Superior Asphalt & Concrete Co. v. L&I

• Decision Date: 21 June 2002
• Docket Number: No. 27044-7-II.,27044-7-II.
• Citation: 112 Wash.App. 291,49 P.3d 135
• Court: Washington Court of Appeals
• Parties: SUPERIOR ASPHALT AND CONCRETE COMPANY, a Washington Corporation; and Western States Asphalt Company, a Washington Corporation, Appellants, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

49 P.3d 135

112 Wash.App. 291

SUPERIOR ASPHALT AND CONCRETE COMPANY, a Washington Corporation; and Western States Asphalt Company, a Washington Corporation, Appellants, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 27044-7-II.

Court of Appeals of Washington, Division 2.

June 21, 2002.

Ryan Mark Edgley, Yakima, for Respondent.

Amanda J. Goss, Assistant Attorney General, for Appellant.

HOUGHTON, J.

The Department of Labor & Industries (L & I) issued five notices of violation of the Prevailing Wage Act to Superior Asphalt & Concrete Company (Superior) and Western States Asphalt Company (Western States) for failure to pay the prevailing wage to their employee truck drivers who delivered road construction materials to public works projects. Superior and Western States appealed the notices of violation to the Office of Administrative Hearings, where an administrative law judge (ALJ) sustained the notices of violations. The L & I director affirmed the ALJ's decision, and the superior court also affirmed the director's decision. Superior and Western States appeal from the trial court's decision. We affirm. roadbed.

FACTS¹

Superior and Western States are 2 of 13 subsidiary corporations wholly owned by Superior Asphalt & Paving Company, a holding company that contracts for highway and street construction projects (specializing in surfacing and paving) or supplying materials to such projects. Superior and Western States are established materials suppliers, producing and delivering sand, dirt, gravel, crushed rock, and asphalt for both publicly and privately funded projects.

This case deals with five public works projects located throughout the state of Washington for which the two companies supplied road construction materials.² Superior supplied and delivered road construction materials to three public works projects: Indian Creek Bridge, Summitview Avenue, and West Valley Middle School. Western States supplied and delivered road construction materials to two public works projects: Cape Horn and Columbia Gateway.

Superior and Western States delivered the materials by several methods, including tailgate, belly dump, spreader box or paving machine, and stockpile. In the tailgate method of delivery, the driver delivers the materials using a dump truck. The driver is told to dispense his load at certain locations after arriving at the jobsite. He then maneuvers his truck into position, raises the bed of his truck, and empties his load. To control the rate of the materials being dispensed, the driver hooks a chain between the truck bed and the tailgate so that when he raises the truck bed, the chain restricts the opening in the gate. With the chain in place and the truck bed raised, the driver controls the flow rate of the materials and hence the thickness of the layer of materials on the ground by moving his truck forward as his load empties. The tailgate method allows the delivery of materials directly onto the roadbed.

The belly dump method involves using a truck equipped with a release gate on the bottom (or belly) of the truck bed. The belly dump method also allows the materials to be delivered directly onto the roadbed. When a truck arrives at the jobsite, the driver positions his truck over the roadway and opens the belly gate. The driver controls the rate of the materials being dispensed onto the roadbed by moving his truck forward as it empties. This results in a strip of materials commonly referred to as a "windrow." Administrative Record (AR) at 224.

The spreader box or paving machine method is where the truck driver backs his dump truck against a machine, raises his truck bed, and delivers the materials directly into the machine. The machine then lays the materials onto the roadbed. The holding capacity of the spreading machine cannot accommodate a full truck load of materials. Therefore, the truck remains with the spreading machine, and the truck driver works in concert with the spreading machine operator to control the rate of the materials being emptied into it. After delivery of the materials, other workers must process it to complete the construction process.

In the stockpile method, the driver uses a dump truck and empties his load on the ground in a pile for future use. To get the materials from a stockpile to the needed location, a front end bucket loader is used to scoop up the materials and place it at the needed location. These public project contracts called for paying the prevailing wage to workers on the projects. The prevailing wage for the workers ranged from $17.00 to $19.50 per hour. The typical wage ranged from $10.00 to $13.00 per hour. Superior and Western States differentiate the truck drivers' times according to their activities. Time spent at the gravel pit or asphalt plant to load the materials is referred to as "loading time." AR at 223. Time spent transporting the materials to the jobsite and returning to the materials supply source to pick up the next load is called "drive time." AR at 223. Time spent waiting at the jobsite to deliver the materials is called "wait time." AR at 223. And time spent emptying the loads at the jobsites is called "delivery time." AR at 223. Superior and Western States paid the truck drivers the prevailing wage for only the wait time and delivery time. They paid the truck drivers the normal wage for loading time and drive time.

