Wis.LIRC ER Decision: Carter, S. and Jones, K. - May 24, 1999 - Retaliation - discrimination because of opposition to discrimination or filing complaint

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SHERLONDA CARTER, Complainant

KENNETH JONES, Complainant

DIONNE CONSTRUCTION, Respondent

WALTER WARD, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704351, 199740373

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 24, 1999
cartesh.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The issue presented in this case is whether or not the complainants have established that the respondents violated the Act by discharging them for filing a complaint or attempting to enforce a right under Wis. Stat., s. 66.293. The commission concludes that they did not and therefore affirms the ALJ's dismissal of their complaints.

Wm. Beaudoin & Sons, Inc., was the prime contractor on a construction project for the City of Milwaukee. The respondent, Dionne Construction, was a subcontractor that performed landscaping work for this construction project during the summer of 1997. Respondent Walter Ward owned Dionne Construction.

Complainant Kenneth Jones was hired by Ward as a laborer/foreman on July 28, 1997, and was to be paid $23.22 per hour because his position included foreman's duties. Jones was to be paid every Friday.

Complainant Sherlonda Carter was hired by Ward as a laborer on or about August 14, 1997. She was to be initially paid $10 per hour for the first two weeks of her employment and then her wage increased to $22.22 per hour. She was also to be paid every Friday.

Walter Ward failed to pay the complainants as agreed. Ward made partial wage payments to Jones on August 8 and 15, 1997, and a partial wage payment to Carter on August 22, 1997.

On Friday, August 29, 1997, because they had not been paid as agreed, the complainants, as well as other employes of Dionne Construction, filed complaints against Walter Ward and Dionne Construction with the City of Milwaukee's Commissioner of Public Works Office. The complaints read in part as follows:

"I am submitting this letter as a formal complaint against Walter Ward (Contractor's Name) for failure to pay me in accord with the `Minimum Wage Scale' required by the City of Milwaukee.

I have completed and attached the `Complaint Information Sheet', which details the basis for my complaint.

I am requesting that the Department of Public Works perform a compliance review of the Contractor's payroll records related to my employment on a City construction project and collect any backpay and/or fringe benefit payments that I am owed."

At the end of the work day on September 4, 1997, Ward appeared at the work site where the complainants, Jones and Carter, and others were working. Jones, Carter and others asked Ward about the outstanding wages that were owed them. Ward told them that the reason they were not getting paid was because the City was holding his money because they had filed wage claims against him and that he could not have them around anymore because they were "jeopardizing other people's jobs." Jones asked Ward what he meant and Ward replied, "You're fired."

In October 1997, Wm. Beaudoin & Sons, Inc., paid Jones and Carter the wages they were owed for the work performed for Dionne Construction.

The complainants subsequently filed complaints with the Equal Rights Division alleging that Walter Ward discharged them in retaliation for filing a wage claim against him.

Wis. Stat., sec. 66.293, known as the prevailing wage law, provides in part as follows:

"(3) PREVAILING WAGE RATES AND HOURS OF LABOR. (am) Every local governmental unit, before making a contract.for the erection, construction, remodeling.of any project of public works.shall apply to the department (Department of Workforce Development) to determine the prevailing wage rate (1 ) and prevailing hours of labor for each trade or occupation required in the work contemplated..

(dm) A reference to the prevailing wage rates and prevailing hours of labor determined by the department or a local governmental unit exempted under sub. (6) (2 ) shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project of public works.is entered into, the prevailing wage rates and prevailing hours of labor determined by the department or exempted local governmental unit shall be physically incorporated into and made a part of the contract or subcontract.No person described in sub. (4) (3 ) may be paid less than the prevailing wage rate in the same or most similar trade or occupation determined under this subsection; nor may he or she be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under this subsection.

(10)(c) If requested by any person, the department shall inspect the payroll records of any contractor, subcontractor or agent performing work on a project that is subject to this section to ensure compliance with this section..

