WSR 08-19-085

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed September 16, 2008, 1:51 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-04-083.

Title of Rule and Other Identifying Information: WAC 296-127-018 Coverage and exemptions of workers involved in the production and delivery of gravel, concrete, asphalt, or similar materials.

Hearing Location(s): Department of Labor and Industries, 7273 Linderson Way S.W., Room S119, Tumwater, WA, on October 22, 2008, at 1:00 p.m.; at the Department of Labor and Industries, Spokane Service Location, 901 North Monroe Street, Suite 100, Spokane, WA, on October 23, 2008, at 10:00 a.m.; and at the Department of Labor and Industries, Tukwila Service Location, 12806 Gateway Drive, Tukwila, WA, on October 29, 2008, at 1:00 p.m.

Date of Intended Adoption: November 18, 2008.

Submit Written Comments to: Sally Elliott, P.O. Box 44400, Olympia, WA 98504-4400, e-mail yous235@lni.wa.gov, fax (360) 902-5292, by October 29, 2008.

Assistance for Persons with Disabilities: Contact Sally Elliott by October 1, 2008, at yous235@lni.wa.gov or (360) 902-6411.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: During the last decade the prevailing wage program has seen a number of court decisions identify [identifying] the extent to which prevailing wages are required to be paid for incorporation and delivery of material on public works projects. In particular, the recent Silverstreak case (2007), after several years of court action, clarified coverage for the delivery and incorporation of fill material via belly dump and end-dump trucks. In addition, a series of other published cases (Heller, Superior Asphalt 1 & 2) provided coverage for repairing and maintaining machinery and the delivery and incorporation of asphalt, sand, dirt, gravel, and crushed rock.

A June 1999 department policy pertaining to the delivery of wet concrete exempts that type of delivery and incorporation from prevailing wage coverage unless the workers operate machinery or use tools that screed, float, or put a finish on the concrete. As a result, the coverage of concrete work is treated differently from other delivery and incorporation work. This policy was developed in response to an unpublished court case (Holroyd 1999) and was put in place prior to the rulings of the court in Silverstreak and in Superior Asphalt 2. The June 1999 policy pertains to the existing version of WAC 296-127-018 and will be superseded by this rule making. One change implemented through this rule making is that the delivery of wet cement upon a public works project will be subject to prevailing wage because it amounts to incorporation of material.

It is the department's intention, through the rule process, to clarify the coverage of production and delivery services and make the coverage of work and payment of wages consistent with published case law and chapter 39.12 RCW requirement that all work upon public works is paid at prevailing wage rates. The department also seeks to ensure businesses do not encounter unanticipated costs due to a lack of understanding on coverage requirements.

Cases cited above:

Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus. (Superior 1), 84 Wn. App. 401 (1996);

Heller v. McClure & Sons, Inc., 92 Wn. App. 333 (1998);

Holroyd Co., Inc. v. Dep't of Labor & Indus., 93 Wn. App. 1075 (1999) (unpublished opinion);

Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus. (Superior 2), 112 Wn. App. 291 (2002);

Silverstreak, Inc. v. Dep't of Labor & Indus., 159 Wn.2d 868 (2007).

Reasons Supporting Proposal: See Purpose above.

Statutory Authority for Adoption: Chapter 39.12 RCW, RCW 43.22.051, and 43.22.270.

Statute Being Implemented: Chapter 39.12 RCW and RCW 43.22.270.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of labor and industries, governmental.

Name of Agency Personnel Responsible for Drafting: David Soma, Tumwater, Washington, (360) 902-5330; Implementation and Enforcement: Patrick Woods, Tumwater, Washington, (360) 902-6348.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Prevailing wage work is work done at the cost of the public. Chapter 39.04 RCW defines public works projects as those executed at the cost of the state or of any municipality. It is expected that all firms involved in the production, transportation, delivery, and incorporation of materials pass on the costs of paying prevailing wage rates to the public through their submission of bids to perform public work. The costs of filing statements of intent to pay prevailing wages and affidavits of wages paid under chapter 39.12 RCW for activities covered by WAC 296-127-018, and associated administrative costs, if any, represent no more than minor costs on businesses under RCW 19.85.020(2). Proposed rules that do not impose more than minor costs on businesses in an industry are exempt from the requirement to prepare a small business economic impact statement under RCW 19.85.030 (1)(a). This proposal will not impose more than minor costs on businesses.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Sally Elliott, P.O. Box 44400, Olympia, WA 98504-4400, phone (360) 902-6411, fax (360) 902-5292, e-mail yous235@lni.wa.gov.

