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| Montana Administrative Register Notice 24-17-236 | No. 9 05/14/2009 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF
TO: All Concerned Persons 1. On February 26, 2009, the Department of Labor and Industry published MAR Notice No. 24-17-236 regarding the public hearing on the above stated rule on page 249 of the 2009 Montana Administrative Register, issue no. 4. 2. On March 20, 2009 a public hearing was held at which time members of the public made oral and written comments and submitted documents. Additional comments were received during the comment period. 3. The department has thoroughly considered the comments and testimony received from the public. The following is a summary of the public comments received and the department's response to those comments: Comment 1: Charles Val, of IUEC Local 19, states the wage rates are correct, however, the nonconstruction services rates are a year behind. Response 1: The commenter is correct, there is a lag period. The department is aware that there is an inherent delay caused by the survey process and rate setting process that is established in The department notes that the enactment of Chapter 277, Laws of 2009 (Senate Bill 308) provides for annual surveys for nonconstruction services, which will decrease the lag period. Comment 2: John Roeber, Boilermakers Local 11, noted that the union rate for fringe benefits did not prevail in all districts. Response 2: The districts in which the union rate for Boilermakers did prevail were districts 2 and 8. The department received sufficient survey response to set fringe benefit rates in districts 2 and 8 where the union fringe benefit rate did not prevail. A collectively bargained rate is used only if there is insufficient survey data upon which to set a rate. The fringe benefit rate for these districts was set pursuant to 18-2-401 (13)(a)(ii), MCA (2007), the "50 percent rule". Comment 3: Mary Alice McMurray, Carpenters Local 557, asked why there is a discrepancy in the increases between districts 6 and 5. Response 3: The data submitted from the survey (as supplemented by information provided during the public comment period) justify the difference. ARM 24.17.121(2)(a) through (f) provides for a specific methodology for rate setting which identifies the basis for rates being set on a district-by-district basis, and establishes a hierarchy for using the various data sources: (a) If a minimum of five or more workers is reported for the occupation within the district, and 50 percent or more of those workers receive the same wage, that rate is the district prevailing wage rate, provided that the rate does not exceed the collectively bargained rate for that occupation in that district. As provided by 18-2-402, MCA, the prevailing wage rate cannot exceed the collectively bargained wage rate. (b) If five or more workers are reported for the occupation within the district, but 50 percent of those workers are not paid the same rate, the weighted average wage rate, weighted by the number of workers, is the district prevailing wage rate, provided that the rate does not exceed the collectively bargained rate for that occupation in that district. As provided by 18-2-402, MCA, the prevailing wage rate cannot exceed the collectively bargained wage rate. (c) If less than five workers are reported for the occupation within the district, the district prevailing wage rate is the collectively bargained rate for that occupation in that district. (d) If a collective bargaining agreement does not exist for the occupation in that district, a weighted average wage rate for the district weighted by number of workers will be computed using data submitted from all contiguous districts. Districts and their contiguous districts are as follows: [district listings (i) through (x) omitted] (e) If contiguous district data do not sum to a minimum of five workers, a statewide weighted average wage rate will be calculated for the occupation. (f) If a minimum of five workers is not reported for the occupation in the entire state, no rate will be established for that occupation. Benefits are set using the same methodology. An increase or decrease in the wage or benefit and the percentage of that increase or decrease depends on the number of workers reported, the value of the wage or benefit reported for those workers and the existence of a collective bargaining agreement in the event that survey response is insufficient to set the rate. Comment 4: Dan Herzog, IBEW, notes that the electrician's new heavy agreement combines locals 768 and 44. General Decision No. MT0800001 Modification No. 8 adopted by the department for the 2009 heavy construction rates do not reflect this change. Therefore, the rates for lineman in Flathead, Lake, and Response 4: The department has reviewed the proposed wage and fringe benefit rates contained in Modification Number 8 to General Decision Number MT080001 dated 12/12/2008. The department notes that the federal government issues modifications to Davis-Bacon Act rates applicable in The department concludes that it is reasonable to pick a cut-off date for the adoption by reference of federal Davis-Bacon Act rates, especially given that pursuant to ARM 24.17.121(5), the adoption is done annually. Accordingly, the department declines the request to adopt the new modification. Comment 5: Keith Allen, IBEW Local 233, believes the equipment operator and the groundman occupations located under the heading of line construction under the Laborer's classifications in the