8 Mass. App. Ct. 303 | Mass. App. Ct. | 1979
The Worcester Housing Authority (authority) appeals from a judgment upholding the rates set by the Commissioner of Labor and Industries (Commission
The essential facts are not in dispute. In 1974, the authority, which owns and operates a number of housing projects in Worcester, learned that it could obtain CETA workers from the city of Worcester at no expense to the authority. The CETA workers were hired to do maintenance work, freeing the authority’s regular maintenance force to handle a backlog of repairs. The plan was for the authority to pay the workers at the rate paid by the city to its CETA workers, namely $3.59 an hour, and then be reimbursed by the city.
The Commissioner claimed, however, that the rates to be paid to the CETA workers were to be determined by him under G. L. c. 121B, § 29. After some correspondence with the authority, he set the rates for the CETA workers at a level significantly higher than the level of rates being paid by the city.
Since the authority had no funds to supplement the city grant, the authority in April of 1976 discharged the CETA workers and terminated the program. The Commissioner brought this action seeking back pay for the discharged workers.
Before reaching the questions of statutory construction raised by the parties, we note that the authority has shown no basis for its claim that the Commissioner’s rate setting powers are preempted by Federal regulations relating to the payment of CETA workers. Section 96.34 of 29 C.F.R. (1978) sets no wage rates but merely provides that CETA workers shall not be paid below certain minimum rates. While the regulations limit the amount of Federal funds which can be paid to a single worker in a given calendar year, they do not limit the amount the employee may receive from other sources. The regulations are not facially inconsistent with G. L. c. 121B, § 29, or G. L. c. 149, §§ 26 and 27, and the authority has not shown any conflict
The Commissioner claims that the rate set for the CETA workers was legally required and that he had no discretion under applicable law to set any other rate. His argument is in two parts. First, he contends that the case of Commissioner of Labor & Indus. v. Boston Housing
We reject both prongs of the Commissioner’s argument. The primary provision governing this action is G. L. c. 121B, § 29, as amended through St. 1973, c. 1215, §§ 9, 9A.
That requirement is also explicit in both c. 121B, § 29, and c. 149, § 26. The statutory concepts of "prevailing wage” and the "wage rate ... established in certain trades and occupations” only have meaning in the context of evaluating similar jobs. Implicit in both statutes is the requirement that the Commissioner make careful job comparisons.
Since the Commissioner made no job comparison at all, either within or without the construction industry, he has not followed the statutory mandate. His characterization, without investigation, of all work not covered by a specific skilled trade within the construction industry as the work of a laborer, and then his setting of the wage in accordance with the collective bargaining agreement having the highest rate of pay for construction laborers is not the method prescribed. The judge found that the job of a construction industry laborer and a maintenance aide are not the same, and also that the jobs of the authority’s CETA workers were not the same as those of the authority’s regularly employed maintenance aides. These differences were not taken into account. Contrary to the Commissioner’s contention, we believe the statutes require him to consider them.
The statutory history of c. 149, § 26, relating to laborers confirms this conclusion. A report of the Commissioner of Labor and Industries, which discusses the bill where the language relating to laborers in municipal service first appears recognized that building construction laborers differed from common laborers and had different wage
Under c. 149, § 26, the Commissioner in setting rates for public construction jobs would have no occasion to go outside the construction industry. Where rates are to be set for jobs under c. 121B, § 29, however, a meaningful comparison may require a reference to jobs outside that industry. This would be true where, after careful investigation, the Commissioner determines that there are no comparable or nearly comparable jobs in the construction industry.
We think the statutes authorize such additional reference. We note that only the last proviso of the pertinent portion of § 26 (note 6, supra) by its terms refers to "the construction industry”; the other provisos guiding the Commissioner do not. We also note that 1933 Senate Doc. No. 300, at 12 contained a chart of municipal rates for common laborers which would be relevant in setting wages. That chart was not limited to laborers engaged in construction and included the rates for common laborers in municipal "highway, sewer, forestry and water departments.” Thus, neither the language nor the history of § 26 limits the job comparisons to laborers in the con
We must also address the Commissioner’s claim that § 26, which directs him to set rates at no lower than the wage rates "established” in certain trades and occupations by collective agreements, requires him to take the family of collective bargaining agreements and choose the highest amongst them. We do not agree that the rate "established” means the highest rate established by any agreement. A New Hampshire statute (N.H. Rev. Stat. Ann. c. 280, § 1, inserted by St. 1941, c. 118, § 1) containing an identical proviso relating to wages "established” as is contained in c. 149, § 26, was construed to mean a "prevailing wage” in Union Sch. Dist. v. Commissioner of Labor, 103 N.H. 512 (1961). Here, c. 121B, § 29, specifically requires the Commissioner to find the "prevailing wage.” We hold that the proviso in § 26, at least when construed with c. 121B, § 29, refers the Commissioner to the prevailing wage established by collective bargaining agreements.
