§ 9.105. Determination of classification and general prevailing minimum wage rates.
(a) For the purpose of making a determination of the general prevailing minimum wage rates in the locality in which the public work is to be performed for each craft or classification during the anticipated term of the contract, the Secretary may ascertain and consider the wage rates and employee benefits established by collective bargaining agreements.
(b) If a bona fide collective bargaining agreement has expired by the terms thereof, the Secretary may ascertain and consider the wage rates and employee benefits established thereby until a new bona fide collective bargaining agreement, as defined in § 9.102 (relating to definitions), has been executed.
(c) The Secretary may also consider the following:
(1) Information obtained from Federal agencies charged with the administration of labor standards provisions of Federal acts applicable to contracts covering contractors and subcontractors on public building and public work and on building and work financed in whole or in part by loans and grants of the United States, within the locality.
(2) The number of skilled, competent and experienced workmen within the locality who are generally available for employment on public work.
(3) Statements signed and certified by contractors and subcontractors and union representatives showing wage rates paid on projects, within the locality. These statements to be relevant to a wage determination shall indicate the names and addresses of the contractors, including the subcontractors, the locations, approximate cost, dates of construction and type of projects, the number of workmen employed and the number of man hours worked in each craft or classification on each project and the respective wage rates paid the workmen, which wage rates shall consist only of rates paid for services performed solely within the classification for which it is submitted.
(4) Other information pertinent to the determination of prevailing minimum wage rates.
(d) The Secretary will conduct a continuing program for obtaining and compiling of wage rate information and shall encourage the voluntary submission of wage rate data by contractors, contractors’ associations, labor organizations, public officials and other interested parties, reflecting wage rates paid to workmen in the various types of construction in the locality. Rates shall be determined for varying types of projects within the entire range of work performed by the building and construction industry. Information submitted shall reflect not only the specified wage rate or rates paid to a particular craft in the locality but also the type or types of construction on which the wage rate or rates have been paid. If the Secretary deems that the data at hand is insufficient to make a determination with respect to the crafts or classifications necessary to perform the proposed public work, he may have a field survey conducted by his staff representative for the purpose of obtaining additional information upon which to make a determination of the wage rates, and also the customs, usages and practices as to the type of work to which the wage rates apply and the size of available force of qualified workmen within the locality in which the public work is to be performed.
Notes of Decisions Abuse of Discretion
Where the Secretary considered two collective bargaining agreements, and the data included wages for the type of work performed by the petitioner’s members, the Secretary’s determination was not an abuse of discretion, and the Board correctly upheld the Secretary’s decision setting the prevailing wage. Internationl Brotherhood of Electrical Workers v. Department of Labor and Industry, 816 A.2d 1220 (Pa. Cmwlth. 2003), appeal denied 836 A.2d 123 (Pa. 2003).
Because the Prevailing Wage Appeal Board affirmed the Secretary’s determination of prevailing wages, and that determination was based on a survey that failed to consider public-works projects as required in the court’s earlier order in Pennsylvania State Building and Construction Trades Council, AFL-CIO v. Prevailing Wage Appeals Board, 722 A.2d 1139 (Pa. Cmwlth. 1999), that determination was an abuse of discretion and is therefore reversed. International Union of Bricklayers and Allied Craftworkers, Local 5 PA v. Prevailing Wage Appeals Board, 778 A.2d 1264 (Pa. Cmwlth. 2001) appeal denied 808 A.2d 574 (Pa. 2002).
Arbitrary and Capricious
Secretary of Labor and Industry’s refusal to issue residential construction rates under the Prevailing Wage Act or adopt Davis-Bacon residential rates and apply them to Federally-funded project involving renovation of nine to ten units of residential housing instead of using building construction rates was not within his discretion; where he had previously applied residential rates for non-student housing project in this case. Adams County Interfaith Housing Corporation v. Prevailing Wage Appeals Board, 981 A.2d 352 (Pa. Cmwlth. 2009).
Equal Protection
Granting authority to the Secretary to consider fringe benefits determined by collective bargaining when he is making prevailing wage determinations is not an unconstitutional denial of equal protection to nonunion contractors and employes, since he is not required to make his determination solely on the basis of rates in collective bargaining. Keystone Chapter of Associated Builders and Contractors, Inc. v. Department of Labor and Industry, 414 A.2d 1129 (Pa. Cmwlth. 1980).
Weight of the Evidence
If the parties introduce exhibits which in some way do not comply with the standards of 34 Pa. Code § 9.105(c)(3), the Secretary may give more weight to evidence which includes fringe benefits and projects of every nature and which clearly demonstrates prevailing wage rates for the year in question rather to evidence which does not include fringe benefits, excludes public works projects and some major private projects, and lumps together wage rates from previous years to establish current wage rates. Keystone Chapter of Associated Builders and Contractors, Inc. v. Department of Labor and Industry, 414 A.2d 1129 (Pa. Cmwlth. 1980).
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