Perry v. Barker

• Decision Date: 18 March 1982
• Docket Number: No. 15476,15476
• Citation: 169 W.Va. 531,289 S.E.2d 423
• Parties: , 95 Lab.Cas. P 55,367 Jack PERRY, as President, etc., et al., v. Lawrence BARKER, individually, etc.
• Court: West Virginia Supreme Court

Page 423

289 S.E.2d 423

169 W.Va. 531, 95 Lab.Cas. P 55,367

Jack PERRY, as President, etc., et al., v. Lawrence BARKER, individually, etc.

No. 15476.

Supreme Court of Appeals of West Virginia.

March 18, 1982.

Syllabus by the Court

1. "Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law." Syllabus Point 3, Cooper v. Gwinn, W.Va., (No. 15153 December 18, 1981).

2. "It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. Public Employees Ins. Board, W.Va., (No. 15468 March 4, 1982).

3. "While it is true that mandamus is not available where another specific and adequate remedy exists, if such other remedy is not equally as beneficial, convenient, and effective, mandamus will lie." Syllabus Point 4, Cooper v. Gwinn, supra.

4. When the interests of the State, or the interests of those entitled to its protection are affected by criminal acts or practices, the State, acting through its governmental agencies, may invoke the jurisdiction of equity to restrain such criminal acts.

5. A government official entrusted with the protection of citizens' property rights must not hesitate to apply to the government's courts for any proper assistance in the discharge of his duties. This is especially the case where the remedy afforded by the courts is the most efficient and effective method of securing the rights the official is sworn to protect.

Webster J. Arceneaux, III, Larry Harless, Charleston, for petitioners.

Daniel F. Hedges, Charleston, for amicus curiae UMAW, International Union.

Chauncey H. Browning, Atty. Gen. and Richard L. Earles, Asst. Atty. Gen., Charleston, for respondent.

McGRAW, Justice:

The petitioners, members and elected representatives of the membership of the United Mine Workers of America (UMWA), seek a writ of mandamus to compel the respondent, the Commissioner of the Department of Labor to enforce the provisions of W.Va.Code § 21-5-14 et seq. (1981 Replacement Vol.), requiring certain employers to obtain a bond payable to the State of West Virginia to secure payment of employee wages. The petitioners contend that the respondent has failed to fulfill his duty to enforce the statute. We agree and grant the writ.

The petitioners herein include the officers of District 17 of the United Mine Workers of America (UMWA), members of the Executive Board of District 17 and District Representatives of District 17, all elected representatives of the membership of the UMWA, charged with the responsibility of processing grievances, representing individual members in disputes with their employers and seeking enforcement of the laws of this State governing coal mining and the rights of employees. Three other petitioners are members of Local 8217 of the UMWA and were employees of Marki Coal Corporation until November 5, 1981, when their employer laid them off and failed to pay them various fringe benefits, including vacation pay and other amounts owed. The final two petitioners were employees of Davis Coal Company until January 4, 1982, when the employer was shut down by federal inspectors. Davis Coal Company failed to pay them wages, including overtime, Christmas bonuses and other fringe benefits.

On April 9, 1981, the Legislature enacted various amendments to the West Virginia Wage Payment and Collection Act, W.Va.Code Chapter 21, article 5, which were approved by the Governor, and by constitutional rule became effective July 8, 1981. ¹ These amendments are embodied in W.Va.Code §§ 21-5-14 through 16 (1981 Replacement Vol.) and provide that any employer engaged in the construction industry or in the mining industry who has been doing business in the State for less than five years shall obtain a bond payable to the State to secure payment of wages and fringe benefits to employees. Specifically, W.Va.Code § 21-5-14 provides:

(a) With the exception of those who have been doing business in this State for at least five consecutive years, every person, firm or corporation engaged in or about to engage in construction work, or the severance, production or transportation (excluding railroads and water transporters) of minerals, shall furnish a bond on a form prescribed by the commissioner, payable to the State of West Virginia with the condition that the person, firm or corporation pay the wages and fringe benefits of his or its employees when due. The amount of the bond shall be equal to the total of the employer's gross payroll of four weeks at full capacity or production, plus fifteen percent of the said total of the employer's gross payroll for four weeks at full capacity or production. The amount of the bond shall increase or decrease as the employer's payroll increases or decreases: Provided, that the amount of the bond shall not be decreased, except with the commissioner's approval and determination that there are not outstanding claims against the bond.