.Although the term "prevailing wage” is not defined by statute, it is clear that its meaning as developed by case law is not equivalent to the highest wage. For example, in Union Sch. Dist. v. Commissioner of Labor, 103 N.H. at 516, the court said such a rate "has been generally defined as the market rate, the commonly paid rate, the
A redetermination of rates by the Commissioner is necessary. See Joplin v. Industrial Commn. of Missouri, 329 S.W. 2d 687, 695 (Mo. 1959). Chapters 121B, § 29, and 149, § 26, set forth standards for investigation and comparison to be followed by him before establishing those rates. As pointed out in Union Sch. Dist. v. Commissioner of Labor, 103 N.H. at 517, "[t]he task of acquiring information, working out the details and applying the rules and standards to specific cases has been conferred to the Labor Commissioner.” The task calls for investigation and the exercise of discretion. It is not, as the Commissioner contends, a mere ministerial one. See 1933 Senate Doc. No. 300, at 15-25.
The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
Comprehensive Employment and Training Act of 1973, Pub. L. No. 93-203, 87 Stat. 839 (1973).
The Commissioner, in a letter dated March 12, 1976, directed the authority to pay the hourly rates and health benefits for the period from December, 1973, to the date of the letter as set forth below.
12/73 - 12/74 $5.20 + .40
12/74 - 12/75 $5.60 + .40
12/75 - current $6.00 + .50
No Federal or State official involved in the controversy, other than the authority, considered there to be a conflict between Federal and State law. Contrast Commissioner of Labor & Indus. v. Boston Housing Authy., 345 Mass. 406, 411 (1963). The authority alleges error in the exclusion by the trial judge of material received from the Department of Housing & Urban Development. Even if this material were received in evidence it would not indicate any conflict.
We note that the pertinent provision of § 29 has remained unchanged since its insertion into the General Laws by St. 1969, c. 751, § 1 (see St. 1977, c. 610; St. 1978, c. 393, § 34).
"In the development or administration of a project which is not federally aided, a housing authority shall furnish the commissioner of labor and industries ... with a list of the classifications of work performed by all architects, technical engineers, draftsmen, technicians, laborers and mechanics employed therein.... Said commissioner shall determine rates of wages and ... shall furnish the housing authority with a schedule of such rates .... The rates of wages and fees paid by each housing authority to such architects, technical engineers, draftsmen, technicians, laborers and mechanics shall not be less than those determined by said commissioner who shall set the rate at no less than eighty percent of the prevailing wage in accordance with sections twenty-six and twenty-seven of chapter one hundred and forty-nine.”
Chapter 149, § 26, as amended, reads in part, "In the employment of mechanics and apprentices, teamsters, chauffeurs and laborers in the construction of public works by the commonwealth, or by a county, town or district, or by persons contracting or subcontracting for such works, preference shall first be given to citizens of the commonwealth .... The rate per hour of the wages paid to said mechanics and apprentices, teamsters, chauffeurs and laborers in the construction of public works shall not be less than the rate or rates of wages to be determined by the commissioner as hereinafter provided; provided, that the wages paid to laborers employed on said works shall not be less than those paid to laborers in the municipal service of the town or towns where said works are being constructed; provided, further, that where the same public work is to be constructed in two or more towns, the wages paid to laborers shall not be less than those paid to laborers in the municipal service of the town paying the highest rate; provided, further, that if, in any of the towns where the works are to be constructed, a wage rate or wage rates have been established in certain trades and occupations by collective agreements or understandings between organized labor and employers, the rate or rates to be paid on said works shall not be less than the rates so established; provided, further, that in towns where no such rate or rates have been so established, the wages paid to mechanics, teamsters, chauffeurs and laborers on public works, shall not be less than the wages paid to the employees in the same trades and occupations by private employers engaged in the construction industry.”
The only substantive change is that c. 121B, § 29, now excludes "federally aided projects.” The CETA workers whose wages are here in dispute worked only on projects which were not "federally aided.”
The opinion does not indicate the method by which the Commissioner determined the rates. The Federal officials (P.H.A.) made a "comprehensive survey of the prevailing wage rates,” id. at 409, but the Commissioner "did not make a survey similar to that made by P.H.A.” Id., n.6 at 410.
The original version of the statute provided for the bidder, rather than the Commissioner, to set the wage rate.