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.
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
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.
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
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 ...