FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE MARCH 14, 2024 SUPREME COURT, STATE OF WASHINGTON MARCH 14, 2024 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ASSOCIATED GENERAL CONTRACTORS No. 101997-1 OF WASHINGTON, a Washington Nonprofit Corporation; ASSOCIATED BUILDERS AND CONTRACTORS OF WESTERN EN BANC WASHINGTON, INC., a Washington Nonprofit Corporation; INLAND PACIFIC Filed :______________ March 14, 2024 CHAPTERS OF ASSOCIATE BUILDERS AND CONTRACTORS, INC., a Washington Nonprofit Corporation; and INLAND NORTHWEST AGC, a Washington Nonprofit Corporation, Respondents, v. STATE OF WASHINGTON; JAY INSLEE, Governor; JOEL SACKS, Director of Washington State Department of Labor and Industries; and JIM CHRISTENSEN, Washington State Department of Labor and Industries Program Manager and Industrial Statistician, Prevailing Wage Program; in their official capacities, Petitioners.
GORDON MCCLOUD, J.— When the State of Washington builds a bridge,
a road, or any other public project, it must pay the workers a fair wage—what the
legislature has called the “prevailing rate of wage.” RCW 39.12.020. Before 2018, Associated Gen. Contractors of Wash. v. State, No. 101997-1
the legislature directed the State to determine the prevailing rate of wage by using
wage and hour surveys dependent on voluntary compliance by employers and
unions. WAC 296-127-019; Clerk’s Papers (CP) at 2559. The “data collected”
from those surveys could be used “only in the county for which the work was
performed.” RCW 39.12.026(1).
In 2018, the legislature changed the method for determining the prevailing
rate of wage on most projects. It directed the State to determine that rate “by
adopting the hourly wage, usual benefits, and overtime paid for the geographic
jurisdiction established in collective bargaining agreements [CBAs] for those
trades and occupations that have [CBAs].” RCW 39.12.015(3)(a).
In Associated General Contractors, the Court of Appeals declared this 2018
statute unconstitutional on the ground that it conflicted with the single-county
geographic limitation in the older statutory subsection, RCW 39.12.026(1).1
Specifically, the Court of Appeals held that RCW 39.12.026(1) provides that “data
collected” by the State to determine prevailing wage rates may be used “only in the
county for which the work was performed,” the new CBA-adoption statute lacks
that geographic limitation, and the RCW 39.12.026(1) single-county limit conflicts
1 Associated Gen. Contractors of Wash. v. State, No. 54465-2-II (Wash. Ct. App. Apr. 18, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2054465-2- II%20Unpublished%20Opinion.pdf (AGC III).
2 Associated Gen. Contractors of Wash. v. State, No. 101997-1
with RCW 39.12.015(3)(a)’s seeming permission to adopt wage rates from CBAs
that cover more than one county. The Court of Appeals concluded that this was a
fatal conflict—that it violated article II, section 37 of the Washington Constitution.
We disagree. The older statutory subsection, RCW 39.12.026(1), was
enacted at the time that the older wage-survey method was in force and, when
RCW 39.12.026(1) is read in context of the full statute and chapter in which it
appears, that statutory subsection’s single-county use limitation applies only to the
wage-survey “data collection” method. It does not apply to the newer CBA-
adoption method at all. Thus, the older statute does not conflict with the newer
statute; they just apply to different situations.
We therefore reverse the decision of the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
I. The legislature amends the prevailing wages on public works act
The prevailing wages on public works act (Act) requires employers to pay
no less than the “prevailing rate of wage” to laborers, workers, or mechanics
working on public projects. RCW 39.12.020. The legislature originally defined the
“prevailing rate of wage” as “the rate of hourly wage, usual benefits, and overtime
paid in the locality . . . to the majority of workers, laborers, or mechanics, in the
same trade or occupation.” RCW 39.12.010(1). The “‘locality’ is the largest city in
the county wherein the physical work is being performed.” RCW 39.12.010(2).
3 Associated Gen. Contractors of Wash. v. State, No. 101997-1
The legislature placed the job of determining the prevailing wage for each trade
and occupation in the hands of the industrial statistician of the Department of
Labor and Industries (L&I). RCW 39.12.015(1).
Pursuant to that legislative grant of authority, the industrial statistician
promulgated WAC 296-127-019, which lays out a multistep procedure for setting
the prevailing wage by using wage surveys. Before 2018, the industrial statistician
followed this method and set prevailing wage rates in Washington’s 39 counties by
sending wage surveys to employers and unions, asking them to voluntarily report
wage rates in various trades and occupations. WAC 296-127-019; CP at 2559.
Then, the industrial statistician would “systemize” the survey data and “determine
the majority or average rate by statistical estimation.” Associated Gen. Contractors
of Wash. v. State, 200 Wn.2d 396, 401, 518 P.3d 639 (2022) (AGC II) (citing WAC
296-127-019); CP at 2555-59 (Christensen deposition).
