October 25th, 2010 pwac meeting minutes

Prevailing Wage Advisory Committee Members: Dave Johnson (Building & Construction Trades Council), Randy Loomans (Operating
Engineers Local 302), Randy Dubigk (Washington State Dept of Transportation), Kathleen Garrity (Associated Builders and Contractors), Ginger Eagle (Washington Public Ports Association), Ashley Probart (Association of Washington Cities), Rick Slunaker and Bruce Chattin (Washington
L&I Staff: Nathan Peppin, Ann Selover, Laura Herman, Deborah Loomis, Dawn Gast and David Soma

Others Present: Ken Ervin, Earl Liss, Josh Swanson, Dave O’Meara, Eric Coffelt, Jeff Ableman, Jon Krimm, Drew Wellborn, Larry Lovelady,
Ron Brown, Mike Leininger, Jim Christensen, Earl Smith, Jennie Kordenat, Chuck Prussack, Bob Connelly, Judy Jewel, Laurie Pinard, Bill Cavin, Benny Wright, Larry Boyd, Terry Tilton, Jim Anderson, Troy Andrews and Richard O’Neill Opening Remarks The meeting was opened by David Soma at 9:40 a.m. David Soma welcomed the committee and the public. He mentioned that he just returned from a three (3) week vacation on October 23rd, so he may have to follow up with a few questions/comments once he is caught up to speed. David Soma introduced and thanked the two (2) new PWAC members, Ashley Probart (Association of WA Cities) and Ginger Ginger Eagle stated she was glad to be here and will be observing today to learn and get up to speed as much as possible. Ashley Probart stated that he has been with the Association of WA Cities for ten (10) years and feels this is a perfect fit Dave Johnson moved to accept the minutes and Randy Dubigk seconded the minutes.
from last meeting Randy Loomans questioned why the Utilities Construction (Underground Sewers and Water Lines) scope was moved to
CR 101 when at the last meeting it was voted to be tabled.
David Soma- The advice from the PWAC was taken to the agency and the agency decided to move forward with CR

Randy Loomans- Why does the scope move forward when the Locals that this scope affects ask for it to be tabled?
David Soma- I can’t answer that question. I’m not the agency. I’m Prevailing Wage. All of the advice was passed
forward to the agency and the agency makes a determination on how to proceed. The statute is very clear about the process when there is a request for rulemaking. There are two (2) options. 1) Move forward in the rulemaking process, 2) Deny the request and then the requestor has the option of appealing to the Governor. My speculation is the agency had enough reason to approve the request and move forward.
Randy Loomans- Did they go forward on your recommendation? I want to understand the thought process when the

David Soma- Randy, you’ve asked your question and expressed your opinion thirteen (13) times and I have answered it
each time. The answer is the same this time as the other times.
Randy Loomans- That was rude. I have not asked my question thirteen (13) times. You must have recommended

David Soma- You don’t know that. You don’t know what I recommended.

Dave Johnson- Was the PWAC’s advice considered in the Director’s decision?

David Soma- I would assume it was. It was provided. I don’t know what more to say.

Randy Loomans- This is the biggest railroading job by any agency.

David Soma- You have a right to your opinion but that is not true. I don’t see this as a railroading job.

Randy Loomans- The statute says you don’t have to do anything.

David Soma- That is not true. There are two (2) options when there is a request for rulemaking. Proceed or deny. I
believe you wrote a letter to Judy. I cannot speak for Judy. Is there any further discussion?
Dave Johnson- What’s the scheduling? When will it be moved to 102?
David Soma- I don’t know that. It has not been decided yet.

Rick Slunaker- What is the Department’s policy on how long a 101 is open before it is decided on to move forward or
David Soma- I don’t think it has a suspense.

Dave Johnson- The minutes are what they are and I believe they accurately reflect what happened at the last meeting.
The motion is on the minutes not how the agency handled the 101. What is the timeline when things can be added to the
David Soma- Right up to the meeting but if the committee wants to change that we can. If the committee wants to put a

Randy Loomans- At the last meeting we were asked to move these scopes without notice. It wasn’t on the agenda. We

David Soma- The statute says the agency must respond within sixty (60) days. We bring as much to the committee for
review as we can but the statute is distinct from Prevailing Wage and the PWAC, having nothing to do with 39.12. If we never brought it to the committee it would still proceed.
Randy Loomans- What happens when an interested party isn’t notified?