highway construction wage rates section of the heavy � highway publication belong under the Electrician's classification. Response 5: The department adopts the federal wage determinations for heavy and highway construction as proposed. Please also see response 4. Comment 6: Keith Allen, IBEW Local 233, states the subsistence for Electricians in districts 4, 5, and 7 should be $52.00 instead of $50.00. The commenter also states there is no place on the survey form to list travel or per diem. Response 6: The department will change the survey form to accommodate the need to add travel and per diem information. The department reviewed documents received from IBEW during the comment period and has reviewed the travel rates in question. The travel for Electricians in districts 4, 5, and 7 will be changed to $52.00. The correction is also noted in paragraph 4. Comment 7: Dave Warner, PNWRCC, requests review of the wage and benefit rates in districts 1, 2, 5, 6, 7, 8, and 9. Response 7: The department has reviewed the wage and benefit rates in question, and has revised certain rates pursuant to ARM 24.17.121. Revised rates are identified in paragraph 4. Comment 8: Dave Warner, PNWRCC, states the wage and benefit for district 7 and the travel for districts 1, 2, 4, 5, 6, 7, 8, 9, and 10 are incorrect. The commenter states the rates for districts 3, 4, and 10 are correct. Response 8: In accordance with ARM 24.17.121 the travel rates were set with the collective bargaining agreement (CBA) submitted to the department by the commenter that references the survey period. The department has reviewed the rates set for Carpenters in districts 7. The wage in district 7 will be changed to $15.50 and the benefit in district 7 will be changed to $7.90. Revised rates are identified in paragraph 4. Comment 9: Robert, SMACNA Local 103, questions the wage and benefits in districts 1 and 2 for Heating and Air Conditioning. The commenter also questions the travel in districts 3 through 10 for Heating and Air Conditioning. Response 9: The department has reviewed the rates for districts 1 and 2, and travel in districts 3 through 10 for Heating and Air Conditioning. During the review the department found the CBA used to help set the rates where there was insufficient data was the incorrect one. The CBA used was that of the Plumbers. The correct CBA to reference is SMACNA's Local 103 CBA. As a result, wages in districts 7 through 10 were higher than the collectively bargained rate in that district which, according to 18-2-402(3), MCA (2007), is not allowed. The travel was also incorrect as a result of using the incorrect CBA. The department has revised certain rates pursuant to ARM 24.17.121. Revised rates are identified in paragraph 4. Comment 10: Kim Rickard, Laborers Local 1686, questions the wage rate of $10.00 set for Laborers Group 3 in district 4. The commenter believes the wage rate should be $20.24 as outlined in a heavy wage and benefit addendum submitted to the department during the comment period. Response 10: The department has reviewed the rates for Laborers Group 3 in district 4 and all documents submitted to it during the comment period. The department sets rates for building construction in accordance with ARM 24.17.121 with information relevant to building construction. Accordingly, the department declines the commenter's request to use the "heavy construction" CBA for use in setting "building construction" rates. However, after reviewing information submitted during the comment period the wage for Laborers Group 3 district 4 will be changed to $17.30. The correction is also noted in paragraph 4. Comment 11: Kim Rickard, Laborers Local 1686, requests that the Montana Department of Labor consider adopting the heavy construction wage rates the same as the U.S. Department of Labor does for federal Davis-Bacon Act purposes. Response 11: Under current law, the department must follow the rulemaking provisions of the Montana Administrative Procedure Act (Title 2, chapter 4, MCA) to establish the prevailing wage and fringe benefit rates. Section 2-4-307, MCA, expressly prohibits (with a limited exception) state agencies from adopting any later amendments or editions of materials adopted by reference (including federal regulations) without going through the rulemaking process. As noted in response 4, the federal government changes its rates without having to go through rulemaking, and typically there is no advance notice of a federal rate change, which goes into effect on the date the rate change is announced. However, through discussions like ones held this past year with interested parties, the department remains committed to being open to all reasonable suggestions for changes in the rate setting process. Comment 12: Kim Rickard, Laborers Local 1686, commented that the nonconstruction services occupation Forest Conservation Worker should be classified under Laborers Group 4 because this group of Laborers contains duties such as faller/sawyer. The commenter also requests the heavy wage addendum in comment 10 be used to set the rates for Forest Conservation Workers in all districts. Response 12: The department is required by statute to survey those employers that provide the services described in 18-2-401(9), MCA (2007). The department obtains an unemployment insurance file from the department's research and analysis bureau to meet this requirement. Specifically, the department surveys the towns, cities, counties, conservation districts, and those employers under NAICS (North American Industry Classification System) 