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| Montana Administrative Register Notice 24-17-260 | No. 3 02/09/2012 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF
TO: All Concerned Persons 1. On November 25, 2011, the Department of Labor and Industry published MAR Notice No. 24-17-260 regarding the public hearing on the amendment of the above-stated rule on page 2484 of the 2011 Montana Administrative Register, issue no. 22. 2. On December 16, 2011, 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: Keith Allen, Business Manager, IBEW Local #532, said there are the following errors in the heavy rates: General Decision #MT100077 Modification no. 5 for Electricians Local #233 reflects rates from the Butte area, and they should reflect the rates from the Great Falls area. Also, General Decision #MT100079 Modification no. 6 reflects rates from Wyoming Local #322 instead of the appropriate Local #532 out of Billings. RESPONSE 1: In light of the errors discovered in the federal wage determinations, the department has decided to not to adopt the proposed heavy rates. The current Montana Prevailing Wage Rates for Heavy Construction Services 2011, Revised June 24, 2011, will remain in effect until the federal government issues modifications that correct the errors. Once the errors have been corrected the department will again propose heavy construction services rates and undertake rulemaking to adopt those rates. COMMENT 2: Lee Vaughn, Service Representative, PNWRCC #82, said the dispatch points for Carpenters in the heavy rates are incorrect. RESPONSE 2: See Response 1 above. COMMENT 3: Mario Martinez, Service Representative, PNWRCC #82, said there are errors for the Carpenters classification in General Decision #s MT100076, MT100077, MT100078, and MT100079, and he requests the department adopt the Carpenter's current heavy/highway agreement for the Carpenters classification in the heavy rates. RESPONSE 3: See Response 1, above. COMMENT 4: Kim Rickard, Business Manager, LIUNA #1686, said the rates for Laborers Group 2 are low in all districts and not in line with Local #1686's collective bargaining agreement (CBA) especially when compared to Groups 1, 3, and 4, and present a financial hardship to the workers and extra costs to employers as they cannot recruit and retain skilled Laborers. Ms. Rickard requests the department use the wages and benefits Laborers #1686 provided the department. Ms. Rickard also states that several of Local #1686's occupations are missing from the heavy rates. Ms. Rickard requests the department exercise its ability to survey for the 2012 heavy rates or keep the current 2011 heavy rates in effect. RESPONSE 4: The rates vary depending on number and type (union or nonunion) of responses. The rates for Group 2 Laborers were set according to ARM 24.17.121. Generally the department receives more data for Group 2 Laborers than the other groups; therefore, Group 2 Laborers have greater tendency than other groups to be set with survey data rather than with a CBA. The rates set with survey data are generally lower than those set with a CBA as the survey data is a mix of union and nonunion rates. The department also notes that prevailing wage rates merely establish a minimum level for wages paid on a public works project, not a ceiling or maximum. In light of the errors discovered in the federal wage determinations, the department has decided to hold off on adopting the proposed heavy rates. The missing occupations in the Laborers Groups are not an error, but a result in the change in the methodology used by the federal government. Any wage rates needed for occupations missing from the Laborers Groups can be obtained by referencing the Montana Prevailing Wage Rates for Heavy Construction Services 2011, until the department surveys for its own heavy rates. COMMENT 5: Carey Hegreberg, Montana Contractors Association (MCA), voiced concern that the prevailing wage rates, especially the benefit rates in some trades are vastly skewed. Mr. Hegreberg suggests that the department use its statutory authority to change the number of districts or develop some type of mechanism to deal with the inconsistencies within the prevailing wage rates. RESPONSE 5: The department acknowledges the inconsistencies in the prevailing wage rates. The greater the survey response, the more reflective the prevailing wage rates are of what is happening in the market place. The department suggests that the MCA encourage its contractors to participate in the survey. The department welcomes any suggestions on how to realign districts and/or improve the rate setting process. COMMENT 6: In written comments to the department, Anderson Masonry asked why its trade classifications of Bricklayer, Stone Masons, and Hod Carrier are not listed in the heavy or highway wage determinations. It noted that it is signed to union collective bargaining agreements and performs masonry work on projects that are highway and heavy projects. RESPONSE 6: The department currently adopts the heavy and highway rates directly from the federal Davis-Bacon web site. The department suggests that Anderson Masonry contact the USDOL to assist them in adding the Bricklayer and Hod Carrier classifications to the federal heavy and highway determinations. COMMENT 7: Anderson Masonry also stated that the preliminary building construction wage rate and fringes are higher than its signed agreement with the Laborers Union Local #1686 Montana statewide agreement, and stated that District 1 for Hod Carrier should only be $16.35 with fringes of $6.91 RESPONSE 7: The rate for Hod Carriers in District 1 was set with the highest CBA submitted to the department since there was insufficient survey data to set the rate as provided in 18-2-402(3), MCA, and ARM 24.17.121(3)(c) and (4)(c). COMMENT 8: Anderson Masonry also asked why the trade of Hod Carriers is listed as part of the Group 4 Laborers and not listed with the Group 2 General Laborers and Tenders. RESPONSE 8: The department concludes that because Hod Carriers have a different skill set than General Laborers and Tenders, they are in a group that justifies a different wage classification. COMMENT 9: In written comments to the department, Mark Meek, Owner, Frontline Glass, said he was concerned there was an error in the benefit rates for Glaziers in Districts 3, 6, and 10, because they were disproportionate to those in District 5. RESPONSE 9: The rates vary depending on number and type (union or nonunion) of responses. The rates for Glaziers in District 6 have been revised (see Response 