H. B. 2734
(By Delegates Overington, Carmichael,
Andes and J. Miller)
[Introduced January 21, 2011; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then 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 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 §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 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 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 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.