United Broth. of Carpenters and Joiners of America, Dist. Council of Kansas City and Vicinity v. Industrial Commission
| Decision Date | 01 October 1962 |
| Docket Number | No. 1041,G,R-11,No. 23637,1041,23637 |
| Citation | 363 S.W.2d 82 |
| Parties | 46 Lab.Cas. P 50,636 The UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, DISTRICT COUNCIL OF KANSAS CITY AND VICINITY, an Unincorporated Labor Association, by J. O. Mack, Its President, W. C. Munroe, Charles Brewer, Daniel O'Connell, R. F. Addington and Henry O. Selig, Petitioners-Respondents, v. The INDUSTRIAL COMMISSION of Missouri, Defendant-Appellant. In the Matter of Special Wage Determinationfor the School Board of Districtalena, Stone County, Missouri. |
| Court | Missouri Court of Appeals |
Lloyd G. Poole, Jefferson City, for appellant.
Gibson Langsdale, Kansas City, for respondents.
DEW, Special Commissioner.
On a petition to review an order of the Industrial Commission of Missouri, in a proceeding under the statutes to determine the prevailing wage rate to carpenters in Stone County, Missouri, the Circuit Court of Jackson County, Missouri, remanded the cause to the Industrial Commission for further proceedings consistent with such judgment.
Present Section 290.220, RSMo 1959, V.A.M.S., effective at all times concerned in this proceeding, established the policy of Missouri requiring a wage rate 'no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is to be performed, shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance work'. Sections 290.210 to 290.310 prescribe the procedure for the determination of such hourly rates upon the application therefor to the Department of Labor and Industrial Relations, prior to the awarding of any contract for the construction of the public project. Insofar, however, as a review of such determination by the court is concerned, such procedure is subject to Chapter 536 of the Compiled Statutes, V.A.M.S. regulating administrative procedure. Section 290.260, subd. 7. In such proceedings the Department acts by and through the Industrial Commission. Chapter 286, RSMo 1959, V.A.M.S.
Reference will be made hereinafter in greater detail to one or more of the foregoing statutes as occasion requires.
The record discloses the following undisputed facts:
The School Board of District R-II, Stone County, Missouri, contemplated the construction of a new gymnasium and a new class room at Galena, Stone County, for which funds in the amount of $110,000 had been made available by the district. Pursuant to the statutes first above referred to pertaining to prevailing wage rates, the School Board, on October 16, 1958, requested of the appellant (hereinafter referred to as the 'Commission') a determination of the prevailing hourly rate of wages for various crafts specified, for work of a similar character in ahe locality. Such determination was necessary for incorporation of the wage rate in the ordinance calling for bids and in any contracts to be let on the job. Section 290.250. The present proceeding relates only to the prevailing hourly rate for carpenter work.
On October 23, 1958, the two commissioners present (one not sitting) certified to the School Board the Commission's decision in the proceeding, which was designated as Determination No. 1041, finding that the prevailing rate for carpenters in the locality for work similar to that to be performed in the school house project to be $1.50 per hour.
On November 19, 1958, the respondents (hereinafter referred to as the 'Objectors'), filed objections to the Commission's determination referred to, and contended that the proper prevailing rate in question was from $2.65 to $2.75 per hour on a 40 hour work basis, 8 hour day and time and a half for overtime. Upon notice given, the objections were heard by the Commission on January 13, 1959.
At this juncture we note a material provision of this novel administrative proceeding, explanatory of the status of the Objectors. Section 290.260 requires the Department of Labor and Indurstrial Relations to make annual determinations about July 1, of the prevailing rates of wages in the various crafts in the 'localities', which rates shall remain in effect until superseded by new determinations and, in so doing, 'the department shall ascertain and consider applicable wage rates established by collective bargaining agreements, if any, and such rates as are paid generally within the locality'. Subparagraph (7) of the above section accords to any person affected by any such determination, whether or not such person has participated in the original determination proceeding, the right to have the same reviewed by the court. The present Objectors, composed of certain individual members of the carpenter craft in Stone County, Missouri, and others represented by their labor union organization, assert that they are interested parties in the present review of the determination of the prevailing hourly rate of wages paid in the locality for carpenter work. Such, as we have seen, is authorized by statute.
