Prevailing wage battle discussed at symposium

By Fred Pace

WHITE SULPHUR SPRINGS — When it comes to the battle over how the state Division of Labor sets the prevailing wage rate, Father Thomas Acker with Forward Southern West Virginia is considered a one-man Army.

“I think it’s best that I am not supported by a particular group or individuals,” he told members of the West Virginia Chamber of Commerce Thursday. “When you get support from a group or certain individuals, you can sometimes be labeled. I prefer this debate to be about principles and not about who supports it and who doesn’t.”

Acker appeared at a human resources symposium at The Greenbrier on the second day of the state chamber’s three-day annual meeting and business symposium. He said he was not there seeking support, but rather to inform the state’s business community of his attempt to “fix the way West Virginia’s prevailing wage rate is calculated.”

“The prevailing wage law in West Virginia is a good law,” he said. “However, the way the wage rate is set is where the problem lies.”

In 1935, West Virginia established its prevailing wage laws.

“The legislation stipulated that a wage determination should be based on at least 40 percent of the laborers engaged in the same trade,” Acker explained.

However, in 1961, the Legislature attenuated the 40 percent provision by empowering the Division of Labor to use its own discretion in determining the prevailing wages following an investigation, according to Acker.

“The Hardy County Board of Education challenged the DOL before the West Virginia Supreme Court of Appeals in 1992, but the court held that state code permits the DOL to set rates using any methodology it wishes,” he said. “It only requires investigation, but the DOL may ignore any of the results of the investigation in making their final determination. By law, DOL became a god.”

Acker claims the yearly collection of data by the DOL is “inept, unscientific, deceiving and rendered useless by DOL’s administrative decisions.”

“Contractors understand this and yearly return useful data on the surveys at less than one percent,” he said. “Organized labor returns are close to 100 percent.”

Acker says this amounts to a prevailing wage rage of organized labor’s contractual rate, which is in the top 10 percent of wages paid and represents only 15 percent of the workers.

“The determination of prevailing wages, both by the federal government and by the states, has been hijacked by special interests and politics,” he said.

Acker says prevailing wage rates in the U.S. range from unjustly low to magnificent payouts.

“In Virginia, the federal rates are unjustly low, and the state doesn’t have a prevailing wage law,” he said. “In West Virginia, both the federal prevailing wages and those of the state with the fringes are 60 percent above an average wage, a true and just prevailing wage.”

Acker says the high prevailing wage set by the state also hurts the men and women workers of organized labor.

“They lose contracts in bidding on some public works,” he said. “Only the labor leaders, regardless of contracts for their members, receive their annual salary and are benefited.”

Acker claims the inflated wage rate costs the state jobs and money that could be used to build and maintain roads, schools and other public projects.

“In 2007, the West Virginia Division of Highways spent over $600 million,” Acker said. “A true prevailing wage would yield new jobs to 500 more laborers at $50,000 a year, resulting in 25 additional miles of road, all for the same price.”

Acker says the solution is relatively simple.

“The DOL should be instructed by all three branches of government to utilize the excellent scientific surveys by the West Virginia Department of Commerce and set the prevailing wage as the average wage that was originally intended by both the federal Davis-Bacon Act and that of the West Virginia act,” he said. “The manner by which the West Virginia DOL sets the prevailing wage is discriminatory against the majority of workers, an abuse of its discretion, short-sighted, contrary to good economics and harmful to the citizens of the great state of West Virginia.”

Acker said the next round in the prevailing wage battle will be fought in Raleigh County Circuit Court. However, he expects it to end up with the state Supreme Court.

“If I don’t prevail in circuit court, I will appeal it to the Supreme Court and I anticipate the DOL would do the same,” he said.

— E-mail:

fpace@register-herald.com