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04/08/87 Scott A. Raibley Et Al., v. the County of Wabash

April 8, 1987

SCOTT A. RAIBLEY ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF WABASH, DEFENDANT-APPELLEE. -- GUY O. SHEHORN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF CLAY ET

AL., DEFENDANTS-APPELLEES. -- GUY SHEHORN ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF EFFINGHAM, DEFENDANT-APPELLEE. -- GUY SHEHORN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF EFFINGHAM, DEFENDANT-APPELLEE NOS. 5-85-0128, 5-85-0390, 5-85-0393, 5-85-0408 CONS.



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

506 N.E.2d 744, 153 Ill. App. 3d 1083, 107 Ill. Dec. 1 1987.IL.460

Appeal from the Circuit Court of Wabash County; the Hon. Robert M. Keenan, Jr., Judge, presiding; appeal from the Circuit Court of Clay County; the Hon. Dennis L. Berkbigler, Judge, presiding; and appeal from the Circuit Court of Effingham County; the Hon. Michael Weber, Judge, presiding.

APPELLATE Judges:

Justice Kasserman delivered the opinion of the court. Karns, P.J., and Jones, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiffs, Scott Raibley, James Hart, Guy Shehorn, Harvey Shock, John Shrum, Frank Koester, and Mike Carr, have perfected and consolidated the instant appeals from judgments entered on administrative review by the circuit courts of Wabash, Clay, and Effingham counties in favor of defendants, County of Wabash, County of Clay, County of Effingham, and City of Effingham. The proceedings were instituted in the various trial courts, seeking administrative review of decisions of local governing bodies regarding determination of the prevailing wage for highway maintenance workers. (Ill. Rev. Stat. 1985, ch. 48, par. 39s-1 et seq.) In a related matter Neale Shaw, vice-president of Mt. Carmel Sand & Gravel Company, Inc., contests on appeal the ruling of the circuit court of Clay County that he had no standing to challenge the county's prevailing wage ordinance.

Prior to January 1, 1984, maintenance work on existing public works was specifically excepted from the prevailing wage law (Ill. Rev. Stat. 1981, ch. 48, par. 39s-2); however, effective January 1, 1984, this specific exception was eliminated (Ill. Rev. Stat. 1983, ch. 48, par. 39s-2 (as amended by Pub. Act 83-443, sec. 1, eff. January 1, 1984)). Thus, maintenance workers on public works are now to be paid "[n]ot less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed, and not less than the general prevailing rate of hourly wages for legal holiday and overtime work." (Ill. Rev. Stat. 1985, ch. 48, par. 39s-3.) The general prevailing wage also includes fringe benefits for health and welfare insurance, vacations and pensions paid generally in the locality. Ill. Rev. Stat. 1985, ch. 48, par. 39s-2.

In each of the instant cases the local governing body determined that maintenance work was separate and distinct from higher-paid construction work. Therefore, a lower rate of pay ostensibly based upon previous employment practices was instituted for maintenance work as compared to construction work. Plaintiffs challenged this interpretation, alleging that (1) in eliminating the exemption relating to maintenance workers, the legislature intended that all workers employed on public works projects be paid in accordance with their craft or type of work and not with reference to the type of contract being performed, and (2) the local governing bodies based their wage determination for maintenance workers on inadequate information. In each case the circuit court ruled in favor of the local governing body's interpretation of the statute. Plaintiffs appeal, raising the same issues they argued in the circuit court.

Frye v. County of Iroquois (1986), 140 Ill. App. 3d 749, 489 N.E.2d 406, is dispositive of plaintiffs' first issue. In Frye, maintenance workers raised an identical issue. The court found that "even though maintenance is no longer excluded from the process [of determining prevailing wages], neither is it mandated that the prevailing wage for a tradesman performing maintenance is equivalent to that of a brother engaged in construction." (140 Ill. App. 3d 749, 751, 489 N.E.2d 406, 408.) We therefore reject plaintiffs' assertion that the statute entitles maintenance workers to be paid construction workers' wages.

The second issue raised by plaintiffs is whether the prevailing wage determinations made by each local governing body were supported by adequate information. This determination is necessarily a question of fact. A court on review of an administrative decision will not disturb such findings of fact unless they are contrary to the manifest weight of the evidence. Lakin v. Gorris (1983), 113 Ill. App. 3d 1034, 1037, 448 N.E.2d 215, 217; see also Frye v. County of Iroquois (1986), 140 Ill. App. 3d 749, 751, 489 N.E.2d 406, 408.

