hearing in a public works case, NAC 338.116 specifically calls
for the hearing to proceed according to NAC Chapter 607: "At a hearing
held by the Labor Commissioner on a determination issued by an
awarding body or the Labor Commissioner, the Labor Commissioner will
use the procedures provided pursuant to chapter 607 of NAC to conduct
the hearing." NAC 338.116 therefore explicitly supports the
Commissioner's contention that NAC Chapter 338 procedures may be
invoked prior to the general provisions found in NAC Chapter 607. See
also City Plan Dev., 121 Nev. at 429, 117 P.3d at 188 (recognizing that
"NRS 607.205 provides that the Labor Commissioner may conduct
hearings to aid the Commissioner's enforcement responsibilities under
Nevada's labor laws, including NRS 338.030, which relates to prevailing
wages").
'If the Commissioner affirms or dismisses the awarding body's
determination, his order is final, and any person aggrieved by the
determination may file an objection. NAC 338.112(2)(b), (d); NAC
338.114(2). Upon an objection, the Commissioner may schedule a hearing.
NAC 338.114(3). If the Commissioner modifies the awarding body's
determination, an aggrieved party may object, in which case the
Commissioner may schedule a hearing. NAC 338.112(3)-(4). Finally,
rather than affirm, dismiss or modify the awarding body's determination,
the Commissioner may simply schedule a hearing. NAC 338.112(2)(c).
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b. The Commissioner's decision is supported by well-
established principles of Nevada law
The Labor Commissioner's interpretation is further supported
by the well-established principles that (1) specific provisions control over
general ones, see State, Tax Comm'n v. Am. Home Shield of Nev., Inc., 127
Nev. 382, 388, 254 P.3d 601, 605 (2011); and (2) "[a]dministrative
regulations cannot contradict or conflict with the statute they are intended
to implement," Roberts v. State, 104 Nev. 33, 37, 752 P.2d 221, 223 (1988).
In this case, we find that mandating that the Commissioner enter default
against Frazier at the same time as Frazier was complying with the
awarding body's investigation would frustrate the obvious intent of the
Legislature in creating that investigatory step.
Default would also frustrate Nevada's preference for deciding
cases on their merits. In Christy v. Carlisle, 94 Nev. 651, 654, 584 P.2d
687, 689 (1978), this court noted its "underlying policy to have each case
decided upon its merits," and held that because the defaulted party's
insurer "has indicated a clear purpose to defend the suit," default would
have been "manifestly. . . unfair." In this case the Commissioner acted
immediately on Local 169's complaint by forwarding it to the City of
Sparks for investigation, as he was required to do. The record reflects that
Frazier participated in prior wage claim proceedings earlier in 2013 as
well as the NAC Chapter 338 investigation resulting from the complaint
at issue here. Local 169's request for default at the same time the
allegations of the complaint were being actively addressed in a manner
mandated by statute, and at the same time Frazier was complying with all
requests for information by the City of Sparks, is contrary to Nevada's
public policy of deciding cases on their merits.
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c. The Commissioner's decision was not made arbitrary
or capricious by the existence of NRS 608 Chapter claims
Finally, Local 169 argues that even if the awarding body's
investigation stayed consideration of the NRS Chapter 338 claims, the
Labor Commissioner lacked authority to excuse Frazier from filing an
answer as to alleged violations of NRS Chapter 608, because the City of
Sparks was not required to investigate those claims. Specifically, the
union contends that NAC 607.210(1)'s requirement of an answer "must not
be rendered nugatory simply because there is an investigation of other
violations going on." The union's portrayal of its NRS Chapter 608 claims
as "other violations" is disingenuous. In reality, the claims are effectively
identical and arise from the same discrete set of facts, as the union
concedes in its statement of facts to this court. For the Commissioner to
separately process the NRS Chapter 608 claims while the awarding body
is investigating identical NRS Chapter 338 claims would be duplicative
and a waste of resources.
2. The Commissioner properly exercised his discretion to
deviate from NAC Chapter 607's answer requirement
The Labor Commissioner argues that even if NAC 607.210's
answer requirement applies during pendency of an awarding body's NAC
338 investigation, NAC 607.040 allows him to deviate from NAC 607's
procedures.
NAC 607.040(1)(a) provides,
Notwithstanding any provision of this
chapter to the contrary, in special cases, upon a
showing of good cause or the Commissioner's own
motion, the Commissioner may permit deviation
from the provisions of this chapter with regard to
a matter if ... [t]he Commissioner determines
that . . . [c]ompliance with those provisions is
impractical or unnecessary.