In 2003, the legislature codified the wage survey process in RCW 39.12.026
and directed the statistician that “all data collected by [L&I] may be used only in
the county for which the work was performed.” Former RCW 39.12.026(1) (2003).
In 2018, the legislature modified the prevailing wage process by enacting
Substitute Senate Bill (SSB) 5493.2 That law requires the industrial statistician to
2 SSB 5493, 65th Leg., Reg. Sess. (Wash. 2018).
4 Associated Gen. Contractors of Wash. v. State, No. 101997-1
“adopt[]” the wages memorialized in CBAs to set most prevailing wage rates,
rather than to collect, analyze, and apply data concerning wages, jobs, and hours
through the wage-survey method. This newer law, codified at RCW 39.12.015,
currently provides:
(3)(a) Except as provided in RCW 39.12.017,[3] and notwithstanding RCW 39.12.010(1), the industrial statistician shall establish the prevailing rate of wage by adopting the hourly wage, usual benefits, and overtime paid for the geographic jurisdiction established in [CBAs] for those trades and occupations that have [CBAs]. For trades and occupations with more than one [CBA] in the county, the higher rate will prevail. (b) For trades and occupations in which there are no [CBAs] in the county, the industrial statistician shall establish the prevailing rate of wage as defined in RCW 39.12.010 by conducting wage and hour surveys. In instances when there are no applicable [CBAs] and conducting wage and hour surveys is not feasible, the industrial statistician may employ other appropriate methods to establish the prevailing rate of wage.
II. AGC challenges SSB 5493
In 2019, Associated General Contractors of Washington, Associated
Builders of Western Washington Inc., Inland Pacific Chapter of Associated
Builders and Contractors Inc., and Inland Northwest AGC Inc. (collectively AGC)
3 In 2019, the legislature amended RCW 39.12.015 to incorporate by reference the newly enacted RCW 39.12.017, which directs the industrial statistician to return to using wage surveys to determine prevailing wage rates for the residential construction occupation, regardless of whether there is an applicable CBA. LAWS OF 2019, ch. 29, § 2. RCW 39.12.017 is not at issue here.
5 Associated Gen. Contractors of Wash. v. State, No. 101997-1
filed this lawsuit challenging SSB 5493. AGC argued that SSB 5493 (1)
unconstitutionally delegates legislative authority, (2) violates due process, (3)
violates equal protection, and (4) violates article II, section 37 of the Washington
Constitution. CP at 11-17. It sought declaratory judgment that the law is invalid as
well as preliminary and permanent injunctions barring implementation of the law.
Id. at 17.
The trial court denied AGC’s motion for a preliminary injunction. Id. at 182.
The parties filed cross motions for summary judgment, which the trial court
resolved in favor of the State. Id. at 2536.
AGC appealed. The Court of Appeals reversed, accepting AGC’s argument
that SSB 5493 violates the nondelegation doctrine. Associated Gen. Contractors of
Wash. v. State, 19 Wn. App. 2d 99, 112, 494 P.3d 443 (2021) (AGC I). The court
did not reach the article II, section 37 issue. Id. at 101 n.4. The court declined to
consider the due process and equal protection issues because they were
insufficiently briefed. Id. at n.3.
This court granted review and reversed, holding that the new law did not
violate the nondelegation doctrine. AGC II, 200 Wn.2d at 400. We remanded for
the Court of Appeals to consider the remaining article II, section 37 issue. Id. at
415-16.
6 Associated Gen. Contractors of Wash. v. State, No. 101997-1
On remand, the Court of Appeals held that the new law violates article II,
section 37. AGC III, slip op. at 2. It reversed the trial court’s grant of summary
judgment in favor of the State and remanded to the trial court for further
proceedings. Id.
The State filed a petition for review, which we granted. 1 Wn.3d 1024
(2023).
STANDARD OF REVIEW
We review an order on summary judgment de novo, performing the same
inquiry as the trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d
1068 (2002) (citing Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124
(2000)). “Summary judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.”
Lakehaven Water & Sewer Dist. v. City of Federal Way, 195 Wn.2d 742, 752, 466
P.3d 213 (2020) (citing CR 56(c)). We “review constitutional questions and
statutory interpretation de novo.” Black v. Cent. Puget Sound Reg’l Transit Auth.,
195 Wn.2d 198, 204, 457 P.3d 453 (2020) (citing Pierce County v. State, 150
Wn.2d 422, 429, 78 P.3d 640 (2003)).
ANALYSIS
This case asks us to decide whether RCW 39.12.015(3)—the newer law that
requires the State to use CBAs to set prevailing wage rates—violates article II,
7 Associated Gen. Contractors of Wash. v. State, No. 101997-1
section 37 of the Washington Constitution. That section of the constitution
provides, “No act shall ever be revised or amended by mere reference to its title,
but the act revised or the section amended shall be set forth at full length.”
An act complies with article II, section 37 if “it (1) is a ‘complete act’ and
(2) does not ‘render[] erroneous’ ‘a straightforward determination of the scope of
rights or duties under the existing statutes.’” Wash. State Legislature v. Inslee, 198
Wn.2d 561, 592, 498 P.3d 496 (2021) (alteration in original) (quoting Wash. Educ.