Under subsection (b) of W.Va.Code § 21-5-14, the Commissioner of Labor may waive the posting of bond after determining that an employer is of sufficient financial responsibility to pay wages and fringe benefits. The statute provides that "[t]he commissioner shall promulgate rules and regulations ... which prescribe standards for the granting of such waivers ...." The respondent has mandated by regulation standards for such waivers, albeit very strict standards. See W.Va.Dept. of Labor, Adm.Reg. 21-5, § 16.04 (Series I 1981).

Subsection (c) of W.Va.Code § 21-5-14 provides flexible options for employer compliance with the bonding requirements. The employer is permitted to post bond in a variety of ways, including surety bonding, collateral bonding, establishment of an escrow account, or any combination of methods approved by the respondent. Subsections (d) and (e) of the statute provide:

(d) Notwithstanding any other provision in this article, any employee, whose wages and fringe benefits are secured by the bond, as specified in subsection (c) of this section, has a direct cause of action against the bond for wages and fringe benefits that are due and unpaid....

(e) Any employee having wages and fringe benefits unpaid, may inform the commissioner of the claim for unpaid wages and fringe benefits and request certification thereof. If the commissioner, upon notice to the employer and investigation finds that such wages and fringe benefits or a portion thereof are unpaid, he shall make demand of such employer for the payment of such wages and fringe benefits. If payment for such wages and fringe benefits is not forthcoming within the time specified by the commissioner, not to exceed thirty days, the commissioner shall certify such claim or portion thereof, and forward the certification to the bonding company or the state treasurer, who shall provide payment to the affected employee within fourteen days of receipt of such certification. The bonding company, or any person, firm or corporation posting a bond, thereafter shall have the right to proceed against a defaulting employer for that part of the claim of the employee paid.

Subsection (f) requires any employer subject to the bonding provisions to post in the work place either a copy of the bond or notification of waiver of the bond by the Commissioner. Subsection (g) provides for the termination of the bond upon certain specified circumstances.

W.Va.Code § 21-5-15 provides criminal penalties for any employer who knowing and willingly fails to provide and maintain a bond as required by W.Va.Code § 21-5-14, or disposes or relocates assets with the intent to deprive employees of their wages and fringe benefits.

W.Va.Code § 21-5-16 provides:

Whenever a person, firm or corporation contracts or subcontracts with an employer, which such contract or subcontract contemplates the performance of construction work or the severance, production or transportation (excluding railroads or water transporters) of minerals, then the prime contractor or subcontractor shall notify the commissioner in writing by certified mail, return receipt requested, of such contract or subcontract as to the employer's name, the location of the job site and the employer's principal business location.

After consulting with UMWA legal counsel as to their interpretation of the amendments, the respondent filed proposed administrative regulations governing the bonding procedures with the Secretary of State on July 10, 1981, and set a public hearing on the regulations for August 28, 1981, at which time he accepted oral and written comments. The respondent allowed written comments to be submitted through September 15, 1981. Regulations incorporating the comments were filed in the Secretary of State's office on October 5, 1981, and were reviewed by the Legislative Rule Making Review Committee on November 10, 1981. The regulations became effective November 19, 1981. The petitioners assert that sometime thereafter, the respondent sent a letter to notify approximately 6,000 employers that the amendments required the posting of a bond to ensure payment of wages and benefits. The respondent disputes the petitioners' assertion, contending that this letter was sent to 7,818 employers who were classified by Department of Employment Security records as being subject to the bonding provisions.

The petitioners contend that the respondent has failed to enforce the provisions of the amendments in that: (1) the respondent has failed to require covered employers to post bonds as required by the act and that no bonds have been posted as of the date the petition was filed; (2) the respondent has failed to allocate the...