David Soma- 101 is the notice. I understand people are upset but being upset doesn’t change the statute. The process
has started (101) but nothing is decided. There is a process for rulemaking, 101, 102, etc…. Nothing has been decided
Dave Johnson- Call for the question.

David Soma- Should we pass the minutes?

Bruce Chattin- Page 12- Steve McLain mentioned forming a subcommittee for the survey process. Has this committee
David Soma- No. We put out the request and got one response to our request to form the committee. We still plan on

David Johnson- I want to be a part of that committee. I know I threw my hat in the ring.

David Soma- All those in favor of the minutes as written?

Randy Loomans – Are there any plans to number the pages?

David Soma – The pages are numbered in the upper left corner.

Dave Johnson- The current format of the minutes uses a lot of paper and ink. Is there another format we can use that

David Soma- We will look for a way to modify the format to save paper.
David Soma- Prevailing Wage (PW) fund balance continues to grow. We are doing well. We got 20% back and the fee
increase but the major reason for the significant fund balance is we’ve had record setting incoming Intents and Affidavits for the past two (2) years. We’re paying all of our bills versus getting support from the agency. We think we’re getting better compliance but there is just no way to knowing for sure. The difference is so significant that it appears to be more than just that there is more work being done. We have put a lot of time and energy into training and outreach. We initiated the Addendum B which makes the prime and subcontractors list all of their subcontractors. We think this helped increase the Intent and Affidavit compliance. I was informed at a recent training with a port that a good part of our record setting amounts of Intents and Affidavits is due to greater compliance. We’ve trimmed our temporary staff down to two (2). One of the temp’s duration ends at the end of December and we will be keeping the other temp on for a while longer. We have one temporary staff helping with the surveys. We originally hired four (4) temps and with the efforts of the temps and the permanent staff we were able to get the Intents and Affidavits under control. We are meeting our
Dave Johnson- You have increased compliance with Intents and Affidavits but what about compliance with 39.12?
What is important is compliance on actual field work and that wages are being paid correctly. It is a concern for Building David Soma- We are developing a policy for the field part. We have one agent, in Region 2, who is dedicated to the Fair
Team. We are in the process of developing a policy to have other agents spend more time in the field. I agree with you
Dave Johnson- There should be a group just for general compliance.

David Soma- If you have additional ideas let me know.
Dave Johnson- These are my ideas.

Rick Slunaker-This is a great report but where are the performance measures? It helps us to advise you when we have
reports to look at. I don’t know what your fund balance is or what the scorecard measures are. I would appreciate measurement reporting. Where are we with Filing On Behalf Of’s (FOBO’s)?
David Soma- I will bring two things to the next meeting. I will bring a budget sheet and the scorecard data.

Rick Slunaker- We talked about tracking so we can make some plans.

Dave O’Meara- The Prevailing Wage Agent in Region 2, who is it and what’s their role?

David Soma- Mario Silva and he is currently being trained.

Dave O’Meara- Why wouldn’t you put someone more experienced in that position?

David Soma- He was specifically hired for that role.

Dave O’Meara- Why not Bea Hart? I thought she was hired to work with bi-lingual issues.

David Soma- She has other duties.

Dave O’Meara- Isn’t she doing training at seminars?

David Soma- Yes.

Dave O’Meara- There is no need for bi-lingual there. I thought that’s why she was hired.

David Soma – I’m not sure I agree. She does deal with bi-lingual issues.
David Soma-The scopes meeting is this afternoon. We will be presenting the first draft for Precast Concrete. A
subcommittee was formed to create this scope. This was a very productive committee.
Dave Johnson- I thought the subcommittee was going to meet again before bringing it to the PWAC.

Laura Herman- We had consensus to move it forward to the PWAC and then based on what happens here we may need

David Soma- That’s my understanding. Depending on how the PWAC receives the scope we may need to meet with the

Dave Johnson- Substantial work from several agencies was given. I feel we have a pretty precise document here.
Especially about what a permanent plant or facility is. This is really important to employers and laborers. It is a weighty
David Soma- I agree that this is a weighty topic and that is why we will bring it to the PWAC and then may have to
have the subcommittee meet again. We will also be talking about the Dredge Worker, Truck Driver, Ready Mix Driver, Electrician- Motor Shop and Modular Buildings scopes. Ann Selover- We changed the reporting format based on fiscal years, and we will be reporting the data to you on a
The current information for the 1st quarter, FY 11 is: NOVs issued: 5; Total NOVs for FY 10: 24; Strikes for FY 11: 7. Total Strikes for FY 10: 529 FY 10 is when Industrial Insurance and Contractor Registration all started tracking strikes.