Ass’n v. State, 93 Wn.2d 37, 40-41, 604 P.2d 950 (1980)). We use this two-part
test to evaluate an article II, section 37 challenge because “‘“[n]early every
legislative act of a general nature changes or modifies some existing statute, either
directly or by implication,” [but] that does not necessarily mean that the legislation
is unconstitutional.’” Wash. State Ass’n of Counties v. State, 199 Wn.2d 1, 14, 502
P.3d 825 (2022) (quoting El Centro de la Raza v. State, 192 Wn.2d 103, 128, 428
P.3d 1143 (2018) (plurality opinion) (first alteration in original) (quoting Citizens
for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 640, 71 P.3d 644
(2003))).
The Court of Appeals held that RCW 39.12.015(3) complies with the first
part of that two-part test: it ruled that RCW 39.12.015(3) constitutes a “complete
act.” AGC III, slip op. at 11 (citing Citizens, 149 Wn.2d at 642). The parties agree
with that portion of the appellate court’s decision.
8 Associated Gen. Contractors of Wash. v. State, No. 101997-1
But the Court of Appeals then held that RCW 39.12.015(3) failed the second
part of that two-part test: it ruled that RCW 39.12.015(3) renders erroneous a
straightforward reading of RCW 39.12.026. Id. at 16. The court opined that “if a
multicounty CBA wage is used to set the prevailing wage in multiple counties, at
least one county’s prevailing wage could be established by data from another
county.” Id. at 14. Because of that, the Court of Appeals concluded that “[i]t
becomes impossible for the industrial statistician to comply with both statutes if a
multicounty CBA is involved.” Id. at 16. Thus, that court held that RCW
39.12.015(3) violates article II, section 37 by creating a conflict with RCW
39.12.026(1). Id.
We disagree. Reading RCW 39.12.026(1) in the context of the full statute
and chapter in which it appears—which is what our precedent compels us to do—
its single-county limitation applies only to the wage survey “data collection”
method of determining prevailing wage rates. It does not apply to the newer CBA-
adoption method of determining prevailing wage rates at all. The new RCW
39.12.015(3) thus does not conflict with, repeal, or even change, the older RCW
39.12.026. It necessarily follows that RCW 39.12.015(3) does not violate article
II, section 37.
9 Associated Gen. Contractors of Wash. v. State, No. 101997-1
RCW 39.12.026(1)’s text, context, and amendments show that its term “all data collected” refers to data “collected” through wage surveys, not wage rates “adopt[ed]” from CBAs
Our objective in statutory interpretation is to determine the legislature’s
intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4
(2002). We determine legislative intent from “plain language enacted by the
legislature, considering the text of the provision in question, the context of the
statute in which the provision is found, related provisions, amendments to the
provision, and the statutory scheme as a whole.” Ass’n of Wash. Spirits & Wine
Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849
(2015) (citing Campbell & Gwinn, 146 Wn.2d at 9-10).
A. RCW 39.12.026(1)’s plain language in the context of that full statute
To determine the meaning of a statute, we start with its plain language. Our
precedent is clear that when we look at this plain language, we must read all words
“in the context of the statute in which they appear, not in isolation or subject to all
possible meanings found in a dictionary.” State v. Lilyblad, 163 Wn.2d 1, 9, 177
P.3d 686 (2008); Green v. Pierce County, 197 Wn.2d 841, 853, 487 P.3d 499
(2021) (“This court does not examine a specific word in a vacuum; rather, we must
consider the context of the surrounding text to determine the legislature’s intent.”
(citing Campbell & Gwinn, 146 Wn.2d at 11-12)). Thus, when interpreting
statutory terms, a court should “‘take into consideration the meaning naturally
10 Associated Gen. Contractors of Wash. v. State, No. 101997-1
attaching to them from the context, and . . . adopt the sense of the words which best
harmonizes with the context.’” State v. Roggenkamp, 153 Wn.2d 614, 623, 106
P.3d 196 (2005) (alteration in original) (internal quotation marks omitted) (quoting
State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999)). When properly
considered in context, the phrase “all data collected” in RCW 39.12.026 is limited
to data collected through wage surveys.
We start with the plain language of the main statutory subsection at issue
here, RCW 39.12.026(1), particularly its phrase, “all data collected … may be used
only in the county for which the work was performed.” That phrase and subsection
is part of RCW 39.12.026; that statute provides in full:
(1) In establishing the prevailing rate of wage under RCW 39.12.010, 39.12.015, and 39.12.020, all data collected by [L&I] may be used only in the county for which the work was performed.
(2) [L&I] must provide registered contractors with the option of completing a wage survey electronically.
(Emphasis added.)
