No. 33809 _ State ex rel. The Tucker County Solid Waste Authority v. West Virginia
Division of Labor, West Virginia State Building and Construction Trades
Albright, Justice, dissenting:
I dissent from the majority opinion in this case for the simple reason that it
disregards the intent of the Legislature as to what public works projects are subject to a
prevailing wage rate. The substantial loophole thereby created invites untoward mischief.
Unquestionably, the various provisions of the state's prevailing wage act
(W.Va. Code §§ 21-5A-1 to -11)
(See footnote 1)
under discussion are not the model of clarity. However,
the precise policy statement set forth in West Virginia Code § 21-5A-2 is quite clear
regarding the legislative intent for enacting the statutory scheme. This section plainly and
It is hereby declared to be the policy of the State of West
Virginia that a wage of no less than the prevailing hourly rate of
wages for work of a similar character in the locality in this State
in which the construction is performed, shall be paid to all
workmen employed by or on behalf of any public authority
engaged in the construction of public improvements.
The majority blindly adhered to Appellant's position _ ignoring the expressed legislative
intent underpinning this entire Article of the Code _ in order to conclude that the Legislature
really didn't mean that people employed by
public authorities should ever be paid the
prevailing wage rate unless a completely new construction project is undertaken.
In addition to offending the legislatively declared policy, the majority does
not consider or appreciate the significance of the distinction between public improvements,
including expansions, versus repairs. Such an oversight will no doubt promote spurious
practices. Following the majority opinion, a public body can argue that any work done on
an existing facility by people it hires as temporary workers is outside of the scope of the
prevailing wage statute. As an example of how this promotes sham practices, consider
summer hires at schools. The school district could hire school service personnel and pay
them less than the prevailing wage rate during the summer for any work on an existing
school whether that work entails painting classroom walls or building a new wing on a
school. In the instant case, it was undisputed that the expansion of the landfill was an
addition or improvement to an existing public project rather than simply a repair. Therefore,
this project should have been subject to the provisions of the prevailing wage act. By
essentially excluding expansion projects from the reach of the statute, the majority has
succeeded in eviscerating the prevailing wage statute because expansion projects likely
comprise 75 - 80% of public works projects. Perhaps the majority opinion represents the
most vigorous assault on this state's Davis-Bacon Act in nearly half a century.
The problem with the majority opinion is underlined by the inclusion in it of
a new syllabus point eight, which reads as follows:
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
By failing to exclude work on public improvements from the sweeping language of the
new syllabus point, the majority has added to the difficulty of interpreting and applying the
prevailing wage statute, opening the possibility that certain public agencies will routinely
seek to avoid the requirements of the statute by treating all persons engaged in the
construction of such public improvements as temporary employees.
This Court has repeatedly and frequently recognized that when faced with
matters of statutory construction, courts are bound to first determine what the Legislature
intended in enacting the statute because [t]he primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature. Syl. Pt. 1, Smith v. State
Workmen's Comp. Comm'r
, 159 W.Va. 108, 219 S.E.2d 361 (1975). The constitutional
principle of separation of powers dictates that such deference be paid to legislative
pronouncements. Despite this time-honored approach to statutory construction and
deference to legislative prerogative, the majority has chosen in this case to supplant its
policy for that expressed by the Legislature in a fashion which potentially renders the
prevailing wage statute inapplicable to a large number of public works projects. I certainly
cannot agree with this course and respectfully dissent.
I am authorized to state that Justice Starcher joins in this dissent.
The federal counterpart to the state's prevailing wage act is the Davis-Bacon
Act. As explained by one authority, the Davis-Bacon Act is designed to protect local wage
standards . . . and to give local labor and the local contractor a fair opportunity to participate
in federal building programs. 51B C.J.S. Labor Relations §1103 (2003).