APPLICABILITY OF STATE PREVAILING WAGE LAW

PUBLIC WORKS ‑- EMPLOYEES ‑- APPRENTICES ‑- APPLICABILITY OF STATE PREVAILING WAGE LAW 

A federal Bureau of Apprenticeship and Training (BAT) apprentice program may not be substituted for a state‑approved apprenticeship program under chapter 49.04 RCW for the purposes of ascertainment of the prevailing wage on public works projects under RCW 39.12.021. 

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                                                                 February 7, 1985

Honorable Jeannette Hayner
State Senator, 16th District
302 Legislative Building
Olympia, Washington 98504

  Cite as:  AGO 1985 No. 5                                                                                                                 

 Dear Senator Hayner:

            By recent letter you requested our opinion on the following question:

             "Where both federal and state funds are involved in a public works program, may a contractor who has a federal Bureau of Apprenticeship and Training program be permitted to pay the prevailing wages [for apprentices] as delineated in RCW 39.12.021?"

             We answer the foregoing question in the negative.

                                                                      ANALYSIS

             RCW 39.12.021 is a part of the law relating to the payment of prevailing wages on public works in the state of Washington.  That particular section of the law, codifying § 1, chapter 93, Laws of 1963, reads as follows:

             "Apprentice workmen employed upon public works projects for whom an apprenticeship agreement has been registered and approved with the state apprenticeship council pursuant to chapter 49.04 RCW, must be paid at least the prevailing hourly rate for an apprentice of that trade.  Any workman for whom an apprenticeship agreement has not been registered and approved by the state apprenticeship  [[Orig. Op. Page 2]] council shall be considered to be a fully qualified journeyman, and, therefore, shall be paid at the prevailing hourly rate for journeyman."

             The essence of your question is whether, in those instances where both federal and state funds are involved in a public works project, a BAT-approved apprenticeship program may be substituted for a state‑approved apprenticeship program.  As a consequence of an affirmative answer to that question the workers involved could then lawfully be paid as apprentices under such federal apprenticeship program rather than being paid on the basis of the second sentence of RCW 39.12.021,supra; i.e., as though they were fully qualified journeymen.

             We must advise you, however, that such an affirmative answer to your question is not possible without a statutory amendment.  Simply stated, there is nothing in RCW 39.12.021 as it now reads which would permit the substitution of a BAT-approved program for a state‑approved apprenticeship program under an agreement registered with the State Apprenticeship Council.

             In turn, the only remaining issue is whether, somehow, the mixture of federal and state funding could take the program out of chapter 39.12 RCW so as to render RCW 39.12.021,supra, simply inapplicable.  Our answer to that question, however, must likewise be in the negative.

             As explained in AGO 1983 No. 2, copy enclosed, the pertinent definition of "public work," for the purposes of chapter 39.12 RCW, is the definition contained in RCW 39.04.010.  Accord, AGO 59-60 No. 156, a copy of which is also enclosed; and see, as well, § 1, chapter 177, Laws of 1977, 1st Ex. Sess. by which the legislature added the following sentence to the definition of "public work" in RCW 39.04.010:

             ". . . All public works, including maintenance when performed by contract shall company with the provisions of RCW 39.12.020.

             ". . ."

             Thus, the full definition of "public work" in RCW 39.04.010, supra, now reads as follows:

             ". . .

                          [[Orig. Op. Page 3]]

"The term public work shall include all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein, but nothing herein shall apply to the construction, alteration, repair, or improvement of any municipal street railway system.  All public works, including maintenance when performed by contract shall comply with the provisions of RCW 39.12.020.

             ". . ."  (Emphasis supplied)

             A public works project which is paid for partially with state and partially with federal funds has been deemed by this office, in the past, to be a project executed at the cost of the state.  Moreover, as also explained in AGO 1983 No. 2, supra, even in those instances where the project is paid forentirely with federal (rather than state or municipal) funds the state prevailing wage law is not, for that reason alone, to be regarded as inapplicable.  For, as we there said:

             ". . . Even in such a case, however, the contractor would (in any case of which we can conceive) have a lien against the property of the [public agency involved] for payment.  See,e.g., RCW 60.04.010.  And that, by itself, would cause the project to constitute a 'public work' as above defined‑-regardless of its principal source of funding. . . ."

             We thus must answer your question, as above stated, in the negative.  We would, of course, be happy to review any proposed, remedial, legislation which this conclusion might prompt.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General