RCW 39.12.026’s subsection (1) certainly places a single-county limitation
on the use of “all data collected.” But RCW 39.12.026’s subsection (2) continues
that L&I “must provide registered contractors with the option of completing a
wage survey electronically.” (Emphasis added.) Read together, these two
subsections of the same statute on the same topic naturally suggest that the “data
11 Associated Gen. Contractors of Wash. v. State, No. 101997-1
collect[ion]” that forms the subject of subsection (1) must be the “wage survey”
method of data collection that forms the subject of subsection (2). Thus, applying
the interpretive rule that we read the disputed statutory subsection in the context of
the statute as a whole, “all data collected” seems to be limited to data collected
from wage surveys.
B. RCW 39.12.026’s plain language in the context of its history of amendments
The amendments to RCW 39.12.026 support that conclusion. “Plain
language analysis also looks to amendments to the statute’s language over time.”
Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 440, 395 P.3d
1031 (2017) (citing Campbell & Gwinn, 146 Wn.2d at 10-11). The amendments to
RCW 39.12.026 show that the statute was enacted to codify the industrial
statistician’s use of wage surveys in setting the prevailing wage and that its
reference to “data” has always been limited to information collected via those
wage surveys.
To understand the amendments to RCW 39.12.026, we start with the
framework established by that statute’s full chapter, ch. 39.12 RCW.
When the legislature first enacted former RCW 39.12.015 (1965), that
portion of chapter 39.12 RCW provided only that “[a]ll determinations of the
prevailing rate of wage shall be made by the industrial statistician of [L&I].” At
12 Associated Gen. Contractors of Wash. v. State, No. 101997-1
that time, the legislature did not tell the statistician exactly how to make that
determination. Pursuant to the authority granted by RCW 39.12.015, the industrial
statistician developed the wage survey method as a means of gathering the
information needed to set the prevailing wage and promulgated regulations
governing the process. See ch. 296-127 WAC.
One such regulation, WAC 296-127-019(1)(a), specifies that “the industrial
statistician shall establish prevailing wage rates by” “[c]onducting wage and hour
surveys for established trades and occupations.” This regulation acknowledges that
CBA wages may be reported as one part of the wage survey process, where
applicable, by labor unions or employers. See WAC 296-127-019(3)(a)(ii) (wage
survey forms will be mailed to “[l]abor unions representing workers in the trades
or occupations being surveyed”); WAC 296-127-019(4)(c) (“Data reported on
survey forms may be verified by the department, and will be used only when
submitted on behalf of or by . . . [l]abor unions submitting wage and hour data on
behalf of contractors and/or employers who are signatory to those unions’ [CBAs]
covering the trade or occupation being surveyed.”); CP at 2563 (Christensen
deposition) (affirming that industrial statistician could consider “a collective
bargaining agreement to help make [the] determination” of prevailing wage when
wage surveys were used).
13 Associated Gen. Contractors of Wash. v. State, No. 101997-1
But it gives CBAs no special status. Instead, that regulation provides a
formula for calculating all “data reported on wage surveys”—whether a CBA
served as a data point on such a survey or not—to determine the prevailing wage.
WAC 296-127-019(6). Where “the most recently established prevailing wage rates
were derived from a [CBA],” the industrial statistician could “[a]dopt[] the wage
and benefit adjustments” from those CBAs when updating prevailing wages. WAC
296-127-019(1)(b).4 Where wage surveys were not feasible, the industrial
statistician could use “other methods deemed appropriate” to set the prevailing
wage. WAC 296-127-019(1)(c).
That was the way surveys were conducted in 2003, when the legislature
enacted RCW 39.12.026. This statute codified the industrial statistician’s use of
wage surveys (of which CBA rates might be one data point) to determine the
4 The CBA adjustment-adoption procedure contemplated by the regulation is not the same as the current directive in RCW 39.12.015(3)(a) to adopt CBA wage rates as the prevailing wage. Rather, under the wage survey method, the prevailing wage might be derived from a CBA, if that CBA wage represented “the majority of hours reported” for that trade or occupation in the largest city in the county. WAC 296-127-019(6)(a). When the prevailing wage was derived in such a manner, the industrial statistician could then “adopt[]” the wage and benefits from that CBA when updating prevailing wages. WAC 296-127-019(1)(b). The distinction is that under the wage survey method, the prevailing wage must be initially derived following the calculation method provided in WAC 296- 127-019(6), while under the new law, the industrial statistician simply adopts the highest CBA wage rate without being required to determine whether that rate represents the “majority of hours worked” in the locality. RCW 39.12.015(3)(a).
14 Associated Gen. Contractors of Wash. v. State, No. 101997-1
prevailing wage. LAWS OF 2003, ch. 363, § 201. When first enacted, former RCW
39.12.026 provided:
(1) In establishing the prevailing rate of wage under RCW 39.12.010, 39.12.015, and 39.12.020, all data collected by [L&I] may be used only in the county for which the work was performed. (2) This section applies only to prevailing wage surveys initiated on or after August 1, 2003. (Emphasis added.)
Thus, at the time of enactment, “all data collected” in RCW 39.12.026(1)
could only have meant data collected from wage surveys—both because RCW
39.12.026(2) says so and because in 2003, CBA-adoption was not the basis for
establishing the initial prevailing wage rate—only wage-survey “data collection”
was.
