71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 2399
 
                         House Bill 3447
 
Sponsored by Representatives DEVLIN, MARCH (at the request of
  Pacific Northwest Regional Council of Carpenters)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Modifies way prevailing wage rates are determined by
Commissioner of Bureau of Labor and Industries. Limits
commissioner's discretion in certain cases. Allows administrative
challenge of prevailing wage rates and judicial review of
commissioner's order. Allows advisory committee to review
commissioner's proposed determinations of prevailing wage rates
and advise commissioner.
 
                        A BILL FOR AN ACT
Relating to prevailing wage rates; creating new provisions; and
  amending ORS 279.348, 279.350, 279.356, 279.359 and 279.380.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 279.348 is amended to read:
  279.348. As used in ORS 279.348 to 279.380, unless the context
requires otherwise:
    { - (1) 'Prevailing rate of wage' means the rate of hourly
wage, including all fringe benefits under subsection (4) of this
section, paid in the locality to the majority of workers employed
on projects of similar character in the same trade or occupation,
as determined by the Commissioner of the Bureau of Labor and
Industries. In making such determinations, the commissioner shall
rely on an independent wage survey to be conducted once each
year.  However, if it appears to the commissioner that the data
derived from the survey alone are insufficient to establish the
rate, the commissioner also shall consider additional information
such as collective bargaining agreements, other independent wage
surveys and the prevailing wage rates determined by appropriate
federal agencies or agencies of adjoining states. If there is not
a majority in the same trade or occupation paid at the same rate,
the average rate of hourly wage, including all fringe benefits
under subsection (4) of this section, paid in the locality to
workers in the same trade or occupation shall be the prevailing
rate. If the wage paid by any contractor or subcontractor to
workers on any public work is based on some period of time other
than an hour, the hourly wage shall be mathematically determined
by the number of hours worked in that period of time. - }
   { +  (1) 'Fringe benefits' means the amount of:
  (a) The rate of contribution irrevocably made by a contractor
or subcontractor to a trustee or to a third person pursuant to a
plan, fund or program; and
  (b) The rate of costs to the contractor or subcontractor that
may be reasonably anticipated in providing benefits to workers
pursuant to an enforceable commitment to carry out a financially
responsible plan or program that is committed in writing to the
workers affected, for medical or hospital care, pensions on
retirement or death, compensation for injuries or illness
resulting from occupational activity, or insurance to provide any
of the foregoing, for unemployment benefits, life insurance,
disability and sickness insurance or accident insurance, for
vacation and holiday pay, for defraying costs of apprenticeship
or other similar programs or for other bona fide fringe benefits,
but only when the contractor or subcontractor is not required by
other federal, state or local law to provide any of such
benefits. + }
  (2) 'Locality' means the following district in which the public
work, or the major portion thereof, is to be performed:
  (a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
  (b) District 2, composed of Clackamas, Multnomah and Washington
Counties;
  (c) District 3, composed of Marion, Polk and Yamhill Counties;
  (d) District 4, composed of Benton, Lincoln and Linn Counties;
  (e) District 5, composed of Lane County;
  (f) District 6, composed of Douglas County;
  (g) District 7, composed of Coos and Curry Counties;
  (h) District 8, composed of Jackson and Josephine Counties;
  (i) District 9, composed of Hood River, Sherman and Wasco
Counties;
  (j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
  (k) District 11, composed of Klamath and Lake Counties;
  (L) District 12, composed of Gilliam, Grant, Morrow, Umatilla
and Wheeler Counties;
  (m) District 13, composed of Baker, Union and Wallowa Counties;
and
  (n) District 14, composed of Harney and Malheur Counties.
   { +  (3) 'Prevailing rate of wage' means the rate of hourly
wage, including all fringe benefits under subsection (1) of this
section, determined by the Commissioner of the Bureau of Labor
and Industries under ORS 279.359. + }
    { - (3) 'Public works' includes, but is not limited to,
roads, highways, buildings, structures and improvements of all
types, the construction, reconstruction, major renovation or
painting of which is carried on or contracted for by any public
agency to serve the public interest but does not include the
reconstruction or renovation of privately owned property which is
leased by a public agency. - }
    { - (4) 'Fringe benefits' means the amount of: - }
    { - (a) The rate of contribution irrevocably made by a
contractor or subcontractor to a trustee or to a third person
pursuant to a plan, fund or program; and - }
    { - (b) The rate of costs to the contractor or subcontractor
which may be reasonably anticipated in providing benefits to
workers pursuant to an enforceable commitment to carry out a
financially responsible plan or program which is committed in
writing to the workers affected, for medical or hospital care,
pensions on retirement or death, compensation for injuries or
illness resulting from occupational activity, or insurance to
provide any of the foregoing, for unemployment benefits, life
insurance, disability and sickness insurance or accident
insurance, for vacation and holiday pay, for defraying costs of
apprenticeship or other similar programs or for other bona fide
fringe benefits, but only where the contractor or subcontractor
is not required by other federal, state or local law to provide
any of such benefits. - }
 
    { - (5) - }   { + (4) + } 'Public agency' means the State of
Oregon or any political subdivision thereof or any county, city,
district, authority, public corporation or entity and any of
their instrumentalities organized and existing under law or
charter.
