COMMISSIONER OF LABOR AND INDUSTRIES vs. WORCESTER HOUSING AUTHORITY.

DREBEN, J. The Worcester Housing Authority (authority) appeals from a judgment upholding the rates set by the Commissioner of Labor and Industries (Commissioner)

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for certain CETA [Note 1] workers formerly employed by the authority as maintenance aides. The authority was also ordered to make retroactive payments to these employees. The trial judge found that the Commissioner considered himself legally constrained by G. L. c. 121B, Section 29, and G. L. c. 149, Sections 26 and 27, to set the rates for the CETA workers at the rate paid to laborers in the construction industry under the collective bargaining agreement which provided for the highest rates. The judge upheld the rates as "not arbitrary." We reverse because the Commissioner misconceived the extent of his statutory authority in setting the rates.

The essential facts are not in dispute. In 1974, the authority, which owns and operates a number of housing projects in Worcester, learned that it could obtain CETA workers from the city of Worcester at no expense to the authority. The CETA workers were hired to do maintenance work, freeing the authority's regular maintenance force to handle a backlog of repairs. The plan was for the authority to pay the workers at the rate paid by the city to its CETA workers, namely $3.59 an hour, and then be reimbursed by the city.

The Commissioner claimed, however, that the rates to be paid to the CETA workers were to be determined by him under G. L. c. 121B, Section 29. After some correspondence with the authority, he set the rates for the CETA workers at a level significantly higher than the level of rates being paid by the city. [Note 2] The rates so set were the same as those set by the Commissioner for the authority's regular maintenance aides even though the latter were more skilled

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and had more responsibilities. In setting the rates, both for the regular maintenance employees and also for the CETA workers, the Commissioner made no investigation and looked solely to the collective bargaining agreement known to his office to have the highest rates for building construction laborers.

Since the authority had no funds to supplement the city grant, the authority in April of 1976 discharged the CETA workers and terminated the program. The Commissioner brought this action seeking back pay for the discharged workers.

Before reaching the questions of statutory construction raised by the parties, we note that the authority has shown no basis for its claim that the Commissioner's rate setting powers are preempted by Federal regulations relating to the payment of CETA workers. Section 96.34 of 29 C.F.R. (1978) sets no wage rates but merely provides that CETA workers shall not be paid below certain minimum rates. While the regulations limit the amount of Federal funds which can be paid to a single worker in a given calendar year, they do not limit the amount the employee may receive from other sources. The regulations are not facially inconsistent with G. L. c. 121B, Section 29, or G. L. c. 149, Sections 26 and 27, and the authority has not shown any conflict [Note 3] or other reason to find Federal preemption.

The Commissioner claims that the rate set for the CETA workers was legally required and that he had no discretion under applicable law to set any other rate. His argument is in two parts. First, he contends that the case of Commissioner of Labor & Indus. v. Boston Housing

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Authy., 345 Mass. 406 (1963), requires him to look solely to the construction industry for the classification of employees, that in the construction industry the closest classification is that of laborer, and that there is no lower classification of worker in that industry. There is, therefore, no point in his making any job comparisons, even though the duties of the authority's maintenance workers are, in all probability, different from those of laborers in the construction industry. The second part of his argument is that Section 26 of c. 149, as amended through St. 1967, c. 296, Sections 2 and 3, charges him with setting rates at "not less than the rates" established by collective bargaining agreements. This means that he must select from the family of applicable agreements the one agreement which sets the highest hourly wage rates for construction laborers. Otherwise, if he excludes an agreement which has higher wage rate than the agreement selected, he is violating a proviso of the statute.

