Assoc. Gen. Contractors of Wash. v. State

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).

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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).

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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).

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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.

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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.

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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,

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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.

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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.

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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

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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

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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

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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).

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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).

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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.

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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.

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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

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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.

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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.

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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.

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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

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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).

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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.

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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

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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

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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

from wage surveys.

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.

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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).

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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.

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WE CONCUR:

Schubert, J.P.T.

29