In 2015, the legislature amended RCW 39.12.026. It removed the expired
2003 effective date provision in subsection (2) and replaced it with “[L&I] must
provide registered contractors with the option of completing a wage survey
electronically.” RCW 39.12.026(2) (emphasis added). This change did not alter the
fact that the whole provision was still limited to the wage survey data-collection
context governed by WAC 296-127-019 because that was still the only method the
industrial statistician used to set prevailing wages in 2015. WAC 296-127-019; CP
at 2559.
15 Associated Gen. Contractors of Wash. v. State, No. 101997-1
In 2018, the legislature enacted RCW 39.12.015(3)—the newer section that
requires the industrial statistician to adopt CBA rates to determine the prevailing
wage for most trades and occupations—and it included a specific geographic
limitation applicable to CBA-adoption. The legislature did not amend RCW
39.12.026, or its reference to the wage survey data-gathering method, or its
different geographic limitation.
In the context of this amendatory history and the statutory scheme as a
whole, the phrase “all data collected” in RCW 39.12.026(1) must be interpreted as
remaining limited to data from wage surveys. It does not include wage rates
“adopt[ed]” from CBAs under RCW 39.12.015(3). See also RCW 1.12.020 (“The
provisions of a statute, so far as they are substantially the same as those of a statute
existing at the time of their enactment, must be construed as continuations
thereof.”). 5 Thus, applying the interpretive rule that we read the disputed statutory
subsection in the context of its amendatory history, “all data collected” once again
seems to be limited to data collected from wage surveys.
5 At oral argument, AGC asserted that RCW 39.12.026(1) at one time contained an explicit reference to wage surveys, but that the legislature removed that language in 2015. Wash. Supreme Court oral arg., Associated Gen. Contractors of Wash. v. State (Jan. 25, 2024), at 20 min., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/washington-state-supreme-court- 2024011492/?eventID=2024011492. Our research shows this assertion is incorrect. As discussed above, RCW 39.12.026(1) has never contained an explicit reference to wage surveys.
16 Associated Gen. Contractors of Wash. v. State, No. 101997-1
C. RCW 39.12.026’s plain language in the context of the full chapter in which it appears
As discussed above, another rule about reading a disputed statutory
subsection in context directs us to read it in context of the full chapter in which it
appears. As the State argues, the legislature used different verbs in RCW
39.12.015(3) and RCW 39.12.026(1), and that “shows a difference in legislative
intent.” State’s Suppl. Br. at 10 (citing Guillen v. Contreras, 169 Wn.2d 769, 776,
238 P.3d 1168 (2010) (quoting Jackson, 137 Wn.2d at 724)).
Specifically, in RCW 39.12.015(3)(a), the legislature directed the industrial
statistician to “adopt[]” the highest CBA wage as the prevailing wage. To adopt
means “to accept and establish (something, such as a law or policy) in a formal or
official way.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/adopt (last visited Mar. 5, 2024). Thus, adopting the
highest CBA wage means accepting and establishing that wage as the prevailing
wage without further calculation.
By contrast, in RCW 39.12.015(3)(b), the legislature directed the statistician
to “conduct[] wage and hour surveys” where there is no applicable CBA. A
regulation, WAC 296-127-019, tells the statistician how to conduct those surveys.
As discussed above, the process involves sending surveys to employers and labor
unions to “‘gather . . . market data regarding the wages paid to workers in various
17 Associated Gen. Contractors of Wash. v. State, No. 101997-1
classifications and the hours of their labor.’” AGC II, 200 Wn.2d at 401 (alteration
in original) (quoting the record); WAC 296-127-019(3)(a). The industrial
statistician then “systemize[s] the data from wage survey responses and CBAs”
and “determine[s] the majority or average rate by statistical estimation”—a
multistep process distinct from merely identifying and “adopting” the highest CBA
wage. AGC II, 200 Wn.2d at 401; CP at 2555 (Christensen deposition) (explaining
what systemizing data means), 2564 (stating that determining prevailing wage
under the wage survey process is distinct from “just adopt[ing]” a CBA wage rate).
Thus, the interpretive principles that we read statutory subsections in the
context of the full statute and chapter in which they appear and that the
legislature’s use of different words suggests that it intends to convey different
meanings also weighs in favor of finding the newer statute constitutional.
D. AGC contends that the State previously conceded that the phrase “all data collected” includes data from CBAs; we disagree with that characterization of the record
AGC argues that the State has previously conceded that information from
CBAs is a form of data, Suppl. Br. of Resp’ts at 15 (citing CP at 117, 1811), so
RCW 39.12.026(1)’s mandate that “data collect[ed]” be used only in the county
“for which the work was performed” applies to the CBA-adoption method, also.
