Silverstreak, Inc. v. STATE, DEPT. OF L & I

• Court: Washington Court of Appeals
• Writing for the Court: COX, C.J.
• Citation: Silverstreak, Inc. v. STATE, DEPT. OF L & I, 104 P.3d 699, 125 Wn. App. 202, 125 Wash. App. 202 (Wash. App. 2005)
• Decision Date: 10 January 2005
• Docket Number: No. 52810-6-I.
• Parties: SILVERSTREAK, INC.; T-Max Construction; Stowe Construction; Gary McCann Trucking; and Buckley Recycling, Appellants, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

104 P.3d 699

125 Wn. App. 202

125 Wash. App. 202

SILVERSTREAK, INC.; T-Max Construction; Stowe Construction; Gary McCann Trucking; and Buckley Recycling, Appellants, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 52810-6-I.

Court of Appeals of Washington, Division One.

January 10, 2005.

John P. Ahlers, Short Cressman & Burgess, Anne-Marie E. Sargent, Connor & Chung PLLC, Seattle, for Appellants.

Amanda J. Goss, Attorney General's Office, Seattle, for Respondent.

COX, C.J.

Truck drivers who deliver sand, gravel, crushed rock, concrete mix, asphalt, or other similar materials to a public works project site are beneficiaries of Washington's prevailing wages statute¹ when they "spread[ ], level[ ], roll[], or otherwise participate in the incorporation of the [delivered] materials into the project."² Drivers who do not so participate in the incorporation of materials into the project are not entitled to prevailing wages.³

Here, the Director of the Department of Labor and Industries ("L & I") determined that end-dump truck drivers employed by Silverstreak, Inc., T-Max Construction, Stowe Construction, Gary McCann Trucking, and Buckley Recycling (the "Companies") "participated in `incorporation' under WAC 296-127-018(2) of fill material into" a public works project. Accordingly, the Director concluded that the drivers are entitled to be paid prevailing wages.

We hold that the record shows that the end-dump truck drivers neither spread, leveled, nor rolled any of the fill material that they delivered to the site. Moreover, they did not "otherwise participate in the incorporation" of fill material at the site. We reverse.

This prevailing wage case arises from work end-dump truck drivers performed at a public works project. The facts are largely undisputed.

The project was Phase 1 of the Sea-Tac Third Runway Embankment Project. The objective of Phase 1 was to clear 20 acres of land at Seattle-Tacoma Airport and to construct a runway embankment with fill material. This required the delivery of approximately 800,000 cubic yards of fill material. There is no dispute that the fill material here was the type specified in the regulation at issue.

City Transfer, Inc., (CTI) was the prime contractor for the work. It subcontracted with the Companies to supply and deliver fill material for the construction of the embankment.

Between the last week in May and the second week of December 1998, the Companies delivered fill material to the site using two types of vehicles.⁴ An end-dump truck and trailer (pup) combination was one type.⁵ The other was a belly-dump truck combination.⁶ We describe more fully later in this opinion how the drivers of these vehicles delivered fill material to the site.

The Companies paid the belly-dump truck drivers prevailing wages. But they paid the end-dump truck drivers market wages. L & I issued notices of violations to the Companies for failure to pay end-dump truck drivers prevailing wages for work they did at the public works project site. The Companies objected, taking the position that the nature of the work these drivers performed was limited to delivery of materials and did not include participation in any incorporation of the delivered materials into the project.

Following a hearing, an administrative law judge concluded that the method of delivery of the fill to the project by the end-dump truck drivers did not constitute participation in incorporation of materials into the project.⁷ Following review of the ALJ's proposed findings and conclusions, the Director disagreed.

The Director concluded that there were two bases under WAC 296-127-018 for the end-dump truck drivers to be paid the prevailing wage. First, the drivers participated in incorporation of the fill by depositing it directly on the embankment rather than stockpiling it at a central location. According to the Director, the drivers worked in conjunction with other workers who were blading and spreading the deposited fill material, thereby incorporating the fill into the site. Second, the Director also found that the end-dump truck drivers drove over fill material in an activity akin to "rolling" within the meaning of the regulation, thus compacting the materials into the site.

The Companies sought review by the superior court. The court affirmed the Director's decision in part, deciding that the end-dump truck drivers participated in incorporation of the fill material into the public works project. But the court further held that there was insufficient evidence to sustain the Director's finding that the end-dump truck driver's drove over fill material in an activity akin to "rolling." Accordingly, the court held that the end-dump truck drivers are entitled to be paid prevailing wages solely on the basis that they were "otherwise participating in incorporation of the delivered materials" into the project.

