John Busker v. Wabtec Corp. , 903 F.3d 881 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN BUSKER, on behalf of No. 17-55165
himself and all others similarly
situated and the general public, D.C. No.
Plaintiff-Appellant, 2:15-cv-08194-ODW-
AFM
v.
WABTEC CORPORATION, a ORDER
Pennsylvania corporation; CERTIFYING
MARK MARTIN, an individual; QUESTION TO THE
DOES, 1 through 100, SUPREME COURT
Defendants-Appellees. OF CALIFORNIA
Filed September 6, 2018
Before: Richard R. Clifton and Consuelo M. Callahan,
Circuit Judges, and Kenneth M. Hoyt, * District Judge.
Order
*
The Honorable Kenneth M. Hoyt, United States District Judge for
the Southern District of Texas, sitting by designation.
2 BUSKER V. WABTEC
SUMMARY **
Certified Question to California Supreme Court
In a case involving the Southern California Regional Rail
Authority (“Metrolink”) and a federally-mandated
comprehensive communications network known as Positive
Train Control (“PTC”), the panel certified the following
question of state law to the Supreme Court of California:
Whether work installing electrical equipment
on locomotives and rail cars (i.e., the “on-
board work” for Metrolink’s PTC project)
falls within the definition of “public works”
under California Labor Code § 1720(a)(1)
either (a) as constituting “construction” or
“installation” under the statute or (b) as being
integral to other work performed for the PTC
project on the wayside (i.e., the “field
installation work”).
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BUSKER V. WABTEC 3
ORDER
We respectfully ask the Supreme Court of California to
exercise its discretion to decide the certified question set
forth in Part II of this Order, below. See Cal. R. Ct. 8.548.
The answer to this question of California law will be
dispositive of the appeal before us, and no clear controlling
California precedent exists. Id. Moreover, because the
question that we certify is of great importance to many
employees in California, considerations of comity and
federalism suggest that the court of last resort in California,
rather than our court, should have the opportunity to answer
the question in the first instance. See Kilby v. CVS
Pharmacy, Inc., 739 F.3d 1192, 1196–97 (9th Cir. 2013);
Klein v. United States, 537 F.3d 1027, 1028 (9th Cir. 2008).
I. Administrative Information
We provide the following information as required by
California Rule of Court 8.548(b)(1):
The title of this case is: JOHN BUSKER, on behalf of
himself and all others similarly situated and the general
public, Plaintiff-Appellant v. WABTEC CORPORATION,
a Pennsylvania corporation, and MARK MARTIN, an
individual, Defendants-Appellees.
The case number in our court is 17-55165.
The names and addresses of counsel are:
For Plaintiff-Appellant: Richard E. Donahoo, Donahoo
& Associates, Tustin, California; Thomas G. Foley, Jr.,
Kevin D. Gamarni, Foley, Bezek, Behle & Curtis, LLP,
Santa Barbara, California; Tiffany J. Gates, Law Offices of
Tiffany J. Gates, Santa Rosa, California; Stuart B. Esner,
4 BUSKER V. WABTEC
Holly N. Boyer, Shea S. Murphy, Esner, Chang & Boyer,
Pasadena, California.
For Defendants-Appellees: Patrick Madden, Todd L.
Nunn, K&L Gates LLP, Seattle, Washington.
We designate John Busker as the petitioner if our request
for a decision is granted. He is the appellant before our
court, and he moved for an order requesting a decision from
the Supreme Court of California on a question of state law.
II. Certified Question
We request a decision by the Supreme Court of
California on the following question of state law that is now
before us:
Whether work installing electrical equipment
on locomotives and rail cars (i.e., the “on-
board work” for Metrolink’s PTC project)
falls within the definition of “public works”
under California Labor Code § 1720(a)(1)
either (a) as constituting “construction” or
“installation” under the statute or (b) as being
integral to other work performed for the PTC
project on the wayside (i.e., the “field
installation work”)?