18 Associated Gen. Contractors of Wash. v. State, No. 101997-1
AGC also asserted at oral argument that this purported concession formed the basis
for the State’s winning argument in AGC II. 6
We disagree with AGC’s characterization of the record. As stated above, the
issue in AGC II was whether SSB 5493 violated the nondelegation doctrine. The
portions of the record cited by AGC are State briefs addressing the delegation
issue, not discussing the meaning of “data collected” in .026(1). In the superior
court, AGC argued that SSB 5493 violated the doctrine because it “‘includes no
safeguards to ensure a CBA used to establish a prevailing wage rate is truly
negotiated at arm’s length.’” CP at 1811 (quoting AGC’s superior court brief at
14)). It also asserted that “there is not an unbiased review by a public official of
the agreements because allegedly the industrial statistician has no discretion to set
prevailing wages.” Id. (citing AGC’s superior court brief at 16). In response, the
State argued that there were sufficient safeguards and oversight because under the
statute, the industrial statistician “reviews CBAs” to determine whether they are
bona fide and that he or she “analyzes data, either cleaning up data from the wage
survey or determining whether the CBA reflects collective bargaining.” Id. (citing
Christensen deposition).
6 Wash. Supreme Court oral arg., supra, at 21 min., 12 sec.; 29 min., 58 sec.
19 Associated Gen. Contractors of Wash. v. State, No. 101997-1
As noted, this court concluded in AGC II that SSB 5493 did not violate the
nondelegation doctrine. First, we held that the statute did not improperly delegate
power to a private party (as opposed to a government agency) because the statute
“did not confer on the parties to the CBAs the power to set the prevailing wage
rate. Instead, the statute specifically delegates that authority to the industrial
statistician.” AGC II, 200 Wn.2d at 409. We said that “[t]he ability to determine
the prevailing wage inherently grants some discretion to the industrial statistician
to determine whether a CBA is valid and which CBA applies,” but that RCW
39.12.015(3) still sets adequate standards because it tells the statistician exactly
how to determine the prevailing wage. Id. at 412. And we also made clear that for
purposes of the nondelegation doctrine, the legislature is free to confer no
discretion on an agency as long as the law provides clear direction and sufficient
procedural protections. Id. at 409.
We do not read the State’s response to AGC’s previous delegation doctrine
arguments as conceding that “all data collected” in RCW 39.12.026(1) includes
wage information “adopt[ed]” from CBAs pursuant to RCW 39.12.015(3).
E. The statutes can be harmonized
Finally, we must interpret the two statutes that AGC claims conflict in light
of the rule that when we interpret statutory language, “‘[e]very provision must be
viewed in relation to other provisions and harmonized if at all possible.’” In re Est.
20 Associated Gen. Contractors of Wash. v. State, No. 101997-1
of Kerr, 134 Wn.2d 328, 335, 949 P.2d 810 (1998) (quoting Omega Nat’l Ins. Co.
v. Marquardt, 115 Wn.2d 416, 425, 799 P.2d 235 (1990)). The “‘goal is to avoid
interpreting statutes to create conflicts between different provisions so that we
achieve a harmonious statutory scheme’” because we presume that the legislature
“does not intend to create inconsistent statutes.” Am. Legion Post No. 149 v. Dep’t
of Health, 164 Wn.2d 570, 585, 588, 192 P.3d 306 (2008) (quoting Echo Bay
Cmty. Ass’n v. Dep’t of Nat. Res., 139 Wn. App. 321, 327, 160 P.3d 1083 (2007));
Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001)
(where statutes relate to the same subject matter, they “‘are to be read together as
constituting a unified whole, to the end that a harmonious, total statutory scheme
evolves which maintains the integrity of the respective statutes’” (quoting State v.
Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974))).
As explained above, the newer RCW 39.12.015(3)(a) does not conflict with
the older RCW 39.12.026(1) because the older statute was always limited to data
collected from wage surveys. Even if there were any question about that
conclusion, we would have to consider whether the two statutes could be
interpreted to harmonize with each other. The answer is yes: RCW
39.12.015(3)(a) directs the statistician to “adopt[]” the highest CBA rate in a
geographical jurisdiction as the prevailing wage for a trade; if there is no
applicable CBA, RCW 39.12.015(3)(b) directs the statistician to establish the
21 Associated Gen. Contractors of Wash. v. State, No. 101997-1
prevailing wage “by conducting wage and hour surveys”; RCW 39.12.026(1)
limits the use of “data collected” from those wage surveys to the county “for which
the work was performed”; the statutes operate harmoniously if RCW 39.12.026 as
a whole can be interpreted as limited to the “data collect[ion]” for wage survey
context. As discussed above, it can.
AGC appears to argue that we only use the interpretive rule of attempting to
harmonize statutes if the statutory language is ambiguous. Suppl. Br. of Resp’ts at
16-17. AGC provides no citation for that proposition. We find none, either.
Instead, our cases hold that the directive to harmonize statutes is part of
determining the plain meaning of the statute—in other words, we attempt to
harmonize statutes even if they are not completely ambiguous. See, e.g., Kerr, 134
Wn.2d at 335; Am. Legion Post No. 149, 164 Wn.2d at 585.7
Reading the statutes in harmony also comports with the purpose of the Act,
which we have explained in prior opinions. The Act “is remedial and should be
construed liberally,” i.e., in favor of workers. Everett Concrete Prods., Inc. v.