Case No. 5 -- 85 -- 0128

The Wabash County board enacted the following relevant prevailing wages:

Hourly Fringe Benefits

Construction Hourly Wages Welfare Pension

Laborers $13.75-$13.85 $1.035 $ .30

Operating Engineers $9.50-$17.45 $1.00 $1.50

Truck Drivers $14.275-$15.125 $1.90 $1.375

Maintenance Hourly Wages Welfare Pension

Laborers $7.78 $1.00 $11/wk

Operating Engineers $8.95 $1.00 $ .40

Truck Drivers $7.78 $1.00 $11/wk

Scott Raibley, James Hart, and Guy Shehorn filed a written objection to the wage determination for maintenance workers. The following evidence was submitted to the county board during the hearing on this objection.

Gordon Kirkman, the superintendent of highways for Wabash and Edwards counties, testified that he had assisted the county board in investigating the instant prevailing wage rates. In doing so, he requested information from the Illinois Department of Labor, the Teamsters Union, the Operating Engineers Union, and the Laborers Union. In addition, Kirkman requested prevailing wage rates from local contractors for oil and chip maintenance work on county roads. Kirkman related that since the Mt. Carmel Sand & Gravel Company for the last 10 years had performed all of the oil and chip maintenance work on Wabash and Edwards county roads, the prevailing wage contract this company had in effect with the Teamsters and the Operating Engineers from January 1, 1984, through December 31, 1986, for oil and chip maintenance work "was the basis that we used for making our determination for prevailing wages for oil and chipping." The operating engineer contract provided that operating engineers be paid $8.95 per hour, that the company contribute $1 per hour for up to 40 hours per week for health and welfare benefits, and that the company contribute $ .40 per hour for up to 40 hours per week for pension benefits. The Teamsters' contract provided that all departments (i.e. semitruck drivers, ready mix and gravel truck drivers, road oil and liquid asphalt drivers, and mechanics) be paid $8.28 per hour, that the company contribute $33.75 per week for each week worked for health and welfare benefits, and that the company contribute $11 per week for pension benefits.

Neale Shaw, vice-president of the Mt. Carmel Sand & Gravel Company, and an officer of its subsidiary, Wabash Asphalt, testified that his company probably performed 90% of the oil and chipping road maintenance work within a 40-mile radius of Mt. Carmel, exclusive of the State of Indiana. Mr. Shaw testified that in the last year, on all jobs, the Teamsters and Operating Engineers had performed 289 hours of work for his company. In Mr. Shaw's opinion, the prevailing wage rates enacted by the county board for maintenance workers were generous.

Guy Shehorn, business representative for Operating Engineers Local 841, testified concerning the number of hours of work performed on public works and the wages paid to his union members in the locality. According to Mr. Shehorn, operating engineers had worked a total of 4,616 hours in Wabash County in the last year. However, none of these hours involved oil and chip maintenance work. Furthermore, Mr. Shehorn indicated that since January 1, 1984, operating engineers on public works projects were paid $17.15 per hour plus $1-per-hour health and welfare, $1.50-per-hour pension, and $ .10 per hour for apprenticeship and training. Although Mr. Shehorn did not feel fully qualified to render an opinion, he believed that the agreement his union had with Mt. Carmel Sand & Gravel Company and Wabash Asphalt was in the nature of a permanent plant agreement rather than an agreement with seasonal employees.

James Hart, business agent for Laborers Local 771, gave testimony relating to the number of hours of work performed on public works and the wages paid to Laborers Union members in the locality. Mr. Hart stated that laborers had worked 10,107 hours in Wabash County in the last year. While Mr. Hart was not aware whether any of these hours involved oil and chip maintenance work, he stated that his union employees did perform oil and chip maintenance work in Clay County for an unnamed contractor. Mr. Hart stated that laborers were paid $13.75 to $13.85 per hour, $1.035 per hour for health and welfare, and $ .30 per hour for pension. Although in his testimony Neale Shaw never referred to a contract between his company, or its subsidiary, and the Laborers Union, Mr. Hart claimed that Shaw's company and its subsidiary had a contract with the Laborers Union. This purported ...


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