SCHOOL DISTRICTS - DETERMINATION OF THE PREVAILING WAGE TO BE PAID EMPLOYEES OF CONTRACTORS PERFORMING PUBLIC WORKS

SCHOOL DISTRICTS - DETERMINATION OF THE PREVAILING WAGE TO BE PAID EMPLOYEES OF CONTRACTORS PERFORMING PUBLIC WORKS.

The prevailing wage to be paid employees of contractors performing public works for school districts is governed by the provisions of chapter 39.12 RCW.

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                                                                October 31, 1960

Honorable Jerry Hagan
Director, Department of Labor & Industries
General Administration Building
Olympia, Washington                                                                                         Cite as:  AGO 59-60 No. 156

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Is the prevailing wage to be paid employees of contractors performing "public works" for school districts governed by the provisions of chapter 39.12 RCW?

            We answer this question in the affirmative.

                                                                     ANALYSIS

            Chapter 39.12 RCW is the codification of Chapter 63, Laws of 1945, an act ". . . relating to public work [and] providing for payment of the prevailing rate of wages . . ."  The coverage of the act is clearly stated in RCW 39.12.020 which reads as follows:

            "The hourly wages to be paid to laborers, workmen or mechanics, upon  all public works of the state or any county, municipality or political subdivision created by its laws,  shall be not less than the prevailing rate of wage for an hour's work in the same trade or occupation in the locality within the state where such labor is performed.  This chapter shall not apply to workmen or other persons regularly employed on monthly or per diem  [[Orig. Op. Page 2]] salary by the state, or any county, municipality, or political subdivision created by its laws."  (Emphasis supplied.)

            Unquestionably under the express language of the statute, the act applies to all public works carried on by the public agencies named including municipalities.  The manner of determining the prevailing rate of wage is found in RCW 39.12.010.  It reads as follows:

            "(1) The 'prevailing rate of wage', for the intents and purposes of this chapter, shall be the rate of hourly wage and overtime paid in the locality, as hereinafter defined, to the majority of workmen, laborers, or mechanics, in the same trade or occupation.  In the event that there is not a majority in the same trade or occupation paid at the same rate, then the average rate of hourly wage and overtime paid to such laborers, workmen or mechanics in the same trade or occupation shall be the prevailing rate.  If the wage paid by any contractor or subcontractor to laborers, workmen or mechanics on any public work is based on some period of time other than an hour, the hourly wage for the purposes of this chapter shall be mathematically determined by the number of hours worked in such period of time."

            If a dispute arises as to what the "prevailing wage" is in a given locality, and it cannot be resolved by the parties, the contract must contain a provision that the matter will be submitted 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."  RCW 39.12.060.

            It is an oft-quoted rule of statutory construction that in arriving at legislative intent, the first resort of the court is to the context and subject matter of the legislation because the intention of the lawmakers is to be deduced from the words used.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1956); Guinness v. State, 40 Wn. (2d) 677, 246 P. (2d) 433 (1952).  Applying this rule, it is apparent that it was the intent of the legislature in passing chapter 39.16 RCW (in 1945) to establish a complete and comprehensive act relating to all public work of all public agencies and to provide the "prevailing wage" that must be paid persons working thereon.

            However, the important terms public works, state, and municipality are not defined in the act itself.  Resort must therefore be had in other statutes dealing with "public works" for a legislative definition of these terms.  Our court has held many times that this course is proper under the well established rule of statutory construction that all statutes on a given subject must  [[Orig. Op. Page 3]] be construed, if possible, so that the integrity of all will be maintained.  City of Tacoma v. Cavanaugh, 45 Wn. (2d) 500, 275 P. (2d) 933 (1954); see also, Seattle v. State, 54 Wn. (2d) 139, 338 P. (2d) 126 (1959).

            In Chapter 183, Laws of 1923 (chapter 39.04 RCW) which pertains to public works, the definitions of the above words are found.  RCW 39.04.010 provides, in pertinent part, as follows:

            "[1] The termstate shall include the state of Washington and all departments, supervisors, commissioners and agencies thereof.

           "[2] The term  municipality shall include every city, county town, district or other public agency thereof which is authorized by law to require the execution of public work, except drainage districts, diking districts, diking and drainage improvement districts, drainage improvement districts, diking improvement districts, consolidated diking and drainage improvement districts, consolidated drainage improvement districts, consolidated diking improvement districts, irrigation districts or any such other districts as shall from time to time be authorized by law for the reclamation or development of waste or undeveloped lands.

            "[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."  (Emphasis supplied.)

            In AGO 59-60 No. 13 [[to Department of Labor and Industries on February 18, 1959]], this office concluded that a school district is included within the definition of "municipality" as that term is used and defined in the above statute.

