H. B. 2155
(By Delegate Overington)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section five, article five-a, chapter
twenty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to establishing
prevailing hourly rates to be used in connection with the
construction of public improvements; and providing appeal to
county commission.
Be it enacted by the Legislature of West Virginia:
That section five, article five-a, chapter twenty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5A. WAGES FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS.
§21-5A-5. Prevailing wages established at regular intervals;
how determined; filing; objections to
determination; hearing; final determination; judicial review.
(1) (a) The department commissioner of labor, from time to
time, shall investigate and determine the prevailing hourly rate
of wages in the localities in this state. Determinations thereof
shall be made annually on the first day of January one of each
year and shall remain in effect during the successive year:
Provided, however, That such the rates shall may not remain in
effect for a period longer than fifteen months from the date they
are published.
In determining such prevailing rates, the department of
labor may ascertain and consider the applicable wage rates
established by collective bargaining agreements, if any, and such
rates as are paid generally within the locality in this state
where the construction of the public improvement is to be
performed. The commissioner of labor shall base the
determination of prevailing rates on statistics made available by
the United States department of labor, bureau of labor
statistics.
(2) (b) A copy of the determination, so made certified by
the secretary of the board commissioner, shall be filed
immediately with the secretary of state. and with the department
of labor Copies shall be supplied to all persons requesting same
them within ten days after such the filing.
(3) (c) At any time within fifteen days after the certified
copies of the determination have been filed with the secretary of
state, and the department of labor any person who may be affected
thereby may object in writing to the determination or such part
thereof as he deems or she finds objectionable by filing a
written notice with the department of labor county commission of
the county where the construction is to be performed stating the
specific grounds of the objection.
(4) (d) Within ten days of the receipt of the objection, the
department of labor county commission
shall set a date for a
hearing on the objection. The date for the hearing shall be
within thirty days after the receipt of the objection. Written
notice of the time and place of the hearing shall be given to the
objectors at least ten days prior to the date set for the hearing
and at a time so as to enable the objectors to be present.
(5) (e) The department of labor county commission
at its
discretion may hear such the written objection separately or
consolidate for hearing any two or more written objections. At
the hearing the department commissioner of labor shall introduce
into evidence the results of the investigation it he or she
instituted and such the other facts which were considered at the
time of the original determination of the fair minimum prevailing
hourly rate including the sources which formed the basis for its his or her determination. The department commissioner of labor
or any objectors thereafter may introduce such further other
evidence as may be material to the issues.
(6) (f) Within ten days of the conclusion of the hearing,
the department must county commission shall rule on the written
objections and make such a final determination as shall be
established that is supported by a preponderance of the
evidence. Immediately upon such the final determination, the
department of labor
county commission
shall file a certified copy
of its final determination with the secretary of state and with
the department commissioner of labor and shall serve a copy of
the final determination on all other parties to the proceedings
by personal service or by registered or certified mail.
(7) (g) Any person affected by the final determination of
the department of labor
county commission,
whether or not such
the person participated in the proceedings resulting in such the
final determination, may appeal to the board from the final
determination of the department of labor within ten days from the
filing of the copy of the final determination with the secretary
of state. The board shall hear the appeal within twenty days
from the receipt of notice of appeal. The hearing by the board
shall be held in Charleston. The hearing by the board shall be
upon the record compiled in the hearing before the department of labor and the board shall have the authority to affirm, reverse,
amend, or remand for further evidence, the final determination of
the department of labor. The board shall render its decision
within ten days after the conclusion of its hearing.
(8) Any party to the proceeding before the board or any
person affected thereby may within thirty days after receipt of
the notice of its the decision, appeal the board's decision to
the circuit court of the county wherever the construction of a
public improvement is to be performed, which shall consider the
case on the record made before the commissioner of labor and
before the board county commission. The decision of such the
circuit court may be appealed to the supreme court of appeals of
West Virginia by any party to the proceedings or by any person
affected thereby in the manner provided by law for appeals in
civil actions.
(9) (h) Pending the decision on appeal, the rates for the
preceding year shall remain in effect.
NOTE: The purpose of this bill is to require the
Commissioner of Labor to base the determination of prevailing
rates on statistics made available by the United States
department of labor, bureau of labor statistics, and to provide
county commissions with the authority to review the
determination.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.