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«FILED September 2014 Term November 3, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 13-1133 ...»

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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED

September 2014 Term

November 3, 2014

released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 13-1133 GREGORY GRIM, et al., Plaintiffs Below, Petitioners v.

EASTERN ELECTRIC, LLC,

Defendant Below, Respondent Appeal from the Circuit Court of Kanawha County The Honorable Paul Zakaib, Jr., Judge Civil Action No. 13-C-111

AFFIRMED, IN PART; REVERSED, IN PART;

AND REMANDED

Submitted: September 17, 2014 Filed: November 3, 2014 Vincent Trivelli, Esq. Joseph U. Leonoro, Esq.

The Law Office of Vincent Trivelli, PLLC Steptoe & Johnson, PLLC Morgantown, West Virginia Charleston, West Virginia Attorney for Petitioners Attorney for Respondent and Attorney for Amicus Curiae West Virginia State Building and Construction Trades Council, AFL-CIO JUSTICE WORKMAN delivered the Opinion of the Court.

CHIEF JUSTICE DAVIS concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.

JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v.

Fed. Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. “Once a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious.” Syl. Pt. 2, W.Va. Health Care Cost Review Auth. v. Boone Mem. Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996).

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to all workmen who are employed ‘on behalf of any public authority’ and who are ‘engaged in the construction of public improvements.’” Syl. Pt. 9, in part, State ex rel.

Tucker Co. Solid Waste Auth. v. W.Va. Div. of Labor, 222 W.Va. 588, 668 S.E.2d 217 (2008).

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Virginia Code § 21-5A-9(b) (2013), is subject to the five-year statute of limitations period provided for in West Virginia § 55-2-6 (2008) for actions upon an implied contract.

–  –  –

provides that “an honest mistake or error shall not be construed as a basis for recovery under this subsection.” Therefore, when a contractor or subcontractor can demonstrate that its failure to pay prevailing wages to workers on a public improvement construction project was due to an “honest mistake or error,” there is no basis for recovery.

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legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.’ Syllabus, Mullins v. Venable, 171 W.Va. 92, 297 S.E.2d 866 (1982).” Syl. Pt. 3, Jones v. Tri-County Growers, Inc., 179 W.Va. 218, 366 S.E.2d 726 (1988).

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Virginia Code § 21-5-1(c) (2013 Repl. Vol.), are payable pursuant to the requirements of West Virginia Code § 21-5-1 et seq. (2013 Repl. Vol.) is governed by the terms of the employment agreement, whether written or in the form of a consistently applied

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evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. Pt. 6, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

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Petitioners, former workers on a public works project, filed this civil action to recover statutory wages and liquidated damages under the Prevailing Wage Act1 and Wage Payment and Collection Act2 from the contractor on the project, Eastern Electric, LLC (“Eastern Electric”). Petitioners appeal an order entered October 7, 2013, by the Circuit Court of Kanawha County granting summary judgment in favor of Eastern Electric. On appeal to this Court, petitioners argue the circuit court erred in its holdings under these laws and failed to follow the appropriate standard regarding summary judgment determinations. This case presents the following questions: (1) what is the statute of limitations in a Prevailing Wage Act claim; (2) whether summary judgment was appropriate on the issue of Eastern Electric’s “honest mistake or error” affirmative defense; and (3) whether the circuit court was correct to dismiss petitioners’ Wage Payment and Collection Act claims. 3

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the arguments of the parties, we hold the circuit court erred in dismissing petitioners’ 1 West Virginia Code §§ 21-5A-1 to -10 (2013).

2 West Virginia Code §§ 21-5-1 to -18 (2013).

3 Petitioners advance six different assignments of error. On review, we find the case presents three issues for resolution. See Evans v. Holt, 193 W.Va. 578, n.2, 457 S.E.2d 515, n.2 (1995) (consolidating redundant assignments of error); Robertson v. B.A.

Mullican Lumber & Mfg. Co., L.P., 208 W.Va. 1, n.1, 537 S.E.2d 317, n.1 (2000) (combining five errors into two).

1 Prevailing Wage Act claims as untimely because the statute of limitations applicable to those claims is five years. We find the record establishes disputed issues of material fact with regard to Eastern Electric’s “honest mistake or error” affirmative defense, rendering the circuit court’s entry of summary judgment erroneous. Finally, we affirm the circuit court in its dismissal of petitioners’ Wage Payment and Collection Act claims. We therefore affirm, in part, reverse, in part, and remand the case for further proceedings.4

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Eastern Electric is an electrical contractor. Petitioners are seven electricians who were employed by Eastern Electric on several public works projects for the State of West Virginia in and around the City of Charleston. Petitioners filed the instant action alleging violations of West Virginia Code §§ 21-5A-1 to -10 (“Prevailing Wage Act” or “PWA”), and West Virginia Code §§ 21-5-1 to -18 (“Wage Payment Collection Act” or “WPCA”). The parties dispute whether the PWA applied to the specific contract at issue

-- a contract Eastern Electric entered into with the West Virginia Department of Administration in 2007. Petitioners performed electrical construction work pursuant to this contract at several government buildings including the State Capitol and the Governor’s mansion. Work on this contract began in May of 2007, and with the renewal of the contract in 2008, continued through May of 2009.

4 We wish to acknowledge the amicus curiae brief filed by the West Virginia State Building and Construction Trades Council, AFL-CIO, in support of petitioners’ position.