Our phrasing of the question should not restrict the
Supreme Court of California’s consideration of the issues
involved; that court may reformulate the question. Cal. R.
Ct. 8.548(f)(5).
We agree to accept and to follow the decision of the
Supreme Court of California, as we are required by both
California Rule of Court 8.548(b)(2) and our own precedent.
BUSKER V. WABTEC 5
See Klein v. United States, 537 F.3d 1027, 1029 (9th Cir.
2008).
III. Statement of Facts
In October 2010, the Southern California Regional Rail
Authority (“Metrolink”) entered into a contract with Parsons
Transportation Group, Inc., under which Parsons agreed to
design, furnish, and install a federally-mandated
comprehensive communications network known as Positive
Train Control (“PTC”). PTC systems are designed to make
rail transportation safer through the use of integrated
software and a GPS-based command, control,
communications, and information system to prevent
collisions between trains, derailments caused by excessive
speed, incursions into established work zone limits, and the
movement of a train through an improperly positioned
switch.
The project, which in total costs more than $216 million,
was publicly funded with most of the funding coming from
state and local sources. The prime contract for the PTC
project contemplated two types of work. “On-board work”
involved installing PTC equipment on Metrolink’s
locomotives and rail cars. “Field installation work” involved
installing PTC systems along the wayside or tracks,
including trenching, welding, installing towers for radio
antennas, driving forklifts, and operating cranes. The prime
contract specified that California’s prevailing wage law
would be applicable to the field installation work.
Parsons entered into a subcontract with defendant
Wabtec Corporation, which Metrolink expressly approved
as a subcontractor for the project. In accordance with the
Wabtec subcontract, Wabtec supplied and installed on-board
PTC systems on Metrolink’s locomotives and rail cars.
6 BUSKER V. WABTEC
Wabtec also provided back office engineering and systems
integration support and enhanced locomotive simulators.
Wabtec did not perform any of the field installation work.
Plaintiff, John Busker, is a former employee of Wabtec.
Busker was one of over 100 workers Wabtec hired to execute
the on-board work specified in the Wabtec subcontract.
Busker worked on the Metrolink project for approximately
two years, performing traditional electrical and electronic
technician work exclusively on the locomotives and rail cars.
In May 2015, Busker filed a prevailing wage complaint
with the California Department of Industrial Relations
(“DIR”), Division of Labor Standards Enforcement
(“DLSE”). The DLSE opened an investigation in June 2015.
The DLSE investigator initially concluded the Metrolink
PTC project was a public works project and issued a Civil
Wage and Penalty Assessment against Parsons and Wabtec
for prevailing wages of $5,786,349 and related penalties of
$682,215.
Parsons and Wabtec requested review of the assessment
by the Labor Commissioner. Although Metrolink
acknowledged that the installation work performed on the
wayside (i.e., the field installation work) is subject to
prevailing wage requirements, Metrolink, Parsons, and
Wabtec all took the position that the prevailing wage law
does not apply to the on-board work performed under the
Wabtec subcontract because trains are not “fixed works” but
instead are “rolling stock.” By the time Parsons and Wabtec
requested review of the assessment, Busker had already filed
a putative class action in Los Angeles County Superior
Court, alleging that Wabtec failed to pay its employees a
prevailing wage. Before the assessment was reviewed, the
BUSKER V. WABTEC 7
DLSE released the assessment, allowing the parties to
litigate the dispute exclusively in court. 1
Wabtec removed the action to federal district court under
the Class Action Fairness Act, 28 U.S.C. § 1332(d). The
district court denied Busker’s motion for an order remanding
the case to state court, and we have affirmed that decision.
The parties then agreed the prevailing wage coverage issue
could be determined through a summary judgment motion.
The district court granted summary judgment in favor of
Wabtec. Busker timely appealed.