(10)(d) .Section 111.322(2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section."

Wis. Stat. Sec. 111.322(2m)(c) makes it an act of employment discrimination to discharge or otherwise discriminate against any individual because, among other things, "The individual files a complaint or attempts to enforce a right under s. 66.293."

Wisconsin Administrative Code sec. DWD 290.09 sets forth the procedure for a local government to obtain an exemption from applying to the department for wage determinations. With respect to those exemptions, section DWD 290.09(4) of the code includes the following provision:

"(4) Each exemption is subject to revocation for cause at any time, and also subject to observance of the applicable provisions of Wisconsin laws, rules and regulations of the department, and of the agreements included in the petitions and application.."

The ALJ found that Ward terminated the employment of the complainants and that he had known that the complainants had filed complaints against him and Dionne Construction with the City of Milwaukee, but concluded that the complainants failed to establish a connection between the complaints filed with the City of Milwaukee and the prevailing wage law, and thus there was a failure to establish that the division had jurisdiction under Wis. Stat., sec. 111.322(2m)(c). As reason, the ALJ stated that she found no evidence that the complaints were filed pursuant to any procedures set up by the prevailing wage law or the administrative rules implementing the prevailing wage law, and that the record evidence was not clear whether the City of Milwaukee's wage rates were set pursuant to the exemption provisions of Wis. Stat., sec. 66.293, or whether the City of Milwaukee's wage rates were set up independently of the prevailing wage law.

On appeal, the complainants assert that their wage complaints filed with the City of Milwaukee do fall under s. 66.293, Stats. They argue that they do because "the City of Milwaukee as a local government unit is part of the exemptions under s. 66.293(6), Stats.", and because "under s. 66.293(10)(d), Stats. the City is subject to s. 111.322(2m), Stats., which applies to discharge or other discriminatory acts in connection with proceedings under s. 66.293, Stats."

It was not established on the record that the City of Milwaukee had been granted an exemption under s. 66.293(6), Stats. However, assuming for purposes of argument that it had, the prevailing wage law contains a specific statutory procedure for monitoring and securing compliance with its requirements. Section 66.293(10)(c), Stats., states that "If requested by any person, the department (of Workforce Development) shall inspect the payroll records of any contractor, subcontractor or agent performing work on a project that is subject to this section to ensure compliance with this section.." (Emphasis added)

Although the City of Milwaukee remains subject to the prevailing wage law when it has obtained an exemption under s. 66.293(6) from having to apply to the department for a prevailing wage rate determination, nowhere under s. 66.293, Stats., is there reference to any entity except the Department of Workforce Development as possessing the authority to monitor and secure compliance with the prevailing wage law. In short, it is the department that is responsible for enforcement of the prevailing wage law under s. 66.293, Stats. (4 ) There is no evidence that prior to their discharge the complainants had made any complaint or attempted to enforce any right they may have had under s. 66.293 before the department. Absent resort to the department to obtain payment of the prevailing wage rate the complainants are unable to prove that they were discharged because they "file(d) a complaint or attempt(ed) to enforce a right under s. 66.293."

cc: Katherine A. Depies

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) "Prevailing wage rate" is defined as meaning "the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects in the area." Wis. Stat., s. 66.293(1)(g).

(2)( Back ) This subsection reads as follows: "(6) EXEMPTIONS. The department, upon petition of any local governmental unit, shall issue an order exempting the local governmental unit from applying to the department for a determination under sub (3) when it is shown that an ordinance or other enactment of the local governmental unit sets forth standards, policy, procedure and practice resulting in standards as high or higher than those under this section."

(3)( Back ) This subsection lists all the covered employes that are to be paid the prevailing wage rate determined under sub. (3), and includes "All laborers, workers.employed on the site of a project that is subject to this section."

(4)( Back ) Section 66.293(11) Stats., also provides employes a right of civil action against any contractor and subcontractor or agent thereof, who fails to pay the prevailing wage rate.