The Companies appeal. L & I did not cross appeal.

PREVAILING WAGES ON PUBLIC WORKS

The Companies argue that the end-dump truck drivers did not spread, level, roll or otherwise participate in the incorporation of fill materials into the project site and thus are not entitled to prevailing wages. We agree.

An appeal from a notice of violation under Washington's prevailing wage statute is governed by the Administrative Procedure Act, chapter 34.05 RCW.⁸ We review the Director's order, which is the final agency order.⁹ In reviewing the Director's administrative action, we sit in the same position as the trial court and apply the APA standards directly to the administrative record that was before the agency.¹⁰ We review questions of law de novo, but we accord substantial weight to the agency's interpretation of the statutes that it administers.¹¹ We review findings of fact for substantial evidence in light of the whole record.¹² On mixed questions of law and fact, we determine the law independently, then apply it to the facts as found by the agency.¹³

The Prevailing Wages on Public Works Act¹⁴ is remedial, and courts construe it liberally to protect the employees of government contractors from substandard earnings and to preserve local wage standards.¹⁵ The employees, not the contractor or its assignee, are the beneficiaries of the act.¹⁶

WAC 296-127-018 specifies the circumstances under which workers who deliver certain materials to a public works project site are entitled to prevailing wages. It states as follows:

Coverage and exemptions of workers involved in the production and delivery of gravel, concrete, asphalt, or similar materials.

...

(2) All workers, regardless of by whom employed, are subject to the provisions of chapter 39.12 RCW when:

(a) They deliver ... materials to a public works project site and perform any spreading, leveling, rolling, or otherwise participate in any incorporation of the materials into the project;

...

(3) Workers are not subject to the provisions of chapter 39.12 RCW when:

(a) The employees' duties do not include spreading, leveling, rolling, or otherwise participating in the incorporation of the delivered materials into a public works project,.... [¹⁷]

Examination of the plain words of the regulation makes clear that a worker's mere delivery of materials to the site, without more, is insufficient to trigger the duty to pay prevailing wages. The use of the conjunction "and" to join the first and second clauses of subsection (2)(a) makes this clear. Likewise, the exclusion from prevailing wage protection in subsection (3)(a) where drivers' duties do not include "spreading, leveling, rolling, or otherwise participating in the incorporation of the delivered materials" reinforces this conclusion.

Superior Asphalt & Concrete Co. v. Dep't of Labor and Indus., ("Superior I") reached the same conclusion that more than mere delivery of materials is necessary to require the payment of the prevailing wage.¹⁸ There, the court first addressed whether prevailing wages must be paid to truck drivers who delivered material to a public works project. The same regulation that is before us now was before that court.¹⁹ The court established the principle that "the regulation ... does not state that mere delivery triggers coverage; the worker must perform some additional task upon the public work."²⁰

Here, the Director's findings do not include any determination that the end-dump truck drivers either "spread" or "leveled" fill material within the meaning of the regulation. Based on the absence of such findings, we conclude that neither of these two activities is expressly at issue in this case.²¹ Accordingly, the end-dump truck drivers do not qualify for the prevailing wage by virtue of either of these provisions.

L & I has abandoned on appeal the position it took below — that the end-dump truck drivers were involved in "rolling" fill within the meaning of the regulation. The superior court rejected that position, and L & I did not cross appeal. "Rolling" of fill is not at issue in this case. Thus, the end-dump truck drivers do not qualify for the prevailing wage by virtue of this provision.

The issue here is whether the end-dump truck drivers "otherwise participat[ed in any] incorporation" of the fill into the project. Only then do the activities of the end-dump truck drivers trigger the requirement under WAC 296-127-018(2)(a) to pay prevailing wages.²²

Where a statute is unambiguous, we assume the legislature means what the statute says, and we will not engage in statutory construction past the plain meaning of the words.²³ When faced with general terms in a sequence with specific terms, the rule of ejusdem generis states that the general term is restricted to items similar to the specific terms.²⁴

Focusing on the activities of the truck drivers, as we must, we note that WAC 296-127-018(2)(a) uses the specific terms "spreading, leveling, [and] rolling" of materials to define what additional activity beyond delivery is required to trigger the requirement to...