   { +  (5) 'Public works' includes, but is not limited to,
roads, highways, buildings, structures and improvements of all
types, the construction, reconstruction, major renovation or
painting of which is carried on or contracted for by any public
agency to serve the public interest but does not include the
reconstruction or renovation of privately owned property that is
leased by a public agency. + }
  SECTION 2. ORS 279.359 is amended to read:
  279.359. (1) The Commissioner of the Bureau of Labor and
Industries shall determine the prevailing rate of wage   { - for
workers in each trade or occupation in each locality under ORS
279.348 at least once each year by means of an independent wage
survey and make this information available at least twice each
year. - }   { + paid in a locality to the majority of workers
employed on projects of similar character in the same trade,
classification of trade or occupation. In making such
determinations, the commissioner shall rely on an independent
wage survey to be conducted once each year and shall make this
information available at least twice each year. At a minimum, the
survey shall include wage data from two nonconsecutive weeks. The
commissioner may not combine data from different localities to
determine the prevailing rates of wage for a locality. If there
is not a majority of workers in the same trade, classification of
trade or occupation paid at the same rate, the previous rate of
hourly wage determined by the Commissioner of the Bureau of Labor
and Industries, including all fringe benefits, paid in the
locality to workers in the same trade, classification of trade or
occupation shall be the prevailing rate. If the wage paid by any
contractor or subcontractor to workers on any public work is
based on some period of time other than an hour, the hourly wage
shall be mathematically determined by the number of hours worked
in that period of time. If it appears to the commissioner that
the data derived from the survey alone are insufficient to
establish the rates in a particular locality, the commissioner
shall adopt the average of the prevailing rates of wage in
collective bargaining agreements for the affected labor
classifications in force in that locality and the prevailing
rates of wage determined by the Secretary of Labor of the United
States Department of Labor. + } The commissioner may amend the
 { - rate - }   { + rates + } at any time.
  (2) A person shall make such reports and returns to the Bureau
of Labor and Industries as the commissioner may require to
determine the prevailing rates of wage. The reports and returns
shall be made upon forms furnished by the bureau and within the
time prescribed therefor by the commissioner. The person or an
authorized representative of the person shall certify to the
accuracy of the reports and returns.
  (3) Notwithstanding ORS 192.410 to 192.505, all information or
records provided to the commissioner under this section are
confidential and not available for inspection by the public.
  (4) In order to assist the commissioner in making
determinations of the prevailing  { + rates of + } wage, the
commissioner may enter into contracts with public or private
parties to obtain relevant data and information. Any such
contract may include provisions for the manner and extent of the
market review of affected trades and occupations and such other
requirements regarding timelines of reports, accuracy of data and
information and supervision and review as the commissioner may
prescribe.  { +
  (5) A person may contest a determination of a prevailing rate
of wage by filing with the bureau, within 20 days after the
commissioner publishes the rates, a written request for a hearing
before the commissioner. Such a request need not be in any
particular form but must specify the grounds upon which the
person considers the rate to be inaccurate or unlawful. If a
request for hearing is not so filed, the rate as published is not
subject to review under this subsection by the commissioner or a
court. All hearings under this subsection shall be conducted as
soon as possible and shall take precedence over other hearings
conducted by the commissioner. All hearings and judicial review
of orders under this subsection shall be in accordance with ORS
183.310 to 183.550. + }
    { - (5) - }   { + (6) + } As used in this section, 'person'
includes any employer, labor organization or any official
representative of an employee or employer association.
  SECTION 3. ORS 279.380 is amended to read:
  279.380. (1) The Commissioner of the Bureau of Labor and
Industries shall appoint an advisory committee to assist the
commissioner in the administering of ORS 279.348 to 279.380.
  (2) The advisory committee shall include equal representation
of members from management and labor in the building and
construction industry who perform work on public works contracts
and such other interested parties as the commissioner shall
appoint.
