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| Montana Administrative Register Notice 24-17-363 | No. 24 12/24/2020 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On October 23, 2020, the Department of Labor and Industry (department) published MAR Notice No. 24-17-363 regarding the public hearing on the proposed amendment of the above-stated rule on page 1862 of the 2020 Montana Administrative Register, Issue Number 20.
2. On November 13, 2020, 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 responses to those comments:
COMMENT 1: In an e-mail to the department, Tom Halvorson, civil attorney, Sidney, Montana, submitted a letter on behalf of Richland County Commissioners, Shane Gorder, Loren H. Young, and Chairman Duane Mitchell. The letter points out that district 4 has one dispatch city compared to two for the other districts and the land mass of the districts are not proportionate, which he alleges creates a "systemic bias" against district 4 in the pricing of labor on prevailing wage projects, and "The procedure followed thus far is not really open to public participation when it does not allow consideration of adding dispatch cities to district 4 and yet the designation of dispatch cities is determinant of the resulting prevailing rates." The letter shows a state map graphic of glaziers prevailing wage rates across prevailing wage districts. They also state that while a letter from the Commissioner of Labor in 2019 expressed that Sidney and Miles City do not have a sufficient number of local contractors or the local expertise to complete the designed projects, Richland County has "undertaken multiple substantial construction projects, and they were completed by local contractors and contractors much closer than Billings."
RESPONSE 1: While geographical symmetry is a goal when considering prevailing wage districts and dispatch cities, the initial number and location of dispatch cities were carefully selected by a workgroup of contractors and unions. Reasons for selecting dispatch cities at that time included but were not limited to: population, university locations, industry similarities, and where heavy equipment operators and other specialty workers were typically dispatched. According to 2019 Census Bureau Data current prevailing wage district populations can be computed as follows: district 1--334,160; district 2--193,151; district 3--267,250; and district 4--274,217. While district 4 has the second highest population, Yellowstone County accounts for 161,300 of the population, which would leave the remainder of district 4 with a population of 112,917, and by far the lowest if it were a district in and of itself.
Robust survey responses were the most important factors in establishing prevailing wage rates that reflected what was being paid in areas at that time. This is why some prevailing wage rates, glaziers for example, that typically have sporadic, low volume survey responses are nonlinear across districts, and crafts that typically have consistent, higher volume responses like carpenters, electricians, ironworkers, operators, and plumbers show more consistency across districts and within districts year to year.
The department surveys contractors that perform commercial, industrial, or public works construction and have employees. The survey data collection period was from April 1, 2019 through March 31, 2020. Survey responses for Billings, Miles City, and Sidney are as follows:
Billings Number of Contractors Surveyed – 403 Number of Those That Performed Work – 37 Number of Those That Did Not Meet Criteria (Residential, Subcontracted Work, etc.) – 8 Number of Those Indicated They Did Not Perform Work During the Survey Data Collection Period – 10 Number That Did Not Respond – 348 Miles City Number of Contractors Surveyed – 41 Number of Those That Performed Work – 1 Number of Those That Did Not Meet Criteria (Residential, Subcontracted Work, etc.) – 1 Number of Those Indicated They Did Not Perform Work During the Survey Data Collection Period – 2 Number That Did Not Respond – 37 Sidney Number of Contractors Surveyed – 34 Number of Those That Performed Work – 0 Number of Those That Did Not Meet Criteria (Residential, Subcontracted Work, etc.) – 0 Number of Those Indicated They Did Not Perform Work During the Survey Data Collection Period – 3 Number That Did Not Respond – 31
In response to, "The procedure…does not allow consideration of adding dispatch cities to district 4," the department has the flexibility to establish up to five districts and to have as many dispatch cities as stakeholders choose at the time. Administrative Rules of Montana (ARM) 24.17.103 determines the number of prevailing wage districts and their boundaries while ARM 24.17.107 determines the number and location of dispatch cities. The department appreciates the continued interest in making the prevailing wage process work for contractors, political subdivisions of the state, and workers. The department is always willing to facilitate meetings amongst prevailing wage stakeholders and to use its rulemaking authority to address this issue.
COMMENT 2: Representative Kenneth Holmlund, HD38, Miles City, spoke to the "unfairness" Miles City suffers due to it being void of a prevailing wage dispatch city, and will introduce a bill to add dispatch cities.
RESPONSE 2: The department acknowledges Representative Holmlund's comment.
COMMENT 3: Joel Worth, business representative, Carpenters Local 82, said metal roofing had been under the carpenter classification, was moved to roofer, and should be moved back to carpenter. The department received an e-mail from Mario Martinez, business representative, containing letters from various Local 82 contractors expressing their concern that metal roofing had been removed from the carpenter classification and wanted to have data submitted for the metal roofing, or roofing in general they had performed.