7 The State also argues that we should apply the general-specific rule. Under that rule, where two statutes conflict, the more specific statute “‘will be considered as an exception to, or qualification of, the general statute.’” Wash. State Ass’n of Counties, 199 Wn.2d at 13 (quoting Wark v. Wash. Nat’l Guard, 87 Wn.2d 864, 867, 557 P.2d 844 (1976)). We do not reach this argument because no conflict exists and the statutes can be harmonized. Univ. of Wash. v. City of Seattle, 188 Wn.2d 823, 833, 399 P.3d 519 (2017).
22 Associated Gen. Contractors of Wash. v. State, No. 101997-1
Dep’t of Lab. & Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988) (citing Se.
Wash. Bldg. & Constr. Trades Council v. Dep’t of Lab. & Indus., 91 Wn.2d 41, 44,
586 P.2d 486 (1978)). It “was designed to protect employees on public works
projects” by “prevent[ing]” a “decrease in local wages.” Silverstreak, Inc. v. Dep’t
of Lab. & Indus., 159 Wn.2d 868, 880, 883, 154 P.3d 891 (2007) (plurality
opinion); Heller v. McClure & Sons, Inc., 92 Wn. App. 333, 340, 963 P.2d 923
(1998). “Thus, ‘it is the worker, not the contractor, who is the intended beneficiary
of the’ act.” Silverstreak, 159 Wn.2d at 880 (quoting Heller, 92 Wn. App. at 338);
AGC II, 200 Wn.2d at 400. Adopting the narrower reading of “data” comports with
the legislature’s intent to protect workers and to prevent the erosion of wages. 8 See
Citizens All. for Prop. Rts. Legal Fund v. San Juan County, 184 Wn.2d 428, 437,
359 P.3d 753 (2015) (“‘Ultimately, in resolving a question of statutory
construction, this court will adopt the interpretation which best advances the
legislative purpose.’” (quoting Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d
1258 (1990))).
8 AGC notes that theoretically, a CBA could exist that provides wages lower than the wages paid to the majority of nonunion workers in a county. Answer to Pet. for Discr. Rev. at 28 (citing CP at 388, 1754, 2574). In such a case, adopting the highest CBA wage would depress public works wages. To be sure, this is a theoretical possibility, as the State has acknowledged. But AGC has not identified a case where this has actually occurred.
23 Associated Gen. Contractors of Wash. v. State, No. 101997-1
F. Conclusion as to statutory interpretation
All of these rules of statutory interpretation militate in favor of the position
advanced by the State. Limiting “all data collected” to data collected from wage
and hour surveys is “the sense of the words which best harmonizes with the
context.” Roggenkamp, 153 Wn.2d at 623 (quoting Jackson, 137 Wn.2d at 729
(internal quotation marks omitted)). We therefore hold that RCW 39.12.026(1)’s
phrase “data collected” is unambiguously limited to data collected through the
wage survey process and does not apply to wage rates “adopt[ed]” from CBAs
pursuant to RCW 39.12.015(3).
G. RCW 39.12.015(3) does not violate article II, section 37 because it does not “render erroneous” a “straightforward reading” of RCW 39.12.026(1)
As stated, the only constitutional question for this court is whether RCW
39.12.015(3) violates the second part of the article II, section 37 test, that is,
whether RCW 39.12.015(3) renders erroneous a straightforward determination of
the scope of rights or duties imposed under an existing statute (here, RCW
39.12.026). One way that a new statute might render an old statute erroneous is if
the new statute conflicts with existing law or alters criteria established by existing
law. Inslee, 198 Wn.2d at 594-95 (citing Wash. Educ. Ass’n, 93 Wn.2d at 38-41).
That is the flaw that the Court of Appeals described in this case.
Specifically, the Court of Appeals stated that “while RCW 39.12.026(1) references
24 Associated Gen. Contractors of Wash. v. State, No. 101997-1
RCW 39.12.015, the reference is ambiguous” such that it is “not clear whether the
legislature intended RCW 39.12.026(1) to apply to all of RCW 39.12.015, or only
to RCW 39.12.015(3)(b), the non-CBA scenario.” AGC III, slip op. at 14-15. The
Court of Appeals also opined that “there is no qualifying language within RCW
39.12.026(1), such as ‘when conducting wage surveys,’ which would clarify an
intention to exclude the one-county limitation found in RCW 39.12.026(1) from
applying to RCW 39.12.015(3)(a).” Id. at 15. But the Court of Appeals failed to
consider the second subsection of RCW 39.12.026, which indicates that the whole
statute refers to wage surveys. It failed to appreciate the difference in language
between RCW 39.12.026(1)’s mandate concerning “data collected” and RCW
39.12.015(3)(a)’s mandate concerning wage rates “adopt[ed]” from CBAs. And it
failed to consider the history of amendments to that statute. All of that language,
history, and context—combined with our duty to harmonize statutes if possible—
indicate that the RCW 39.12.026 as a whole refers to wage surveys. Thus, RCW
39.12.015(3) does not render a straightforward reading of RCW 39.12.026
erroneous.
