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Industrial Contractors, Inc. v. Taylor

Supreme Court of North Dakota

July 31, 2017

Industrial Contractors, Inc., Appellant
v.
Leonard Taylor, Claimant and Appellee and Workforce Safety and Insurance, Respondent

         Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

          Lawrence E. King, Bismarck, ND, for appellant.

          Leonard Taylor (on brief), Roseville, GA. Amanda J. Brossart, Bismarck, ND, for claimant and appellee. Jacqueline S.

          Anderson (on brief), Special Assistant Attorney General, Fargo, ND, for respondent.

          OPINION

          KAPSNER, JUSTICE.

         [¶ 1] Industrial Contractors, Inc., appeals from a judgment affirming a decision by an independent administrative law judge determining Leonard Taylor's employment with Industrial Contractors was not seasonal employment. Industrial Contractors argues the ALJ misapplied the law for determining seasonal employment. We conclude the ALJ misapplied the law and the ALJ's decision is not supported by a preponderance of the evidence. We reverse and remand.

         I

         [¶ 2] Industrial Contractors provides contract construction services for industrial clients and hires employees for its contracted projects by sending referral requests to local unions. Industrial Contractors has a collective bargaining agreement with the western North Dakota IBEW Local Union 714, under which Industrial Contractors may transfer employees hired through the Union from job to job. According to Randy Bartsch, business manager for IBEW Local 714, Industrial Contractors "has frequently moved employees from job to job and is currently moving employees to various projects as needed." According to Tyler Svihovec, the safety and risk manager for Industrial Contractors, its hiring process involves calling the applicable union halls for employees. Svihovec testified the "vast majority" of employees hired in that manner are laid off when a project is completed and it is "somewhat atypical" for Industrial Contractors to transfer an employee to other jobs.

         [¶ 3] Taylor sustained a work-related injury on March 11, 2014, while working for Industrial Contractors through a referral with the IBEW Local Union 714 as a journeyman electrician at a power plant shutdown for scheduled maintenance. According to Taylor, his referral with Industrial Contractors was under a "long call" that could last indefinitely. According to Industrial Contractors, it hired Taylor in March 2014 for a spring power plant shutdown for scheduled maintenance lasting anywhere from six to twelve weeks. Svihovec testified Taylor was hired for a shutdown that was scheduled to end on May 16, 2014, and he was injured on his second day of work. According to Svihovec, Industrial Contractors hired Taylor for work that was not permanent and did not customarily operate throughout the entire year.

         [¶ 4] Workforce Safety and Insurance ("WSI") accepted liability for Taylor's injury and initially decided his job with Industrial Contractors was seasonal employment under N.D.C.C. § 65-01-02(27) because it was subject to layoffs and was temporary, with an estimated completion date of May 16, 2014. Under that classification and N.D.C.C. § 65-01-02(5), WSI calculated Taylor's disability benefits based on an average weekly wage of $2, 246 during the first twenty-eight consecutive days of his disability and thereafter on an average weekly wage of $681.

         [¶ 5] After a formal hearing requested by Taylor, the ALJ determined Taylor's employment was not seasonal employment. The ALJ decided electricians hired by Industrial Contractors on regular referrals work an indefinite duration; they do not qualify as "not permanent" employees and they are not seasonal employees. The ALJ decided Industrial Contractors hired Taylor to do electrical work at the power plant under a regular referral and his employment would last until Industrial Contractors no longer needed him. The ALJ denied WSI's petition for reconsideration, which was joined by Industrial Contractors. The district court affirmed the ALJ's decision.

         [¶ 6] Industrial Contractors appealed the decision of the district court. WSI filed a brief in support of and adopting the legal arguments of Industrial Contractors on appeal.

         II

         [¶ 7] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, courts exercise limited appellate review of a final order by an administrative agency. Workforce Safety & Ins. v. Auck, 2010 ND 126, ¶ 8, 785 N.W.2d 186. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court and this Court must affirm an administrative agency order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the ...

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