RESPONSE 3: The department has not classified metal roofing on prevailing wage projects as carpenter work. It was previously under sheet metal worker and was moved to roofer in the Montana Prevailing Wage Rates for Building Construction 2019 publication, effective January 26, 2019. The department acknowledges it may be reasonable to consider data from union contractors who are not signatory to the craft in which they are submitting data. However, the department's rate survey has not historically received data from union carpenter contractors to be included into the roofers' wage and hourly benefit calculations. The public comment period offers the opportunity for interested parties to provide views, offer suggestions, point out typos, and submit additional data. However, this recently submitted data would substantially alter the final rates without the opportunity for public comment. Accordingly, the integrity of the prevailing wage rate-setting process prohibits the department from incorporating the data submitted by the carpenter's union into the roofer classification at this time. The department will seek that information during its next survey cycle, with the intention to include that work in the roofer classification. Inclusion of that work as being part of the roofer classification in the next survey will provide other trade classifications the opportunity to object if those other trades claim that work is not properly classified as falling under the roofer classification.
COMMENT 4: Jim Wonnacott, business representative, Ironworkers Local 732, asked if work on solar farms could be added to the prevailing wage.
RESPONSE 4: If the state or any political subdivision of the state were to build a solar farm there are enough classifications in the heavy construction publication to cover the work.
COMMENT 5: Various individuals and entities submitted additional data or documents for inclusion in the rate-setting process during the comment period.
RESPONSE 5: 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 through 6.
4. The following rates in the "Montana Prevailing Wage Rates for Building Construction Services 2021" publication, incorporated by reference in the rule, have been amended as follows, stricken matter interlined, new matter underlined:
Brick, Block, and Stone Masons
Duties Include: Lays out, lays, cuts, installs, and finishes all brick, structural tile, refractory materials, precast units, concrete, cinder, glass, gypsum, terra cotta block, and all other natural and artificial masonry products to construct or repair walls, partitions, stacks, furnaces, or other structures.
Sets stone to build stone structures such as piers, walls, and abutments, and lays walks, curbstones, or special types of masonry for vats, tanks, and floors. May set, cut, and dress ornamental and structural stone in buildings. This classification is tended by Tender to Masons Trades: Brick and Stonemason, Mortar Mixer, Hod Carrier.
Heating and Air Conditioning
Wage Benefit District 1 $ District 2 $ District 3 $ District 4 $
Insulation Workers – Mechanical (Heat and Frost)
Wage Benefit District 1 $ District 2 $ District 3 $ District 4 $
Travel: All Districts 0-30 mi. free zone >30-40 mi. $25.00/day >40-50 mi. $35.00/day >50-60 mi. $ >60 mi. $60.00/day plus · $0.56/mi. if transportation is not provided. · $0.20/mi. if in company vehicle. >60 mi. $ plus · $0.56/mi. if transportation is not provided. · $0.20/mi. if in company vehicle.
Pile Bucks
Duties Include:
On all pile driving, bridge, wharf, building, and caisson work, on both land and water, the Pile Driver classification shall apply. General pile driving work shall include all labor employed in the barking, shoeing, splicing, form building, heading, centering, placing, driving, staying, framing, fastening, demo, tooling of the cutter head, lagging, automatic pile threading, pulling, and/or cutting off of all piling, to include all pile of any make and material as well as similar pre-cast structural shapes or units the setting of which is performed with a pile driver, derrick, crane, or similar power equipment. Fabrication, forming, handling, and setting of all such pre-cast, pre-stressed and post-stressed shapes that are an integral part of any heavy structure, rafting, boring, reeving, dogging, or booming of piles or other material. This shall include the unloading of piling of all types together with the wailing and bracing thereof.
Sheet Metal Workers
Wage Benefit District 1 $ District 2 $ District 3 $ District 4 $
5. The following rates in the "Montana Prevailing Wage Rates for Heavy Construction Services 2021" publication, incorporated by reference in the rule, have been amended as follows, stricken matter interlined, new matter underlined:
Brick, Block, and Stone Masons
Duties Include: Lays out, lays, cuts, installs, and finishes all brick, structural tile, refractory materials, precast units, concrete, cinder, glass, gypsum, terra cotta block, and all other natural and artificial masonry products to construct or repair walls, partitions, stacks, furnaces, or other structures.
Sets stone to build stone structures such as piers, walls, and abutments, and lays walks, curbstones, or special types of masonry for vats, tanks, and floors. May set, cut, and dress ornamental and structural stone in buildings. This classification is tended by Tender to Masons Trades: Brick and Stonemason, Mortar Mixer, Hod Carrier.
