Senate Bill No. 216
(By Senators Carmichael and Blair)
[Introduced February 19, 2013; referred to the Committee on
Labor; and then to the Committee on the Judiciary .]
A BILL to amend and reenact §21-5A-5 of the Code of West Virginia,
1931, as amended, relating to establishing prevailing hourly
rates are to be used in connection with the construction of
public improvements; and providing for review and appeal.
Be it enacted by the Legislature of West Virginia:
That §21-5A-5 of the Code of West Virginia, 1931, 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 January 1 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 Division 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 it's 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 that prevailing
hourly rates be used in connection with the construction of public
improvements. The bill provides that the Commissioner of Labor to
base the determination of prevailing rates on statistics made
available by the United States Division of Labor, Bureau of Labor
Statistics. The bill provides a county commission with the
authority to review the determination. The bill also provides for
appeals to the circuit court and the Supreme Court of Appeals.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would