The Massachusetts Appeals Court has found that an employer may not seek court review of a DLS opinion letter on job classification or wage rate without first appealing the determination through the administrative process. Yankee Technology, Inc. v. Commissioner of the Division of Occupational Safety, 13-P-432 (2/5/14). The Appeals Court affirmed the Superior Court’s decision that certiorari and declaratory judgment are not available when bypassing M.G.L. c. 149, section 27A. The DLS (formerly DOS) sets prevailing wages for employees engaged in the construction of public works by reference to collective bargaining agreements and understandings in the construction industry. Section 27A describes how to appeal the DLS classification or rate determination, by serving notice of appeal within five days of the first advertisement or call for bids. The DLS issued three opinion letters regarding certain tasks performed by employees of Yankee Technology, Inc. Yankee never sought appeal under section 27A, but sought declaratory and certiorari relief in Superior Court. The Appeals Court upheld the finding of the Superior Court that the opinion letters did not arise from a “judicial or quasi-judicial proceeding,” therefore, certiorari relief was unavailable. Since Yankee had bypassed the administrative remedy under section 27A, neither certiorari nor declaratory relief was available.
This decision follows two other recent decisions by the Massachusetts Supreme Judicial Court and Superior Court that declined to address an employer’s challenge to the binding effect of DLS opinion letters.