National Elec. Contractors Ass'n, Cascade Chapter v. Riveland

• Decision Date: 03 June 1999
• Docket Number: No. 65953-2,65953-2
• Citation: 978 P.2d 481,138 Wn.2d 9
• Court: Washington Supreme Court
• Parties: NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, CASCADE CHAPTER, et al., Appellants, v. Chase RIVELAND, Director, Department of Corrections, State of Washington, et al., Respondents.

Page 481

138 Wn.2d 9

978 P.2d 481

NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, CASCADE CHAPTER, et al., Appellants, v. Chase RIVELAND, Director, Department of Corrections, State of Washington, et al., Respondents.

No. 65953-2.

Supreme Court of Washington En Banc.

Argued Sept. 9, 1998.

Decided June 3, 1999.

Guy J. Sternal, Amy Lewis, Tacoma, Adam L. Sherr, Seattle, for Appellants.

Christine Gregoire, Attorney General, Thomas J. Young, Daniel J. Judge, Robert Battles, Assistant Attorneys General, Olympia, for Respondents.

MADSEN, J.

In this case, we are asked to decide whether the Washington State Department of Corrections is exempt from complying with various state laws relating to electrical licensing, workplace safety, prevailing wage, and competitive bidding where inmate labor is used to perform electrical work on prison facilities. Several chapters of national and local electrical unions challenged both the Washington State Department of Corrections' (DOC) practice and the Washington State Department of Labor and Industries' (DLI) decision not to enforce the statutes against DOC. We conclude that DOC must comply with the electrical licensing and worker safety laws. However, statutes relating to use of inmate labor do provide exemptions for the agency from competitive bidding and prevailing wages on public works.

FACTS

DOC utilizes inmate labor to perform electrical work in the construction and renovation of prison facilities throughout the state. DOC often assigns inmates to construction and renovation projects without first engaging in the competitive bidding process for public works. DOC pays inmates a gratuity rate of one to five dollars an hour, rather than the prevailing wage, for their work on prison facilities.

DOC has promulgated workplace safety and health rules which apply to DOC personnel and inmate workers. These guidelines purport to be consistent with RCW 49.17, the Washington Industrial Safety and Health Act of 1973 (WISHA). However, DOC extends these protections to only some inmates who work on prison facilities.

Since 1979, inmates have participated in the construction and renovation of at least 10 prison facilities which entailed electrical work. Inmates install, replace, and repair electrical systems, light bulbs, fixtures, telephone lines and land communication systems. Most of the inmate workers assigned to electrical work are not licensed electricians. Moreover, although some DOC staff who supervise the electrical work are licensed, none possesses either a valid electrical contractor's license or a contract administrator's certificate.

DLI is the agency responsible for enforcing the statutes relating to electrical licensing, workplace safety, and prevailing wages on public works. None of those statutes specifically exempts DOC, but DLI has generally construed them as inapplicable to DOC. DLI only requires that DOC obtain electrical installation permits and have inspections conducted by DLI electrical inspectors. Notwithstanding the other licensing and certification provisions of RCW 19.28, DLI has systematically approved of the electrical work done by inmates at various prison facilities.

On August 29, 1996, Appellants, five chapters of the National Electrical Contractors Association and seven local unions of the International Brotherhood of Electrical Workers (collectively NECA/IBEW), filed a complaint against DOC and DLI alleging that DOC's practice of assigning inmate labor to perform electrical work on prison facilities violates RCW 19.28 (electrical licensing), RCW 49.17 (WISHA), RCW 39.12 (prevailing wages), and RCW 39.04 (competitive bidding). Further, NECA/IBEW alleged that DLI abused its discretionary authority when it failed to enforce the electrical licensing, WISHA, and prevailing wage statutes against DOC.

NECA/IBEW sought declaratory, injunctive, and mandamus relief to (1) prevent DOC from utilizing inmate labor for electrical work on prison facilities; (2) require DOC to engage in the competitive bidding process before assigning inmates to perform electrical work; (3) require DOC to pay inmates the prevailing wage; (4) require DOC to On January 23, 1997, in response to the present litigation, DLI prepared a draft policy stating that RCW 19.28 requires DOC to comply with the electrical licensing provisions, and that inmates performing electrical work on prison facilities cannot qualify for an exemption from certification. However, DLI has never formally adopted nor implemented the draft policy.

comply with WISHA; and (5) compel DLI to enforce the electrical licensing requirements, WISHA, and prevailing wage laws against DOC.

