Associated Builders & Contractors of Maryland, Inc. v. Commissioner of Labor & Industry

Menchine, J., delivered the opinion of the Court. The common issue in these appeals 1 is the question ¹⁷³ whether the provisions of the Prevailing Wage Law (Md. Code Article 100, §§ 96-107, 1975 Cum. Supp.) apply to separate construction projects in Wicomico and Talbot Counties. The issue had been raised before the Commissioner of Labor and Industry by separate actions by the Board of Education of Wicomico County and by the Board of Education of Talbot County.

The facts giving rise to the issue are not in dispute and will be set forth herein under the headings: (a) The Wicomico County Project; and (b) The Talbot County Project. The Facts (a) The Wicomico County Project. . The Board of Education of Wicomico County had proposed an addition to the existing Delmar Elementary School that included: (a) the use of maple wood flooring within a gymnasium; and (b) replacement of the roof over the existing multi-purpose room of the school. The Interagency Committee of the Board of Public Works of Maryland excluded the use of State funds for the recited items.

Wicomico County thereupon undertook to pay for the items, a contribution of $25,000.00 2 to the total project cost of $2,278,565.00. The project then was to be contracted as initially planned. (b) The Talbot County Project. The Board of Education of Talbot County had proposed an ¹⁷⁴ addition to the Easton Area Senior High School consisting of a new auditorium with a seating capacity for 1270 persons.

The Interagency Committee of the Board of Public Works of Maryland had excluded the use of State funds to provide a seating capacity exceeding 1000 persons. Talbot County thereupon undertook to pay the cost of the additional 270 seats, a contribution of $110,000.00 to the total project cost of $1,087,997.00. The project then was to be contracted as initially planned. The Proceedings Before the Commissioner (a) The Wicomico County Project.

The Board of Education of Wicomico County, by letter dated August 7, 1974, requested the Commissioner of Labor and Industry to determine that § § 96-107 of Code Article 100 did not apply to the Delmar Elementary School project. After investigation and hearing and purporting to act under § 101 of that Article, 3 the Commissioner reached, inter alia, the following conclusions: ¹⁷⁵ “In Wicomico County a contribution of $25,000.00 represents approximately one cent on the real property tax rate. “It is agreed by all parties that the contribution is not being made for the purpose of avoiding the effect of the prevailing wage statute. “The purpose of the contribution is bona fide within the meaning of the law.” He then made a determination that Code Article 100, §§ 96-107 “is not applicable to the Delmar Elementary School Project, Wicomico County, Maryland.” Associated Builders and Contractors of Maryland, Inc.; ¹⁷⁶ Baltimore Building and Construction Trades Council, AFL-CIO and the Board of Education of Wicomico County had been interested parties at the hearing. Baltimore Building and Construction Trades Council, AFL-CIO, aggrieved by the Commissioner’s decision, filed an appeal to the Baltimore City Court. 4 fb) The Talbot County Project. The Board of Education of Talbot County, by letters dated September 30, 1974 and October 11, 1974, requested the Commissioner of Labor and Industry to determine that §§ 96-107 of Code Article 100 did not apply to the Auditorium Addition to Easton Area Senior High School Project.

After investigation and hearing, and purporting to act under § 101 of that Article, the Commissioner reached, inter alia, the following conclusions: “That the plans and specifications submitted by Talbot County provide for the construction of the auditorium with seating capacity increased to 1270. “That the increased seating capacity of the auditorium by Talbot County is for the stated purpose that said auditorium will be used as a cultural center for residents of Talbot County. “That the contribution of Talbot County towards the estimated total cost of the project is the cost of the additional seating over and above the 1000 seat capacity approved by the State Interagency Committee. “That the contribution by the County for the additional seating is for a community purpose rather than an education purpose, and is not a bona fide purpose within the meaning of Article 100, Sections 96-107, Annotated Code of Maryland f 1974 Supplement).” ¹⁷⁷ He then made a determination that Code Article 100, §§ 96-107 “is applicable to the Talbot County Auditorium Addition to Easton Area Senior High School [Project], Talbot County, Maryland.” Associated Builders and Contractors of Maryland, Inc., Baltimore Building and Construction Trades Council, AFL-CIO and the Board of Education of Talbot County had been interested parties at the hearing. Associated Builders and Contractors of Maryland, Inc. and the Board of Education of Talbot County, aggrieved by the Commissioner’s decision, filed an appeal to the Baltimore City Court. 5 The Proceedings in the Baltimore City Court Both appeals were heard in the Baltimore City Court on March 3, 1975. The Commissioner’s decision in the appeal concerning the Wicomico County Project was reversed; his decision in the appeal concerning the Talbot County Project was affirmed. In sum, the trial court decided that both projects came within the purview of the Prevailing Wage Law.

