Tucker Co. SWA wants court to stop wage probe

By The West Virginia Record | Feb 29, 2008

PARSONS -- The Tucker County Solid Waste Authority wants the state Supreme Court to stop the state Division of Labor from continuing a 3-year-old investigation into wages paid to mostly temporary workers.

The state claims that the authority owes nearly $200,000 for employing 10 people to excavate a site for a new cell at the landfill in 2003. The workers should have been paid "prevailing wage," according to the state, an hourly figure the state sets for construction projects that are undertaken with state money.

The authority, however says the workers were direct employees and therefore not entitled to the higher wages.

"The legislative history of the prevailing wage statue demonstrates beyond serious dispute that our Legislature intended for the law to apply to contractors and subcontractors on public construction projects, just like the federal Davis-Bacon Act after which it was modeled," the authority's attorneys, Rodney Bean and Christi Stover, write in their petition to the high court. "It did not intend to require payment of prevailing wage where a school board uses its own employee to fix a sink or a state park uses its own staff to paint a building."

The Division of Labor, on the other hand, says the authority violated the very spirit of the prevailing wage law. According to its filing, a ruling in favor of the authority "would permit all public authorities to circumvent purpose of the act by simply hiring employees whenever work on a public improvement construction project was needed, and then terminating them when their work was completed.

The cost-saving motivation would simply be too tempting to ignore, and it would be entirely unnecessary for a public authority to enter into a contract for such work."

State officials also say the two-and-a-half year delay between when the Division of Labor issued its findings and when the authority asked for the Supreme Court to intervene "constitutes an apparent concession of the validity of the division's position, and begs the question why it waited to long to file."

The division's attorneys ask that the administrative process to continue.

Attorneys for the authority say it's appropriate for the Supreme Court to stop the process to avoid more time and money being expended on a case that likely would be appealed back to the Supreme Court anyway.

In an additional response filed earlier this month, the state also questions whether the excavation project should be been put out for bid in the first place.

"The questions then are whether TCSWA should have solicited bids for the excavation work and, if so, can TCSWA avoid complying with the prevailing wage statute because it failed to comply with the government construction contracts statute," according to the filing. "If TCSWA should have solicited bids and contracted for this work, and it clearly appears that it should have, this court should not allow TCSWA's failure to properly comply with the bidding statute to serve as a reason for not having to comply with the prevailing wage statute because there was no contract involved."

The West Virginia State Building and Construction Trades Council has filed a brief in support of the state's position, and the Affiliated Construction Trades Foundation, a consortium of labor groups, profiled the case on the front of its February newsletter.

The hearing before the Supreme Court was Tuesday. It's not clear when a ruling will be issued.

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