Busker v. Wabtec

IN THE SUPREME COURT OF
CALIFORNIA
JOHN BUSKER,
Plaintiff and Appellant,
v.
WABTEC CORPORATION et al.,
Defendants and Respondents.
S251135
Ninth Circuit
17-55165
Northern District of California
2:15-cv-08194-ODW-AFM
August 16, 2021
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Kruger, Groban,
and Jenkins concurred.
Justice Liu filed a dissenting opinion, in which Justice Cuéllar
concurred.
Justice Cuéllar filed a dissenting opinion, in which Justice Liu
concurred.
BUSKER v. WABTEC CORPORATION
S251135
Opinion of the Court by Corrigan, J.
California’s prevailing wage law (Lab. Code, 1 § 1720 et
seq.) is a minimum wage provision that generally applies to
those employed on “public works.” This case involves two
questions: (1) Does publicly funded work on rolling stock, like
train cars, fall under the statutory definition of “public works”?
(2) Alternatively, does the work on rolling stock in this case
qualify as “public work” because it is integral to other activity
that itself qualifies as public work? The answer to both
questions is no.
I. BACKGROUND
The Southern California Regional Rail Authority operates
a large train system known as Metrolink. In 2010, it entered
into the prime contract with Parsons Transportation Group, Inc.
(Parsons) to design, furnish, and install a comprehensive
communications network called Positive Train Control (PTC) to
prevent collisions and other dangerous train movement.
The project was publicly funded and cost over $216
million. The expansive undertaking included wayside signals,
systems on locomotives and rail cars, back office servers, a
communications network, and a centralized dispatching system,
along with software development and installation. The system
required integration of various components located on trains, at
1
Further unspecified section references are to the Labor Code.
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Opinion of the Court by Corrigan, J.
wayside sites along tracks, and at centralized control centers.
While the undertaking was done under a public contract, not all
aspects of the enterprise necessarily qualify as a public work.
“Public works” is a term of art defined by statute.2 (See § 1720
et seq.)
Only two aspects of the project are at issue here: field
work and onboard work.3 Field work included building and
outfitting radio towers on land adjacent to train tracks. The
labor required trenching, driving forklifts, operating cranes, and
welding. Onboard work primarily involved installing electronic
components on the train cars and locomotives themselves.
Defendant Wabtec Corporation (Wabtec) subcontracted to
install system components on locomotives and rail cars. The
subcontract incorporated various provisions of the prime
contract, including compliance with applicable prevailing wage
laws. Wabtec performed no field work.
Plaintiff John Busker was one of over 100 Wabtec workers
assigned to the project. For approximately two years, he did
traditional electrical onboard installation. Wabtec did not pay
prevailing wages to any of its employees.
Busker filed a prevailing wage complaint against Wabtec
with the Division of Labor Standards Enforcement (DLSE), a
division of the Department of Industrial Relations (Department)
2
The prevailing wage law uses the plural term “public works”
as well as the singular term “public work.” (See §§ 1720, subd.
(a)(1) & (2), 1770, 1771, 1772.) This opinion uses the terms
interchangeably.
3
Field work is referred to as “field installation work” in the
contract. This opinion uses the abbreviated term to avoid
unnecessary repetition.
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BUSKER v. WABTEC CORPORATION
Opinion of the Court by Corrigan, J.
that enforces California’s labor laws. (See Alvarado v. Dart
Container Corp. of California (2018) 4 Cal.5th 542, 555.) In
2015, the DLSE issued a civil wage and penalty assessment of
$6,468,564 against Wabtec for failure to pay prevailing wages.4
Wabtec requested review by the Labor Commissioner, arguing
that the prevailing wage law does not apply to the onboard work
because the law covers only work performed on or to real
property, not “rolling stock”5 like locomotives and buses.
After review, the DLSE vacated the assessment and took
no further action. In this case, a DLSE officer testified his
superior directed him to vacate the assessment because,
historically, work performed on rolling stock is not covered by
the prevailing wage law. The Department never formally
determined whether the prevailing wage law covers onboard
work.
While the review of the assessment was pending, Busker
sued Wabtec and the project manager 6 in state court for failing
4
The assessment consisted of $5,786,349 in wages due plus
related penalties of $682,215. The assessment order did not
contain any factual or legal basis for the DLSE’s finding, aside
from spreadsheets containing the wage and penalty
calculations.
5
The prevailing wage law does not mention “rolling stock.”
