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Fox River Valley Carpenters v. Bd. of Educ.

OPINION FILED FEBRUARY 15, 1978.

FOX RIVER VALLEY DISTRICT COUNCIL OF CARPENTERS ET AL., PLAINTIFFS-APPELLANTS,

v.

THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 231, OGLE AND LEE COUNTIES, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Lee County; the Hon. JAMES B. VINCENT, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This appeal arises under the statute commonly known as the Prevailing Wage Law (Ill. Rev. Stat. 1975, ch. 48, pars. 39s-1 through 39s-12).

This Act provides that in all contracts for the construction of public works, it is the policy of the State of Illinois that the public body authorizing such construction shall pay workmen engaged in constructing such public works not less than the prevailing wage for the locality in which the construction is to be performed. It further provides that:

"* * * [E]ach public body shall, during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages as defined in this Act and publicly post or keep available for inspection by any interested party in the main office of such public body its determination of such prevailing rate of wage and shall promptly file a certified copy thereof in the office of the Secretary of State at Springfield." Ill. Rev. Stat. 1975, ch. 48, par. 39s-9.

The plaintiffs here are three buildings trades' councils, who complain that the defendant School Board, in letting a contract for the construction of a bus garage building, failed to follow the procedures required by the Prevailing Wage Law.

It appears from the defendant's brief — which we mention only as background since it is not part of the record on appeal — that the contract for the construction of the bus garage was let in March 1975, that there were competitive bids and the lowest bidder, Patterson, was awarded the job and did the construction.

On June 10, 1975, the School Board passed two resolutions — one a general resolution affirming the Board's compliance with the policy of the Prevailing Wage Law, the other a specific determination as to the prevailing wage rate applicable to the contract to build the bus garage in question. This resolution determined that the prevailing wage rate applicable was $3.67 per hour. It made no distinctions as to various crafts or skills and referred to "the crafts and type of workmen in Ogle County needed to execute the contract for a pole-type constructed building."

The plaintiffs filed written objections to this determination of the School Board and asked for a public hearing pursuant to the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264, et seq.). On July 21, 1975, a public hearing was held, subject to a rule prohibiting cross-examination of witnesses, which the plaintiffs contend denied them due process. At the conclusion of the hearing the School Board affirmed its determination as set forth in its resolution of June 10, 1975.

The plaintiffs argued at the hearing and contend in this appeal that the School Board's "determination" that the prevailing wage rate was $3.67 per hour for the contract in question was reached after the bus garage contract had been let and, in fact, after the building had been built, and that it was not an objective determination as to the prevailing wage rate for the skills involved, but was only a reflection of what had already been agreed upon in advance between the contractor and the School Board.

At the hearing Patterson, the contractor who built the bus garage in question, submitted a letter in which he listed some 15 contracts for "post-type buildings" which he had erected in Ogle County during 1974 and 1975. This letter stated: "The pay rate is non-union for the assemblers. Pay per man is for his qualifications." It also stated that the "same hourly rate is paid for each job, whether public body or individual." Patterson's manager testified that "our starting wages are $3.31 an hour to $5.50 an hour with profit sharing and retirement benefits besides." He said that the workers used on the contract involved here were untrained people used in the apprentice program.

One of the unsuccessful bidders testified that the building in question was not a commercial building and that the building was "strictly a type of building that is put up by non-union labor."

The plaintiffs, on the other hand, argued at the hearing that the bus building involved many skilled operations which were entitled to a much higher wage rate than was paid, and that the wage of $3.67 per hour was the nonunion contractors' scale and not the prevailing wage scale in Ogle County for the type of construction required for this building.

In this appeal the plaintiffs contend that there is no evidence to support the School Board's determination that $3.67 was the prevailing wage, that the School Board denied them due process by not allowing cross-examination of witnesses, and that the School Board failed to follow the procedural requirements of the Prevailing Wage Law.

A careful review of the pleadings, briefs and testimony at the hearing indicates that the sequence of procedures set out by the statute was not followed and the evidence to support the figure of $3.67 per hour as the prevailing wage rate for the contract in question appears to be merely an affirmation of a figure agreed on by the contractor and the School Board, after the "determination" was made. Since the School Board presented no evidence that it had made an independent investigation to arrive at the determination that $3.67 was the prevailing wage rate for "pole building assemblers," or that "pole building ...


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