On a typical day, the truck drivers made between six and eight deliveries. The bulk of the truck drivers' time is spent on the road traveling between the materials supply source and the jobsites and vice versa. The drive time ranged from 30 to 90 minutes each way, depending on the distance between the materials supply source and the jobsite. The loading time at the materials supply source averaged from 5 to 15 minutes per load. The wait time at the jobsite was between zero and 15 minutes. It took approximately 5 to 15 minutes for the truck drivers to deliver each load at the jobsite.

L & I sought to recover from Superior and Western States the difference between the prevailing wage and the actual wage paid to the truck drivers for the loading time and drive time,³ in addition to civil fines and penalties. L & I assessed Superior a total of $14,109.17 and Western States a total of $29,663.34 in wages due and civil fines and penalties. Superior and Western States do not dispute these calculations. They appeal the superior court's ruling affirming the director's decision upholding the ALJ's determination as to the drivers' types of activity and their corresponding wage rates.

ANALYSIS

Standard of Review

An appeal from an L & I notice of violation of the Prevailing Wage Act is governed by chapter 34.05 RCW, the Administrative Procedure Act (APA). RCW 39.12.065(1). In reviewing an administrative action, we sit in the same position as the trial court and apply the APA standards directly to the administrative record in front of the agency. Tapper v. State Employment Sec. Dep't, 122 Wash.2d 397, 402, 858 P.2d 494 (1993). We review questions of law de novo, but we accord substantial weight to the agency's interpretation of the statutes it administers. Everett Concrete Prods., Inc. v. Dep't of Labor & Indus., 109 Wash.2d 819, 823, 748 P.2d 1112 (1988) (citing Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983)).

We review findings of fact for substantial evidence in light of the whole record. RCW 34.05.570(3)(e). Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth or correctness of the matter. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000). On mixed questions of law and fact, we determine the law independently, then apply it to the facts as found by the agency. Hamel v. Employment Sec. Dep't, 93 Wash.App. 140, 145, 966 P.2d 1282 (1998), review denied, 137 Wash.2d 1036, 980 P.2d 1283 (1999).

Scope of the Prevailing Wage Act

Superior and Western States contend that L & I and the superior court incorrectly interpreted the Prevailing Wage Act or, alternatively, misapplied it to the facts in this case. Specifically, they argue that the delivery of road construction materials by the truck drivers here does not constitute "`labor upon a public work.'" Appellants' Brief at 13.

The Washington Prevailing Wage Act provides in part: "The hourly wages to be paid to laborers, workers, or mechanics, upon all public works ... shall be not less than the prevailing rate of wage for an hour's work in the same trade or occupation in the locality within the state where such labor is performed." RCW 39.12.020. This statute is based, in part, on the federal Davis Bacon Act, 40 U.S.C. § 276a, but provides broader coverage "`to protect the employees of government contractors from substandard earnings and to preserve local wage standards.'" Everett Concrete, 109 Wash.2d at 823, 748 P.2d 1112 (quoting Unity Bank & Trust Co. v. United States, 756 F.2d 870, 873 (Fed.Cir. 1985)). The Prevailing Wage Act, chapter 39.12 RCW, is remedial in nature and should be construed liberally to carry into effect the purpose behind the statute. Everett Concrete, 109 Wash.2d at 823, 748 P.2d 1112. Further, the intended beneficiaries of the Prevailing Wage Act are the workers, not the government contractors or their assignees. Everett Concrete, 109 Wash.2d at 823, 748 P.2d 1112.

L & I implemented the following regulation to describe the scope of the Prevailing Wage Act as it pertains to the production and delivery of gravel, concrete, asphalt, and similar materials:

(2) All workers, regardless of by whom employed, are subject to the provisions of [the Prevailing Wage Act] when:

(a) They deliver [sand, gravel, crushed rock, concrete mix, asphalt, or other similar] materials to a public works project site and perform any

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