Black’s Law Dictionary defines the term as “[m]ovable property,
such as locomotives and rail cars, owned by a railroad.” (Black’s
Law Dict. (11th ed. 2019) p. 1592, col. 1.) In the federal “Buy
America” regulations, rolling stock has a much broader
definition that includes “buses, vans, cars, railcars, locomotives,
trolley cars and buses, and ferry boats, as well as vehicles used
for support services.” (49 C.F.R. § 661.3 (2021).) This opinion
uses the term broadly to encompass all types of conveyances.
6
We refer to the defendants collectively as Wabtec.
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BUSKER v. WABTEC CORPORATION
Opinion of the Court by Corrigan, J.
to pay prevailing wages. Wabtec removed the action to federal
district court and sought summary judgment urging Wabtec’s
onboard work was not subject to prevailing wage requirements.
The court granted the motion, reasoning that only workers
“employed on [a] project involving fixed works or realty” are
entitled to prevailing wages. It also rejected Busker’s other
argument that the onboard work fell within the scope of the
prevailing wage law under section 1772 as work done “in the
execution” of the overall project to install the PTC system. The
court concluded that section 1772 still requires the applicable
contract to be one for “public work,” and the Wabtec subcontract,
limited to rolling stock, did not qualify.
Busker appealed and we accepted a request from the
United States Court of Appeals for the Ninth Circuit to decide a
question of state law. (Cal. Rules of Court, rule 8.548(a).) That
court posed the question as follows: “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’).”
II. DISCUSSION
A. Overview of California’s Prevailing Wage Law
Economic conditions in the Great Depression prompted
the passage of prevailing wage laws designed to ensure that
workers employed on public building programs would be paid
daily wages commensurate with those prevailing in the local
area for work of a similar character. (See Universities Research
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Opinion of the Court by Corrigan, J.
Assn. v. Coutu (1981) 450 U.S. 754, 773–774; Azusa Land
Partners v. Department of Industrial Relations (2010) 191
Cal.App.4th 1, 14–15.) The goal was to give local contractors
and labor a fair opportunity to work on public building projects
that might otherwise be awarded to contractors who hired
cheaper out-of-market labor. (Universities Research Assn. v.
Coutu, at p. 774.)
The prevailing wage law was enacted in 1931 as an
uncodified measure. (1931 Act; Stats. 1931, ch. 397, p. 910.) A
federal counterpart, the Davis-Bacon Act, was enacted the same
year. (40 U.S.C. § 3141 et seq.) In 1937, California’s prevailing
wage law was codified as part 7 of the newly established Labor
Code. (Stats. 1937, ch. 90, pp. 185, 241.)
“The overall purpose of the prevailing wage law is to
protect and benefit employees on public works projects.”
(Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985
(Lusardi).) “This general objective subsumes within it a number
of specific goals: to protect employees from substandard wages
that might be paid if contractors could recruit labor from distant
cheap-labor areas; to permit union contractors to compete with
nonunion contractors; to benefit the public through the superior
efficiency of well-paid employees; and to compensate nonpublic
employees with higher wages for the absence of job security and
employment benefits enjoyed by public employees.” (Id. at
p. 987.) Courts liberally construe the law to fulfill its purpose.
(City of Long Beach v. Department of Industrial Relations (2004)
34 Cal.4th 942, 949–950 (City of Long Beach).)
Generally, those employed on public works must be paid
at least the prevailing rate of per diem wages paid locally for
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BUSKER v. WABTEC CORPORATION
Opinion of the Court by Corrigan, J.
work of a similar character.7 (§ 1771.) A contractor or
subcontractor that does not pay the prevailing rate is liable for
the deficiency and subject to a penalty. (§ 1775.) The obligation
to pay prevailing wages has a statutory basis independent of any
contractual requirement. (Lusardi, supra, 1 Cal.4th at pp. 981–
982.) A contractor must pay prevailing wages when required,
even if it has not contractually agreed to do so. (Id. at p. 988.)
B. Onboard Work as “Construction” or “Installation”
Under Section 1720, Subdivision (a)(1)
The first question is whether the onboard work done
exclusively on locomotives and rail cars (rolling stock) falls
under the definition of “public work.” An examination of the
relevant statute establishes that it does not.
The prevailing wage law has its roots in the Depression
Era. Then, as now, when a governmental entity decided to build
a courthouse in the town square, a great many aspects of that
project would come into play. Architects in Los Angeles might
devise the plans. Lawyers in San Francisco might draft the
contracts. But when it came time to excavate the basement, lay
the foundation, and raise the walls, local daily wage workers
would be hired to do the work. It was their livelihood that the
7
Prevailing wage requirements do not apply to work carried out
by a public agency with its own labor force or to projects with a
dollar value of $1,000 or less. (§ 1771.) A public entity
“awarding any contract of public work, or otherwise undertaking
any public work,” must obtain the local prevailing rate for each
craft, classification, or type of worker needed to execute the
contract. (§ 1773.) The applicable wage rates must be included
in the call for bids, in bid specifications, and in the contract or,
alternatively, those documents must specify that the rates are
on file in the public entity’s principal office. (§ 1773.2.)
