Southeastern Washington Bldg. and Const. Trades Council v. Department of Labor and Industries

• Decision Date: 16 November 1978
• Docket Number: No. 44924,44924
• Court: Washington Supreme Court
• Parties: , 23 Wage & Hour Cas. (BNA) 1238, 88 Lab.Cas. P 55,236 SOUTHEASTERN WASHINGTON BUILDING AND CONSTRUCTION TRADES COUNCIL, a labor organization, and Arlen Dean, an Individual, Appellants, v. The DEPARTMENT OF LABOR AND INDUSTRIES, and The Marley Company, a Delaware Corporation, Respondents.

Page 41

91 Wn.2d 41

586 P.2d 486, 23 Wage & Hour Cas. (BNA) 1238,

88 Lab.Cas. P 55,236

SOUTHEASTERN WASHINGTON BUILDING AND CONSTRUCTION TRADES COUNCIL, a labor organization, and Arlen Dean, an Individual, Appellants, v. The DEPARTMENT OF LABOR AND INDUSTRIES, and The Marley Company, a Delaware Corporation, Respondents.

No. 44924.

Supreme Court of Washington, En Banc.

Nov. 16, 1978.

Critchlow, Williams, Ryals & Schuster, Michael E. DeGrasse, Richland, for appellants.

Slade Gorton, Atty. Gen., William T. Scharnikow, Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, Mary Ellen Krug, James B. Street, Seattle, for respondents.

ROSELLINI, Justice.

The appellants seek judicial review of a determination made by the industrial statistician of the Department of Labor and Industries with respect to prevailing wages in the Moses Lake area. Appellants are referred to herein as the trades council. Under RCW chapter 39.12 persons contracting for the construction of any public work must agree to pay the prevailing wage to their employees (RCW 39.12.030-.040) ¹ and the industrial statistician is given the duty of determining what that wage is with respect to each trade and occupation (RCW 39.12.015). The intervenor Marley Company signed such an agreement when it contracted to build cooling towers for an atomic reactor. It is the contention of the appellants that, in this instance, the industrial statistician's determination was made upon an improper basis. ²

The merits of this contention are not before us, the superior court having dismissed the action with prejudice upon the intervenor's motion for summary judgment. The dismissal was grounded upon the court's conclusion that the administrative decision in question was not subject to judicial review under the statute, the only remedy available to one dissatisfied with a ruling of the statistician being arbitration under RCW 39.12.060. We affirm the dismissal.

While the respondent department does not challenge the appellants' standing to bring this action, the respondent intervenor maintains that a trades council, such as appellant, lacks sufficient interest in the contract to permit it to challenge the statistician's rulings with respect to the prevailing wage.

Since the members of the trades council are not wage earners but organizations representing such persons, it readily acknowledges that it has no members eligible for employment by the Marley Company. Nevertheless it asserts that it has a genuine and continuing interest in prevailing wage determinations.

The trades council describes its interest in these words:

Among other things, the Council endeavors to advance the interests of building tradesmen within a geographic area that includes Benton, Franklin and Grant counties. As part of this effort, the Council attempts to prevent depression of wage rates by seeing that various prevailing wage requirements are satisfied.

The parties are agreed that RCW 39.12 is patterned after the federal Davis-Bacon Act (40 U.S.C. § 276a Et seq.), and that cases interpreting that act are relevant and persuasive.

That a trades council such as the appellant has standing to sue to enforce the provisions of the Davis-Bacon Act was affirmed by the United States District Court for the Northern District of Georgia, Atlanta Division, in North Georgia Building & Constr. Trades Council v. U.S Dept. of Transp., 399 F.Supp. 58 (N.D.Ga.1975), citing International Union of Operating Eng'rs v. Arthurs, 355 F.Supp. 7, 14 (W.D.Okl.) Aff'd 480 F.2d 603 (10th Cir. 1973), wherein it was decided that a labor union had standing to seek judicial enforcement of the act.

It was the opinion of the federal judge in Georgia that there is no significant difference between the interest of a union and a council of unions. In the case which he relied upon, the Oklahoma judge took account of the United States Supreme Court cases in which that court has manifested a willingness to accord standing to associations having members whose interests are represented by the association and are affected by the matter in litigation. Among these cases are NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and Association of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the latter being a case in which the high court placed associations such as these in the class of persons entitled to seek judicial review of administrative decisions.

In the case of International Union of Operating Eng'rs v. Arthurs, supra, the court noted that 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. If this is indeed a purpose of such legislation, as it appears to be, certainly an organization which represents a number of trades and crafts, and has as one of its objects the maintenance of the prevailing wage in the locality, has a vital interest in seeing that the provisions of the statute are enforced.

The act being remedial in nature, we should construe it liberally to effect its purpose. That purpose can be served, we believe, by according to organizations such as the trades council the right to seek enforcement of the statutory provisions, to the extent that judicial and administrative remedies are available.

For this reason, also, we agree with the contention of the respondent department that the appellants were entitled to seek arbitration under the provisions of RCW 39.12.060. ³ That section provides:

Such contract shall contain a further provision that in 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, including labor and management representatives, the matter shall be referred for arbitration to the director of the department of labor and industries of the state and his decision therein shall be final and conclusive and binding on all parties involved in the dispute.

The act does not define the expression "party in interest." While the section providing for arbitration could be strictly construed to apply only to the parties to a given contract, such a construction would limit the effectiveness of the act. Unless workers or representatives of workers who are not parties to such a contract but whose wages and expectancies are affected by its terms...