ORDER OF COMMISSION
DENYING MOTION TO DISMISS OBJECTION
Objection filed by SITE Improvement Association of St. Louis, Missouri, on April 7, 2000 to Annual Wage Order No. 7, State-Wide - pertaining to occupational title relating to pipe fitter, (Objection #17); issued by the Division of Labor Standards, Department of Labor and Industrial Relations, filed with the Secretary of State:
March 10, 2000.
On May 2, 2000, Intervenors, Plumbers and
Pipe Fitters, Local No. 562, Mechanical Contractors Association and the
Plumbing Industry Counsel (Plumbers and Pipe Fitters), filed a Motion to
Dismiss the Objection based on res judicata/collateral estoppel and lack of
jurisdiction. On May15, 2000, Objector,
SITE Improvement Association (Objector) filed Objector’s Response and
Opposition to Intervenors’ Motion to Dismiss. On May 18, 2000, a Request to Intervene for the Purpose of
Filing a Brief in Conjunction with the Motion to Dismiss Filed by Plumbers and
Pipe Fitters Local Union No. 562, Mechanical Contractors Association and the
Plumbing Industry Council was filed by the Missouri State Building and
Construction Trades Council (Trades Council).
Plumbers and Pipe Fitters argue that the
objection should be dismissed on the basis of res judicata and collateral
estoppel because the Commission has decided this issue in the past and further,
that the Commission only has the authority to amend an occupational title and
not to create a new occupational title.
Objector argues that Intervenors do not have standing to file a Motion
to Dismiss and the Commission’s rules do not provide for filing a Motion to
Dismiss prior to a hearing. Objector
further argues that there is no privity between the Objector and the Eastern
Missouri Laborers District Council (Laborers) and this issue has not previously
been decided by the Commission.
Objector also contends that the Commission has authority to establish a
new occupational title.
The objection filed by the Objector objects
to the occupational title of pipe fitter contained in 8 CSR 30-3.060 and
requests that the Commission create a new occupational title of “utility pipe
worker” to reflect work performed by “workers who handle, prepare, fabricate,
lay, install or construct pressurized utility pipelines including water lines
and pressurized sewer lines outside of a building on heavy construction.” The definition also contains examples of
work falling within the work description.
The Commission has decided issues very similar to the issue presented by
the Objector in an objection filed by the Eastern Missouri Laborers District
Council on April 7, 1997 pertaining to Occupational Title of work relating to
laborers and pipefitters in the following counties: Franklin, Gasconade, Jefferson, Lincoln, Montgomery, St. Charles,
St. Louis City, St, Louis, Warren, Washington (Objection #13) and Objections
filed by Western Missouri and Kansas Laborers District Council on April 4, 1997
to Annual Wage Order No. 4, pertaining to Occupational Title of work relating
to Laborers in the following counties:
Cass, Clay, Dade, Dallas, Greene, Jackson, Platte, Polk, Ray, and Taney
(Objection #2); issued by the Division of Labor Standards, Department of Labor
and Industrial Relations, filed with the Secretary of State: March 7, 1997.
Both res judicata and collateral estoppel
require that the parties be the same or that there is privity between the
parties or identity of the parties against whom either doctrine is sought.[1] See, King General Contractors, Inc. v.
Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495,
500 (Mo.banc 1991). Privity is
established when “the interests of the nonparty are so closely related to the
interests of the party that the
nonparty can be fairly considered to have had
his or her day in court. Privity is not
established because the parties are interested in the same question or in
proving or disproving the same state of facts.” Cox v. Steck,
Order of Labor Commission Page
2
Objection No. 17
Annual Wage Order No. 7
992 S.W.2d 221, 224 (Mo.App. 1999). “Whether parties are in privity for
collateral estoppel purposes depends mostly on their relationship to the
subject matter of the litigation.” Land
Clearance for Redevelopment Authority of the City of St. Louis v. United States
Steel, 911 S.W.2d 685 (Mo.App. 1995).
Intervenors Plumbers and Pipe Fitters and the
Trades Council allege that the Objector and the Laborers are in privity with
each other, but they presented no evidence or affidavits which establish the
same. Objector admits that there is a
collective bargaining agreement between the Objector and the Laborers, but this
is insufficient to show that the Objector’s and the Laborer’s interests are so
closely related as to find that the Objector effectively had its day in court
when the Laborers filed objections in the past regarding work performed on
pressurized pipe outside of buildings.
The fact that both parties have a similar interest in the occupational
title of pipe fitter as it includes work performed on pressurized pipes outside
of buildings is not enough to establish an identity of the parties or to
establish privity between the Objector and the Laborers.
Intervenors Plumbers and Pipe Fitters and the
Trades Council also argue that the Commission lacks jurisdiction to order the
relief requested by Objector. We
disagree. Section 290.262 RSMo
authorizes the Department to establish or alter occupational titles once each
year in the annual wage order. The
Department is under the control, management and supervision of the Labor and
Industrial Relations Commission.
§ 286.010 RSMo as amended. The Commission delegated its duty to
promulgate the annual wage order to the Division of Labor Standards. 8 CSR 30-1.010. The Division issues an annual wage order pursuant to
§ 290.262 RSMo each year and any affected
person may file an objection to any portion of the wage order with the
Commission. The Commission “shall rule
on the written objection and make the final determination that it believes the
evidence warrants.” § 290.262.6
RSMo. The Commission has jurisdiction
to amend the annual wage order by creating a new occupational title. See, also, Associated General Contractors
v. Dept. of Labor, 898 S.W.2d 587, 590-591 (Mo.App. 1995). Any creation of a new occupational title as
a result of the adjudicatory process is only effective for the year that the
wage order is in effect and only applies to the parties involved in the suit. Bruemmer v. Mo. Dept. of Labor Relations,
997 S.W.2d 112, 117 (Mo.App. 1999).
Intervenors Plumbers and Pipe Fitters’ and
the Trades Council’s, Motion to Dismiss is denied.
The hearing on the this objection is set for
9:00 a.m., Thursday, June 1, 2000, in Hearing Room 110 on the first floor of
the Department of Labor and Industrial Relations Building, 3315 West Truman
Boulevard, Jefferson City, Missouri.
Given at the City of
Jefferson, State of Missouri, this 26th day of May, 2000.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
V A C A N T
Christian C.R. Wrigley, Member
Attest: Matthew W. O’Neill, Member
____________________________
Pamela M. Hofmann
Secretary
[1] We recognize that there are a total of four elements to both collateral estoppel and res judicata and that there is a difference between the two doctrines. Because the element of privity or identity of the parties is not met, we need not discuss the other elements nor the difference between the two doctrines because lack of privity or identity is dispositive.