Filed 1/8/01

 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANDY L. HESTAND, et al.,

Plaintiffs and Appellants,

v.

MARCY SAUNDERS, as Labor Commissioner, etc., et al.,

Defendants and Respondents.

 

 

G024918

(Super. Ct. No. 794274)

ORDER MODIFYING OPINION

AND DENIAL OF PETITIONS

FOR REHEARING; NO CHANGE

IN JUDGMENT

It is ordered that the opinion filed herein on December 8, 2000, be modified in the following particulars:

1. On page 5, delete the last full paragraph and replace with the following:

In 1980, when the IWC set a new state minimum wage in Order MW-80, the order reiterated that "[e]mployees engaged in certain on-site activities in . . . construction are not covered by Industrial Welfare Commission industry and occupation orders . . . ." (Cal. Code Regs., tit. 8, former § 115670.7)

2. On page 5, delete the last sentence of footnote 6, beginning with "To

date."

3. On page 6, at the end of the first full paragraph, add the following new footnote: While the Commission correctly insists that the letters are not regulations and not subject to the provisions of the APA, they are nonetheless part of the record.

4. On page 6, in the first paragraph under heading I, change the last sentence to read: He contends, without citation of authority, that extrinsic evidence of the IWC’s intent may not be considered in interpreting a regulation that is unambiguous on its face.

5. On page 8, in the last full paragraph, the sentence beginning with "Here, Hestand sought," delete the italicized word "consider" and replace it with the italicized word "process."

6. On page 10, in the second full paragraph, delete the sentence near the end of the paragraph that begins with "Rather," and replace it with the following: Rather, we must independently decide if the DLSE’s interpretation of non-coverage was correct.

7. On page 11, replace the last sentence of the last paragraph with the following: Considering the scope of the wage order free of any duty to defer to the DLSE’s position, we conclude that it was never intended to apply to on-site construction activities, and petitioners are not entitled to relief.

This modification does not effect a change in the judgment.

The petitions for rehearing are DENIED.

BEDSWORTH, J.

WE CONCUR:

 

 

SILLS, P. J.

 

 

RYLAARSDAM, J.