AGO 1962 No. 168 - Sep 24 1962
LABOR ‑- WAGES ‑- PUBLIC WORKS PROJECT ‑- APPRENTICESHIP AGREEMENT ‑- REGISTRATION OF AGREEMENT.
(1) An apprentice employed on a public works project may be compensated at the prevailing hourly rate of apprentices in that locality if there is a valid apprenticeship agreement in existence.
(2) An apprenticeship agreement may be filed with the Washington state apprenticeship council by employers voluntarily electing to come under the apprenticeship laws (RCW 49.04.070) but registration of such agreements is not required.
(3) Under rules and regulations promulgated by the secretary of labor an apprenticeship agreement must be filed with the state of Washington apprenticeship council if an employer in the state of Washington is to gain an exemption from the "Davis-Bacon Act" and the "Walsh-Healy Act."
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September 24, 1962
Honorable Jerry Hagan
Director, Department of
Labor and Industries
General Administration Building
Cite as: AGO 61-62 No. 168
By letter previously acknowledged you requested an opinion of this office on several questions which we paraphrase as follows:
1. If an apprentice is employed on a public works project, may he be compensated at the prevailing hourly rate for apprentices, where there is an apprenticeship agreement, rather than the hourly rate paid to journeymen?
2. In the event that question 1 is answered in the affirmative, is it necessary that an apprenticeship agreement covering the apprentice be registered with the Washington state apprenticeship council?
3. Is the registration of an apprenticeship agreement with the federal wage and hour division equivalent to registration with the state council?
[[Orig. Op. Page 2]]
We answer the first question in the affirmative, the second question in the negative and the third question in the analysis below.
In § 1, chapter 63, Laws of 1945 (now codified as RCW 39.12.020) our legislature provided 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 act shall not apply to workmen or other persons regularly employed on monthly or per diem salary by the state, or any county, municipality, or political subdivision created by its laws." (Emphasis supplied.)
Although this statute does not expressly mention apprentices, we take notice of the fact that the practice of employing apprentices existed long before this law was enacted. In fact the relationship of apprentice‑master existed in early English common law and had become a well-developed method of training skilled workers when this country was founded.
Our court has stated that the primary objective in statutory construction is to find and give effect to the legislative intent. See, for example,Connick v. Chehalis, 53 Wn. (2d) 288, 333 P. (2d) 647 (1958).
Furthermore, as the court pointed out in State ex rel. Thorp v. Devin, 26 Wn. (2d) 333, 345, 173 P. (2d) 994 (1946):
"The general purpose or spirit of a legislative act must always be held in view, and absurd consequences avoided as far as possible. Dennis v. Moses, 18 Wash. 537, 52 Pac. 333, 40 L.R.A. 302; State v. Asotin County, 79 Wash. 634, 140 Pac. 914;In re Horse Heaven Irr. Dist., 11 Wn. (2d) 218, 118 P. (2d) 972; Martin v. Department of Social Security, 12 Wn. (2d) 329, 121 P. (2d) 394. A thing which [[Orig. Op. Page 3]] is within the object, spirit, and meaning of a legislative act is as much within the act as if it were within the letter. State ex rel. Spokane United Rys. v. Department of Public Service, 191 Wash. 595, 71 P. (2d) 661; 2 Lewis' Sutherland Statutory Construction (2d ed.), §§ 369, 379."
The clear-cut and well understood purpose and spirit of § 1, chapter 63, Laws of 1945 (RCW 39.12.020) quoted above was that workmen on public works in this state should be paid not less than the wage paid other workmen in the same trade or occupation in the locality. In our opinion, it necessarily follows that apprentices employed on public works may also not be paid less than apprentices on other projects. Any other construction would either preclude the employment of apprentices on public works or, in the alternative, require that unskilled workmen receive the same wage as those who have completed their apprenticeship training. We decline to place such a narrow construction on § 1, chapter 63, Laws of 1945 (RCW 39.12.020),supra.
This holding should not however be considered as authorizing a means by which the "prevailing wage law" may be circumvented. As we have previously noted, the relationship of apprentice‑master is well defined in the law. Only when the relationship exists is the employer (master) justified in paying the apprentice wage rather than the journeyman wage.
As we pointed out in an opinion to the Honorable Earl N. Anderson, Director of Labor and Industries, dated August 22, 1945 [[1945-46 OAG 302]], a copy of which is enclosed:
"An apprentice is a learner of a craft, one who is bound by a legal agreement to serve an employer for a period of years with a view to learn some handicraft, trade, etc.in which the employer is reciprocally bound to instructing. Apprenticeship is service as an apprentice; the period for which an apprentice is bound. (Emphasis supplied.)
