Opinion
No. 27892, 27894, 27896 and 27897 consolidated
April 30, 2007
Appeal from Circuit Court of Butler County, Hon. Paul McGhee,.
AFFIRMED.
John M. Albright and Robert Johnson, Counsel for Appellant.
Amber Van Hauen and Kathryn G. Lee, Counsel for Respondent.
Before Bates, C.J., and Lynch, J., — concur.
Opinion
This is a consolidated appeal arising from four claims for unpaid wages due under the Missouri Prevailing Wage Act ("PWA"), Sections 290.210 to 290.340. Robert Evans, David Crowder, Shawn Hanley, and Ricky Robinson (collectively referred to as "Plaintiffs") claim the trial court erred in not setting the apprentice wage as a percentage of the prevailing wage rate; in awarding pre-judgment interest from the date of the service of the summons instead of from the date they were not paid the prevailing wage; and in entering judgment in favor of the surety. We affirm.
All statutory references are to RSMo (2000), unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In 2001, Camden Builders, Inc. ("Camden") was the general contractor on a public works project building student housing on the Three Rivers Community College campus ("public works project") in Poplar Bluff, Missouri. Camden subcontracted the electrical work to Brown Builders Electrical Company, Inc. ("Brown Builders").
Brown Builders maintained an apprentice program that was registered with the Bureau of Apprenticeship and Training of the U.S. Department of Labor. This program set forth the wages that apprentices were to receive. It stated, "The apprentices shall be paid a progressively increasing schedule of wages consistent with skill, performance, and knowledge acquired." The apprentice wages were expressed as a percentage of the "sponsor's wage rate for a fully trained professional in the occupation" with the "starting rate for an apprentice without prior experience . . . not . . . less than 46.2% of the sponsor's skilled rate for the occupation." The program stated that "sponsor's current rate for the occupation is $13 per hour[.]"
Plaintiffs are all entry level electrician apprentices under this registered program and, as such, were to make 46.2% of the "sponsor's wage rate." Between October 27, 2004, and June 21, 2005, Plaintiffs individually filed petitions against Brown Builders, Camden, and St. Paul Fire and Marine Ins. Co. ("St. Paul"), alleging that they provided labor on the public works project and Brown Builders paid them less than required by the PWA. Plaintiffs asked the court for attorney's fees and double the amount allegedly underpaid with interest pursuant to Section 290.300.
The trial court specifically found that Plaintiffs were all entry level apprentices and no party challenges this finding on appeal.
Plaintiffs' cases were consolidated for a hearing before the trial court, and on July 7, 2006, the trial court found that Plaintiffs were entitled to unpaid fringe benefits in the amount of $15.02 per hour and doubled that amount. It also gave Plaintiffs prejudgment interest on this amount from the date of the service of summons. In Plaintiffs' notices of appeal and brief they include Brown Builders, Camden, and St. Paul as respondents to this appeal. Plaintiffs have now, however, dismissed both Camden and St. Paul with prejudice as to any and all claims. Therefore, any points brought by Plaintiffs relating to issues exclusively concerning Camden and or St. Paul are now moot.
We review a court-tried case under the standard elucidated in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.
Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2006).
In their first two points, Plaintiffs allege the trial court erred in not including in its judgment an award for underpaid wages, as opposed to solely underpaid fringe benefits, in that under the PWA, Brown Builders was required to pay them a percentage of the prevailing wage for electricians.
Brown Builders did not file a brief in this appeal. We note that "a respondent, unlike an appellant, is not required to file a brief and has no burden on appeal, and as such, may rely on the presumption that the trial court's judgment is correct." American Express Travel Related Serv. v. Mace , 26 S.W.3d 613, 615 n. 4 (Mo.App.S.D. 2000).
The record reveals that while working on the public works project Plaintiffs were paid between $6 and $12 per hour. They claim they were underpaid because the PWA required they receive $12.75 per hour. Plaintiffs reach this figure by maintaining that the PWA requires that they be paid 46.2%, the percentage specified for entry level apprentices in the registered apprentice program, of $27.85, which is the prevailing hourly wage rate for an electrician in Butler County as determined by the Missouri Division of Labor Standards and listed in the annual wage order. We do not find their argument persuasive.
Under the PWA all workmen employed by private contractors in the construction of public works must be paid not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed. Section 290.230; State Dept. of Labor and Indus. Relations, Div. of Labor Standards v. Board of Public Utilities of the City of Springfield , 910 S.W.2d 737, 740 (Mo.App.S.D. 1995). The PWA specifically gives the Missouri Department of Labor ("DOL") the power to "establish rules and regulations for the purpose of carrying out" the PWA. Section 290.240.
