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Contractor wins skirmish in prevailing-wage war

Brian Johnson
Dolan Media Newswires

St. Paul, MN — Bob Comstock has reason to believe that he has spent more time banging his head against walls than building walls in recent years.

The owner of Comstock Construction has been embroiled in a prolonged dispute with state officials over Minnesota’s prevailing-wage law, which requires contractors on projects paid for with state money to pay their workers a certain minimum wage that’s comparable to similar work in the community.

Minnesota Department of Transportation officials say Comstock Construction — an 85-year-old family-owned company with offices in North Dakota and Minnesota — violated the law in the early 2000s when it built an expansion of MnDOT’s regional headquarters in Detroit Lakes.

The company denies the allegations and has been fighting ever since — even as it has spent more than $200,000 in legal fees. Bob Comstock accuses the department of dragging out the case to wear him down.

“Their tactics are to delay, cause expense,” he said in a phone interview.

Attorneys for Comstock say MnDOT wrongfully withheld a $27,000 final payment to the contractor for work performed on the headquarters project. MnDOT withheld payment because department officials said Comstock violated prevailing-wage laws and owed more than $98,000 in back wages on the job.

On Sept. 29, Comstock won a round in the fight when Administrative Law Judge Eric Lipman of the state’s Office of Administrative Hearings recommended that MnDOT dismiss its prevailing-wage claims against Comstock and pay the company $27,074.86.

“The best result is for the [MnDOT] commissioner to do what lower-level officials did not: Wipe this slate clean,” according to a statement attributed to Lipman in a 52-page OAH document, which was based in part on an “evidentiary hearing” held in June.

“The commissioner should abandon MnDOT-OCIC’s (Office of Construction and Innovating Contracting) claim for back wages and release the contract amounts that the department has retained.”

Lipman’s recommendation is a victory for Comstock, but it’s probably not the final word on the case.

MnDOT could accept all or parts of the judge’s recommendation. The department previously rejected a similar recommendation from the administrative law judge. If the department rejects the recommendation, Comstock could appeal.

“It certainly is a big victory for our client, but I don’t know if the battle is going to continue or not,” said Thomas Revnew, a shareholder with Seaton Beck & Peters, which represents Comstock.

MnDOT communications director Kevin Gutknecht said it’s not appropriate for MnDOT to comment on the case because it’s still in litigation.

Brendan Cummins, a local attorney who represents union members, believes the commissioner should reject Lipman’s recommendation.

“ALJ Lipman and Comstock find the existing prevailing-wage rules impossible to comply with. Others, however, seem to manage it,” according to an e-mail attributed to Cummins, lead partner in the labor law practice of Minneapolis law firm Miller O’Brien Cummins.

“The contractors my union clients work with and the members they represent find MnDOT’s current approach to enforcement to be practical and workable. The old saying is, if it ain’t broke, don’t fix it. We see no need to cast aside decades of department practice.”

Under the state’s prevailing-wage law, contractors working on state-funded construction projects “must be paid wage rates comparable to wages paid for similar work in the area where the project is located,” according to the Minnesota Department of Labor and Industry.

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