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Superior Asphalt & Concrete Co. v. Department of Labor & Industries

December 6, 1996


Appeal from Superior Court of Thurston County. Docket No: 892003411. Date filed: 06/09/95. Judge signing: Hon. Paula K. Casey.

Order Denying Motion for Reconsideration and Granting Motion for Publication January 10, 1997, Order Amending Opinion February 7, 1997. Rehearing and Respondent's Motion to Dismiss Denied July 8, 1997,

Authored by Karen G. Seinfeld. Concurring: David H. Armstrong, Carroll C. Bridgewater.

The opinion of the court was delivered by: Seinfeld

SEINFELD, C.J. -- Superior Asphalt & Concrete Company asks the court to invalidate WAC 296-127-018 in this action for declaratory and injunctive relief. The challenged WAC requires contractors to pay the prevailing wage to their employees who deliver "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." WAC 296-127-018(2)(a). As the regulation does not modify, amend, or contradict RCW 39.12, the prevailing wage statute, we affirm the summary judgment for the Department of Labor and Industries (L&I).


Superior delivers sand, dirt, gravel, and crushed rock to private and public customers. Sometimes these deliveries involve dumping the material from the truck as the truck moves along the site (referred to as a "tailgate" delivery). L&I adopted WAC 296-127-018, effective August 31, 1992, but has not yet enforced it. Superior believes, however, that L&I intends to apply the regulation to tailgate deliveries, thereby requiring it to pay the prevailing wage to its employees who engage in this activity.

In its petition for declaratory and injunctive relief, Superior alleges that L&I exceeded its authority in adopting the WAC. And in its motion for summary judgment, Superior asked the superior court to declare the WAC invalid as a matter of law on the bases that it unlawfully amends RCW 39.12; that it is inconsistent with legislative intent; that L&I lacked authority to adopt the WAC; and that "constitutional requirements were not satisfied." The trial court disagreed, finding the regulation consistent with the prevailing wage statute and its adoption within L&I's rule-making authority. Consequently, the court denied Superior's motion for summary judgment and granted summary judgment for L&I.

Much of Superior's argument below and on appeal focuses on whether its employees who make tailgate deliveries are covered by the prevailing wage statute. In its motion for summary judgment, however, Superior did not seek a ruling on this question. Rather, it simply challenged the WAC provision. Thus, we limit our review to the language of the WAC, considered in light of RCW 39.12.


Summary judgment is available if "there is no genuine issue as to any material fact" and that the moving party is entitled to a judgment as a matter of law." CR 56(c). The parties here do not dispute the facts; the sole issue is the proper interpretation of the law. Consequently, review is de novo. Jefferson County v. Seattle Yacht Club, 73 Wash. App. 576, 588, 870 P.2d 987, review denied, 124 Wash. 2d 1029, 883 P.2d 326 (1994). This requires us to engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982).

In conducting our review, we accord substantial weight to the agency's legal interpretation to the extent that it falls within the agency's expertise in a special area of the law. Jefferson County, 73 Wash. App. at 588. Determination of the prevailing wage rate involves "utilization of the specialized knowledge and judgment of the director of the Department of Labor and Industries." Southeastern Washington Bldg. & Constr. Trades Council v. Department of Labor & Indus., 91 Wash. 2d 41, 47, 586 P.2d 486 (1978). Thus, we give deference to L&I's interpretation.

We will invalidate a regulation if it is in conflict with the intent and purpose of the legislation or exceeds the agency's statutory authority. Multicare Medical Ctr. v. Department of Social & Health Servs., 114 Wash. 2d 572, 589, 790 P.2d 124 (1990); Hi-Starr, Inc. v. Liquor Control Bd., 106 Wash. 2d 455, 459, 722 P.2d 808 (1986); RCW 34.05.570(2)(c). An administrative agency may not adopt a regulation that effectively modifies or amends a statute. Bird-Johnson Corp. v. Dana Corp., 119 Wash. 2d 423, 428, 833 P.2d 375 (1992). But the party seeking to overturn the regulation bears the burden of proof. RCW 34.05.570(1)(a).

RCW 39.12.020 requires payment of the prevailing wage to all those who work "upon" a public works project. It states in part:

The hourly wages to be paid to laborers, workers, or mechanics, upon all public works . . . shall be not less than the prevailing rate of wage for an hour's work in the same trade or occupation in the ...

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