In this capacity, the DOL enacted 8 CSR 30-3.030 specifically dealing with how apprentices are to be paid under the PWA. It states that apprentices "shall be permitted to work at less than" the prevailing hourly wage rate as long as they are "employed pursuant to and individually registered in a bona fide apprenticeship program registered with the United States Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training." 8 CSR 30-3.030(2). In this case, Plaintiffs were apprentices in a program properly registered with the U.S. Department of Labor. They were therefore allowed to make less than the prevailing hourly wage rate. The issue to be determined is how much their rate of pay should be.
8 CSR 30-3.030(2) states, "Every apprentice shall be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman hourly rate for the class or type of worker specified in the applicable wage determination." The question on appeal is whether the phrase "journeyman hourly rate . . . in the applicable wage determination" means the prevailing hourly wage rate, as Plaintiffs allege, or the rate specified in the apprenticeship program.
"The same principles of construction are used when interpreting regulations as in interpreting statutes." Teague v. Mo. Gaming Com'n. , 127 S.W.3d 679, 685 (Mo.App.W.D. 2003) (emphasis in original). The primary rule of statutory construction is ascertaining the lawmaker's intent from the language used and giving effect to that intent, while considering the words used in their plain and ordinary meaning. Hunt v. Director of Revenue , 10 S.W.3d 144, 149 (Mo.App.E.D. 1999). Where the language of a regulation is clear and unambiguous, there is no room for construction. Id.
We find that the language used in 8 CSR 30-3.030(2) to be clear and unambiguous. It clearly requires every apprentice be "paid at not less than the rate specified in the registered program for the apprentice's level of progress." When it states that this rate must be expressed as a "percentage of the journeyman hourly rate . . . in the applicable wage determination," it is referring to the rate specified in the registered program and describing how apprentices' salaries are expressed as a percentage of that rate. The "applicable wage determination" is not the prevailing hourly wage rate, but rather the journeyman rate as specified in the registered program.
In this case, the registered apprentice program specified that the rate for entry level electrician apprentices was "46.2% of the sponsor's skilled rate for the occupation." The program clearly stated that "sponsor's current rate for the occupation is $13 per hour[.]" Plaintiffs were paid, at a minimum, $6 per hour, which is 46.2% of $13. They were therefore, "paid at not less than the rate specified in the registered program" in compliance with 8 CSR 30-3.030(2).
The pay scale set in this registered apprentice program complied with 8 CSR 30-3.030(2) in that it set Plaintiffs' minimum pay rate as a "percentage of the journeyman hourly rate . . . in the applicable wage determination." The registered program used the term "sponsor's skilled rate for the occupation," but this clearly is the same as a "journeyman hourly rate" because it refers to what a fully trained electrician would make under the registered program. The registered program made a "wage determination" and determined that fully trained electricians would make $13 per hour and set the apprentices' wages as a percentage of this amount. Therefore, the registered program's pay scale complied with 8 CSR 30-3.030(2).
Because Plaintiffs were paid at a minimum $6 per hour and $6 is 46.2% of the $13, they were paid at the rate specified in the registered program in compliance with 8 CSR 30-3.030(2). Points one and two are denied.
In their third point on appeal, Plaintiffs claim the trial court erred in awarding pre-judgment interest from the date of the service of summons instead of from the date they were not paid the prevailing wage. They claim this was erroneous because a written contract required they be paid the prevailing wage, and Section 408.020 allows interest on "all moneys after they become due and payable, on written contracts."
The only written contract Plaintiffs cite to in their brief is the contract between Three Rivers Community College and Camden. While this contract contains, as required by Section 290.050, a provision stating that all workmen will be paid the prevailing wage, we need not decide whether, under Section 408.020, this provision requires interest to run from the date the wages became due and payable. This is because Camden, having been dismissed, is no longer a party to this appeal. Brown Builders is the only respondent remaining and is not a party to the contract between Three Rivers Community College and Camden. In their point, Plaintiffs have not argued or alleged that Brown Builders was a party to a written contract requiring them to pay the prevailing wage or that it was bound by the written contract between Camden and Three Rivers Community College. Because, Plaintiffs' third point is exclusively limited to an issue pertaining to a party it dismissed from this appeal that point is now moot.
Plaintiffs' fourth point claims the trial court erred in entering judgment in favor of the surety. St. Paul was the surety and they have been dismissed from this appeal. Therefore, Plaintiffs fourth point is also exclusively limited to an issue pertaining to a party it dismissed and is now moot.
The judgment of the trial court is affirmed.