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BUSKER v. WABTEC CORPORATION
Opinion of the Court by Corrigan, J.
prevailing wage law was designed to protect and enhance. In
the decades since, the law has been amended a number of times
to include or exclude certain kinds of work. It has never been
modified to embrace work on rolling stock.
The term of art “public works” is defined in section 1720,
subdivision (a), which begins by providing, “[a]s used in this
chapter, ‘public works’ means: . . . .” It then sets out eight
numbered subdivisions that define the term in various contexts.
(§ 1720, subd. (a)(1)–(8).) The operative definition here is found
in section 1720, subdivision (a)(1) (hereafter section 1720(a)(1)).8
Under section 1720(a)(1), “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 . . . .”9 There are three basic elements to a “public
work” under section 1720(a)(1): (1) “construction, alteration,
8
See, e.g., other subdivisions that involve irrigation systems,
but not their operation (§ 1720, subd. (a)(2)); some street and
sewer improvements (§ 1720, subd. (a)(3)); laying of carpet
(§ 1720, subd. (a)(4) & (a)(5)); and tree removal (§ 1720, subd.
(a)(8)).
9
Subdivision (a)(1) of section 1720 also contains an exception
not relevant here and then goes on to discuss the scope of the
terms “construction” and “installation,” as follows: “For
purposes of this paragraph, ‘construction’ includes work
performed during the design, site assessment, feasibility study,
and other preconstruction phases of construction, including, but
not limited to, inspection and land surveying work, regardless
of whether any further construction work is conducted, and
work performed during the postconstruction phases of
construction, including, but not limited to, all cleanup work at
the jobsite. For purposes of this paragraph, ‘installation’
includes, but is not limited to, the assembly and disassembly of
freestanding and affixed modular office systems.”
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BUSKER v. WABTEC CORPORATION
Opinion of the Court by Corrigan, J.
demolition, installation, or repair work”; (2) that is done under
contract; and (3) is paid for in whole or in part out of public
funds. (Ibid.) Busker argues that the onboard work fell under
this definition as either “construction” or “installation.” It is
undisputed that the work was done under contract and paid for
with public money.
Familiar principles guide our interpretation of section
1720(a)(1). Our fundamental task is to determine the
Legislature’s intent to effectuate the law’s purpose, giving the
statutory language its plain and commonsense meaning. We
examine that language, not in isolation, but in the context of the
statutory framework as a whole to discern its scope and purpose
and to harmonize the various parts of the enactment. (Coalition
of Concerned Communities, Inc. v. City of Los Angeles (2004) 34
Cal.4th 733, 737.) “If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation
would result in absurd consequences the Legislature did not
intend. If the statutory language permits more than one
reasonable interpretation, courts may consider other aids, such
as the statute’s purpose, legislative history, and public policy.”
(Ibid.) The wider historical circumstances of a law’s enactment
may assist in ascertaining legislative intent, supplying context
for otherwise ambiguous language. (See California Mfrs. Assn.
v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)
While neither “construction” nor “installation” is explicitly
defined in the prevailing wage law, City of Long Beach
considered various definitions of the term “construction.” (City
of Long Beach, supra, 34 Cal.4th at p. 951.) Those include “ ‘the
action of framing, devising, or forming, by putting together of
parts; erection, building’ ” (ibid., quoting 3 Oxford English Dict.
(2d ed. 1989) p. 794) and “ ‘[t]he act of putting parts together to
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Opinion of the Court by Corrigan, J.
form a complete integrated object.’ ” (City of Long Beach, at p.
951, quoting Webster’s 3d New Internat. Dict. (2002) p. 489, col.
2.) Because neither definition confines the term “construction”
to the building of a structure, onboard work could arguably fall
within these definitions.
Similarly, dictionary definitions of “installation” do not
limit that activity to a fixed work on real property. Webster’s
Third New International Dictionary defines one sense of
“installation” as “the setting up or placing in position for service
or use.” (Webster’s 3d New Internat. Dict., supra, at p. 1171,
col. 1.) That broad definition could conceivably encompass
onboard work.
However, words used in a statute are not considered in
isolation. They are construed in context, honoring the statutory
purpose, and harmonizing statutes relating to the same subject
to the extent possible. (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1387.) Here, the general
terms “construction” and “installation” are offered as categories
of “public works,” a term which itself has a generally understood
meaning that substantially predates the prevailing wage law. It
is that definition that gives context to the Legislature’s use of
the terms construction and installation.
