Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX July 1, 1985
Attorney General
Supreme Coun Building Eouorable Lloyd Cr,l~w Opinion No. JM-329
P. 0. Box 12548 cheirQlan
A”,llrl. TX. 78711.2546 Committee on Labor and Employment Re: Authority of a city to
5121475.2501 Relations establish prevailing wage
Telex 9101674.1367
~e,scopier 51214750266
Texas Rouse of Repmaentativea rates under article 5159a,
P. 0. Box 2910 V.T.C.S.
Austin, Texas 78X9
714 Jackson. Suits 700
Da~hr. TX. 75202-4506
Dear Representative Criss:
2147428944
You have inquired about the propriety of the procedures being
u)24 Albd,,~ Ave.. Suit0 160 used by the city elf Rouston to determine the prevailing wage rates to
E, paso. TX. 793052793 be paid to workem engaged in the construction of public vorka for
9lY533-3464 that city. You state that
1001 Texas. Suite 700
obvioual.g , the establishment of 5 prevailing wage
“ous.,o~, TX. 77002-3111 rate for building construction by the city of
7l312235886 P.ouston will dramatically effect the livelihood of
many voxking people in the Earris County area.
906 Broadway. Suite 312
It i~r my understanding thst the city of Eouston
,.ubWck. TX. 79401.3479
806i747-52% city corn~cil intends to adopt an alleged wage rate
study recently completed by 5n independent con-
tractor ‘to the city in the very near future. The
4309 N. Tenth. Suite B
basis I’or the findings and conclu5iona of this
McAllen. TX. 78501~1685
512l6S.24547
alleged atudy~ is a veighted average rather than
determixlng a general prevailing wage rate.
200 Main Plaza. Suite 400 My concern relates to the methods used ‘by the
San An,on,o. TX. 782052797
city’s agent to establish such a prevailing wage
5121225-4191
rate vhen tested by the una.mbiguoua proscriptions
and a~:atutox-y directives of article 5159a.
An Equal OppOftunilYl V.T.C.S.
Affirmalive Aclion EmPbYer
The pertinent parts of article 5159s read as follova:
Section 1. Not leas than the general pre-
vailing rate of per diem wages for vork of a
aimilax character in the locality in which the
work is performed . . . shall be paid to al1
laborel s, workmen and mechanics employed by or on
behalf of the State of Texas, or by or on behalf
of anJ’ county , city and county, city, town.
p. 1507
llonorable Lloyd Crlar - Paat. 2 (RI-329)
district or other political subdivision of the
Stste. engaged III the construction of public
works . . . .
Sec. 2. The public body awarding any coutract
for public work . . . or otherwise undertaking any
public work, ahat:, ascertain the general pre-
vailing rate of per diem wages in the locality in
vhich the vork is to be performed for each craft
or type of vorkmm or mechanic needed to execute
the contract. . . .
. . . .
Sec.4. . . . . The term ‘general prevailing
rate of per diem wages’ shall be the rate deter-
mined upon as such rate by the public body
avardlng the contract, or authorizing the work,
whose decision ia the matter shall be final. It
is mandatory thrt the public body state such
prevailing wage as a sum certain, in dollars and
cents. Nothing 111 this Act, however, ahhall be
construed to prohibit the payment to, any laborer,
workman or mechanic employed on any public work as
aforesaid of more ,than the said general prevailing
rate of wages.
One of the primary purposes of the statute is to
protect workmen, laborers. and mechanics from
being required, if they accept employment, to work
for leas than the prevailing wages paid . . . for
the same class at.d character of work.
Southern Prison Co. v. Renuels. 110 S.W.Zd 606, 609 (Tex. Civ. App. -
Auarlllo 1937. writ diam’d~, This conclusion “aa quoted 55 authori-
tative by the Texas Supreme Court in Texas Righvay Cosmiaaion v. El
Paso Building and Conatrwtion Co., 234 S.W.Zd 857 (1941). and has
been recently reaffirmed cl a case vhich reiterated that a primary
objective of the statute rre.5 “to protect the workman from working at
rates below the prevailing; wages in the locality.” Cullipher- v.
Weatherby-Godbe Construction Company Inc., 570 S.W.2d 161. 164 (Tex.
Civ. App. - Texarkana 1978, writ dism’d).
The genesis of the Texas Prevailing Wage Statute, like that of
the federal Davis-Bacon Act, 46 Stat. 1494 (codified as amended at 40
U.S.C. 55276a to 276a-5 (13132)). upon which it was modeled, is clearly
stated in the act’s “emergancy clause” as follows:
Sec. 7. The fact that there 15 uo adequate lav
protecting laborers. workmen and mechanics engaged
p. 1508
.. ’
*
Ronorabla Lloyd Criaa - Paga 3 (J&329)
in doing and perfomiug vork on public vorka in
Texas and ita political aubdivlalona. and the
further fact that many contrqctora are taking
advantage of the present iaduatrisl and ccoaomic
condition to beat d,wn vages to a lavel far belov
that required co mslntain a laborer. vorkman or
mechanic in reasonable circumstances, and the
further fact that this condltloa has created a
social problem dewnding the immediate attention
of the legislative department of our State, create
an emergency and an imperative public neces-
sity. . . .
Acts 1933, 43rd Leg., ch. 65, 07, at 93. While the Texas lav did not
set out a methodology for t!x determination of the prevailing vage
rates for the respective trades, this office very early held that It
vas the duty of the appropriate governing body ‘to ascertain the
general prevailing vage rates” for the respective trades in the
locality in question. Atto,rney General Opinion O-2059 (1944). This
opinion simply restated thd straightforward statutory directive to
establish what is “the gexral prevailing rate” of pay for each
particular craft and trade. The essence of this statutory mandate 1s
simply that the governmental entity determine for its locality what
actual wage rate is predominant for each craft.
Article 5159a requires a governmental body to pay “the general
prevalllng rate of per diem Tdages.” but it does not define the term.
Although section 4 delegates that determination to “the public body
awarding the contract ,” the statute clearly requires that, in making
the determination, a methodology be adopted vhich demonstrates
compliance with the “prevailing wage” standard. Your question Implies
that “prevailing Wage” and “veighted average” constitute different
standards. Assuming this ~1s correct, if a city adopts a “veighted
average” standard, in cont’rast to a “‘prevailing vage” standard, it
has. in our view, failed to c,omply vith the statute.
SUMMARY
A city is requl,red by article 5159a. V.T.C.S..
to pay “the gene,:al prevailing rate of per diem
wages” in avarding a contract for public works
construction.
-
JIH MATTOX
Attorney General of Texas
‘,. 1509
Hooorable Lloyd Criss - Page 4 (Jn-329)
TO?l GREEN
First Assistant Attorney Ceruxal
DAViD R. RICHARDS
Executive Assistant Attorney General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Colin J. Carl 6
Rick Gilpln
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Robert Gray
Jim noellinger
Jennifer Riggs
Sarah Woelk
p. 1510