2 Throughout the term of this contract, Eastern Electric performed electrical work on a variety of projects at various State-owned facilities. Each project was given to Eastern Electric on a purchase order or work order. Upon completion or partial completion of a job or project, the lead electrician, Petitioner Gregory Grim, completed an installation/service report, which was usually approved and signed by the Department of Administration official in charge of that particular building or location. Thereafter, Eastern Electric sent the invoice to the Department of Administration. Each invoice contained a brief description of the work performed, the number of hours spent to perform the work, and material costs. The appendix record submitted to this Court includes a generous sampling of those documents; the work is repeatedly described as demolishing existing wiring, lighting and receptacles and installing new. In their deposition testimony, petitioners also describe the work performed pursuant to the contract as demolishing electrical systems in various office spaces to install new systems.

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agreements, but they were not paid prevailing wages. Petitioners performed identical work for Eastern Electric on other public works construction projects during this same time period and were paid prevailing wages. 5 Petitioners asked members of Eastern 5 In his deposition, Petitioner Grim testified that his weekly time sheets for the period April 2007 through May 2007 show that he worked several days on a project for Eastern Electric on the White Sulphur Springs Fire Department, a public entity, and received prevailing wages. That work consisted of running conduit, pulling wire and installing lighting and receptacles. Mr. Grim also testified that he worked on other public (continued...) 3 Electric about this discrepancy and they were told that prevailing wages were not paid because it was a maintenance contract.

The Request for Quotation (“RFQ”) for this contract was entitled “Electrical Construction, Maintenance and Repair.” The RFQ indicated the contract was “to provide electrical construction, maintenance, and repair services to a variety of equipment housed in numerous Department of Administration owned facilities located

throughout West Virginia[.]” The term “construction” was defined within the RFQ as:

“work associated with the addition, removal, or re-location of electrical circuits[.]” When Eastern Electric submitted its bid for this contract, it did so at non-prevailing wage rates.6 Eastern Electric’s bid was accepted and it entered into the contract with the Department of Administration. The contract did not specify that prevailing wages were applicable to improvement construction jobs for Eastern Electric, including the Summersville Municipal Building and a high school in Princeton, and received prevailing wages.

6 Michael Harlow, one of Eastern Electric’s members, testified in his deposition that when he was preparing the bid for this contract, he contacted the purchasing division to inquire whether prevailing wages would be applicable. Mr. Harlow testified that Krista Ferrell, a senior buyer with the purchasing division, explained that prevailing wages would not apply. However, Ms. Ferrell testified in her deposition that she could not recall this conversation.

Eastern Electric asserted it also relied on an e-mail confirmation from David Parsons, Operations and Maintenance Manager of the Department of Administration’s General Services Division, that prevailing wages did not apply to this contract. In his deposition, Mr. Parsons confirmed that he e-mailed Eastern Electric’s business manager, Kristin Moore, and stated that prevailing wages did not apply. In his deposition, Mr.

Parsons explained that he consulted no one in making this comment and he did so based only on his “general feeling.” Mr. Parsons also testified that he was not responsible for making the determination regarding payment of prevailing wages.

4 the work being performed, and did not include the general boilerplate language7 usually included in prevailing wage contracts.8 In February of 2009, the West Virginia Division of Labor commenced an investigation with regard to some of the work performed pursuant to the contract and determined that Eastern Electric should have paid prevailing wages to the workers. The investigation began with work performed on State Building 74, a three-story building.

Petitioners removed all of the existing wiring and lighting, as well as all the existing receptacles and switches in the building. After this demolition was complete, petitioners installed new conduit, wiring, lighting, receptacles and switches on all three floors. The 7 According to deposition testimony of the two State witnesses, the State uses the

following language in contracts when prevailing wages apply:

WAGE RATES: THE CONTRACTOR OR

SUBCONTRACTOR SHALL PAY THE HIGHER OF THE

U.S. DEPARTMENT OF LABOR MINIMUM WAGE

RATES AS ESTABLISHED FOR KANAWHA COUNTY,

PURSUANT TO WEST VIRGINIA CODE 21-5A, ET SEQ.,

(PREVAILING WAGE RATES APPLY TO THIS

PROJECT).

8 Petitioners rely on the general compliance language on the back of every page of the purchase order for the contract at issue which provided: “Compliance: Seller shall comply with all Federal, State and local laws regulations and ordinances including, but not limited to, the prevailing wage rates of the WV Division of Labor.” We do not find that language alone mandates the application of prevailing wages within the meaning of West Virginia Code § 21-5A-6. Significantly, the Division of Labor’s investigator, Frank Jordan, noted the absence of the mandatory prevailing wage language when he conducted his investigation and determined the language should have been included in this contract.

Furthermore, a prevailing wage schedule was not incorporated into the bid documents or the contract. See W.Va. Code § 21-5A-3.

5 Division of Labor issued a letter to Eastern Electric dated August 6, 2009, and stated that an audit revealed that Eastern Electric failed to pay proper prevailing wages for work performed on State Building 74.9 The results of that investigation were reflected in an audit that found the workers were owed prevailing wages in the amount of $135,330 for work performed just on that particular project. The letter advised Eastern Electric that if it did not agree with the audit findings, it could contest those findings under the provisions of the State Administrative Procedures Act. See West Virginia Code § 29A-5-1 (2002).10 Eastern Electric contested those findings but for reasons not clear from the record, the Division of Labor did not schedule this matter for an administrative hearing.



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