Father Tom Acker of Forward Southern West Virginia and the West Virginia Division of Labor appear to agree on one thing — the state’s prevailing wage law is a good piece of legislation.

“I don’t have anything against the prevailing wage law,” Acker said during a Wednesday’s hearing in Raleigh County Circuit Court before Judge H.L. Kirkpatrick. “I just disagree with the manner in which they investigate and then fix the fair minimum wage for public projects in West Virginia.”

Acker’s’ complaint is that the state Division of Labor’s calculating method for the prevailing wage is unprofessional, discriminatory and an abuse of discretion.

“The West Virginia Code says very clearly that the fair minimum rate of wages shall be the rate of wage paid in the locality in this state to the majority of workmen in the same trade or occupation in the construction industry,” Acker said. “Illogically, the Division of Labor sets this fair minimum rate of wages for the majority as the maximum rate of wages for the minority.”

Vincent Trivelli, a Morgantown lawyer representing the West Virginia State Building and Construction Trades Council, which represents organized labor, doesn’t agree with Acker’s definition of the state law concerning the issue and continues to defend the current method for calculating the prevailing wage rate.

“The Department of Commerce’s numbers are statistical averages and medians that are statewide, which are completely different than the ones the Division of Labor is tasked by the law to do in determining the prevailing wage rate,” Trivelli said. “They are different types of numbers which are collected differently. They are all estimates.”

Trivelli says the law clearly states workers should be paid the prevailing wage rate in their area.

“That’s very different than statewide averages or medians,” he said. “It also doesn’t look at things like fringe benefits or how long a person worked at a job. Using labor statistics to look at economic trends is one thing, but setting an area’s prevailing wage is something totally different.”

Trivelli says Acker wants to cut prevailing wage rates by more than 50 percent in some cases and thinks the prevailing wage should be a statewide average wage.

“That is not what the law states,” he said. “The Division of Labor has done nothing that wasn’t according to law and the state Supreme Court has already addressed this issue. If Father Acker wants to change the law, he should go before the state Legislature and not before this court.”

Acker said the Division of Labor gets basically no statistics from non-union workers and should use data available in the Department of Commerce.

“It’s the most valid data of anything they have, according to testimony, but they don’t want to use it,” he said.

Acker says it appears the Division of Labor is not interested in having a minimum response rate to its data collection process.

“The contrast of receiving almost 100 percent from organized labor and less than 1 percent from non-organized labor should have sent up some red flags,” he added.

Acker also argued that the Division of Labor has interpreted the word “and” in state prevailing wage law and changed it to mean “versus.”

“They pit the data of organized labor against the data from independent contractors on a winner take all basis,” he said.

Acker said the Division of Labor has created an unfair playing field.

“This is clearly wrong and an abuse of discretion and leads to discrimination,” he said.

Judge Kirkpatrick said he would review the briefs filed in the case, consider all the arguments, and review the state Supreme Court decision in Hardy County before making a ruling. He gave no specific timelines or dates regarding when he would rule on the matter.

— E-mail: fpace@register-herald.com