IV. Explanation for Request for a Decision
No controlling California precedent answers the certified
question of statutory interpretation. We recognize that,
under California law, statutory interpretation begins with the
text. People v. Scott, 58 Cal. 4th 1415, 1421 (2014). But the
text of the prevailing wage law is susceptible to both of the
opposing interpretations offered by the parties. We do not
find the answer to the issues of state law presented by this
case to be obvious.
As discussed below, although administrative guidance
favors Wabtec’s view of the statute, countervailing policy
considerations appear to support Busker’s interpretation and
no controlling California judicial precedent compels a
resolution for either party. We perceive tension between the
general purposes of the prevailing wage law and courts’ duty
to interpret the law liberally, on the one hand, and extra-
1
The DLSE deputy labor commissioner who issued the initial wage
assessment against Wabtec stated at his deposition that the assessment
was released after he learned that Wabtec employees worked only on the
train and his superior (the DLSE Assistant Chief) told him “that
historically, work in the train is not covered.”
8 BUSKER V. WABTEC
textual administrative guidance, on the other hand.
Additionally, although Busker’s interpretation of the
prevailing wage law is reasonable, adopting that
interpretation arguably would require an extension of the
state law (and implicit disapproval of the interpretation of
the state agency tasked with enforcing the law), a decision
more appropriately made by the state court.
Conceivably, resolution of the issues of statutory
interpretation will have profound legal, economic, and
practical consequences for employers and employees who
work on publicly-funded projects in the state of California.
Because of the Class Action Fairness Act, other prevailing
wage disputes could (just like this one) end up being decided
in federal court. Although a federal court is capable of
deciding the case, a Ninth Circuit opinion would not provide
the same definitive resolution to the issues of state law that
the Supreme Court of California could provide.
A. Whether the on-board work constitutes
“construction” or “installation”
California Labor Code § 1771 requires that “all workers
employed on public works” be paid “not less than the general
prevailing rate of per diem wages for work of a similar
character in the locality in which the public work is
performed.” 2 Subject to an exception not relevant here,
“public works” “means,” “[c]onstruction, alteration,
demolition, installation, or repair work done under contract
and paid for in whole or in part out of public funds.” Cal.
2
The requirement to pay a prevailing wage does not apply to public
works projects of $1,000 or less or to work carried out by a public agency
with its own forces. Cal. Lab. Code § 1771.
BUSKER V. WABTEC 9
Lab. Code § 1720(a)(1). 3 “The overall purpose of the
prevailing wage law is to protect and benefit employees on
public works projects.” Lusardi Constr. Co. v. Aubry, 1 Cal.
4th 976, 985 (1992).
Busker argues that the work performed by Wabtec
employees (i.e., the on-board work) was “[c]onstruction”
and “installation” as those terms are used in California Labor
Code § 1720(a)(1). Wabtec argues the on-board work
cannot meet the definition of “public works” because the
prevailing wage law does not cover work on “rolling stock,”
including locomotives and rail cars.
On the one hand, relying on dictionary definitions,
Busker proffers broad, yet reasonable, meanings of
“construction” and “installation,” respectively. The
proffered definitions likely encompass the on-board work
and are consistent with both the statutory purpose of
“protect[ing] and benefit[ing] workers and the public” and
the directive that the statute be “liberally construed,” see City
of Long Beach v. Dep’t of Indus. Relations, 34 Cal. 4th 942,
949–50 (2004).
On the other hand, Wabtec cites various administrative
materials in which DIR officials have recognized that work
performed on rolling stock does not fall within the definition
of public works. Additionally, despite the policy in favor of
liberal construction, courts “cannot interfere where the
3
“‘[C]onstruction’ includes work performed during the design and
preconstruction phases of construction, including, but not limited to,
inspection and land surveying work, and work performed during the
postconstruction phases of construction, including, but not limited to, all
cleanup work at the jobsite.” Cal. Lab. Code § 1720(a)(1).
“‘[I]installation’ includes, but is not limited to, the assembly and
disassembly of freestanding and affixed modular office systems.” Id.