Rick Slunaker- Can you get a break out for the 529 strikes in FY 10?

Ann Selover- I believe so, and if it’s available we’ll provide it at the next meeting.
Debarments for FY 10: 42; Debarments for first quarter of FY 11: 2. Director’s Orders- FY10, Two (2) are pending the Director’s signature, one was delayed for additional documentation, and one was delayed due to an appeal that was filed then withdrawn. That was Northstar. Director’s Orders for the first quarter of FY 11: 3 pending the Director’s signature.
Josh Swanson- FY 10 NOVs, how many did you say?

Ann Selover- FY 10 had 24 NOVs.
Ann Selover-
Bethlehem Construction- We are still deep in discovery. Bethlehem filed a motion for discretionary review to the Court of Appeals. All matters before the court are now on hold pending the outcome of that motion. Boss Construction- Provided checks paying the wages and all checks cleared. AAGs will be closing the litigation files.
Dave Johnson- What about the mis-classification issues?

Ann Selover- I don’t know that was before my time. I will get you the information.
Caicos- Appeal from NOV- we challenged the timeliness of the appeal. The surety and the awarding agency were permitted to intervene. The surety moved to set aside the default; time remains for Caicos to do so since a written order of default has not yet been issued. Also, a lien complaint was filed; the employer attempted a late appeal from NOV, and they need to exhaust administrative remedies on the appeal issue. Dublin Painting, Successor of Borders Painting- The AAGs are talking with counsel to pursue the prime paying part of the wages and Border’s paying the rest. After several attempts to serve the petition on Dublin, their counsel accepted service. We are currently engaged in discovery. Legacy- The AAGs are negotiating settlement. L&I filed note for trial setting and the AAGs are working with the McClure and Sons- This is an action to perfect lien on retainage and performance bond. The Department issued an NOV against McClure on 7/7/10; they filed an appeal on 8/3/10. The next step is to request a hearing before the Office of Merlino- An interested party challenged the reasonableness of L&I’s settlement agreement with Merlino. The ALJ issued a decision granting L&I’s motion to dismiss. The ALJ denied the interested party’s request for a reasonableness hearing. Time has lapsed for appeal of that decision.
David Soma- Merlino is finally finished. This was going on since before I got here and we finally finished it.
Oliphant Golf Construction- The Superior Court judge denied Oliphant and Fidelity’s motion for partial summary judgment on whether the department could seek to enforce a notice of claim on the payment bond. We are in the midst of ongoing depositions and settlement discussions. Pacific NW Regional Carpenters- This is arbitration on the applicable scope of work for installation of guardrails at a Sound Transit project. It is pending judicial review of the Director’s Order reversing the ALJ’s grant of partial summary judgment in favor of the Carpenters and remanding for full hearing at the OAH level. The AAGs held a status conference with new ALJ; hearings reset for 11/15-19. Carpenters moved at ALJ level for stay of OAH proceedings West Coast Landscape- The Director issued an order on 6/25/09 that reversed the ALJ’s proposed decision and affirmed the department’s NOV. The Director ordered the payment of unpaid wages and overtime to 9 workers, as well as a civil penalties and a strike. King County Superior Court issued a ruling reversing the Director’s Order and affirmed the findings of the ALJ. The department will file a placeholder for the appeal and will be meeting soon to decide whether to
Rick Slunaker- So everyone involved is left hanging waiting for a decision?

Ann Selover- There is suspense. It can’t hang forever.
Legislation Update - The agency proposed records request legislation. Essentially, the statute would provide that if the agency requests records and the company hasn’t provided them within 30 days, the company cannot use them later to defeat the agency. The initial draft was provided to stakeholders requesting input on August 20th and received two (2) responses. We sent out revised language to stakeholders on October 4th asking for input and an indication of position with respect to the proposal. We received eight (8) responses. Thank you to those of you who responded. We very much EHB 2805 Implementation – We posted a call-out on the home page of the Prevailing Wage website. It links to a separate page for “New Contractor Reporting Requirements (EHB 2805),” a “Q&A” and a “fillable form.” As the form will be utilized they will be prompted on the Affidavit to answer the pertinent questions. There was a glitch with the system when we first posted the form but it has been addressed and the new form should be pushed out tomorrow. Rules Update - CR102- Public Hearing follow-up – We received many comments (81) which we appreciate. Many were very constructive and we are revising the proposal based on some of those comments. We are still working on completing our Concise Explanatory Statement.
Rick Slunaker- Will any changes be made that will require another hearing?