We reject both prongs of the Commissioner's argument. The primary provision governing this action is G. L. c. 121B, Section 29, as amended through St. 1973, c. 1215, Sections 9, 9A. [Note 4] The relevant portion appears in the margin, [Note 5] and it provides that a housing authority in the administration and development of its projects shall pay its "architects,

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technical engineers, draftsmen, technicians, laborers and mechanics" wages set by the Commissioner, at no less than eighty percent of the "prevailing wage" set "in accordance" with c. 149, Sections 26 and 27. Section 26, also set forth in part in the margin, [Note 6] provides, inter alia, that "laborers" employed in the "construction of public works" shall not be paid less than the rate determined by the Commissioner. He is to set the rate for laborers at not less than the rate paid to "laborers in the municipal service of the town" where the work is being constructed, provided that if "a wage rate or wage rates have been established in certain trades and occupations by collective agreements," "the rate or rates to be paid . . . shall not be less than the rates so established." If no rate has been so established, the wages of "laborers" . . . "shall not be less than the wages paid to the employees in the same trades and occupations by private employers engaged in the construction industry" (emphasis supplied).

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Since c. 149, Section 26, relates to the construction of public works and c. 121B, Section 29, relates to the development and administration of housing projects, there are some positions within a housing authority for which there is no analogue in the public construction field. This, of course, is the reason for the present dispute with respect to the rates for the CETA maintenance workers. A similar problem arose in Commissioner of Labor & Indus. v. Boston Housing Authy., 345 Mass. 406 (1963), where the Boston Housing Authority challenged, inter alia, the authority of the Commissioner to set rates for janitors under c. 121, Section 26T (as amended through St. 1960, c. 491), which, in relevant part, is the same provision as the portion of c. 121B, Section 29, applicable here. [Note 7] The court held that Section 26T "must be construed as authorizing the [C]ommissioner to set wage rates for all the lower paid employees," (id. at 417) including janitors, even if there were no category in the construction field comparable to that of a janitor. The court also said that since the Legislature specifically referred to the prevailing wage under c. 149, Section 26, rather than to a standard for maintenance workers, "the Commissioner under Section 26T may reasonably use a rate of eighty percent of the prevailing wage rate of the most nearly comparable class of construction worker, giving due consideration to the differences and similarities in . . . skills . . . hazards, . . . responsibilities . . . and similar matters. On this record, we cannot say that the [C]ommissioner erred in setting the rates for janitors . . ." [Note 8] (emphasis supplied). Id.

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It should be noted that the court did not require the Commissioner to use the rates of construction laborers. See also id. at 412. The court merely held that the Commissioner "may" use the rate of the "most nearly comparable class of construction worker" (id. at 417) after making an investigation of job differences and similarities. The case clearly requires the Commissioner to make careful job comparisons and sets forth the factors to be taken into account in making such comparisons

That requirement is also explicit in both c. 121B, Section 29, and c. 149, Section 26. The statutory concepts of "prevailing wage" and the "wage rate . . . established in certain trades and occupations" only have meaning in the context of evaluating similar jobs. Implicit in both statutes is the requirement that the Commissioner make careful job comparisons. Since the Commissioner made no job comparison at all, either within or without the construction industry, he has not followed the statutory mandate. His characterization, without investigation, of all work not covered by a specific skilled trade within the construction industry as the work of a laborer, and then his setting of the wage in accordance with the collective bargaining agreement having the highest rate of pay for construction laborers is not the method prescribed. The judge found that the job of a construction industry laborer and a maintenance aide are not the same, and also that the jobs of the authority's CETA workers were not the same as those of the authority's regularly employed maintenance aides. These differences were not taken into account. Contrary to the Commissioner's contention, we believe the statutes require him to consider them.

The statutory history of c. 149, Section 26, relating to laborers confirms this conclusion. A report of the Commissioner of Labor and Industries which discusses the bill where the language relating to laborers in municipal service first appears recognized that building construction laborers differed from common laborers and had different wage

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rates. Thus, the wage set by towns would be an important determining factor in the wages paid to laborers on public works road contracts but would have no effect on building construction. 1933 Senate Doc. No. 300, at 15. The report also pointed out that not only were there "common laborers" and "building laborers," but that there were distinctions and different rates even within the category of common laborers. 1933 Senate Doc. No. 300, at 14. In setting rates, a bidder [Note 9] would have to select, in a town having more than one wage paid to common laborers, "the particular rate paid to laborers whose work most closely resembles the kind of work which his own laborers . . . perform." 1933 Senate Doc. No. 300, at 14 (emphasis supplied).