September 16, 2008

Judy Schurke

Director

OTS-1892.1


AMENDATORY SECTION(Amending WSR 92-01-104 and 92-08-101, filed 12/18/91 and 4/1/92, effective 8/31/92)

WAC 296-127-018   Coverage and exemptions of workers involved in the production and delivery of gravel, concrete, asphalt, or similar materials.   (1) The materials covered under this section ((are)) include but are not limited to: Sand, gravel, crushed rock, concrete ((mix)), asphalt, or other similar materials.

(((1) Workers are subject to the provisions of chapter 39.12 RCW when they are employed by a contractor as defined by WAC 296-127-010 (5)(c) and:

(a) They are engaged for a public works project in the production of the above-listed materials in a sand or gravel pit, rock quarry, concrete mixing plant, or other similar facility; or

(b) They are engaged in the transportation of the above-listed materials for use on a public works project, whether or not they perform any work on the project site.))

(2) All workers, regardless of by whom employed, are subject to the provisions of chapter 39.12 RCW when they perform any or all of the following functions:

(a) They deliver or discharge any of the above-listed 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; or)):

(i) At one or more point(s) directly upon the location where the material will be incorporated into the project; or

(ii) At multiple points at the project; or

(iii) Adjacent to the location and coordinated with the incorporation of those materials.

(b) They wait at or near a public works project site to ((participate in the incorporation of any of the above-listed materials into the project; or)) perform any tasks subject to this section of the rule.

(c) They remove any materials from a public works construction site pursuant to contract requirements or specifications (e.g., excavated materials, materials from demolished structures, clean-up materials, etc.)((; or)).

(d) They work in a materials production facility (e.g., batch plant, borrow pit, rock quarry, etc.,) which is established for a public works project for the specific, but not necessarily exclusive, purpose of supplying materials for the project.

(e) They deliver concrete to a public works site regardless of the method of incorporation.

(f) They assist or participate in the incorporation of any materials into the public works project.

(3) All travel time that relates to the work covered under subsection (2) of this section requires the payment of prevailing wages. Travel time includes time spent waiting to load, loading, transporting, waiting to unload, and delivering materials. Travel time would include all time spent in travel in support of a public works project whether the vehicle is empty or full. For example, travel time spent returning to a supply source to obtain another load of material for use on a public works site or returning to the public works site to obtain another load of excavated material is time spent in travel that is subject to prevailing wage. Travel to a supply source, including travel from a public works site, to obtain materials for use on a private project would not be travel subject to the prevailing wage.

(4) Workers are not subject to the provisions of chapter 39.12 RCW when((:)) they deliver materials to a stockpile.

(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, and they are employed by an established materials supplier either in the production or delivery of sand, gravel, crushed rock, concrete mix, asphalt or other similar materials;

(b) They are employed by a common or contract carrier trucking company principally or exclusively engaged in the hauling or delivery of such products, and the employees' duties do not include spreading, leveling, rolling, or otherwise participating in the incorporation of the delivered materials into a public works project; or

(c) Their employer is engaged in the production and stockpiling of such materials for unspecified future use by the state of Washington or by municipalities as defined by RCW 39.04.010.

(4))) A "stockpile" is defined as materials delivered to a pile located away from the site of incorporation such that the stockpiled materials must be physically moved from the stockpile and transported to another location on the project site in order to be incorporated into the project.

(b) A stockpile does not include any of the functions described in subsection (2)(a) through (f) of this section; nor does a stockpile include materials delivered or distributed to multiple locations upon the project site; nor does a stockpile include materials dumped at the place of incorporation, or adjacent to the location and coordinated with the incorporation.

(5) The applicable prevailing wage rate shall be determined by the locality in which the work is performed. Workers subject to ((the provisions of chapter 39.12 RCW, as outlined in)) subsection (((1))) (2)(d) of this section, who produce such materials at an off-site facility shall be paid the applicable prevailing wage rates for the county in which the off-site facility is located. Workers subject to ((the provisions of chapter 39.12 RCW, as outlined in)) subsection (((1))) (2) of this section, who deliver such materials to a public works project site shall be paid the applicable prevailing wage rates for the county in which the public works project is located.

[Statutory Authority: Chapters 39.04 and 39.12 RCW and RCW 43.22.270. 92-01-104 and 92-08-101, 296-127-018, filed 12/18/91 and 4/1/92, effective 8/31/92.]

Washington State Code Reviser's Office