Ann Selover- There are no significant changes.
Dredge Workers, Truck Drivers and Ready Mix Drivers Scopes- The Director signed the package and it is scheduled to David Soma- Any questions or comments?

Rick Slunaker- Great report but would like to have the information included in the committee’s packets.

David Soma- There is some information we cannot include in the packets. We will consider it and see what can be

Josh Swanson- Is there a fiscal note on Prevailing Wage’s requested bill?

Ann Selover- No, we’re not anticipating a fiscal impact.

Josh Swanson- What is the language on the Prevailing Wage web site regarding transportation projects for 2805? There
was some discussion on Mike Purdy’s blog about that.
Ann Selover- We put the specific statute language on there. Ultimately, the party filing must interpret it, but it is the
exact statutory language that appears on the site.
Rick Slunaker- Any inquiries?

Ann Selover- We’ve answered some questions providing basic guidance. Just really basic inquiries and not too many.

David Soma- There have been some but not too significant.

Ann Selover- And most of the questions are about filing.

Laura Herman- Under EHB 2805, projects over $1 million that are not WSDOT or local transportation projects must
include boilerplate language developed by the Department of General Administration (G.A.) and posted on their web site.
Ginger Eagle- What language?
Ann Selover- Yes, that’s correct. G.A. has language on their web site that must be included in the affected contracts and
so do we. We have a link on our web site to the G.A. web site that connects to the required language.
David Soma- If their attorneys are happy with the language it’s probably good to go.
Ginger Eagle-We have a rail project we assumed it qualified as a transportation project.

David Soma- When you say rails, you mean installing the railroad tracks? If so, it qualifies. Any questions or
Nathan Peppin-
Last Friday we published the Construction Site Surveyor wage. We’re working on getting the Ready Mix survey done. A number of these firms are self insured which is presenting a problem. I want to make sure we survey everyone out there. We plan on releasing the results of this survey next February. Other than that there is not much going on. We are working internally on how to move forward with the issue of not being able to locate all the employers. Right now there
Rick Slunaker- What is the problem with self insured companies?

Dave Johnson- How useful is Employment Security Department (ESD) data versus Workers Compensation data?

Nathan Peppin- I have access to ESD but have not used it. How I would use it is up to Judy/Steve/Dave.

Rick Slunaker- But why is that a problem?

Nathan Peppin- You have to identify every company.

Rick Slunaker- If you are self insured you still have to register with the state. I thought we were over compensating and

Nathan Peppin- I’m trying to cast a broad net. Some queries have eighty-eight (88) responses. I can’t say with that
number that we have gotten information from everyone. We identify through PWIA-Self Insurance and Industrial Insurance. We have had zero (0) response from the Self Insurance database but I know from PWIA there are companies out there. I have to figure out the issue to be able to move forward.
Rick Slunaker- When you query the systems it’s not giving you names?

Nathan Peppin- It gives me nothing.
Rick Slunaker- What about the prequalification survey?

Nathan Peppin- There is no prequalifier for this. A few companies will be found with a prequalifier. A prequalifier
won’t get people who aren’t required to have a contractor license. It doesn’t help get the umbrella. It actually limits me. I have to figure out how to find them. I don’t have access to license information.
Dave Johnson- If we are relying on Workers Compensation and we have a problem then I think we should be going to
Contractor Registration to find people who should be doing work, then send them prequalifiers.
David Soma- We’re thinking about doing that. It was never done before from what I know. There are some issues but

Bruce Chattin- Do you have the ability to go outside the resources you’ve mentioned?

Nathan Peppin- I have access to ESD but not to Department of Licensing or Department of Revenue.

Bruce Chattin- If we’re talking about Ready Mix, it’s in our interest to fill out the survey. Can’t I be used as a

Nathan Peppin- Yes but I cannot identify all employers through you.

Bruce Chattin- Why not?

Nathan Peppin- We have had technical issues with this. We want to make sure that we dot all the I’s and cross all the
T’s. I asked Industrial Insurance and I was told employers do have to report in a risk class but my site said it was not required. Nothing precludes me from doing it. It would be up to Dave, Steve and Judy.
Bruce Chattin- Send me an email asking your specific question.

Rick Slunaker- Are there issues getting data sharing?