115310 (Support Activities for Forestry). Additionally, ARM 24.17.501(4) defines heavy construction as "those projects that are not properly classified as either "building construction", or "highway construction." Given that Forest Conservation Worker is not a construction occupation and that the department does not use heavy construction wage addendums (please see response 10) to set rates for nonconstruction services occupations, the department respectfully declines the request to classify Forest Conservation Worker as part of a Laborer Group 4 occupation in any collectively bargained agreement for construction purposes. Comment 13: Dennis Danake, PNWRCC, questions why the rates in district 2 for Carpenters has decreased and requests an audit of the information submitted to the department to set the rates whenever a decline in the rates occur. Response 13: In regards as to why rates increase or decrease and by how much, please see response 3. The department does spot checks on survey information when the data appears to be questionable regarding the criteria requested. Comment 14: Charles Val, Elevators Local 19, commented that the travel for the Elevators is absent in the nonconstruction services publication. Response 14: The department has added the travel for the Elevators from the CBA that references the survey period. This correction is also noted in paragraph 5. Comment 15: In an e-mail sent to the department during the comment period from Sharey Morris, Johnson Controls, states that she believes the electrical installers they employ fall under the wrong classification. The electrical installers of Johnson Controls currently fall under the Electricians classification. The e-mail also states that the electrical installers are not certified, nor do they have any special licensing, and that all work falls under 70 volts. In an attachment to the e-mail the work done by the electrical installers was outlined as: "Install low voltage raceways, cables, and wiring for temperature controls to include: network cabling to meet local and/or national standards/code system requirements."; "Mount; terminate low voltage or wiring temperature control equipment needed."; and "Determine and validate low voltage final termination points to equipment interfaced w/installed system (i.e. chiller, boilers, roof top unit, etc.)". The e-mail also stated that on federal jobs Johnson Controls fills out a request for authorization of additional classification and rate, and that this form is always accepted by the federal government. Response 15: After reviewing the work of the electrical installers described above, the department has determined that the work done falls under the building automation control classification. The Electricians occupation includes building automation control regardless of the voltage required to automate a specific function of the building. Accordingly, the request for reclassification of electrical installers employed by Johnson Controls is declined. Comment 16: Various individuals and entities submitted additional data or documents for inclusion in the rate setting process during the comment period. Response 16: The department has reviewed the information submitted. The department has incorporated the data as appropriate and has revised certain rates in line with the rate-setting standards. Revised rates are identified below in paragraphs 4 and 5. Comment 17: In a letter to the department representatives of the Carpenters union wish to review the surveys submitted to check for residential work being reported. Response 17: The department does not object to the surveys being subject to review and has held a meeting with the representatives to review the accuracy of the results as they pertain to residential work being reported. The department has reviewed the rates for carpenters and the corrections are noted in paragraph 4. Comment 18: Tom Tanner and Lonzo West, Ironworkers Locals 732 and 14, requested a description with some of the duties Ironworkers perform be added to the building construction publication and remove "reinforcing steel" from the occupational title and replace with "rebar placer". Documentation was presented at the public hearing with the requested language to be added to the publication. Response 18: The department has reviewed the documents submitted during the public hearing. The exact language requested to be added was too lengthy to insert in the publication. Through conversations between Tom Tanner, Lonzo West and the prevailing wage compliance team the content of a duties include section was agreed upon. This does not change the definition of the Ironworkers adopted by the department through the SOC codes. The correction is noted in paragraph 4. 4. The rule has been amended exactly as proposed. The following rates in "The State of Montana Prevailing Wage Rates � Building Construction Services" publication incorporated by reference in the rule have been amended as follows, stricken matter interlined, new matter underlined. Carpenters District Wage Benefit 1 2 5 6 7 8 Construction Equipment Operators Group 2 District Wage Benefit 1 $22.94 2 3 5 6 7 8 9 Construction Equipment Operators Group 3 District Wage Benefit 2 3 $23.34 4 5 6 $23.34 7 8 Construction Equipment Operators Group 4 District Wage Benefit 3 5 Construction Equipment Operators Travel: (All Groups and Districts) 0-30 mi. free zone 31-60 mi. base pay+ 60+ mi. base pay+ Travel: Districts 4, 5, 7 0-8 mi. free zone 9-50 mi. Federal mileage rate/mi. Per Diem: Districts 4, 5, 7 0-50 mi. free zone 50+mi.