On March 7, 1997, the trial court dismissed with prejudice NECA/IBEW's claims that DOC violated the prevailing wage and competitive bidding laws. The trial court also granted DLI's motion to dismiss DLI from the action, finding that DLI was not a necessary party to the suit because the director and DLI have discretion to determine when, who, and how to inspect, and whether to issue citations.

On April 4, 1997, the trial court denied NECA/IBEW's motion to reconsider its dismissal of DLI.

On September 19, 1997, the trial court entered summary judgment in favor of DOC, finding that NECA/IBEW did not have standing to bring claims on behalf of inmate workers under WISHA, and that DOC has broad statutory authority to utilize inmate labor to perform electrical work notwithstanding RCW 19.28's licensing and certification requirements under the statutes allegedly violated.

Appellants appealed to this court, which granted direct review.

RCW 19.28

Electricians and Electrical Installations

NECA/IBEW maintains that DOC must comply with the electrical licensing requirements of RCW 19.28 before it can assign inmate labor to do electrical work on prison facilities.

RCW 19.28.120(1) provides in relevant part:

It is unlawful for any person, firm, partnership, corporation, or other entity to engage in, conduct, or carry on the business of installing or maintaining wires or equipment to convey electric current, or installing or maintaining equipment to be operated by electric current as it pertains to the electrical industry, without having an unrevoked, unsuspended, and unexpired electrical contractor license, issued by the department in accordance with this chapter.

RCW 19.28.005(7) defines "[e]lectrical contractor" as "a person, firm, partnership, corporation, or other entity that offers to undertake, undertakes, submits a bid for, or does the work of installing or maintaining wires or equipment that convey electrical current." Based on this definition, there is no question that DOC has assigned, and continues to assign, inmates to perform a variety of electrical work on prison facilities through the agency's inmate work programs. Thus, because inmates install and maintain electrical systems and other equipment which convey electrical current, DOC's practice falls within the scope of RCW 19.28.

Under RCW 19.28, an electrical contractor must designate an individual as an electrical administrator before electrical work begins. RCW 19.28.120(5). In addition, the statute prohibits any person from engaging in the electrical construction trade without a current journeyman electrician certificate. RCW 19.28.510(1). The statute defines "[e]lectrical construction trade" as including but not limited to the practice of "installing or maintaining electrical wires and equipment that are used for light, heat, or power and installing and maintaining remote control, signaling, power limited, or communication circuits or systems." RCW 19.28.005(6).

The exemptions to RCW 19.28 are limited to persons who perform electrical work at their residence, farm, or place of business; persons making electrical installations on their own property; regularly employed employees working on the premises of their employer; and employees of an employer who is engaged in utility type work. RCW 19.28.610.

There is no question that DOC does not comply with the certification and licensing provisions of RCW 19.28. DOC does not Nevertheless, DOC argues that it is exempt from compliance with the requirements of RCW 19.28 either because its conduct falls within the exemptions provided in 19.28.610 or because it has unfettered discretion over inmate labor pursuant to RCW 72.09.100 and RCW 72.01.110. We address each of these arguments in turn.

have a certified administrator at each DOC facility. Many, if not most, of the inmates DOC assigns to electrical work do not possess journeyman electrician certificates, although inmates routinely engage in the installation, repair, and maintenance of electrical fixtures and systems on prison facilities.

Although DOC recognizes that the purpose behind RCW 19.28 is to safeguard the public from dangerous electrical installations and unscrupulous electrical contractors, DOC believes that the Legislature also intended to allow unlicensed individuals to perform electrical work where they are assigned as agents to such work on the premises of the principal. DOC does not argue that its practice fits explicitly within any specific exemption provided by RCW 19.28.610. Rather, DOC submits that inmates who do electrical work on prison facilities are akin to persons making electrical installations on their own property or employees working on the premises of their employer, an exemption provided for by RCW 19.28.610(1). ¹

Express exceptions in a statute suggest the Legislature's intention to exclude other exceptions. Weyerhaeuser Co. v. Tri, 117 Wash.2d 128, 133-34, 814 P.2d 629 (1991). Clearly, DOC's practice does not constitute any of the exemptions contemplated by the statute, since inmates are not performing work on their own property, they are not employees working on an employer's premises, and DOC is not a utility. Thus, we reject DOC's argument that it is exempt under the electrical statute, because RCW 19.28.610 does not provide an...