Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
In Re: Objections filed by Asbestos Workers Local No. 1, on March 27, 2000 to Annual Wage Order No. 7, in the counties of Washington (Section 114), Dent (Section 033), Cape Girardeau (Section 016), Cole (Section 026), Wayne (Section 115), Pike (Section 082) and Boone (Section 010), (Objection Nos. 1-7) relating to the wage rate for asbestos worker, issued by the Division of Labor Standards, Department of Labor and Industrial Relations, filed with the Secretary of State: March 10, 2000.
INTRODUCTION
On March 27, 2000, Asbestos Workers Local No. 1 (Objector) filed a valid, timely objection to Annual Wage Order No. 7, in the above referenced counties. The Objector contends that the wage rate is too low in light of the collectively bargained rate for the occupational title of asbestos worker. The Division of Labor Standards (Division) opposed the objection.
A pre-hearing conference was conducted and a pre-hearing order, prepared pursuant to 8 CSR 20-5.010(3), was issued April 27, 2000, by the Commission’s authorized representative Victorine R. Mahon. That order is included in the record and is designated as Commission Exhibit 1. Subsequently, hth companies, inc. (Intervenor) filed a proper motion to intervene, which was granted by the Commission.
Pursuant to § 290.262.4 RSMo 1994, all parties were notified of the hearing that was conducted on May 23, 2000, in Jefferson City, Missouri. Presiding at the hearing were Commissioners Christian C.R. Wrigley and Matthew W. O’Neill. Victorine R. Mahon, chief counsel, was present as legal advisor to the Commission. The Objector, Intervenor and the Division were present and represented by legal counsel. At the time of the hearing, the Objector withdrew its objection to the wage rate set in all counties except for Boone County. The Commission granted Objector’s motion to withdraw. The only remaining issue in this case is the proper wage rate for the occupational title of asbestos worker in Boone County, Missouri.
EVIDENCE PRESENTED
The Division’s Evidence
The Division placed into evidence its pre-filed testimony prepared by James J. Boeckman, Assistant Director of the Division (DLS Exhibit A). The exhibit contains the contractor reports and information the Division relied upon in compiling the wage rate for asbestos worker in Boone County for Annual Wage Order No. 7. Boeckman provided live testimony regarding the Division’s compilation of information in determining wage rates. He indicated that the submission of wage information is voluntary. The Division accepts the submitted wage data at face value. The Division considers foremen who work with tools as journeymen for prevailing wage purposes. The Division directs parties who submit data to include working foremen hours with journeymen hours. The wage rate of $13.00 plus 52 cents in fringe benefits was set as the prevailing wage rate for the occupational title of asbestos worker in Boone County based on the voluntary wage reports submitted to the Division during the preceding year.
In addition to its pre-filed testimony, Objector submitted numerous exhibits that are contained in the record. These include summary and analysis reports completed by witness Thomas P. Leahy, business representative for Asbestos Workers Local No. 1. Mr. Leahy analyzed the wage reports that had been submitted by hth companies, inc., the company’s payroll records for the time period March 1, 1999 to February 29, 2000, and the wage orders of the Division. Leahy said he found 42 different wage rates having been paid asbestos workers by hth companies, inc., and the contractor’s report did not match all of the company’s actual payroll records that the Objector had obtained by subpoena. Of the numerous exhibits submitted by Objector, Leahy identified Objector Exhibit 12, as a summary report, totaling all of the hours worked at all the different rates paid by hth companies, inc., in Boone County. Mr. Leahy indicated that a number of the rates reported to the Division by hth companies, inc., did not appear on the payroll records. The last two pages of Objector’s Exhibit 12, however, indicates that hth companies, inc., had paid 6,860.5 hours at a $13.00 per hour rate and had paid another 276 hours at a $19.50 hourly rate. Leahy admitted that the $19.50 hourly rate was the overtime rate for $13.00.
On cross-examination Leahy admitted that there are several levels of apprenticeship pay that properly would not have been reflected in the contractor’s report. He conceded that there would have been several different “working foremen” pay rates reflected in the payroll records that should be reported at the journeyman pay rate. He also conceded that there is a collective bargaining mid-year increase that could account for some of the different rates of pay.
Gregory Hoberock, general manager and vice president of hth companies, inc., testified that he submitted a contractor’s report on behalf of hth companies, inc., to the Division. Hoberock said hth companies, inc., had reported to the Division on its contractor’s report for the wage survey period 7,412 hours at the $13.00 per hour rate with 52 cents health and welfare[1]. He described his report to the Division for the reporting year as being “reasonably accurate, if not a little bit low.” (Tr. 68). Hoberock later testified that the hth companies, inc, actually had paid 7,649 hours at the $13.00 rate during the reporting year (Tr. 115). Hoberock admitted that the payroll records might not match the contractor’s report. He explained that workers might be paid overtime. At the direction of the Division, a working foreman’s hours are reported at the journeyman asbestos worker rate of pay. Apprenticeship hours will be included in the payroll records but are not included in the hours reported to the Division. Hoberock testified that it was not unusual for one worker to be paid several different pay rates, even as many as five per day. He explained that one employee could work on several different projects, each under a different prevailing wage order requiring a different wage rate, depending upon when the project began. Employees also may have part of their pay channeled into a retirement plan.