10 BUSKER V. WABTEC
Legislature has demonstrated the ability to make its intent
clear and chosen not to act.” City of Long Beach, 34 Cal. 4th
at 950 (internal quotation marks omitted).
B. Whether the on-board work is sufficiently related to
the covered field installation work.
Assuming the on-board work does not independently
meet the definition of “public works,” Busker argues the
prevailing wage law nonetheless covers the on-board work
because such work is sufficiently related to the field
installation work performed on the wayside. The parties
agree that the field installation work meets the statutory
definition of “public works.”
A few appellate court decisions have addressed “whether
and under what circumstances the prevailing wage law
extends to work performed away from the site of a public
works project.” Sheet Metal Workers’ Int’l Ass’n, Local 104
v. Duncan, 229 Cal. App. 4th 192, 200 (2014); see, e.g.,
Williams v. SnSands Corp., 156 Cal. App. 4th 742, 752–54
(2007) (treating “off-hauling” of building materials from
work site as separate from onsite construction work); O. G.
Sansone Co. v. Dep’t of Transp., 55 Cal. App. 3d 434, 441–
45 (1976) (holding that the prevailing wage law covers on-
hauling subbase material for highway construction project).
Yet courts have not been consistent in the legal standards
they have employed.
Some courts have framed the inquiry as whether the
work at issue “is truly independent of the contract
construction activities—i.e., whether it is integrated into the
flow process of construction.” Sheet Metal Workers’,
229 Cal. App. 4th at 206; see also Williams, 156 Cal. App.
4th at 752 (“What is determinative is the role the
[subcontractor’s work] plays in the performance or
BUSKER V. WABTEC 11
‘execution’ of the public works contract.”). Other courts
have taken a different approach by considering whether the
work at issue and the work that is indisputably covered by
the prevailing wage law together result in a “complete
integrated object.” Oxbow Carbon & Minerals, LLC v.
Dep’t of Indus. Relations, 194 Cal. App. 4th 538, 549
(2011); see also Cinema W., LLC v. Baker, 13 Cal. App. 5th
194, 210–15 (2017) (focusing on the necessity of the
publicly-funded work (a parking lot) to the ultimate product
of the privately-funded work (a theater)).
This case likely turns on the selection of the appropriate
standard. From the language of the prime contract and the
Wabtec subcontract and the other information provided by
the parties, it is clear that both the on-board work and the
field installation work are integral to the operation of the
completed project (i.e., the PTC system). If that were the
correct formulation, Busker should prevail. But the
contracts and other information about the project do not
suggest that completion of the on-board work is integral to
the completion of the field installation work. If that were the
correct formulation, Wabtec’s work is probably analogous
to off-site work or off-hauling that courts have held to be
non-integral to the construction process and thus not covered
by the prevailing wage law. See Sheet Metal Workers’,
229 Cal. App. 4th at 214; Williams, 156 Cal. App. 4th at
754. 4
4
Busker also argued that Wabtec had a contractual duty to pay its
employees a prevailing wage. In a memorandum disposition filed
concurrently with this order, we reject Busker’s breach of contract theory
(and we affirm the district court’s denial of Busker’s motion to remand
the case to state court).
12 BUSKER V. WABTEC
V. Accompanying Materials
The clerk of this court is hereby directed to file in the
Supreme Court of California, under official seal of the
United States Court of Appeals for the Ninth Circuit, copies
of all relevant briefs and excerpts of the record, and an
original plus ten copies of this order, along with a certificate
of service on the parties, as required by California Rule of
Court 8.548(c), (d).
This case is withdrawn from submission. The Clerk is
directed to administratively close this docket, pending
further order. Further proceedings before us are stayed
pending final action by the Supreme Court of California.
The parties shall notify the clerk of this court within seven
days after the Supreme Court of California accepts or rejects
the request for a decision, and again within seven days if that
court renders an opinion. The panel retains jurisdiction over
further proceedings.
IT IS SO ORDERED.