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In this case, he specifically so found in his order denying Local 169's
motion to reconsider the denial of default:
[R]equiring an answer in this case is both
impractical and unnecessary while at the same
time the matter is before the awarding body for
investigation. It serves no practical purpose to
require a respondent to prepare and file an answer
while the investigation is pending. Thus, even if
NAC 607.210 applies, I conclude that deviation
from that provision would be appropriate under
NAC 607.040. A default is intended as a remedy
against an intransigent party. It is noted that
Frazier is under an obligation to cooperate with
the City's investigation, an obligation which can
be compelled by subpoena if necessary. NAC
338.110(2). Local 169 has not provided any
argument or evidence that Frazier is refusing to
participate in the administrative process, which at
this stage is an investigation into the allegations
conducted by the City of Sparks.
For all the reasons discussed above, the Commissioner's finding that NAC
607.040 should apply was not a manifest abuse of discretion or the result
of an arbitrary or capricious exercise of his discretion.
II. Mandamus is improper because Local 169 has a plain, adequate, and
speedy legal remedy
"The normal judicial process is trial and appeal, not final
adjudication on pre-trial writs." Bottorff v. O'Donnell, 96 Nev. 606, 607,
614 P.2d 7, 8 (1980). For a court to grant a petition for a writ of
mandamus compelling a judicial ruling, Iglenerally, a petitioner must
show that continuation of the proceedings would be an exercise in futility,
and that the litigation, irrespective of what may transpire at trial, is
foreordained to its inevitable conclusion." Id.; see also, e.g., Moore v.
Eighth Judicial Dist. Court, 96 Nev. 415, 416, 610 P.2d 188,189 (1980)
("The remedy of mandamus is available to compel the district court to rule
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properly if, as a matter of law, a defendant is not liable for any of the relief
sought.").
This principle is reflected in the rule that if a plain, speedy,
and adequate remedy exists in the ordinary course of proceedings, a writ
of mandamus is not appropriate. S. Cal. Edison, 127 Nev. at 280, 255
P.3d at 234; Howell v. Ricci, 124 Nev. 1222, 1228-29, 197 P.3d 1044, 1049
(2008) (citing Kay, 122 Nev. at 1104, 146 P.3d at 805); see also NRS
34.170.
Where the Legislature has created the right to petition for
judicial review of an administrative decision, the review is an adequate
and speedy remedy as a matter of law, precluding writ relief. Kay, 122
Nev. at 1104-05, 146 P.3d at 805. NRS 233B.130(1) and NRS 607.215(3)
create a right to petition for judicial review of the Labor Commissioner's
decisions, therefore, a writ of mandamus is not the proper vehicle for Local
169. See, e.g., Howell, 124 Nev. at 1223-24, 197 P.3d at 1045 ("Because a
State Engineer's decision may be challenged through a petition for judicial
review, . . . an adequate and speedy legal remedy precluding writ relief
exists.").
Local 169 argues only that judicial review is unavailable
because there is no final agency decision to appeal. However, denial of a
motion to default generally is an interlocutory decision that must await,
and then merge into, the final judgment in the case for appeal. See Joseph
v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018, 1028 (9th Cir. 1987)
(holding that order setting aside default judgment is interlocutory and not
appealable); cf. American Ironworks & Erectors, Inc. v. North Am. Constr.
Corp., 248 F.3d 892, 897 (9th Cir. 2001) (noting that "a party may appeal
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interlocutory orders after entry of final judgment because those orders
merge into that final judgment").
"A remedy does not fail to be speedy and adequate, because, by
pursuing it through the ordinary course of law, more time probably would
be consumed than in a mandamus proceeding." Cty. of Washoe v. City of
Reno, 77 Nev. 152, 156, 360 P.2d 602, 603 (1961). We hold that the union
should have obtained a final agency decision on its claims and then sought
review by the district court.
For the reasons set forth above, the district court properly
denied the petition for a writ of mandamus, thus we ORDER the judgment
of the district court AFFIRMED.
ea J.
Saitta
J.
Gibbons
e l.C ,PJU- GM
Pickering
, J.
cc: Hon. Lynne K. Simons, District Judge
Carol Webster Millie, Settlement Judge
Michael E. Langton
Attorney GenerallLas Vegas
Washoe District Court Clerk
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