Senate Bill No. 167
(By Senator Oliverio)
[Introduced January 17, 2003; referred to the Committee on Labor;
and then to the Committee on Government Organization.]
A BILL to repeal section five, article five-a, chapter twenty-one
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend article two, chapter
twenty-one-a of said code by adding thereto two new sections,
designated sections seven and seven-a, all relating to
establishment of prevailing wage rates by department of labor;
statement of legislative findings; and transferring all
powers, duties and functions related to establishing of
prevailing wage rates to the bureau of employment programs.
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amended, be repealed; and that article two, chapter twenty-one-a of
said code be amended by adding thereto two new sections, designated
sections seven and seven-a, all to read as follows:
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT PROGRAMS.
§21A-2-7. Legislative findings; transfer of powers and duties
related to prevailing wage rates from department of
labor to commissioner.
(a) The Legislature hereby finds and declares that:
(1) The commissioner of the bureau of employment programs is
better suited than the department of labor to set prevailing wage
rates because the bureau collects wage data for workers'
compensation and unemployment compensation; and
(2) A transfer of the powers and duties associated with
setting prevailing wage rates from the department of labor to the
bureau for employment programs would serve the public interest by
eliminating duplication of effort and resulting in a more
streamlined and efficient process performed by one agency instead
(b) All powers, duties and functions of the department of
labor that are associated with setting prevailing wage rates are
hereby transferred to the commissioner of the bureau for employment
§21A-2-7a. Prevailing wages to be established at regular intervals;
how determined; filing; objection to determination;
hearing; final determination; appeals to board of
review; judicial review.
(a) The commissioner shall, from time to time, 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 of each year and shall remain in effect during
the successive year: Provided, That such rates shall not remain in
effect for a period longer than fifteen months from the date they
are published. In determining such prevailing rates, the
commissioner 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.
(b) A copy of the determination so made, certified by the
commissioner, shall be filed immediately with the secretary of
state and with the department of labor. Copies shall be supplied
to all persons who request same within ten days after the filing.
(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 or she considers objectionable by filing a written notice with
the commissioner stating the specific grounds of the objection.
(d) Within ten days of the receipt of the objection, the
commissioner 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.
(e) The commissioner may, in his or her discretion, hear
written objections separately or consolidate them for hearing. At
the hearing the commissioner shall introduce into evidence the
results of the investigation he or she instituted and any 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 the determination. The
commissioner or any objectors thereafter may introduce further
evidence as may be material to the issues.
(f) Within ten days of the conclusion of the hearing, the
commissioner must rule on the written objections and make the final
determination as shall be established by a preponderance of the
evidence. Immediately upon the final determination, the
commissioner shall file a certified copy of the final determination
with the secretary of state and with the department of labor and
shall serve a copy of the final determination on all parties to the
proceedings by personal service or by registered mail.
(g) Any person affected by the final determination of the
commissioner, whether or not the person participated in the
proceedings resulting in the final determination, may appeal to the
board of review established pursuant to article four of this chapter from the final determination of the commissioner within ten
days from the filing of the copy of the final determination with
the secretary of state. The board of review 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 commissioner and the board is authorized to affirm, reverse,
amend, or remand for further evidence, the final determination of
the commissioner. The board shall render its decision within ten
days after the conclusion of its hearing.
(h) Any party to the proceeding before the board of review or
any person affected thereby may within thirty days after receipt of
the notice of its 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 and before the board. The
decision of 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.
(i) Pending the decision on appeal, the rates for the
preceding year shall remain in effect.
NOTE: The purpose of this bill is to transfer the
responsibilities for setting prevailing wage rates from the
Department of Labor to the Commissioner of the Bureau for
§§21A-2-7 and 7a are new; therefore, strike-throughs and
underscoring have been omitted.