Parish Council of East Baton Rouge Parish v. Louisiana Highway & Heavy Branch of Associated General Contractors, Inc.

Decision Date22 May 1961
Docket NumberNo. 5178,5178
Citation131 So.2d 272
PartiesPARISH COUNCIL OF PARISH OF EAST BATON ROUGE, Louisiana, in its Capacity as the Governing Authority of the Greater Baton Rouge Consolidated Sewerage District, et al., Plaintiff-Appellee, v. LOUISIANA HIGHWAY AND HEAVY BRANCH OF ASSOCIATED GENERAL CONTRACTORS, INC., Defendant-Appellant.
CourtCourt of Appeal of Louisiana — District of US

Breazeale, Sachse & Wilson, Baton Rouge, for appellant.

R. Gordon Kean, Jr., Baton Rouge, for appellee.

Alvin J. Liska, City Catty., New Orleans, Cassibry, Jackson & Hess, New Orleans, amici curiae.

Before ELLIS, LOTTINGER, JONES and LANDRY, JJ.

ELLIS, Judge.

The question presented on this appeal is whether the Parish Council of the Parish of East Baton Rouge, Louisiana, in its capacity as the governing authority of the Greater Baton Rouge Consolidated Sewerage District, had the legal right to require contractors submitting bids on the construction of public sewerage facilities to pay minimum wage rates in accordance with the following contract provisions:

'8.12 Prevailing Wage Rates:

'Minimum labor rates for the construction of the proposed work shall be in accordance with the minimum labor rates prevailing in the Baton Rouge area, as established by the Secretary of Labor for each of the labor classifications employed on the project. The bid shall contain a statement that the prices quoted are based upon such prevailing wage pates and the District may require the Contractor to file a schedule of labor classifications and wage rates being paid, and shall further have the right to inspect and audit the books and cost data relating to the job in order to determine compliance with these provisions.'

The case was tried upon stipulated facts and they are not in dispute.

On May 19, 1959, the property tax payers situated within the Greater Baton Rouge Consolidated Sewerage District, 1 which said District had been created by resolution adopted April 8, 1951, voted funds for the construction of sanitary trunk sewers and disposal facilities within the District. In pursuance of this authorization of the property tax payers, the Parish Council employed consulting and design engineers and caused to be prepared certain plans and specifications for the construction of the sanitary trunk sewers and disposal facilities of the District.

After a favorable election on May 19, 1959 for construction of the sewerage facilities, there followed on March 17, 1960 the bidding in accordance with the construction contract pursuant to public advertisement in accordance with law, and based upon plans and specifications contained in the contract documents which were made available to all contractors desiring to bid on the work, a copy of said contract documents are in this record marked Exhibit 'B'. Among the various provisions, terms and conditions set forth in the contract document were those contained in Section 8.12, supra, and also marked as Exhibit 'C', attached to the contract documents and in evidence are listed in detail the prevailing minimum wage scales designated as the minimum wages to be paid on the sewerage project by the successful bidder. Exhibit 'C' was the prevailing minimum wage rates for the Baton Rouge area required to be paid by the contractors on the Ryan Airport project. It was made by the Secretary of Labor of the United States under authority of the Davis-Bacon Act, 40 U.S.C.A. § 276a et seq., after surveys in order to determine the prevailing wages paid to the several classes of labor employed on a project similar to the Ryan Airport project. These determinations were required to be made on certain types of projects in which the United States Government has an interest or is participating in the costs. The Parish Council has never established a Commission or delegated any authority to anyone, nor established any rules or regulations for the making of a survey in order to determine the prevailing minimum wage scale in the Baton Rouge area, and being desirous of including in the contract for the public works a requirement of payment of minimum wage, according to a pre-determination of such minimum wage scales in the Baton Rouge area, and having participated in the Ryan Airport project along with the United States Government, the Parish Council contacted the Secretary of Labor of the United States for the purpose of getting the latter to make such a survey and establish the prevailing minimum wage scale in the Baton Rouge area.