            Accordingly, it is the opinion of this office that where a school district undertakes any public work by contract it must require the contractor to pay the prevailing wage and comply with the other provisions of chapter 39.12 RCW supra.

            In passing, it should be mentioned that in arriving at our conclusion we have not overlooked the possible application of chapter 39.16 RCW (Chapter 246, Laws of 1943) cited in your letter.  We recognize that this act, establishing the percentage preferences for Washington residents on certain public contracts, also provides for the payment of prevailing wages.  RCW 39.16.010 provides, in part, as follows:

             [[Orig. Op. Page 4]]

            "In all contracts let by the state, or any department thereof, or any county, city or town for the erection, construction, alteration, demolition or repair of any public building, structure, bridge, highway, or any other kind of public work or improvement, the contractor, subcontractor, or person in charge thereof, shall employ ninety-five percent or more bona fide Washington residents as employees where more than fifty persons are employed, and ninety percent or more where fifty or less are employed; and shall pay the standard prevailing wages for the specific type of construction as determined by the United States Department of Labor in the city or county where the work is being performed. . . ." (Emphasis supplied.)

            The public contracts described in the above statute (passed in 1943) are included within the term public works as used in RCW 39.04.010 supra, (passed in 1923) and as that term is used in RCW 39.12.020supra, (passed in 1945).  However, the method or manner of determining the prevailing wage under the 1943 law and the later 1945 law is substantially different.  Under the earlier law contractors were required to ". . . pay the standard prevailing wages for the specific type of construction as determined by the United States Department of Labor in the city or county where work is being performed. . . ."

            On the other hand, under the later law, RCW 39.12.010, the prevailing wage is determined by the wages paid the ". . . majority of workmen, laborers, or mechanics, in the same trade or occupation . . ." in a given locality.  Any dispute as to what constitutes the prevailing wage is subject to arbitration of the Director of Labor and Industries as hereinbefore stated.  See RCW 39.12.060.

            While we recognize the rule that repeals or amendments of statutes by implication are not favored (see State v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897 (1951); Generaux v. Petit, 172 Wash. 132, 19 P. (2d) 911 (1933); Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092 (1913)), nevertheless, an amendment or repeal by implication is effected where the subsequent legislation is contrary to and inconsistent with, a former act.  Peterson v. King County, 199 Wash. 106, 90 P. (2d) 729 (1939); see also, In re Walder v. Belnap, 51 Wn. (2d) 99, 316 P. (2d) 119 (1957); State ex rel. Dept. of Finance, Budget and Business v. Thurston County, 6 Wn. (2d) 633, 108 P. (2d) 828 (1940); Bruner v. Little, 97 Wash. 319, 166 Pac. 1166 (1917); 50 Am.Jur. Statutes, p. 548, § 543.

            It is our opinion that the provisions of chapter 39.12 RCW (Chapter 63, Laws of 1945) and chapter 39.16 RCW (Chapter 246, Laws of 1943) are in conflict insofar as the method for determining the prevailing wage  [[Orig. Op. Page 5]] which is to be paid by contractors on public works.  Therefore, the later statute amends by implication the earlier law where the two conflict.  In other words, we conclude the prevailing wages payable on public work is to be determined under chapter 39.12 RCW.

            Furthermore, even if we were to assume no amendment by implication, chapter 39.16 RCW would in no way affect or control the payment of wages under public works contracts let by school districts.  It is readily apparent from an examination of RCW 39.16.010, supra, that the scope of the 1943 act was limited in its application to ". . . the state, or any department thereof, or any county, city, or town . . ."

            Our court has said that

            "If the words employed in the declaring part of a statute be plain, unambiguous, and well understood according to their natural and ordinary sense and meaning, the statute furnishes a rule of construction beyond which a court cannot go."  Parkhurst v. Everett, 51 Wn. (2d) 292, 294, 318 P. (2d) 327 (1957).

            Furthermore, the members of the legislature are presumed to know the meaning of the words they write into their enactments.  Union Oil of California v. State, 2 Wn. (2d) 436, 98 P. (2d) 660 (1940); In re Raine's Estate, 193 Wash. 394, 75 P. (2d) 933 (1938).

            Applying these rules, it is clear that there is no term used in the above statute, if given its well understanding meaning, which would include a school district.  Hence the provisions of chapter 39.16 RCW do not apply to such districts.  However, we believe that this act does evidence the strong public policy of the state, insofar as preference of Washington residents on public works contracts is concerned, and therefore school districts should be encouraged to follow such provisions when entering into public works contracts.

            In conclusion we should like to note that nothing we have stated herein concerning public works  contracts is to be construed to apply to public work performed by the employees of the school district.  Such work is excluded from the coverage of chapter 39.12 [[chapter 39.12 RCW]]by RCW 39.12.020supra.  See, AGO 59-60 No. 13, for a discussion of this particular phase of the question.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General