Construction Equipment Operator Group 1
Wage Benefit $
This group includes but is not limited to: Air Compressor; Auto Fine Grader; Belt Finishing; Boring Machine (Small) 12 inch and under; Cement Silo; Crane, A-Frame Truck Crane; Crusher Conveyor; DW-10, 15, and 20 Tractor Roller; Farm Tractor; Forklift; Form Grader; Front-End Loader, under 1 cu. yd;
Construction Equipment Operator Group 2
Wage Benefit $29.33 $
Construction Equipment Operator Group 3
Wage Benefit $
This group includes but is not limited to: Asphalt Paving Machine; Asphalt Screed; Backhoe\Excavator\Shovel, over 3 cu. yds; Cableway Highline; Concrete Batch Plant; Concrete Curing Machine; Concrete Pump; Cranes, Creter; Cranes, Electric Overhead; Cranes, 24 tons and under; Curb Machine\Slip Form Paver; Finish Dozer; Front-End Loader, over 5 cu. yds; Mechanic\Welder; Pioneer Dozer; Roller Asphalt (Breakdown & Finish); Rotomill, over 6 ft; Scraper, Single, Twin, or Pulling Belly-Dump; YO-YO Cat; Haul Truck, Articulating Truck; Vac Truck.
Construction Equipment Operator Group 4
Wage Benefit $
Construction Equipment Operator Group 5
Wage Benefit $
Construction Equipment Operator Group 6
Wage Benefit $
Construction Equipment Operator Group 7
Wage Benefit $
Insulation Workers – Mechanical (Heat and Frost)
Wage Benefit $
Travel: All Districts 0-30 mi. free zone >30-40 mi. $25.00/day >40-50 mi. $35.00/day >50-60 mi. $ >60 mi. $60.00/day plus · $0.56/mi. if transportation is not provided. · $0.20/mi. if in company vehicle. >60 mi. $ plus · $0.56/mi. if transportation is not provided. · $0.20/mi. if in company vehicle.
Pile Bucks
Duties Include:
On all pile driving, bridge, wharf, building, and caisson work, on both land and water, the Pile Driver classification shall apply. General pile driving work shall include all labor employed in the barking, shoeing, splicing, form building, heading, centering, placing, driving, staying, framing, fastening, demo, tooling of the cutter head, lagging, automatic pile threading, pulling, and/or cutting off of all piling, to include all pile of any make and material as well as similar pre-cast structural shapes or units the setting of which is performed with a pile driver, derrick, crane, or similar power equipment. Fabrication, forming, handling, and setting of all such pre-cast, pre-stressed and post-stressed shapes that are an integral part of any heavy structure, rafting, boring, reeving, dogging, or booming of piles or other material. This shall include the unloading of piling of all types together with the wailing and bracing thereof.
6. The following rates in the "Montana Prevailing Wage Rates for Highway Construction Services 2021" publication, incorporated by reference in the rule, have been amended as follows, stricken matter interlined, new matter underlined:
Brick, Block, and Stone Masons
Duties Include: Lays out, lays, cuts, installs, and finishes all brick, structural tile, refractory materials, precast units, concrete, cinder, glass, gypsum, terra cotta block, and all other natural and artificial masonry products to construct or repair walls, partitions, stacks, furnaces, or other structures.
Sets stone to build stone structures such as piers, walls, and abutments, and lays walks, curbstones, or special types of masonry for vats, tanks, and floors. May set, cut, and dress ornamental and structural stone in buildings. This classification is tended by Tender to Masons Trades: Brick and Stonemason, Mortar Mixer, Hod Carrier.
Pile Bucks
Duties Include:
On all pile driving, bridge, wharf, building, and caisson work, on both land and water, the Pile Driver classification shall apply. General pile driving work shall include all labor employed in the barking, shoeing, splicing, form building, heading, centering, placing, driving, staying, framing, fastening, demo, tooling of the cutter head, lagging, automatic pile threading, pulling, and/or cutting off of all piling, to include all pile of any make and material as well as similar pre-cast structural shapes or units the setting of which is performed with a pile driver, derrick, crane, or similar power equipment. Fabrication, forming, handling, and setting of all such pre-cast, pre-stressed and post-stressed shapes that are an integral part of any heavy structure, rafting, boring, reeving, dogging, or booming of piles or other material. This shall include the unloading of piling of all types together with the wailing and bracing thereof.
7. The department has amended ARM 24.17.127 as proposed.
8. The effective date for this rule amendment is January 1, 2021.
Certified to the Secretary of State December 15, 2020.
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