The Secretary of Labor of the United States either refused or determined that his office would not itself make the usual minimum wage pre-determination as no Federal funds were involved in the project, however, that office did advise that the work in question would be classified as 'Heavy and Highway Construction' which was the same classification given the Ryan Airport project, in which the latest determination of minimum wage scales in the Baton Rouge area had been made under date of Nov. 23, 1959, and which had been given an expiration date of Feb. 24, 1960. The Parish Council therefore decided to adopt or use as the latest pre-determined prevailing minimum wage scale in the Baton Rouge area the one made and used on the Ryan Airport project. This prevailing minimum wage scale had been introduced as Exhibit 'D', and constitutes the same prevailing minimum wage rates in the Baton Rouge area, noted as Exhibit 'C', which is made a part of the Contract specifications for the work to be done in the Greater Baton Rouge Consolidated Sewerage District. For the sake of clarity we quote a part of the document, being Exhibit 'C', to-wit:

                            "Prevailing Minimum Wage Rates
                                   Baton Rouge Area
                  "For the purpose of applying Article 8.12 entitled
                 'Prevailing Wage Rates', the following represents the
                 latest decision of the Secretary of Labor for minimum
                    labor rates prevailing in the Baton Rouge area
                          for the classifications indicated
                                                              Per Hour
                                                              ---------
                Carpenters                                    $3.125
                Cement masons                                 2.85
                Ironworkers, structural                       3.40
                Ironworkers reinforcing                       3.275
                Painters, structural steel                    3.00
                Piledrivermen                                 3.125
                Laborers
                       Laborers, unskilled                    1.42
                       Raker                                  1.62
                       Concrete spreader                      1.62
                       Carpenters' helper                     1.62
                       Cement handler                         1.62
                       Finishers' helper                      1.62
                       Form setter's helper                   1.62
                       Jackhammer operator                    1.62
                       Painter's helper                       1.62
                       Pipelayer or title layer               1.62
                       Tamper                                 1.62
                       Asphalt raker                          1.62
                       Concrete shovelers
                Formsetters, head or master high type
                pavement                                      2.02
                Truck Drivers
                       1 ton and under                        $1.605
                       1-1/2 ton to & including 2 ton,
                         exclusive of dump trucks             1.805
                       Single axle dump trucks                1.855
                       Tandem axle dump                       1.95
                       Winch lift                             1.95
                       Transit mix                            1.95
                       Floats and Pole trailer                1.95
                       Tractor trailers                       1.95
                       Euclids and Laerin dump                2.05
                       Mississippi wagons                     2.05
                Power Equipment Operators:
                       Cranes all types                       3.10
                       Stabilizers                            3.10
                       Pulls all types                        3.10
                       Paving machines                        3.10
                       Mechanics                              3.10
                       Scrapers                               3.10
                       Bulldozers                             3.10
                       Motor patrol                           3.10
                       Gradall                                3.10
                       Finishing machines                     2.75
                       Bull floats                            2.75
                       Subgrader                              2.75
                       Small rubber tired tractorvator        2.75
                       Fireman                                2.60
                       Mechanic helper                        2.35
                       Oilers                                 2.20
                       Roller, steel wheel; roller pneumatic  2.75
                       Tractor, crawler, loader, front end    3.10
                       Tractor, wheel type; form grader       2.75
                

It is further shown that eighteen bids were received on March 17, 1960 for the first project which was sewer construction work and that if E. A. Hardin of the engineering firm of Parsons, Brinckerhoff, Quade & Douglas, were called as a witness, he would testify that he lowest bid of Forcum-Lannon, Inc., was at least $50,000 under the estimate by him for the cost of the project on which these bids were received, in his capacity as Consulting Engineer for the District, which information was conveyed to the plaintiff after the bids were opened.

It is further shown that subsequent to the receipt of bids on March 17, 1960, representatives of the defendant appeared before the Parish Council and contended that it was without authority to include any predetermined minimum wage scale in its construction contract in view of the provisions of LSA-R.S. 38:2211 requiring that all contracts be let to the lowest responsible bidder, and the provisions of LSA-R.S. 23:822 establishing the public policy of the State to be that 'Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employee'. It was further contended that the inclusion of pre-determined wage scale in contracts for skilled work violated the...

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