Copyright 1994 Law Bulletin Publishing Company  
Chicago Daily Law BulletinDecember 19, 1994, Monday
SECTION: Appellate Summary; Pg. 1

LENGTH: 649 words

HEADLINE: Employment law -- prevailing wage

SYLLABUS: Employees hired to work as mason tenders' on school construction job were properly classified as laborers even though they frequently operated forklifts; Department of Labor failed to refute contractor's claim that mason tenders, even though they drive forklifts on the job, are laborers and should be paid as laborers, not as operating engineers as the department had argued.

BODY:
   The Illinois Appellate Court, 2d District, has affirmed a ruling by Kane County Circuit Judge R. Peter Grometer in a case of first impression in Illinois.

Defendant East Aurora School District 131 retained plaintiff Mulligan Masonry Co. for the construction of an addition to the Farnsworth Middle School. Mulligan hired defendants Ryan Martin and Gerald Taylor as mason tenders."

In their jobs, the two men attended to masons, organizing and moving supplies, mixing mortar, cleaning up and erecting and dismantling scaffolds for masons. The plaintiff classified Martin and Taylor as laborers for payroll purposes.

Because the project was a public works project, the Prevailing Wage Act required the Department of Labor to review the payroll records for the project. On review, the department decided that because Martin and Taylor operated a brick forklift 1-3 hours daily, they should have been classified and paid as operating engineers, rather than as laborers.

Because operating engineers earn a higher prevailing wage than laborers earn, the department ordered the plaintiff to pay $ 2,964 in back pay and $ 592 in penalties. The plaintiff disputed this decision and sought a declaratory judgment as to the wages it should pay defendants Martin and Taylor.

The school district was dismissed from the action, and the trial court awarded summary judgment in favor of the plaintiff, declaring that the two men were properly paid as laborers. The appeals court held that the plaintiff was entitled to judgment as a matter of law because the department failed to refute that mason tenders are laborers and customarily use brick forklifts.

The appeals court said that Illinois courts have not addressed whether the Prevailing Wage Act requires an analysis of each task performed to determine a worker's wage classification. Courts interpreting prevailing wage statutes of other states have disfavored task-by-task analysis, the appeals court said. Other courts ask whether the work in question is customarily performed by the same kind of worker in the same locality.

The plaintiff argued that the relevant locality is Kane County, where mason tenders customarily are laborers and use forklifts. In support of that claim, the plaintiff cited a building agreement between the Mid-America Regional Bargaining Association and the Construction and General Laborers' District Council of Chicago and Vicinity. That agreement states that proper mason tendering includes the use of forklifts.

The plaintiff also produced affidavits from a mason tender and a mason who said that mason tenders in Kane County use forklifts. Also cited by the plaintiff was a National Labor Relations Board case holding that operating a brick forklift is proper for a laborer in Bolingbrook, Ill., a community in a county contiguous to Kane.

The Department of Labor argued that people who for any reason operate forklifts are customarily operating engineers. However, none of the department's proofs refer to Kane County or in any way support its claim that anyone using a forklift is an operating engineer, the court said.

The department did not refute the plaintiff's inference that there is no difference between the work performed by Kane County mason tenders on private jobs and the work performed by Kane County mason tenders on public projects, the court said. The only proofs available to the court indicated that mason tenders in Kane County, public and private, are laborers and do drive forklifts. Therefore, the court said, the plaintiff was entitled to judgment as a matter of law and the trial court did not err in awarding the plaintiff summary judgment.

Mulligan Masonry Company Inc. v. Ryan Martin, et al., No. 2-94-0564. Justice Lawrence D. Inglis wrote the court's opinion with Justices Daniel D. Doyle and Michael J. Colwell concurring. Released Nov. 21, 1994. (5 pages)