City of Kennett v. Labor and Indus. Relations Commission, 62202

• Decision Date: 13 January 1981
• Docket Number: No. 62202,62202
• Citation: 610 S.W.2d 623
• Court: Missouri Supreme Court
• Parties: 25 Wage & Hour Cas. (BNA) 516, 92 Lab.Cas. P 55,303 CITY OF KENNETT, a municipal corporation, Plaintiff-Respondent-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, Defendant-Appellant-Respondent.

Page 623

610 S.W.2d 623

25 Wage & Hour Cas. (BNA) 516, 92 Lab.Cas. P 55,303

CITY OF KENNETT, a municipal corporation, Plaintiff-Respondent-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION,

Defendant-Appellant-Respondent.

No. 62202.

Supreme Court of Missouri, En Banc.

Jan. 13, 1981.

Wendell W. Crow, Kennett, for plaintiff-respondent-appellant.

John Ashcroft, Atty. Gen., Brenda Engel, Asst. Atty. Gen., Jefferson City, for defendant-appellant-respondent.

Albert J. Yonke, Kansas City, for amicus curiae.

HIGGINS, Judge.

The Labor and Industrial Relations Commission and the City of Kennett appeal a judgment which reversed and remanded for reconsideration prevailing wage determinations made by the Commission for street, water and sewer system improvements in Kennett. This Court accepted transfer of the case prior to opinion from the Court of Appeals, Southern District. Mo.Const. art. V, § 10. The principal question is whether the Commission's determinations are supported by competent and substantial evidence on the record. The judgment is reversed and the cause is remanded for a judgment affirming the Commission's decision.

This case is governed by the Prevailing Wage Act, §§ 290.210-290.340, RSMo 1978, enacted by the General Assembly in 1957. Under the Act, all workmen employed by private contractors in the construction of public works must be paid not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed. Section 290.230; City of Joplin v. Industrial Commission, 329 S.W.2d 687, 692 (Mo. banc 1959). "Locality" in this case is the county where the physical work is performed. Section 290.210(3). Before advertising for bids or undertaking construction, public bodies are required to request the Commission to determine the prevailing rate of wages for workmen for the class or type of work called for by the public works. Section 290.250. In making a determination, it is necessary for the Commission to ascertain and consider the applicable wage rates established by collective bargaining agreements and the rates that are paid generally within the locality. Section 290.260(1). The Commission established rules and regulations contained in the Code of State Regulations which delegated to the Division of Labor Standards the responsibility of administering the prevailing wage law. See § 290.240(2); 8 C.S.R. 30-1.010. The Division initially responds to requests for wage determinations, 8 C.S.R. 30-3.010; the Commission conducts hearings on any objections, and issues final determinations as it believes the evidence warrants. Section 290.260(6); 8 C.S.R. 20-5.010. A decision of the Commission is subject to review under the provisions of Chapter 536, RSMo 1978. Section 290.260(7).

The city engineer of Kennett, Missouri, filed two wage determination requests with the Division of Labor Standards; one for water and sewer projects, and one for asphalt surfacing of existing graveled streets. The Division issued wage determinations which listed the prevailing rate of wages for classes of workers to be employed on the projects. These wage determinations came from a master list of wage and hour history which is maintained and updated from time to time by the Division. The City sent a notice of objection to the Commission concerning the wage determinations. The Commission notified the City that a hearing on its objection would be conducted in Jefferson City. After receiving the notice of objection, the Division undertook a survey of construction activity in Dunklin County to ascertain whether the wage determinations were accurate. The hearing was held, and the Commission thereafter issued final wage determinations for the Kennett projects. The City filed a petition for review of the Commission's wage determinations in the Circuit Court of Dunklin County. That court concluded that the Commission failed to determine the prevailing rates as contemplated by §§ 290.210-290.340, and remanded the cause to the Commission for reconsideration and receipt of additional evidence.

Upon review this Court must determine whether the action of the agency violated constitutional provisions; exceeded statutory authority or jurisdiction; was unsupported by competent and substantial evidence upon the record as a whole; was unauthorized by law; was predicated upon unlawful procedures, or without a fair trial; was arbitrary, capricious or unreasonable; or involved an abuse of discretion. Section 536.140(2).

The following evidence was before the Commission at the hearing upon the City's objection to the Division's preliminary wage determinations:

Voluminous payroll records of various contractors on construction projects in Dunklin County in 1977 and 1978 which when compiled reflected basic wage rates for laborers at $7.75 to $10.50 per hour rates for teamsters at $8.10 to $9.63 per hour; and rates for teamsters at $8.10 to $9.63 per hour; and rates for operating engineers at $8.30 to $10.45 per hour; ¹

Collective bargaining agreements applicable to Dunklin County which reflected wage rates for operating engineers at $8.65 to $10.05 per hour, rates for teamsters at $8.80 to $9.17 per hour, and rates for laborers at $8.55 to $9.20 per hour;

The testimony of Don E. Robinson, president and manager of Kennett Concrete, Inc., which indicated he paid wages of $2.75 per hour for laborers and $4.00 per hour for screedmen in the construction of parking lots and driveways; and

The testimony of Gary Don Young, partner in Young's Construction Company, which indicated that the wages paid by his company for construction of water and sewer mains was $4.00 per hour for laborers, $5.00 per hour for pipe layers, and $6.00 per hour for the operator of the backhoes, boring machine and crawler tractor.

In its findings, the Commission noticed this evidence; recognized that most of the Division's evidence reflected wages for highway, county, road and bridge construction projects; determined this heavy construction to be similar to the proposed projects; and stated that "in weighing the evidence we find that the greater weight of the evidence presented supports the wage determinations of the Division of Labor Standards": $10.90 per hour for carpenters, $9.05 to $10.45 per hour for operating engineers, $8.80 to $9.17 per hour for teamsters, and $8.55 to $9.30 per hour for laborers.

Section 290.210(5) defines prevailing wage as "wages paid generally, * * * to workmen engaged in work of a similar character * * *." "Similar" does not mean the same or identical; any work in heavy construction that could reasonably be found to be similar should be considered. City of Joplin v. Industrial Commission, supra at 695.

Although there was evidence presented to the Commission that the quality of work and the type of workmen and machinery to be utilized by the City of Kennett was not the same as that utilized on State Highway Commission projects, this is a matter for the Commission's determination requiring the exercise of its discretion. This Court has no authority to weigh the evidence and to determine for itself the facts of the case. United Brotherhood of Carpenters and Joiners v. Industrial Commission, 363 S.W.2d 82, 89 (Mo.App.1962).

As stated in Board of Education v. Shank, 542 S.W.2d 779, 781-82 (Mo. banc 1976):

In reviewing an administrative decision on evidentiary grounds, the court considers all evidence before the board (Commission), but its inquiry is limited. The reviewing court may only determine whether the board (Commission) could reasonably have made its findings and reached its result or whether the decision was clearly contrary to the overwhelming weight of the evidence. * * * The court may not substitute its judgment on the evidence and may not set aside the board's (Commission's) decision unless it is not supported by competent and substantial evidence on the whole record. In addition, the evidence must be considered in a light most favorable to the board's (Commission's) decision, together with all reasonable inferences which support it. * * * If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding. * * * Also, the determination of the credibility of witnesses is a function of the administrative...