Opinion No.

OPINION — AG — THE STATE COMMISSIONER OF LABOR MUST BASE THE PREVAILING WAGE RATES ON THE CONDITIONS OF EACH LOCALITY. A " LOCALITY " IS DEFINED IN 40 O.S. 1971 196.2 [40-196.2](4) TO BE A COUNTY, OR TWO OR MORE COUNTIES, ADJACENT TO THE ONE IN WHICH THE WORK OR CONSTRUCTION IS TO BE PERFORMED. THE STATUTES GOVERNING THE MINIMUM WAGE AND PUBLIC WORKS DO NOT PROVIDE FOR THE STATE COMMISSIONER OF LABOR TO APPLY AN AVERAGE STATE PREVAILING WAGE RATE TO EACH LOCALITY. (MINIMUM WAGE, LABOR) CITE: 40 O.S. 1971 196.1 [40-196.1], 40 O.S. 1971 196.2 [40-196.2](3), 40 O.S. 1971 196.2 [40-196.2](4) 40 O.S. 1971 196.3 [40-196.3](A), 40 O.S. 1971 196.4 [40-196.4] [40-196.4], 40 O.S. 1971 196.5 [40-196.5], 40 O.S. 1971 196.6 [40-196.6], 40 O.S. 1971 196.6 [40-196.6] [40-196.6](A) (STEPHEN F. SHANBOUR) FILENAME: m0009998 Representative Walter E. Hill Attorney General of Oklahoma — Opinion January 28, 1981 JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA The Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following question: Can the Commissioner of Labor establish the state average hourly rates as the prevailing hourly rate for a locality when the Labor Commissioner does not receive sufficient information from a survey of the locality's condition to ascertain a prevailing wage for that locality? The statutes governing the minimum rates on Public Works are found at 40 O.S. 196.1 [40-196.1] (1971), et seq. The Commissioner of the State Department of Labor shall enforce and govern this act. 40 O.S. 196.4 [40-196.4] (1971). The definition of "prevailing hourly rate of wages" is found at 40 O.S. 196.2 [40-196.2](3) (1971), which states: " 'Prevailing hourly rate of wages' means the wages paid generally in the locality in which the public works are being performed to workmen engaged in the work of a similar character;" (Emphasis added) Also, 40 O.S. 196.2 [40-196.2](4) (1971) defines "locality" as follows: " 'Locality' means the county where the physical work upon public works is performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workmen, and mechanics to construct the public works efficiently and properly, 'locality' may include two or more counties adjacent to the one in which the work or construction is to be performed and from which such workers may be obtained in sufficient numbers to perform the work;" The act goes on to hold that no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed should be paid to the workmen employed on behalf of any public body engaged in the construction of public works. 40 O.S. 196.3 [40-196.3](A) (1971). Also, notice shall be given to the Commissioner of Labor before a public body awards a contract for public works. 40 O.S. 196.5 [40-196.5] (1971). Furthermore, the Commissioner of Labor is responsible to survey the localities in order to ascertain the wages to be paid in those localities. 40 O.S. 196.6 [40-196.6](A) (1971) provides: "A. The Commissioner, from time to time, shall investigate and determine the prevailing hourly rate of wages in the localities. In determining such prevailing rates, the Commissioner shall ascertain and consider the applicable wage rates established by collective bargaining agreements, if any, and such rates as are paid generally within the locality. A certified copy of such determination shall be filed immediately with the Secretary of State and with the department in Oklahoma City. Copies shall be supplied to all persons requesting same within ten days after such filing. Determinations shall be made annually on or about July 1 of each year, or on any subsequent date thereafter, providing no prevailing wage has been established for the locality." Thus, it is the intent of the Legislature of the State of Oklahoma that the Department of Labor, through the Labor Commissioner, ascertain what the prevailing hourly rate of wages should be in each locality based on the conditions prevailing in each locality. 40 O.S. 196.6 [40-196.6] (1991). Nothing in the statutes governing minimum wages on public works allows the Commissioner of Labor to compute a state average for prevailing rates of wages and to apply that average uniformly to each locality. Therefore, it is the official opinion of the Attorney General that: 1. The State Commissioner of Labor must base the prevailing wage rates on the conditions of each locality. 2. A "locality" is defined in 40 O.S. 196.2 [40-196.2](4) (1971)to be a county, or two or more counties, adjacent to the one in which the work or construction is to be performed. 3. The statutes governing the minimum wage and public works do not provide for the State Commissioner of Labor to apply an average state prevailing wage rate to each locality. (Stephen F. Shanbour)