Floor Layer District Wage Benefit 2 $16.85 3 4 $16.85 5 $16.85 6 7 $16.85 8 9 $16.85 10 Travel:
0-10 mi. free zone 10+mi. $0.40/mi. Per Diem:
$32.00/day
0-10 mi. free zone 10+ mi. Per Diem:
Glazier District Wage Benefit 1 $16.85 2 $15.70 3 4 $11.80 6 7 $16.85 9 $16.85 10 Travel:
0-10 mi. free zone 10+mi. $0.40/mi. Per Diem:
$32.00/day Travel:
0-10 mi. free zone 10+ mi. Per Diem:
Heating and Air Conditioning District Wage Benefit 1 $17.17 2 $18.95 3 $25.09 4 $25.09 5 $25.09 6 $25.09 7 8 9 10
Travel: (All Districts) 0-30 mi. free zone 30+ mi. $0.25/mi. in employer's vehicle; $0.55/mi. in employee's vehicle Per Diem: (All Districts) $50.00/day Ironworker-Structural Steel and Duties include: Structural steel erection; assemble prefabricated metal buildings; cut, bend, tie and place rebar; energy producing windmill type towers; metal bleacher seating; handrail fabrication and ornamental steel. Laborers Group 3 District Wage Rate Benefit Rate 4 Painter District Wage Benefit 2 $16.85 3 5 $16.85 6 7 $16.85 8 9 $16.85 10 Travel:
0-10 mi. free zone 10+mi. $0.40/mi. Per Diem:
$32.00/day
Travel:
0-10 mi. free zone 10+ mi. Per Diem:
Roofers District Wage Benefit 1 3 4 $15.19 5 7 8 9 $13.25 10 $13.25
Travel: Per Diem: Travel: Districts 1 & 2 Districts 3, 4, 5, 6 Districts 7, 8, 9, 10 0-50 mi. free zone Room+ $23.00/day 0-30 mi. free zone 50+ mi. $0.30/mi. 30+ mi. $0.25/mi. Per Diem: Per Diem: Districts 1 & 2 Districts 7, 8, 9, 10 $48.00/day $45.00/day Taper District Wage Benefit 1 $16.85 2 $16.85 3 4 $16.85 5 $16.85 6 7 $16.85 8 9 $16.85 10 Travel:
0-10 mi. free zone 10+mi. $0.40/mi. Per Diem:
$32.00/day
Travel:
0-10 mi. free zone 10+ mi. Per Diem:
5. The rule has been amended as proposed. The following rates in "The State of Montana Prevailing Wage Rates � Nonconstruction Services" publication incorporated by reference in the rule have been amended as follows, stricken matter interlined, new matter underlined. Elevator Repairers Travel: (All Districts) 0-15 mi. free zone 16-25 mi. � hour at the prevailing wage rate+ Federal mileage rate/mi. 26-35 mi. 1 hour at the prevailing wage rate+ Federal mileage rate/mi. Per Diem: (All Districts) $72.55/day /s/ MARK CADWALLADER /s/ KEITH KELLY Mark Cadwallader Keith Kelly, Commissioner Alternate Rule Reviewer DEPARTMENT OF LABOR AND INDUSTRY Certified to the Secretary of State May 4, 2009 |
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