Under c. 149, Section 26, the Commissioner in setting rates for public construction jobs would have no occasion to go outside the construction industry. Where rates are to be set for jobs under c. 121B, Section 29, however, a meaningful comparison may require a reference to jobs outside that industry. This would be true where, after careful investigation, the Commissioner determines that there are no comparable or nearly comparable jobs in the construction industry.

We think the statutes authorize such additional reference. We note that only the last proviso of the pertinent portion of Section 26 (note 6, supra) by its terms refers to "the construction industry"; the other provisos guiding the Commissioner do not. We also note that 1933 Senate Doc. No. 300, at 12 contained a chart of municipal rates for common laborers which would be relevant in setting wages. That chart was not limited to laborers engaged in construction and included the rates for common laborers in municipal "highway, sewer, forestry and water departments." Thus, neither the language nor the history of Section 26 limits the job comparisons to laborers in the construction

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industry. Chapter 121B, Section 29, certainly contains no such limitation. Many of the jobs in the development and administration of housing projects involve construction and alterations. For those jobs, it makes sense for public housing authorities to pay the same rates as are to be paid by municipalities and their contractors for public construction. However, where the jobs are unrelated to construction, it is inappropriate to require rigid comparison with construction jobs, and we do not think the statute requires such rigidity. We, therefore, construe the provisos in c. 149, Section 26, which do not explicitly refer to the construction industry as authorizing the Commissioner in setting rates under c. 121B, Section 29, to make comparisons with jobs outside that industry under those provisos.

We must also address the Commissioner's claim that Section 26, which directs him to set rates at no lower than the wage rates "established" in certain trades and occupations by collective agreements, requires him to take the family of collective bargaining agreements and choose the highest amongst them. We do not agree that the rate "established" means the highest rate established by any agreement. A New Hampshire statute (N.H. Rev. Stat. Ann. c. 280, Section 1, inserted by St. 1941, c. 118, Section 1) containing an identical proviso relating to wages "established" as is contained in c. 149, Section 26, was construed to mean a "prevailing wage" in Union Sch. Dist. v. Commissioner of Labor, 103 N.H. 512 (1961). Here, c. 121B, Section 29, specifically requires the Commissioner to find the "prevailing wage." We hold that the proviso in Section 26, at least when construed with c. 121B, Section 29, refers the Commissioner to the prevailing wage established by collective bargaining agreements.

Although the term "prevailing wage" is not defined by statute, it is clear that its meaning as developed by case law is not equivalent to the highest wage. For example, in Union Sch. Dist. v. Commissioner of Labor, 103 N.H. at 516, the court said such a rate "has been generally defined as the market rate, the commonly paid rate, the

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rate generally prevailing in the locality for similar services," and in In re Sellers, 13 App. Div. 2d 204, 207 (N.Y. 1961), the court said that "in order to be a prevailing wage, it must appear that at least a majority of workers in similar employment are receiving approximately that wage." A Pennsylvania court, in Pennsylvania Dept. of Labor & Indus. v. Altemose Constr. Co., 28 Pa. Commw. Ct. 277, 286-287 (1977), said its common meaning was the "most frequent" or "generally current" wage. See also 29 C.F.R. Section 1.2 (1978), where the "prevailing wage rate" is defined as the rate paid "to the majority of those employed." We note that a prevailing wage is not necessarily, or even usually, the highest rate.

A redetermination of rates by the Commissioner is necessary. See Joplin v. Industrial Commn. of Missouri, 329 S.W. 2d 687, 695 (Mo. 1959). Chapters 121B, Section 29, and 149, Section 26, set forth standards for investigation and comparison to be followed by him before establishing those rates. As pointed out in Union Sch. Dist. v. Commissioner of Labor, 103 N.H. at 517, "[t]he task of acquiring information, working out the details and applying the rules and standards to specific cases has been conferred to the Labor Commissioner." The task calls for investigation and the exercise of discretion. It is not, as the Commissioner contends, a mere ministerial one. See 1933 Senate Doc. No. 300, at 15-25.

The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.