The New York Court has also noted that an apprentice‑master relationship requires a reciprocably binding agreement whereby the apprentice must serve and the master must instruct in a trade or occupation in which apprenticeship training is proper. Gianotti v. Bloom, 167 N.Y.S. 2d 179, 7 Misc. 2d 1077 (1957). See, also,Hopewell v. Amwell, 3 N.J.L. 422 (1808);City of St. Louis v. Bender, 248 Mo. 113, 154 S.W. 88 (1913); and Heget v. Christ [[Orig. Op. Page 4]] Hospital, 26 N.J. Misc. 189, 58 A. (2d) 615 (1948).
We would also call your attention to the fact that RCW 39.12.020 provides for the payment of the prevailing wagein the same trade or occupation in the locality. It would necessarily follow that only such trades or occupations as customarily have apprentice training in the locality could have apprentices on public works.
We conclude therefore that an unskilled employee on a public works project may be paid the prevailing wage for apprentices in the same trade or occupation in the locality if the trade is one in which apprenticeship training is proper. There must however be an existing agreement between the employer and the apprentice (1) requiring the unskilled workman to work for the employer for a specific period of time sufficiently long enough to permit him to learn the trade or occupation; and (2) requiring the employer to train the workman in the skill or occupation in question.
Whether such an agreement exists in any specific case is a question of fact which we could not here determine.
The registration requirement, and the standards for apprenticeship agreements established by the Washington apprenticeship laws are not applicable to all apprenticeship agreements formed within the state, but expressly apply only to agreements formed by employers who voluntarily elect to come under the apprenticeship laws (RCW 49.04.070). For this reason we must answer your second question in the negative. However, should an employee elect to come under the apprenticeship statute and register his agreement with the apprenticeship council, that registration would serve as conclusive proof of the existence of the agreement.
For ease of reading we restate your third question:
Is the registration of an apprenticeship agreement with the federal wage and hour division equivalent to registration with the state council?
The federal prevailing wage law, commonly known as the "Davis-Bacon Act," appears in Title 40 U.S.C. § 276 (a). It provides that all contracts for public works projects in excess of $2,000.00 in which [[Orig. Op. Page 5]] the federal government (or the District of Columbia) is a party, will contain a schedule of the minimum wages to be paid to the workman, and that these wage rates will be the prevailing wage rates for the type of labor to be performed, as determined by the secretary of labor.
Another federal wage act is the "Walsh-Healy Act" (41 U.S.C. 3545). It provides that all contracts which are entered into by agencies of the United States (as defined in the act) for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000.00, shall provide that the manufacturer or supplier shall pay his employees at no less than the prevailing hourly rate for the type of labor performed as determined by the secretary of labor.
Pursuant to the rule‑making power given to him to carry out the purposes of the "Walsh-Healy Act" (41 U.S.C. 38), the secretary of labor enacted a regulation which provides that apprentices may be employed on government contracts at less than the prevailing wages, in accordance with the standards and procedures prescribed for the employment of apprentices under the Fair Labor Standards Act (41 C.F.R. § 50 ‑ 201.1103).
The Fair Labor Standards Act (29 U.S.C. 201 et seq.) provides that the producers of goods which travel in interstate commerce shall not pay their employees less than a certain minimum hourly rate. In accordance with § 214 of the act, and the regulations which the administrator of the federal wage and hour division may promulgate in accordance with this section, an apprentice may be employed at a lesser hourly rate than the minimum established by the act.
The regulations concerning apprentices which were issued by the administrator on October 12, 1935 (3 F.R. 2483) were revised and reissued on August 30, 1951 (16 F.R. 8884). These regulations provide that in order for an employer to be exempted from paying the minimum hourly wage to an apprentice, the trade must be one in which apprenticeship training is proper and the apprentice must be employed pursuant to a written apprenticeship agreement which provides for not less than 4,000 hours of reasonably continuous employment for the apprentice, and at least 144 hours per year of supplemental instruction at classes in subjects related to the trade for which he is training (provided such classes are available in the community). In addition, these agreements must be filed for approval with local or state apprenticeship councils, or if there is none, with the federal wage and hour division.
In order for an employer in the state of Washington to gain exemption from the "Davis-Bacon Act" and the "Walsh-Healy Act," it is necessary for him to file an apprenticeship agreement with the [[Orig. Op. Page 6]] state of Washington apprenticeship council for approval. In answer to your third question, therefore, filing with the apprenticeship council for the purposes of gaining an exemption, or to comply with the state apprenticeship laws, constitutes one and the same act.
We trust that this opinion will be of value to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General