Dictionary definitions dating back to the turn of the 20th
century uniformly define “public works” as fixed works on real
property. The term is defined in a 1906 edition as “all fixed
works constructed for public use, as railways, docks, canals,
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Opinion of the Court by Corrigan, J.
water-works, roads, etc.”10 (6 Century Dict. & Cyclopedia (1906)
p. 4830, col. 2.)
The 1925 edition of California Jurisprudence, published in
the decade before the prevailing wage law enactment, observed:
“The term ‘public works’ may be said to embrace all fixed works
constructed for public use or protection. . . . In view of the acts
authorizing public improvements the term probably includes
bridges, waterworks, sewers, light and power plants, public
buildings, wharves, breakwaters, jetties, seawalls, schoolhouses
and street improvements.” (22 Cal.Jur. (1925) Public Works, §2,
pp. 74–75, fn. omitted.) Swanton v. Corby (1940) 38 Cal.App.2d
227, 230, relied upon this definition to hold that installing a two
-way police radio system did not constitute a public work within
the meaning of a law requiring competitive bidding. There, the
relevant statutory scheme applied to the “ ‘erection,
improvement, and repair of all public buildings and works
. . . .’ ” (Id. at p. 229.) The court concluded the radio system was
analogous to “furniture and furnishings,” which had “never been
held to be ‘public works.’ ” (Id. at p. 230.) While Swanton did
not involve the prevailing wage law, it did rely on the
established common understanding of public works to interpret
the otherwise undefined terms “ ‘erection, improvement, and
repair’ ” as work associated with fixed works on real property.
(Id. at p. 229.)
10
More recently, in the 2002 edition of Webster’s Third New
International Dictionary, “public works” is defined as “fixed
works (as schools, highways, docks) constructed for public use or
enjoyment . . . .” (Webster’s 3d New Internat. Dict., supra, p.
1836, col. 3.)
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Busker does not dispute that dictionary definitions of
public works refer to fixed works on realty. But he claims those
definitions are irrelevant, citing the principle that a court
should not rely on a dictionary definition of a term specifically
defined in the statute. (See Hammond v. Agran (1999) 76
Cal.App.4th 1181, 1189.) That principle is valid but does not
assist here. The dictionary definitions of “public works” are not
offered in lieu of a statutory definition. Instead, they provide
context to the terms “construction” and “installation” used in the
statute to generally describe kinds of public works. While
section 1720(a)(1) has been amended over the years to include
examples of “construction” and “installation,” nowhere does it
provide a general definition of the terms, which could have very
broad meanings if context is ignored. For example,
“construction” might be considered to include the building of a
public ferry boat; “installation” might be conceived as
downloading software; “alteration” could be read to include
clothing modification; and “repair” might be applied to
overhauling a bus. Nothing in standard dictionary definitions
would preclude those interpretations. However, “ ‘ “words have
no meaning apart from the world in which they are spoken.” ’ ”
(State of California v. Altus Finance (2005) 36 Cal.4th 1284,
1296.) The words say what they say: their meaning is
understood from the context in which they are used.
An examination of the original enactment and later
codification of the prevailing wage law provides that context. As
originally enacted, the prevailing wage law said only that
certain “construction or repair work . . . shall be held to be
‘public works’ within the meaning of this act.” (Stats. 1931, ch.
397, § 4, p. 912.) The original prevailing wage law did not
include the terms “alteration,” “demolition,” or “installation.”
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Opinion of the Court by Corrigan, J.
But the original statutory language did help illustrate the scope
of public works. In referring to the relevant “locality” for
determining the prevailing wage rate, it defined “ ‘locality’ ” as
the “city and county, county or counties in which the building,
highway, road, excavation, or other structure, project,
development or improvement is situated . . . .” (Stats. 1931, ch.
397, § 4, p. 912, italics added.) The italicized words suggest that
the term “public works” was limited to fixed works situated on
or attached to land.11 In that context, “construction” and
“repair” under the law’s original enactment appear limited to
labor performed on fixed works.
The prevailing wage law, codified in 1937, continued to
apply to specified “[c]onstruction or repair work.” (§ 1720, subd.