Nathan Peppin- More at an agency level. The agency may not have the architecture at an I.T. level. That’s a massive
undertaking on the agency’s side. ESD has a site I can get into but Department of Revenue and Department of Licensing Rick Slunaker- Apart from the filter, you query Industrial Insurance and get nothing?

Nathan Peppin- No. I query Self Insurance and get nothing. I query PWIA and any company that ever reported at
Ready Mix wages I get around four hundred (400) documents. If I include Washington State Department of Transportation’s prequalifier list, I still don’t know how many people actually did the work. You and the teamsters would know if that is an accurate number.
Rick Slunaker- I was just wondering why you’re not getting responses and where you could ID the companies, like a

Dave Johnson- Does Industrial Insurance classify by risk class?

Nathan Peppin- I don’t know.

Rick Slunaker- Why are we allowing this to be a stumbling block? I thought we would send out the survey even to
companies that “could” have done the work.
Nathan Peppin- I could still miss people who should be reporting when I do that. Right now I don’t know if they’re all
getting the survey. I want to make sure everyone gets the survey.
Rick Slunaker- At some point you’ll have to say “I don’t know what I don’t know.”

David Soma- Thanks Nathan. Good reports. There are two determinations in the packet provided to the committee

Ann Selover- The Safespan one may be appealed. Someone from the Svoboda office asked about the determination and

David Soma- The companies who received the letters don’t like the answers given. I saw an email from Svoboda asking
what the determination process was and made the presumption they were appealing the letter. Erin Rockery is appealing
Dave O’Meara- Regarding the Svoboda letter, did you ask other contractors in the Northwest what work they do?

David Soma- No.
Rick Slunaker- Is there any information available on Filing On Behalf Ofs (FOBOs)?

David Soma- FOBOs have gotten out of hand and have become a method of operation. We’re behind about a month.
One staff member is dedicated to FOBOs and she is falling behind. Because I am not following the statute, in order to try to help the contractors, contractors are not even bothering to tell their subcontractors that they need to file Intents and
Ann Selover- We had a company with five (5) FOBOs. When we made our phones calls to these five (5) companies we
found out the Prime had never even asked several of the subcontractors to file Intents and Affidavits.
Rick Slunaker- Why are you entertaining these FOBOs?

Ann Selover- It takes time and research to determine if the request is appropriate.

Rick Slunaker- Well let’s talk about this.

Laura Herman- The FOBO policy is posted on our website. Most of the requests coming in haven’t met the policy

Rick Slunaker- Why can’t you rubber stamp the incorrect filing and send it back?

Dave Johnson- There are different ways of getting compliance.

David Soma- We can do that but there will be a dust up. I would want everyone here behind me.

Rick Slunaker- You will get that from us. Our organization is willing to tell our contractors that they have to do that.
You have the hammer; you have their money.
Dave Johnson- We’ve been supportive to get workers paid but if it’s becoming a process and abused we’re not

Laura Herman- We are very much aware of the FOBO backlog and people’s concerns.

Rick Slunaker- If the problem is not dedicating enough time to the issue, you’ll (David Soma) have to fix that. If the
problem is not having enough staff to enforce the policy, you’ll (David Soma) have to fix that. I can help with the first part but you’ll have to fix the second part. The Department gets itself into pickles by being a “nice guy.” If someone isn’t meeting the requirements, don’t bend over backwards to help them, just let them know what they need to do. Can
David Soma- We’ll get you the names of the companies filing FOBOs. Anything around the table?
Dave O’Meara- Is there any timeline for the Group 6 survey?

David Soma- None. The process has been analyzed and we need to get a new process before any more surveys are

Randy Loomans- It’s a good thing Dave.

David Soma- This was a decision by the agency. There were two exceptions: Construction Site Surveyors and Ship
Builders. Both agreed to use the old methodology even with the alleged problems.
Nathan Peppin- We don’t have a Ship Builder scope so I’m not sure if we can move forward with that.

David Soma- The agency decided five (5) years ago, “No scope, no survey.”

Josh Swanson- Did the survey subcommittee invite only go out to the PWAC?

David Soma- It went out to the world.

Josh Swanson- Rebound would like to be involved. Are there particular trades used more than others in FOBO filings?

David Soma- We would have to ask Reasa but not that I know of. Are there any further comments?

Source: http://www.washingtonworkingsolutions.net/TradesLicensing/PrevWage/files/minutes/PWACMinutesOct252010.pdf