Everett Concrete Products, Inc. v. Department of Labor & Industries
| Decision Date | 21 January 1988 |
| Docket Number | No. 53879-4,53879-4 |
| Citation | 109 Wn.2d 819,748 P.2d 1112 |
| Court | Washington Supreme Court |
| Parties | , 28 Wage & Hour Cas. (BNA) 950, 115 Lab.Cas. P 56,218, 7 A.L.R.5th 1086 EVERETT CONCRETE PRODUCTS, INC., Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent. |
David W. Wiley, Bellevue, Frederick T. Rasmussen, Seattle, for appellant.
Kenneth O. Eikenberry, Atty. Gen., Michael H. Weier, Asst., Dept. of Labor & Industries, Olympia, for respondent.
Richard H. Robblee, Seattle, for United Ass'n of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, amicus curiae, for respondent.
Washington's prevailing wage law, RCW 39.12.010 et seq., provides that the wages paid to workers on public works projects must be not less than the prevailing wage for similar work in the locality where the labor on the public works project is performed. RCW 39.12.020. This case presents the issue of whether the prevailing wage law applies to the off-site manufacture of prefabricated items for use on a particular public works project.
In early fall, 1982, the Department of Transportation awarded Guy F. Atkinson Construction Co. (Atkinson) the contract for the Mt. Baker Ridge Tunnel Public Works Project. Under the terms of the contract, Atkinson was to excavate and construct a tunnel for the Interstate 90 highway in Seattle. The earth at the tunnel site is loose and could not be excavated by traditional methods. As a result, Atkinson designed and utilized concrete tunnel liners to provide a supportive ring in the tunnel during excavation.
In April 1983, Atkinson arranged to have Everett Concrete Products (ECP) manufacture the tunnel liners required for the Mt. Baker project. ECP agreed to manufacture 30,000 lineal feet of liners in accordance with measurements specified by Atkinson and the Department of Transportation. ECP manufactured the tunnel liners on special forms built to meet the size and measurement requirements of the tunnel. The manufacture of the liners took place on these forms at ECP's plant in Everett. Atkinson then contracted with trucking companies to deliver the liners to the site of the project.
In May 1984, general counsel for the Washington and Northern Idaho Council of the Laborers' International Union of North America wrote to the Department of Labor and Industries (Labor and Industries) and asked whether the prevailing wage law applied to ECP's manufacture of tunnel liners for the Mt. Baker Project. In response to this inquiry, Labor and Industries sent an industrial statistician to inspect ECP's facility in Everett and the tunnel site in Seattle. After conferring with his superiors, the statistician determined that the prevailing wage law did apply to ECP.
ECP challenged this determination, and the matter subsequently was referred for arbitration, pursuant to RCW 39.12.060 which provides in part:
[I]n case any dispute arises as to what are the prevailing rates of wages for work of a similar nature and such dispute cannot be adjusted by the parties in interest ... the matter shall be referred for arbitration to the director of the department of labor and industries ...
After a hearing, the administrative law judge (ALJ) upheld Labor and Industries' application of the prevailing wage law to ECP.
ECP contends that the ALJ erred in holding that the prevailing wage law applied to ECP. First, ECP argues that RCW 39.12 should not include off-site product manufacturers within its scope, except under certain narrow circumstances. Second, ECP asserts that the ALJ erred in characterizing ECP as a subcontractor rather than a materialman.
To determine the scope of Washington's prevailing wage law, we look first to the relevant statutory language. Service Employees Local 6 v. Superintendent of Pub Instruction, 104 Wash.2d 344, 348, 705 P.2d 776 (1985). If a statute is unambiguous, its meaning must be derived from its language alone. Stewart Carpet Serv., Inc. v. Contractors Bonding & Ins. Co., 105 Wash.2d 353, 358, 715 P.2d 115 (1986). If the statute is ambiguous, resort may be had to other sources to determine its meaning. PUD 1 v. WPPSS, 104 Wash.2d 353, 369, 705 P.2d 1195, 713 P.2d 1109 (1985).
In this case the relevant statutory language is set forth in RCW 39.12.020, which provides in part:
The hourly wages to be paid to laborers, workmen or mechanics, upon all public works and under all public building service maintenance contracts of the state or any county, municipality or political subdivision created by its laws, 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.