11). The benefit rates for Glaziers in Districts 3 and 10 were set pursuant to ARM 24.17.121 (4)(c) and are correct. COMMENT 10: In written comments and subsequent telephone conversations with the department, Sean Smith, Business Manager, UA #41, asked why the rates for Plumbers were lower than those in UA #41's CBA. RESPONSE 10: The original data submitted by Mr. Smith was from a CBA outside of the survey period, so the department asked for the CBA that was in effect during the survey period. The survey data reported by Mr. Smith also reflected amounts on the CBA that are outside of the survey period, so the department asked Mr. Smith to resubmit data or allow the department to change the data to reflect the correct amounts from the CBA in effect during the survey period. On November 2, 2011, Mr. Smith submitted the correct CBA that became effective January 1, 2011 and his data was changed to reflect those amounts. After reviewing those sequences of events Mr. Smith agreed that the preliminary rates for Plumbers were correct. COMMENT 11: In an e-mail to the department, Jess Labuff, Assistant Business Manager, Boilermakers #11, informed the department that the data he submitted for Districts 3, 4, and 8 for Boilermakers was incorrect, and the correct data should reflect a wage of $30.16 and a benefit of $25.20. Mr. Labuff also mentioned that the travel amounts listed were for all districts and not all districts except District 3. RESPONSE 11: The prevailing wage rates for Boilermakers in Districts 3, 4, and 8 and the travel rates have been revised. Revised rates are identified below in paragraph 5. COMMENT 12: Roy Levine, Assistant Business Agent, IBEW #768, reviewed the surveys after the rules hearing and said the survey from the University of Montana should be thrown out, because it is a service contract. Mr. Levine also submitted additional data for District 2. RESPONSE 12: Following a review of the information submitted, the department concludes that the work done by the Electricians at the University of Montana does not meet the department's definition of building construction or the criteria to be used in the calculation of the rates. The data for Electricians in the University of Montana's survey have been omitted, and the new data from Mr. Levine has been incorporated into the rates. The rates for Electricians in District 2 have been revised. Revised rates are identified below in paragraph 5. COMMENT 13: In a letter to the department, Jeff Neitzel, Assistant Business Manager, IBEW #532, writes that the federal mileage for Electricians and Telecommunications Equipment Installers in districts 6, 8, 9 and 10 is paid both ways per their agreement. RESPONSE 13: To reflect the amounts paid for travel in IBEW #532's CBA and still meet the travel requirements enforced by the department the travel pay amount of "the federal mileage rate/mi." for Electricians and Telecommunications Equipment Installers in districts 6, 8, 9 and 10 will be changed to "two times the federal mileage rate/mi." The travel rates for Electricians and Telecommunications Equipment Installers have been revised. Revised rates are identified below in paragraph 5. COMMENT 14: Leo Marsura, Business Manager, Roofers #189, requested the department to review the data submitted from Miller Roofing in District 2. RESPONSE 14: The department contacted Barb Biggs from Miller Roofing and found that various workers identified as Roofers on Miller Roofing's survey response were really temporary laborers. The department removed Miller Roofing's data for Roofers and recalculated the rates. The rates for Roofers in District 2 have been revised. Revised rates are identified below in paragraph 5. COMMENT 15: The department received additional data for Glaziers in District 6 from Valley Glass & Windows. RESPONSE 15: The rates for Glaziers in District 6 have been revised. Revised rates are identified below in paragraph 5. COMMENT 16: In written comments received from Bill Hurt, Business Manager, IUPAT #1922, the department was notified that the $13.24 benefit amount for Painters in Districts 6, 8 and 10 is from a CBA that was effective after the survey period. He stated that the correct benefit rate should be $11.23. RESPONSE 16: The benefit rates for Painters in Districts 6, 8 and 10 have been revised. Revised rates are identified below in paragraph 5. COMMENT 17: In written comments to the department, John Johnson, Dispatcher, IUOE #400, requested the department survey to set the state's heavy rates instead of adopting them from the federal government. RESPONSE 17: In light of the errors discovered in the federal wage determinations the department has decided to hold off on adopting the proposed heavy rates. The missing occupations in the Operators Groups are not an error, but a result in the change in the methodology used by the federal government. Any wage rates needed for occupations missing from the Operators Groups can be obtained by referencing the Montana Prevailing Wage Rates for Heavy Construction Services 2011 until the department surveys for its own heavy rates. 4. ARM 24.17.127 has been amended as follows, stricken material interlined, new material underlined: 24.17.127 ADOPTION OF STANDARD PREVAILING RATE OF WAGES (1) through (1)(f) remain as proposed. (g) The current heavy construction services rates are contained in the (h) through (3) remain as proposed. 5. The following rates in "Montana Prevailing Wage Rates for Building Construction Services 2012" publication incorporated by reference in the rule have been amended as follows, stricken matter interlined, new matter underlined: Boilermakers District Wage Benefit 3 $30.16 $ 4 $30.16 $ 8 $30.16 $ Boilermakers Travel: All Districts 0-70 mi. free zone >70-120 mi. $55/day >120 mi. $70/day + federal mileage rate/mi. Electricians District Wage Benefit 2 $ Electricians Travel: District 6 0-18 mi. free zone >18-60 mi. two times the federal mileage rate/mi. >60 mi. $65/day (Big Sky and West Yellowstone $75/day) Electricians Travel: Districts 8, 9, 10 0-18 mi. free zone >18-60 mi. two times the federal mileage rate/mi. >60 mi. $75/day Telecommunications Equipment Installers Travel: All Districts Two times the federal mileage rate/mi. if transportation is not provided. Roofers District Wage Benefit 2 $ Glaziers District Wage Benefit 6 $ Painters District Wage Benefit 6 $18.98 $ 8 $21.50 $ 10 $21.50 $ /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 January 30, 2012
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
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