Clark Cty. Nev. Dep'T Of Aviation v. S. Nev. Labor Mgmt. Cooperation Comm.

IN THE SUPREME COURT OF THE STATE OF NEVADA
CLARK COUNTY DEPARTMENT OF No. 83252
AVIATION, A POLITICAL
SUBDIVISION OF THE STATE OF
NEVADA, FILED
Appellant,
vs. SEP 2 8 2O22
SOUTHERN NEVADA •LABOR „ ,k. Br(,N.,e7-1
Ur-REM COURT
MANAGEMENT COOPERATION
COMMITTEE, BY AND THROUGH ITS .PW CLERK
TRUSTEES TERRY MAYFIELD AND
CHRIS CHRISTOPHERS EN; AND
OFFICE OF THE LABOR
COMMISSIONER,
Respondents.
ORDER AFFIRMING IN PART, VACATING IN PART, AND
REMANDING
This i.s an appeal from a district court order granting a petition
for judicial review of a decision by the Labor Commissioner to reject a
complaint alleging prevailing wage law violations, and remanding for
determination of the wages due. Eighth Judicial District Court, Clark
County; Kathleen E. Delaney, Judge.
Appellant Clark County Department of Aviation (DOA) invited
bids for a year-long contract for carpet replacement work at McCarran
international Airport. The invitation did not require bidding contractors to
comply with NRS 338.020, Nevada's prevailing wage law. NRS 338.020
requires payment of prevailing wage where a "public body" finances certain
projects with "public money," provided those projects are not for "normal
maintenance." See NRS 338.010(18) (defining public body); NRS
338.010(1.9) (defining public work in terms of""a project financed in whole or
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in part from public money . . . "); NRS 338.011(1) (stating that the
prevailing wage law does not apply to contracts for "normal maintenance"
in compliance with NRS Chapter 332).
Respondent Southern Nevada Labor Management Cooperation
Committee (LMCC) filled a complaint against the DOA with the nominal
respondent Office of the Labor Commi.ssioner (OLC), asserting prevailing
wage law violations. The DOA responded that the prevail.ing wage law did
not apply to the carpet work for two reasons: (1) the DOA paid for the work
out of operating funds, not "public money" and was therefore not a "public
work"; and (2) the work involved "normal maintenance" of worn carpet tiles
as needed throughout the airport and was therefore exempt under NRS
338.011(1.). After investigation and document review, but without a hearing,
the OLC issued a written decision rejecting LMCC's complaint. In its
decision, the OLC found no prevailing wage law violations because "the
work in question [was] not paid for with public money." The OLC did not
reach or resolve DOA's "normal maintenance" argument.
LMCC filed a petition for judicial review, wh.ich the district
court granted. In Bombardier Transportation (Holdings) USA, Inc. v. Nev.
Labor Cornrn'r, we held that a different DOA project at the McCarran
Airport was financed by public money and therefore subject to the
prevailing wage law. 135 Nev. 15, 19, n.3, 433 P.3d 248, 253, n.3 (2019).
Bombardier rejected the argument that work paid for "with normal
operating funds" automatically falls outside the prevailing wage statutes
and stated that "the financing language in the statute does not require a
particular type of funding, only that the project be financed by public
money, which the contract was." Id. :Finding no difference between the
public money" arguments addressed in .Bornbardier and those raised in this
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case, the district court reversed the OLC's decision on the "public money"
issue. But the district court did not stop there. Even though the OLC
neither decided nor made findings on DOA's alternative "normal
maintenance" argument, the district court decided that issue as well. The
district court found that "the contract at issue was not a maintenance
contract" and, after additional motion practice, remanded to the OLC "to
use applicable prevailing wage rates to determine the value of wages due
and ensure that the unpaid wages are properly paid," tasks the district
court deemed ministerial.'
The DOA appeals the district court's "public money" and
(( normal maintenance" determinations. This court reviews an agency's
decision under the same standard as the district court, without deference to
the district court's decision, and "determine[s], based on the administrative
record, whether substantial evidence supports the administrative decision."
Bombardier, 135 Nev. at 18, 433 P.3d at 252 (quoting Kay v. Nunez, 122
Nev. 1100, 11.05, 146 P.3d 801, 805 (2006)). The reviewing court defers to
the agen.cy's findings of fact but reviews its legal conclusions de novo. Id.Consistent with this standard, it is the duty of the administrative agency to
state its findings of fact and conclusions of law in the final agency decision.
See NRS 233B.125.
The DOA asks us to reverse the district court's decision and to
affirm, or remand to the OLC, on the public money question. But the DOA's
opening brief simply identifies the issue, then states without analysis that
"The district court deemed these calculations "ministerial," and we
agree. The district court's order thus was final and appealable because it
resolved all claims between all the parties, and remanded only for
ministerial calculations as to the amount of the award. See Bally's Grand
Hotel & Casino v. Reeves, 112 Nev. 1487, 1489, 929 P.2d 936, 937 (1996).
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substantial evidence supports the OLC's original finding. The DOA does
not acknowledge, much less distin.guish, .Bombardier. Our review of the
limited agency record supports the district court's decision that Bombardier
controls. While our review is without deference to the district court, it was
nonetheless incumbent on the .DOA as the appellant to offer cogent
argument and authority to support a different outcome than Bombardier
seemingly dictates. See Edwards v. Emperor's Garden Rest., 122 Nev. 317,
330 n.38, 130 P.3d 1280, 1288 n.38 (2006). We therefore affirm the district
court's decision in part, to the extent that it reversed the OLC's
determination that the project's funding was not public money.
The district court further decided that the project was not
normal maintenance. But it did so without the benefit of any findings or a
bearing on the question by the OLC, which logically closed the complaint
after finding that the prevailing wage law did not apply because the project
was not funded by public money. Both the DOA and LMCC try to marshal
contractual terms and make representations to support their respective
positions on. whether the project was normal maintenance or not. The
LMCC emphasizes the square foota.ge of carpet tiles involved, the fact they
were purchased in bulk, and the DOA's (allegedly bad-faith) piecemeal
approach to i.nstalling it; the :DOA responds with the entire square footage
of the airport and represents that the contract serves its ongoing need to
remove and replace worn or damaged carpet tiles in various areas
throughout the airport over the course of the year. .But these are mixed
questions of law and fact that the law entrusts to the OLC in the first
instance. See Bombardier, 1.35 Nev. at 27, 433 P.3d at 258 (recognizing that
the OLC benefitted from having the "complete record from which to
ascertain the facts and reso.lve the case" and upholding its decision as to
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whether the contract was normal maintenance based on substantial
evidence); Kolnik v. Nev. Emp't Sec. Dep't, 112 Nev. 1.1, 16, 908 P.2d 726,
729 (1996) (noting that mixed questions of law and fact are entitled to
deference and the agency's conclusions will not be disturbed by this court if
they are supported by substantial evidence). Under NRS 233B.135(3), it is
appropriate to remand this case to the OLC for an unrestricted hearing and
determination on the scope of the carpet work and whether, and if so to
what extent, such work is exempt from the prevailing wage law as
maintenance.
Accordingly, we affirm in part, vacate in part, and remand to
the district court to order the matter remanded to the OLC to hear and
determine whether any portion or the whole of the project was normal
maintenance.
It is so ordered.
S lve r
J.
Cadish
Piekeit j.
:Pickering
cc: Hon. Kathleen E. Delaney, District Judge
Fisher & Phil.iips11.4LP
Attorney General/Carson City
Christensen James & Martin
Eighth District Court Clerk
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