According to the language of the statute, prevailing wages must be paid to those employed "upon all public works". The ALJ in this case interpreted the phrase "upon all public works" in RCW 39.12.020 to include within its scope work performed off the actual site of the public works project. He held that the prevailing wage law could be extended to cover off-site workers as long as they were "employed in the performance of the contract."
ECP concedes that the prevailing wage law can be applied to off-site work on a public works project. However, it argues that the ALJ erred in extending the scope of RCW 39.12 to cover ECP's manufacture of tunnel liners. It contends that the prevailing wage requirement should be interpreted in accordance with decisions and regulations in other jurisdictions examining state prevailing wage laws and the federal prevailing wage law, the Davis-Bacon Act (40 U.S.C. § 276a et seq.). According to these decisions and regulations the prevailing wage requirement would only be imposed on off-site manufacturers having a sufficient nexus to the public works project. Relevant factors in determining whether such nexus exists should include physical location of the project site, the nature of the relationship between the parties performing the work, and the characteristics of the product itself. See 29 C.F.R. § 5.2(1) (1985); H.B. Zachry Co. v. United States, 344 F.2d 352, 360 (Cl.Ct.1965); City & Borough of Sitka v. Construction & Gen. Laborers Local 942, 644 P.2d 227, 232 (Alaska 1982).
The construction of the phrase "upon all public works" involves a question of law. Therefore, we may engage in de novo review, but should accord substantial weight to the agency interpretation. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 325, 646 P.2d 113 (1982).
RCW 39.12.020 does not specifically state whether prevailing wages must be paid to workers employed in the performance of a public works project who are not working on the actual project site. Thus, we must determine its scope from the applicable rules of statutory construction assisted by any interpretation previously given to the statute by the Attorney General or Labor & Industries.
RCW 39.12 is remedial and should be construed liberally. Southeastern Wash. Building & Constr. Trades Coun. v. Department of Labor & Indus., 91 Wash.2d 41, 44, 586 P.2d 486 (1978). A liberal construction should carry into effect the purpose of the statute. See State v. Douty, 92 Wash.2d 930, 936, 603 P.2d 373 (1979).
The purpose behind Washington's prevailing wage law can be discovered by understanding the purpose behind the federal prevailing wage law, the Davis-Bacon Act, 40 U.S.C. § 276a, which served as a model for RCW 39.12. Drake v. Molvik & Olsen Elec., Inc., 107 Wash.2d 26, 29, 726 P.2d 1238 (1986). The Davis-Bacon Act was enacted "to protect the employees of government contractors from substandard earnings and to preserve local wage standards ... The employees, not the contractor or its assignee, are the beneficiaries of the Act." Unity Bank & Trust Co. v. United States, 756 F.2d 870, 873 (Fed.Cir.1985). As stated in Building Trades Coun., 90 Wash.2d at 45, 586 P.2d 486:
a purpose of the Davis-Bacon Act was to provide protection to local craftsmen who were losing work because contractors engaged in the practice of recruiting labor from distant cheap labor areas.
This purpose will be served by extending the application of RCW 39.12 to off-site manufacturers involved in public works by preventing contractors from parceling out portions of the work to various off-site manufacturers as a means of avoiding the prevailing wage requirement.
Another canon of statutory construction provides that "when the legislature of a state adopts a statute which is identical or similar to one in effect in another state or country, the courts of the adopting state usually adopt the construction placed on the statute in the jurisdiction in which it originated." 2A N. Singer, Statutory Construction § 52.02 (4th ed. 1984). As noted, Washington's prevailing wage law is based on the Davis-Bacon Act, 40 U.S.C. 276a. Building Trades Coun., at 44, 586 P.2d 486. Thus, cases and regulations interpreting that act may be relevant and persuasive to an analysis of RCW 39.12. The Davis-Bacon Act provides that:
(a) The advertised specifications for every contract in excess of $2,000, to which the United States ... is a party, for construction, alteration, and/or repair, ... of public buildings or public works of the United States ... which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed ... and every contract based upon these specifications shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work,...
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