No. 13-1133 - Gregory Grim, et al. v. Eastern Electric, LLC FILED November 25, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Benjamin, Justice, concurring:

I completely agree with the majority decision. I write separately to

emphasize the fact noted in the majority opinion that the petitioners performed identical

work for Eastern Electric on other public works construction projects during the same

period at issue in this case and were paid prevailing wages. When the petitioners

questioned members of Eastern Electric about this discrepancy, they were informed that

prevailing wages were not paid in the instant case because it was termed a “maintenance

contract” by the executive branch. Significantly, the payment of prevailing wages cannot

be based solely on the executive branch’s characterization of the work to be done

pursuant to a contract.1 Further, also as stated by the majority, a contractor cannot be

permitted to blindly accept the representation of a government agent regarding the non-

applicability of the Prevailing Wage Act to a specific project. In those instances where

the Prevailing Act is applicable, both the government agent and the contractor must act in

good faith so that the purpose of the Prevailing Act will be achieved.

1 See generally State v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009), wherein this Court looked beyond the characterization which law enforcement chose to use to describe a particular traffic stop and instead held that the actual effect of the stop determined its character and thus, the law applicable to such a stop. In Sigler, law enforcement could not avoid the constitutional requirements which attach to a sobriety checkpoint simply by instead calling it a “safety checkpoint.” To allow the executive branch to avoid the effect of constitutional and statutory law be resorting to self-serving characterizations would contravene West Virginia laws and the rights which attach thereto.