Certain further limitations, restrictions, definitions and other provisions are contained in the statutes which clarify the nature and scope of the hearing of the objections in the case. Section 290.210 defines 'locality' to be 'the county where the physical work upon public works is performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workmen and mechanics to construct the public works efficiently and properly 'locality' may include two or more counties adjacent to the one in which the work or construction is to be performed and from which such workers may be obtained in sufficient numbers to perform the work * * *.' At such a hearing of objections conducted by the Department by and through the Industrial Commission, under authority of Chapter 286, RSMo 1959, V.A.M.S., the Commission may introduce in evidence its previous investigation, if any, and Section 290.260, subd. 5.
At the hearing of the objections in the present case the Commission introduced as evidence the record therein to date, and the entire transcript of a previous hearing before it in another case, also held in Stone County (at Crane) Missouri, on October 9, 1958, known as Determination No. 710. That hearing likewise involved the prevailing wage rate for carpenters on a school building, namely the construction of a new elementary school in the town of Crane, at an estimated cost of $120,000. In addition, the Commission introduced a letter from Wilson Lumber Company of Crane, stating that the prevailing hourly wage rate in Stone County for carpenter work was $1.50 and an affidavit by one Don Eubanks to the same effect.
The record of the prior hearing No. 710, introduced as evidence in the present proceeding, as stated, discloses the fact that the Commission in that case had first ruled that the prevailing hourly rate of wages to carpenters in Stone County, Missouri was $2.65 pr hour and for carpenter foremen, $2.90; that thereafter, upon objections filed by the School Board in that case the finding was modified to $1.50 per hour for carpenters; that thereupon objections were filed to the modified determination in that case by the same union as the one objecting in the present case, and it contended therein that the rate should be $2.65 per hour for carpenters. The final determination in that prior case reaffirmed the finding of the Commission of $1.50 per hour for carpenters, from which no appeal was taken.
The transcript in the previous case No. 710, referred to, included also the testimony of 10 witnesses on the question of the prevailing rates of wages per hour to carpenters in Stone County, Missouri. According to their testimony all of them were residents of Stone County or nearby, and had had experience in the carpenter trade in the building of houses and other structures over various numbers of years. Some stated they had worked as carpenters on schools, commercial buildings, houses, motels, library and other structures in Stone County; some said they did work on jobs other than carpenter work when it was necessary; some testified they devoted parts of seasons to operating farms or raising cattle. One witness estimated that 75 percent of the carpenters in Stone County made their trade their chief occupation. Their testimony was that the prevailing rate paid them for carpenter work in Stone County was $1.25 to $1.50 per hour; that no overtime was charged or paid, and that the 8 hour day and 40 hour week were observed.
In the present case, at the hearing of the objections, the Commission also introduced two photostatic copies of statements--one from a carpenter and one from a contractor--to the effect that $1.50 was the prevailing rate per hour to carpenters in Stone County.
The School Board also introduced at the hearing of the objections in the present case 6 witnesses, all of whom lived in Stone County and all of whom testified that they either did carpenter work in that county in recent years or had supervised carpenter work there, or had employed carpenters on jobs in that county. The various jobs described were a 15-unit motel, a 5-unit motel, resort cabins, dwellings, barns beauty shops and house repairs. Some testified that they operated their farms or cafe or had other occupations for part time. Some said they assisted in other work than carpenter work on jobs when necessary. They all said that the rate of wage paid to them for carpenter work was from $1.25 per hour to some, and $1.50 to others.
In behalf of the Objectors there was introduced a copy of a collective bargaining agreement (Objectors' Exhibit No. 17) between...
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