Applying the other article II, section 37 tests also supports our conclusion.
As we have explained, a new statute violates section 37 if it requires “‘a thorough
search of existing laws in order to understand [its] effect’” on other statutes. Black,
195 Wn.2d at 211 (quoting El Centro de la Raza, 192 Wn.2d at 131-32). But a
25 Associated Gen. Contractors of Wash. v. State, No. 101997-1
“‘[c]omplete act[]’” that merely “‘supplement[s] prior acts or sections thereof
without repealing them’” does not violate section 37. Inslee, 198 Wn.2d at 595
(first alteration in original) (quoting Citizens, 149 Wn.2d at 642). As in Inslee,
RCW 39.12.015(3) “supplements” RCW 39.12.026, but does not supplant it. RCW
39.12.026(1) retains the meaning it has always had: it applies to data collected
AGC notes that we have explained that one purpose of article II, section 37
is to “‘avoid confusion, ambiguity, and uncertainty in the statutory law’ and ensure
the Legislature is aware of the impact a bill has on already existing laws.” Answer
to Pet. for Discr. Rev. at 19 (quoting Amalg. Transit Union Loc. 587 v. State, 142
Wn.2d 183, 246, 11 P.3d 762 (2000)). This is certainly true. AGC continues,
however, that testimony by the L&I legislative director, who testified before the
Washington State Senate Labor and Commerce Committee in 2018, shows that
“legislators were misled on SSB 5493’s impact and how it would be applied in
terms of using multicounty CBA wage rates to set the prevailing wage rates from
county to county.” 9 Id. at 18. But AGC cites no authority to support its unstated
9 The legislative director of L&I testified, “‘The law at RCW 39.12.026 . . . prohibits the use of cross-county data to set the prevailing wage. So, we are prohibited in law, this bill [SSB 5493] would not change that, from using wages in [sic] for King County, for work that is performed in King County, to establish the prevailing wage rate in another county.’” Answer to Pet. for Discr. Rev. at 15-16; Suppl. Br. of Resp’ts at 14 n.6 (quoting testimony of Tammy Fellin, Hr’g on S.B. 5493 Before the S. Lab. & Com.
26 Associated Gen. Contractors of Wash. v. State, No. 101997-1
premise that courts look to legislative history to determine whether the legislature
was “misled” for article II, section 37 purposes. Instead, our precedent holds that
this court looks to the language of the statutes to determine whether article II,
section 37 was violated. E.g., Amalg. Transit, 142 Wn.2d at 246-56; Black, 195
Wn.2d at 206-14; Inslee, 198 Wn.2d at 592-95.
Moreover, we generally do not examine legislative history unless a statute is
ambiguous. Five Corners Fam. Farmers v. State, 173 Wn.2d 296, 305-06, 268
P.3d 892 (2011). But AGC does not argue that any statutory language is
ambiguous—in fact, it explicitly argues that RCW 39.12.015(3)(a) and RCW
39.12.026(1) are unambiguous. Suppl. Br. of Resp’ts at 17. We therefore decline to
consider this legislative history.
We remain convinced that RCW 39.12.015(3) does not render RCW
39.12.026 erroneous but simply supplements the law. Contrary to the Court of
Appeals’ interpretation, it is not “impossible for the industrial statistician to
Comm., 65th Leg., Reg. Sess. (Wash. Jan. 11, 2018), at 57 min., 10 sec. to 57 min., 37 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/senate-labor-commerce-committee- 2018011113/?eventID=2018011113). Even if it were appropriate to examine legislative history in this context, we have held that testimony before a legislative committee is given “little weight,” because it is “unwise to go behind the committee report and examine piecemeal quotations.” N. Coast Air Servs., Ltd. v. Grumman Corp., 111 Wn.2d 315, 326-27, 759 P.2d 405 (1988); Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wn.2d 46, 64, 821 P.2d 18 (1991).
27 Associated Gen. Contractors of Wash. v. State, No. 101997-1
comply with both statutes if a multicounty CBA is involved.” AGC III, slip op. at
16. Rather, RCW 39.12.026 applies only when the industrial statistician uses the
wage survey “data collection” method to set the prevailing wage. It does not apply
when the industrial statistician uses the newer CBA-adoption method in RCW
39.12.015(3)(a) at all.
CONCLUSION
We hold that RCW 39.12.026(1)’s phrase “all data collected” applies to data
collected from wage surveys. It does not apply to wage rates “adopt[ed]” from
CBAs under RCW 39.12.015(3)(a). It necessarily follows that RCW 39.12.015(3)
does not violate article II, section 37 because it does not render erroneous a
straightforward reading of RCW 39.12.026(1).
We therefore reverse the Court of Appeals and remand for further
proceedings consistent with this opinion.
28 Associated Gen. Contractors of Wash. v. State, No. 101997-1
WE CONCUR:
Schubert, J.P.T.