State ex rel. Tucker v. Div. Of Labor

• Decision Date: 26 June 2008
• Docket Number: No. 33809.,33809.
• Parties: STATE ex rel. the TUCKER COUNTY SOLID WASTE AUTHORITY, Petitioner, v. WEST VIRGINIA DIVISION OF LABOR, Respondent, West Virginia State Building and Construction Trades Council, AFL-CIO, Intervenor.
• Court: West Virginia Supreme Court

668 S.E.2d 217

STATE ex rel. the TUCKER COUNTY SOLID WASTE AUTHORITY, Petitioner, v. WEST VIRGINIA DIVISION OF LABOR, Respondent, West Virginia State Building and Construction Trades Council, AFL-CIO, Intervenor.

No. 33809.

Supreme Court of Appeals of West Virginia.

Submitted February 26, 2008.

Decided June 26, 2008.

Dissenting Opinion of Justice Starcher July 17, 2008.

Syllabus by the Court

1. "In determining whether to entertain and issue the writ of prohibition for cases not involving the absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

3. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

4. "A statute that is ambiguous must be construed before it can be applied." Syllabus point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

5. "Under West Virginia Code § 21-5A-2 (1961) (Repl.Vol.1996), the provisions concerning prevailing wages can only be invoked when a construction project that constitutes a public improvement and which involves workers employed by or on behalf of a public authority is involved." Syllabus point 3, Affiliated Construction Trades Foundation v. University of West Virginia Board of Trustees, 210 W.Va. 456, 557 S.E.2d 863 (2001).

6. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syllabus point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).

7. "It is always presumed that the legislature will not enact a meaningless or useless statute." Syllabus point 4, State ex rel Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963).

8. Pursuant to W. Va.Code § 21-5A-1(7) (1961) (Repl.Vol.2002), the terms "employee" and "workman," as used in the West Virginia Prevailing Wage Act, W. Va.Code § 21-5A-1, et seq., do not include workers who are (1) employed or hired by a public authority on a regular basis, (2) employed or hired by a public authority on a temporary basis, (3) employed or hired by a public authority to perform temporary repairs, or (4) employed or hired by a public authority to perform emergency repairs.

9. W. Va.Code § 21-5A-2 (1961) (Repl.Vol.2002) requires the prevailing wage to be paid to all workmen who are employed "on behalf of any public authority" and who are "engaged in the construction of public improvements." To the extent that our prior holding in Syllabus point 3 of Affiliated Construction Trades Foundation v. University of West Virginia Board of Trustees, 210 W.Va. 456, 557 S.E.2d 863 (2001), is inconsistent with this holding, it is expressly modified.

Rodney L. Bean, Christi R.B. Stover, Steptoe & Johnson PLLC, Morgantown, for Petitioner.

Darrell V. McGraw, Jr., Attorney General, Elizabeth G. Farber, Assistant Attorney General, Morgantown, for Respondent.

Vincent Trivelli, The Law Office of Vincent Trivelli, PLLC, Morgantown, for Intervenor, West Virginia State Building and Construction, Trades Council, AFL-CIO, and Attorney for Amicus Curiae, Kanawha Valley Builders Association.

DAVIS, Justice:

The petitioner herein, the Tucker County Solid Waste Authority (hereinafter "TCSWA"), requests this Court to issue a writ of prohibition against the respondent herein, the West Virginia Division of Labor (hereinafter "DOL"), to prevent the DOL from continuing administrative proceedings against it. Specifically, the TCSWA wishes to prohibit the enforcement of a DOL administrative order, entered June 29, 2007, which found the TCSWA did not pay certain temporary workers the prevailing wage and thus owes said workers additional wages and damages in the approximate amount of $199,760.30. In its petition to this Court, the TCSWA requests that we prohibit the enforcement of the hearing examiner's order because, as alleged by the TCSWA, (1) the prevailing wage was improperly applied to employees of a public authority; (2) the prevailing wage was improperly applied to work that was never let to contract; and (3) the legislative history of the West Virginia Prevailing Wage Act (hereinafter "the Act"), W Va.Code § 21-5A-1, et seq., was not given deference. Upon a review of the parties' arguments, the record presented for consideration, and the pertinent authorities, we find that the TCSWA was not required to pay the prevailing wage to the workers involved in this case and, accordingly, grant the requested writ of prohibition.

I FACTUAL AND PROCEDURAL HISTORY

The facts underlying this original jurisdiction proceeding are as follows. In 2003. the Tucker County Solid Waste Authority ("TCSWA") began preliminary work on an expansion of its landfill.¹ To perform the excavation work for the new landfill cell, the TCSWA hired ten additional workers, from May until August, 2003. These employees performed the excavation work and transported the excavated dirt to existing areas of the landfill.² While most of these workers were hired on a temporary basis, the TCSWA retained a few workers as permanent employees; the majority of those workers who did not become permanent employees were terminated between November, 2003, and January, 2004, although some of these workers were terminated earlier, between June and August, 2003. The above-described excavation work was not let to contract, and the workers hired to complete it were not paid prevailing wage because the TCSWA considered them to be temporary TCSWA employees.

On July 17, 2003, Delegate Mary M. Poling³ sent a letter to James R. Lewis,⁴ Commissioner of the West Virginia Division of Labor, alleging that "the Tucker County Solid Waste Authority may have violated the law when they hired temporary employees to do the construction on the landfill expansion," and requesting an investigation of the matter. As a result of this correspondence, the West Virginia Division of Labor ("DOL") began an investigation and issued a subpoena duces tecum to the TCSWA on September 17, 2003, for the payroll records of all employees who worked on the "Tucker County Landfill Expansion Project." The TCSWA complied with this request. Thereafter, on or about March 30, 2004, the DOL corresponded with the TCSWA's temporary employees who had worked on said expansion project and requested each of them to provide additional information to the DOL. In April, 2004, the DOL informed the TCSWA that it had concluded that nine of the TCSWA employees who had worked on the expansion project should have been paid prevailing wage. As a result, the DOL determined that the TCSWA owed these workers an additional $95,820.82 in addition to penalties in a like amount as provided by W. Va.Code § 21-5A-9(b) (1961) (Repl.Vol.2002), for a total due of $191, 641.64.

Thereafter, the TCSWA requested and was granted an informal conference with the DOL to explain why it believed the West Virginia Prevailing Wage Act ("Act") did not apply to its hiring of temporary workers to complete the excavation portion of the landfill expansion project. This meeting occurred on June 15, 2004, but no resolution was reached. Approximately nine months later, on March 8, 2005, the DOL determined that an additional TCSWA employee should have been paid the prevailing wage for his work on the landfill expansion project. Therefore, the DOL increased the total wages due and owing from the TCSWA to $99,880.15, or $199,760.30 with the addition of the like amount of damages for this sum.

Ultimately, the DOL referred the matter to a hearing examiner, who issued "Preliminary Findings of Fact and Conclusions of Law and Order as to Further Proceedings," on June 29, 2007. In an attempt to reconcile the various provisions of the Act, the hearing examiner concluded that "the Act was intended to apply to contracts of employment entered into by public authorities with persons for the specific purpose of such persons being engaged in the construction of public improvements, unless such work is for the...