Ann McPherson, president of ThermalTech, Inc., also testified on behalf of the Intervenor. She gave evidence regarding the correctness of the contractor’s reports she submitted to the Division, demonstrating 1,397.5 hours were paid by ThermalTech at the $13.00 rate. She also testified regarding Intervenor Exhibit 2, consisting of an additional contractor’s report with supporting payroll documentation reflecting 727 hours paid to asbestos workers in Boone County at the $13.00 rate.
FINDINGS OF FACT
The Division acted reasonably in relying on the voluntary contractors’ wage reports submitted to it by hth companies, inc., ThermalTech, Inc., and other contractors. The Intervenor and ThermalTech properly reported working foreman hours at the journeyman rate. Witness Hoberock satisfactorily explained the reason for the numerous disparities between payroll records and the Intervenor's contractor’s report.
While the Objector attempted to cast doubt on the veracity of the Intervenor’s witnesses and the credibility of the contractor’s report submitted by hth companies, inc., even the Objector’s Exhibit 12 substantiates that the $13.00 pay rate is a prevailing wage in Boone County for the occupational title of asbestos worker. Exhibit 12, alone, demonstrates that hth companies, inc., paid more than 7,000 hours at the $13.00 rate during the reporting period based on actual payroll records. This figure does not even account for the working foreman hours that are to be reported at the journeyman rate. We add to that figure the credible evidence of another 2,124.5 hours[2] paid by ThermalTech at the $13.00 rate. In summary, the evidence demonstrates that well more than 9,000 hours were paid at the $13.00 rate in Boone County to asbestos workers during the 1999-2000 reporting year. According to the Division’s exhibits, the rates with the next highest number of hours paid to asbestos workers in Boone County are the collective bargaining rates of $26.46 plus an $8.39 fringe package (3,532.5 hours) and $26.91 with an $8.54 fringe package (3,525.25). Even combined, the hours reported for these two wage rates are less than the hours paid at the $13.00 rate.
CONCLUSIONS OF LAW
The Commission has a statutory duty to “rule
on the written objections and make final determinations that it believes the
evidence warrants.” § 290.262.6 RSMo 1994. While the wage rate reports and collective
bargaining agreements can constitute competent and substantial evidence upon
which the Commission can establish a prevailing wage rate, nothing
restricts us to considering only the contractor’s reports previously submitted
to the Division in determining the correct wage rate for a craft. City
of Kennett v. Labor and Industrial Relations Commission, 610 S.W.2d 623, 627 (Mo.App. 1981). We base our decision on all of the evidence
submitted at the hearing.
The “prevailing wage” means the highest number of hours worked and paid at a given rate of pay in a locality in which public work is to be performed by workers engaged in work of similar character. § 290.210(5) RSMo; Branson R-IV School District v. Labor and Industrial Relations Commission, 888 S.W.2d 717, 721 n.6 (Mo.App. 1994). The wage rate is calculated by the mode method of statistical analysis, which is the most frequently paid actual wage for a person in a given trade. Central Missouri Plumbing v. Plumbers Local Union 35, 908 S.W.2d 366, 371 (Mo. App. 1995).
In an objection filed last year by hth companies, inc., to Annual Wage Order 6, pertaining to the wage rate for the occupational title of asbestos worker, this Commission ruled that working foreman hours were to be reported to the Division on the contractor’s report at the basic hourly rate for journeyman. See In the Matter of Objection filed March 31, 1999 to Annual Wage Order No. 6, pertaining to the wage rate for the occupational title of Asbestos Worker (Objection No. 19), Commission Order issued June 7, 1999. In the instant case, even if working foreman hours are not included, the testimony establishes that the most frequent rate of pay for asbestos worker in Boone County actually paid during the reporting year was $13.52 ($13.00 basic rate + 52 cent fringe).
FINAL DETERMINATION
The Objector has failed in its burden of proof. Pursuant to Chapter 290, Mo. Rev. Stat., the Commission affirms the prevailing wage rate set by the Division of Labor Standards for the occupational title of asbestos worker in Boone County, Missouri.
Given at Jefferson City, Missouri, this 8th the day of June, 2000.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
V A C A N T
Christian C.R. Wrigley, Member
CONCURRING OPINION FILED
Matthew W. O’Neill, Member
Attest:
____________________________
Pamela M. Hofmann
Secretary
CONCURRING
OPINION
I agree with Commissioner Wrigley’s opinion and agree to affirm the rate set as the prevailing wage by the Division of Labor Standards for asbestos workers in Boone County, Missouri. I write this concurring opinion to express some additional thoughts regarding the evidence in this case.
The Objector expresses in its post hearing brief that the contractor’s wage report of hth companies, inc., is incredible and should be disregarded. I agree that the contractor’s report should be viewed with some skepticism, particularly when payroll back up has not been provided to the Division. It was right for the Objector to challenge the hours reported and scrutinize the contractor’s payroll records for accuracy. In this case, however, the Objector’s own evidence substantiated the position of the Division and that of the Intervenor. Mr. Leahy’s summary of the relevant payroll records clearly indicated that hth companies, inc., had paid well more than 7,000 hours at the $13.00 rate. The evidence from ThermalTech also was unimpeached. The evidence in this case was simply overwhelming and I feel compelled to agree with the rate established by the Division.
Matthew W. O’Neill, Member