INDUSTRIAL INSURANCE ‑- EMPLOYEES COVERED UNDER 'WORK PERFORMED BY MAINTENANCE AND SERVICE EMPLOYEES IN STORES, BUILDINGS AND ESTABLISHMENTS

INDUSTRIAL INSURANCE ‑- EMPLOYEES COVERED UNDER "WORK PERFORMED BY MAINTENANCE AND SERVICE EMPLOYEES IN STORES, BUILDINGS AND ESTABLISHMENTS

Chapter 246, Laws of 1951, declaring certain employment extrahazardous, supplements existing definitions and classifications, and declares work by service and maintenance employees in stores, buildings and establishments to be extrahazardous.

                                                              - - - - - - - - - - - - -

                                                              September 26, 1951

Honorable A. M. Johnson
Director of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 147

Dear Sir:

            In your letter of September 11, 1951, you propound the following questions:

            "1. What employees or craftsmen in the employment of building and establishments are properly covered as maintenance employees?

            "2. Are carpenters, painters, engineers, plumbers and such employees in the employment of buildings, that is office buildings and other buildings, not using power driven machinery and not in the business of carpentry, painting, plumbing or heating in a commercial way covered by Chapter 246 of the Laws of 1951?

            "3. On page 1004, Chapter 247, Laws of 1947, the Legislature has defined a maintenance man as follows:

             [[Orig. Op. Page 2]]

            'A maintenance man is one whose work consists primarily of maintaining in repair or in condition fixed or established property.'

            "Under that definition the Department has established class No. 39-5.  What effect, if any, has 246 of the Laws of 1951 on the definition of maintenance man in Chapter 247 of the Laws of 1947 at page 1004?"

            We answer the above questions as follows:

            1. The term "service and maintenance employees in stores, buildings and establishments," as we construe this term to be used by the 1951 legislature, would conceivably cover almost every type of employee or craftsman so employed so long as they are not engaged primarily for the purpose of personal or other service after the public has come on to the premises and is actively engaged in trade, barter, the buying or selling, soliciting, visiting, submitting to consultation, examination or partaking of food or drink.  See Attorney General's opinion of June 18, 1951, to the Director of Labor and Industries.

            2. Carpenters, painters, engineers, plumbers, and such employees in the employment of buildings, that is, office buildings and other buildings not using power driven machines and not in the business of carpentry, painting, plumbing or heating in a commercial way where they are covered under a classification of extrahazardous work established pursuant to existing law prior to the enactment of chapter 246, Laws of 1951, would continue to come under that same established classification until changed by appropriate administrative order.  Where they are not so covered by an established classification of extrahazardous employment prior to the 1951 Act, they may fall into the category discussed in question one above.

            3. Chapter 246, Laws of 1951, is a supplemental act declaring certain work performed by a specified class to be extrahazardous.  The definition of a "maintenance man" in chapter 247, Laws of 1947, at page 1004 (Rem. Rev. Stat. 7676 (b)) defines the "maintenance man" in terms of extrahazardous employment.

                                                                     ANALYSIS

            Taking up the last question you have propounded, we shall discuss this question first.  Chapter 246, Laws of 1951, reads as follows:

             [[Orig. Op. Page 3]]

            "Declaring Certain Employment to be Extrahazardous.

            "An Act declaring work performed by maintenance and service employees in stores, buildings and establishments to be extrahazardous; and providing for compensation in case of injuries.

            "Be it enacted by the Legislature of the State of Washington:

            "Section 1. The work performed by maintenance and service employees in stores, buildings and establishments is hereby declared to be extrahazardous within the meaning of the workmen's compensation law, and the firms operating said stores, buildings and establishments, as employers, and the maintenance and service employees, as employees, shall be subject to all the provisions of law relating to contributions and to the compensation and medical and surgical care of injured workmen and entitled to all the benefits thereof:  Provided, That churches and educational institutions are specifically excluded from the provisions of this act."

            As stated in our opinion to you under date of June 18, 1951 [[Opinion No. 51-53-72]], we deem this chapter constitutional.  The Constitution of the State of Washington, Article II, section 37 provides:

            "No act shall ever be revised or amended with reference to its title, but the act revised or the section amended shall be set forth at full length."

