INTERNATIONAL BROTH. v. Dept. of Labor

• Decision Date: 16 January 2003
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Local Union No. 98, Petitioner, v. DEPARTMENT OF LABOR AND INDUSTRY, Prevailing Wage Appeals Board, Respondent.
• Court: Pennsylvania Commonwealth Court

816 A.2d 1220

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Local Union No. 98, Petitioner, v. DEPARTMENT OF LABOR AND INDUSTRY, Prevailing Wage Appeals Board, Respondent.

Commonwealth Court of Pennsylvania.

Argued December 3, 2002.

Decided January 16, 2003.

Reargument Denied March 18, 2003.

Cassie R. Ehrenberg, Philadelphia, for petitioner.

Kathryn J. McDermott, Harrisburg, for intervenor, Bureau of Labor Law Compliance.

Charles F.X. Szymanski, Philadelphia, for intervenor, Communications Workers of America District 13 AFL-CIO.

BEFORE: PELLEGRINI, Judge, and MARY LEAVITT, Judge, and FLAHERTY, Senior Judge.

OPINION BY Senior Judge FLAHERTY.

The International Brotherhood of Electrical Workers, Local Union No. 98 (Local 98) petitions for review from a decision of the Department of Labor's Prevailing Wage Appeals Board (Board). The Board upheld a decision of the Secretary of Department and Labor and Industry (Department or Secretary) setting the prevailing wage rate for telecommunications work performed for the School District of Philadelphia (District). We affirm.

The following background is relevant to this case. In 1996, pursuant to the Pennsylvania Prevailing Wage Act (Act), Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1—165-17, the Secretary conducted a wage survey and reported that the rate in the collective bargaining agreement (CBA) between the National Electrical Contractors Association (NECA) and Local 98, commonly referred to as the "inside wire agreement," was the prevailing rate for electrical work performed in the Philadelphia area. The inside wire agreement also covered telecommunications work.

In 1998, Local 98 entered into a second collective bargaining agreement, commonly referred to as the "sound and communication agreement." In contrast to the $45.24 hourly rate set forth in the inside wire agreement, the sound and communication agreement contained technician rates for telecommunication work ranging from $28.82 to $33.32 per hour. Telecommunication work is covered under both the inside wire agreement and the sound and communication agreement.

The dispute in this case centers on work performed for the District beginning in 1996. At that time, the prevailing wage rate for work performed for the District was that in the inside wire agreement. In 1997, District entered into a contract with Lucent Technologies to perform telecommunication upgrades. It is undisputed, however, that the District failed to obtain the required wage determinations pursuant to its obligation under the Act and workers began to file complaints of Act violations. As such, the Bureau of Labor Law Compliance (Bureau) met with officials from the District on September 13, 2000, wherein it was agreed that the project was covered by the Act and that District would request a prevailing wage determination.

At the September 13, 2000 meeting, District presented Bureau with a copy of Local 98's sound and communication agreement, advocating use of the telecommunication technician rates contained in the document, for use in the District's project. On September 19, 2000, Bureau sent a letter to Local 98 asking its position regarding the applicability of the sound and communication agreement rates to the District's project. When Local 98 did not respond, the Bureau director placed calls to Local 98 on October 3, 2000, but was unsuccessful in reaching Local 98's business manager. On October 4, 2000, the Bureau issued wage predeterminations containing wages and classifications identical to those contained in the sound and communication agreement.

Local 98 appealed the decision and District, Verizon Communications, and the Communications Workers of America petitioned to intervene. The Secretary appointed a hearing examiner who held a hearing on Local 98's appeal on April 4, 2001 and denied Local 98's appeal in a decision dated April 12, 2001, adopting the predetermined wage rates as the Secretary's final determination.

The Secretary's decision determined that there exists a separate classification for telecommunication workers. Although workers may have previously been paid rates under the inside wire agreement, the Secretary determined that the work presently being done at the District differed from that described in the inside wire agreement. Namely, under the inside wire agreement, much of the work was performed by electricians who traditionally worked with high voltage wiring, conduits, raceways and wire molds. Telecommunication workers do low voltage wiring for telephones and computers and have different training and certification. The decision stated that the work being done at the District controls the classification and that indeed the work being done was that of telecommunications and set the rate in the sound and communications agreement as that of the prevailing wage. Local 98 appealed to the Board, which affirmed the Secretary's decision on January 17.2002. This appeal followed. The Communications Workers of America, District 13, AFL-CIO are Intervenors.

Our review is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. York Excavating Co. v. Pennsylvania Prevailing Wage Appeals Board, 663 A.2d 840 (Pa. Cmwlth.1995).

The first issue raised is whether the Board erred in affirming the Secretary's prevailing wage rate where such was determined based on a single CBA, the sound and communication agreement, rather than considering results of its own survey, other collective bargaining agreements and other information.

Initially, we observe that the purpose of the Act is to protect workers employed on public projects from substandard pay by ensuring that they receive the prevailing minimum wage. Butler Balancing Co. v. Department of Labor and Industry, 780 A.2d 840, 844 (Pa.Cmwlth. 2001). Every public body that engages in the construction of a public work project must receive a determination from the Secretary as to the prevailing minimum wage rates to be paid to workers. Pennsylvania State Building and Construction Trades Council v. Prevailing Wage Appeals Board, 722 A.2d 1139 (Pa.Cmwlth. 1999).

Local 98 takes issue with the Board's reasoning that "no clear guidance" exists as to which CBA governs. Assuming that there is no such guidance, the Secretary could not have chosen one CBA over another as it did in this case. Here, the Secretary should have ascertained information in determining which CBA was applicable. Pursuant to 34 Pa.Code § 9.105(d), the Secretary is required to conduct an ongoing program for determining the actual prevailing rates in any locality. Relevant portions of 34 Pa.Code § 9.105(d) provide:

The Secretary shall conduct a continuing program for obtaining and compiling of wage rate information and shall encourage the voluntary submission of wage rate data by contractors, contractors' associations, labor organizations.... If the Secretary deems that the data at hand is insufficient to make a determination with respect to the crafts or classifications... he may have a field survey conducted ... for the purpose of obtaining additional information upon which to make a determination of the wage rates and also the customs, usages and practices as to the type of work to which the wage rates apply and the size of available force of qualified workmen....

Here, the Secretary was obligated to gather available data in determining a wage. However, the Secretary based...