   { +  (3) At least 21 days before publication of prevailing
rates of wage, the commissioner shall submit the proposed
determination of the rates to the advisory committee for review.
The advisory committee may advise and assist the commissioner in
determining the prevailing rates of wage under ORS 279.359. + }
  SECTION 4. ORS 279.350 is amended to read:
  279.350. (1) The hourly rate of wage to be paid by any
contractor or subcontractor to workers upon all public works
shall be not less than the prevailing rate of wage for an hour's
work in the same trade or occupation in the locality where such
labor is performed. The obligation of a contractor or
subcontractor to pay the prevailing rate of wage may be
discharged by making the payments in cash, by the making of
contributions of a type referred to in ORS 279.348
 { - (4)(a) - }  { +  (1)(a) + }, or by the assumption of an
enforceable commitment to bear the costs of a plan or program of
a type referred to in ORS 279.348   { - (4)(b) - }  { +
(1)(b) + }, or any combination thereof, where the aggregate of
any such payments, contributions and costs is not less than the
prevailing rate of wage.
  (2) After a contract for a public works is executed with any
contractor or work is commenced upon any public works, the amount
of the prevailing rate of wage shall not be subject to attack in
any legal proceeding by any contractor or subcontractor in
connection with that contract.
  (3) It shall not be a defense in any legal proceeding that the
prevailing rate of wage is less than the amount required to be in
the specifications of a contract for public works, or that there
was an agreement between the employee and the employer to work at
less than the wage rates required to be paid under this section.
  (4) Every contractor or subcontractor engaged on a project for
which there is a contract for a public work shall keep the
prevailing wage rates for that project posted in a conspicuous
and accessible place in or about the project. Contractors and
subcontractors shall be furnished copies of these wage rates by
the commissioner without charge.
  (5) Every contractor or subcontractor engaged on a project for
which there is a contract for a public work to which the
prevailing wage requirements apply that also provides for or
contributes to a health and welfare plan or a pension plan, or
both, for its employees on the project shall post notice
describing such plans in a conspicuous and accessible place in or
about the project. The notice preferably shall be posted in the
same place as the notice required under subsection (4) of this
section. In addition to the description of the plans, the notice
shall contain information on how and where to make claims and
where to obtain further information.
  (6)(a) Except as provided in paragraph (c) of this subsection,
no person other than the contractor or subcontractor shall pay or
contribute any portion of the prevailing rate of wage paid by the
contractor or subcontractor to workers employed in the
performance of a public works contract.
  (b) For the purpose of this subsection, the prevailing rate of
wage is the prevailing rate of wage specified in the contract.
  (c) This subsection is not intended to prohibit payments to a
worker who is enrolled in any government-subsidized training or
retraining program.
  (7) No person shall take any action that circumvents the
payment of the prevailing rate of wage to workers employed on a
public works contract, including, but not limited to, reducing an
employee's regular rate of pay on any project not subject to ORS
279.348 to 279.380 in a manner that has the effect of offsetting
the prevailing wage on a public works project.
  SECTION 5. ORS 279.356 is amended to read:
  279.356. (1) Any contractor or subcontractor or contractor's or
subcontractor's surety who violates the provisions of ORS 279.350
shall be liable to the workers affected in the amount of their
unpaid minimum wages, including all fringe benefits under ORS
279.348   { - (4) - }  { +  (1) + }, and in an additional amount
equal to said unpaid wages as liquidated damages.
  (2) Actions to enforce liability to workers under subsection
(1) of this section may be brought as actions on contractors'
bonds as provided for in ORS 279.536.
  (3) If the public agency fails to include a provision that the
contractor and any subcontractor shall comply with ORS 279.350 in
the advertisement for bids, the request for bids, the contract
specifications, the accepted bid or elsewhere in the contract
documents, the liability of the public agency for unpaid minimum
wages, as described in subsection (1) of this section, shall be
joint and several with any contractor or subcontractor that had
notice of the requirement to comply with ORS 279.350. The
Commissioner of the Bureau of Labor and Industries may enforce
the provisions of this subsection by a civil action under ORS
279.355 (4), by a civil action on an assigned wage claim under
ORS 652.330, or by an administrative proceeding on an assigned
wage claim under ORS 652.332.
  SECTION 6.  { + The amendments to ORS 279.348, 279.350,
279.356, 279.359 and 279.380 by sections 1 to 5 of this 2001 Act
apply only to prevailing rate of wage determinations made on or
after the effective date of this 2001 Act. + }
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