            Under the constitutional requirement here in question a new, original or independent act, complete in itself, which does not purport to be amendatory, although it may amend or repeal an existing act or parts thereof by implication, has been held not to fall within the prohibition of such a section of the constitution.  Anno. 5 A.L.R. (2d) 1270, 1292.  As stated in a leading case in Washington,Spokane Grain and Fuel v. Lyttaker, 59 Wash. 76, 10 Pac. 316, at page 82:

             [[Orig. Op. Page 4]]

            "* * * Nearly every legislative act of a general nature changes or modifies some existing statute, either directly or by implication, and as said by the court inEx parte Pollard, supra, 'Whether an amendatory or an original act should be employed is a matter of legislative judgment and discretion which the courts cannot control.'  The purpose of the constitutional provision was to protect the members of the legislature and the public against fraud and deception; not to trammel or hamper the legislature in the enactment of laws.  * * *"

            In chapter 246, Laws of 1951, as we read the same, there is no attempt to limit any existing statute.  The chapter, taken as a whole, may fairly be said to add new provisions to existing law on the subject of industrial insurance.  There is no attempt to change or modify the definition of "maintenance man" found in chapter 247, Laws of 1947, at page 1004 (Rem. Rev. Stat. 7676 (b)).

            We submit, however, that the definition given in your letter above quoted is not in the exact words of the latter statute, which reads:

            "A maintenance man shall be considered as one who has been hired to perform specific extra-hazardous work although a part of the employment may be nonhazardous; such work consisting primarily of the maintaining in repair or in condition fixed or established property.  (See Class 5 sub‑classes for real estate and property owners.)"

            It is to be noted that the first sentence of section 1, chapter 246, Laws of 1951, states in part:

            "The work performed by maintenance and service employees in stores, buildings and establishments is hereby declared to be extrahazardous within the meaning of the workmen's compensation law * * *"

            Thus, a maintenance man, by the 1947 law, is defined as "one who has been hired to perform specific extrahazardous work," and the 1951 law declares work performed by certain specified employees in stores, buildings and establishments to be extrahazardous.  Stated in another way, the 1947 Act defines maintenance men in terms of extrahazardous occupation, and the 1951 Act declares the work performed in stores, buildings and establishments by maintenance and service employees to be extrahazardous.

             [[Orig. Op. Page 5]]

            In construing the term "maintenance and service employees" we find that courts have used that term to include a definite class.  A New York court in the case ofMatter of N. Y. State Labor Relations Bd. v. McChesney, 21 N.Y.S. (2d) 771, 175 Misc. 95, in holding service and maintenance employees are "employees" within the state labor relations act, said at page 96:

            "Respondent's hospital requires the services of some fourteen service and maintenance employees.  Under the procedure set up by the New York State Labor Relations Act (Laws of 1937, chap. 443), they chose the Building Service Employees International Union, Local 80 of the A.F. of L. [[AFL]], as their collective bargaining agency with respect to wages, hours and other conditions of employment.  The employer refusing to deal through such medium on jurisdictional grounds, an unfair labor practice charge was filed against him with the State Labor Board, and the latter, after hearings, sustained the employees and issued the order which it now seeks to enforce.  Respondent's maintenance and service employees, as aforesaid, include operators, orderlies, kitchen help, maids and waitresses, engineer and night men.  The entire group was constituted a single unit by the Board appropriate for the purpose of collective bargaining within the meaning of the statute.  (Labor Law, § 705)."

            As may be seen in the above quotation, one court uses the said term to refer to those who are employed in and about the building, store or establishment for the purpose of rendering said building, store or establishment habitable, accessible, safe and sanitary.

            The legislature is presumed by the law to be aware of the existing statutes.  This rule is stated in 50 Am.Jur., section 354, page 354, to be:

            "In the enactment of a statute earlier acts on the same subject are generally presumed to have been in the knowledge and view of the legislature, which is regarded as having adopted the new statute in the light thereof and with reference thereto.  * * *"

             [[Orig. Op. Page 6]]

            The legislature, in chapter 247, Laws of 1947, amended section 4, chapter 74, Laws of 1911, by establishing certain classifications and providing that, at page 1001:  "(Rates and classification subject to change by departmental order when indicated as herein provided.)"

            As above pointed out, chapter 246, Laws of 1951, specifies certain work performed by designated employees to be extrahazardous.  Said employees would therefore, according to existing law, be covered either by new classification and rating or by incorporating these employees under a classification and rating presently in existence, but not covering service and maintenance employees of buildings, stores and establishments for the sole reason that such employees were deemed to be not engaged in extrahazardous employment prior to the passage of the 1951 Act.

Very truly yours,

SMITH TROY
Attorney General

FRANCIS J. WALKER
Assistant Attorney General