The Decision We shall reverse. We hold that both projects are without the purview of the Act. That public school construction contracts may be public works within the purview of the provisions of the “Prevailing Wage Law” is not open to doubt. Demory Brothers v. Board of Public Works, 20 Md. App. 467 , 316 A. 2d 529 (1974), affirmed 273 Md. 320 , 329 A. 2d 674 (1974).

This is not to say, however, that the provisions of the Prevailing Wage Law become enlarged in scope or broader in application when a particular contract involves in whole or in part the construction of public schools. Otherwise stated, the issue or question whether the Prevailing Wage Law is applicable in a particular case depends upon whether such project falls within the ¹⁷⁸ definitions of “construction” of “public works” by a “public body” as defined in § 96, subsections (b), (c), (d) (1) and (d) (2) of Code Article 100. That issue or question is not influenced by the circumstance that the contract for the “construction” of “public works” perchance involves school construction. The above noted subsections of § 96 of Code Article 100 read as follows: “(b) ‘Construction’ includes all construction, reconstruction, improvement, enlargement, painting and decorating, alteration, maintenance or repair.

(c) ‘Public works’ includes all buildings, bridges, roads, streets, alleys, ditches, sewage disposal plants, waterworks, and all other structures or works, constructed for public use or benefit or paid for wholly or in part out of public funds, except work done by any public utility company pursuant to order of the Public Service Commission or other public authority, whether or not done under public supervision or direction or paid for wholly or in part out of public funds, unless let to contract provided, however, that for the purposes of this subtitle contracts of less than $500,000 shall be excluded. (d) (1) Public body’ means the State or any department, officer, board, commission, agency or instrumentality of the State, and shall include any other agency, political subdivision, corporation, person or entity of whatever nature when State public funds are the only funds used for the construction of a particular public works, but, except when made applicable pursuant to the provisions of paragraph (2) of this subsection, this term shall not mean any State agency or instrumentality funded wholly from sources other than the State, nor shall it mean any county or municipal corporation, or any department, officer, ¹⁷⁹ board, commission, or agency thereof, when funds other than State funds are used either in whole or in part for the construction of public works. (2) The governing body of any political subdivision of this State may provide by resolution or ordinance that the political subdivision shall be covered by this subtitle and included within the scope of its provisions and any such political subdivision shall constitute a ‘public body’ within the meaning of this subtitle when the Commissioner is notified in writing by the governing body that such action has been taken.” (Emphasis added.) We note at the outset that neither Wicomico County nor Talbot County has provided by resolution or ordinance that those political subdivisions shall be covered by the Prevailing Wage Law. Thus subsection (d) (2) has no application to either County.

Unlike the contract under consideration in Demory, supra, the items in both the Wicomico County and Talbot County projects for which each County provided funds, plainly fell within the words “Construction” and “Public Works” as defined in the Prevailing Wage Law. In short, it is undisputed here that in both projects County funds were used “in part for the construction of public works.” We believe it to be immaterial that Wicomico County’s expenditure was limited to but $25,000.00. The Court of Appeals in Demory, supra, questioned the propriety of application of the doctrine of de minimis non curat lex qnd although finding it unnecessary to decide the question, commented: “Since we have found that no real cost was incurred by the payment of these permit fees, it is not necessary that we decide whether the de minimis doctrine is applicable in this case. We point out, however, that the legislative history of the ‘Prevailing Wage Law’ could make it extremely ¹⁸⁰ difficult to apply that law to a project in which any funds other than State funds were utilized.

It must be remembered that when the law was enacted in 1969, its provisions were excluded from projects funded ‘primarily from sources other than the State.’ Chapter 558, Laws of Maryland, 1969. The 1971 amendment, however, deleted that provision and specifically provided that the law should be applicable ‘when state public funds are the only funds used for the construction of a particular public works.’ Chapter 220, Laws of Maryland, 1971. We assume, without deciding, that when the Legislature said ‘only,’ it meant ‘only.’ ” 273 Md. at 332 , 329 A. 2d at 680 . In the subject case, the Wicomico County funding operated to impose an added cost upon the property owners within its borders equal to one cent upon the tax rate.

Moreover, the