(a), as enacted by Stats. 1937, ch. 90, p. 241.) However, the
definition of “locality” for rate determination was simplified to
refer to the “county in which the public work is done.” (§ 1724,
as enacted by Stats. 1937, ch. 90, p. 241.) While the omission of
11
Although the term “project” might be interpreted more
broadly, it is part of a list of terms that would generally be
understood to be limited to fixed works. Under the principle of
“noscitur a sociis (it is known by its associates) ‘. . . a court will
adopt a restrictive meaning of a listed item if acceptance of a
more expansive meaning would make other items in the list
unnecessary or redundant, or would otherwise make the item
markedly dissimilar to other items in the list.’ ” (People ex rel.
Lungren v. Superior Court (1996) 14 Cal.4th 294, 307.) To
interpret “project” as something other than a fixed work would
render that term markedly different from the other listed items.
The noscitur a sociis principle, like other canons of statutory
construction, is merely an aid in ascertaining legislative intent.
(See People v. Garcia (2016) 62 Cal.4th 1116, 1124.) While its
application does not compel an interpretation of “project” that is
limited to fixed works, it nevertheless supports giving the term
that more restricted meaning.
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terms like “building” or “road” in the definition of “locality” could
potentially suggest an intent to broaden the scope of “public
works,” nothing else in the 1937 legislation would support such
a conclusion. The codified provision did not substantively
change the definition of “construction” and “repair” as types of
“public works.” (Compare Stats. 1931, ch. 397, § 4, p. 912 with
§ 1720, subd. (a) as enacted by Stats. 1937, ch. 90, p. 241.)
Indeed, the Legislature gave no indication it intended to
confer on the terms “construction” or “repair” a more expansive
meaning when it codified the existing law. If the Legislature
had intended such a departure from the well-established
understanding of the term “public work,” one would expect that
intent to be reflected in the statutory history, rather than
requiring divination from a simple modification to an ancillary
provision. (See Garcia v. McCutchen (1997) 16 Cal.4th 469,
482.) In fact, the legislative history points to a contrary
conclusion. In 1936, the California Code Commission
(Commission) prepared a Proposed Labor Code for the
Legislature’s consideration. In a note to proposed section 1720,
the Commission explained that its draft of section 1720,
subdivision (a) was taken “verbatim” from the analogous
construction and repair provision in the original 1931 Act. (Cal.
Code Com. note, Proposed Labor Code (1936), foll. § 1720, p. 85.)
It is reasonable to conclude, then, that the ultimate codification
reflected the Legislature’s intent to embrace the established
understanding of the term “public work” as the context in which
the terms construction and repair were used.
Nevertheless, Busker claims that subsequent
amendments establish that the Legislature sought to give
“public works” a broader connotation than the original common
usage. He notes that a 2000 amendment to section 1720(a)(1)
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included preconstruction work within the definition of
“construction.” He argues this amendment “evidences . . . the
Legislature’s intent to give ‘construction’ a broad meaning,”
citing Oxbow Carbon & Minerals, LLC v. Department of
Industrial Relations (2011) 194 Cal.App.4th 538, 549 (Oxbow).
The amended language specified that “ ‘construction’ includes
work performed during the design and preconstruction phases
of construction including, but not limited to, inspection and land
surveying work.” (§ 1720, former subd. (a), as amended by
Stats. 2000, ch. 881, § 1, p. 6517.) While the 2000 legislation
may have enlarged the scope of “construction” to include the
design and preconstruction phases of a construction project, it
did not purport to change the settled understanding of the term
“public work” to cover activity divorced from fixed works on real
property. As Oxbow itself recognized, the legislation did not
purport to define construction but merely explained the scope of
the term.12 (Oxbow, at p. 548.)
Nothing in the 2000 amendment signals an intent to
uncouple the term “construction” from the context of “public
work.” The examples of work that are included in
“construction,” like land surveying, are consistent with a
definition of “construction” related to land-based activity. The
legislative history of the 2000 amendment confirms that it was
12
In 2014, the scope of “construction” in section 1720(a)(1) was
again amended to encompass “work performed during the
postconstruction phases of construction, including, but not
limited to, all cleanup work at the jobsite.” (Legis. Counsel’s
Dig., Assem. Bill No. 26, Stats. 2014, ch. 864, italics added.)
Like the 2000 amendment, the statutory language clarifying
that postconstruction work falls within the scope of section
1720(a)(1) does not change the fundamental understanding of
what public work “construction” entails.
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intended to reflect the Department’s existing practice of
including “construction inspectors and land surveyors among
those workers deemed to be employed upon public works . . . .”
(Sen. Com. on Labor & Employment, 3d reading analysis of Sen.
Bill No. 1999 (1999–2000 Reg. Sess.) as amended Aug. 23, 2000,
p. 2.)
Busker also contends that the 2001 addition of the word
“installation” to section 1720(a)(1) signaled an intent to broaden
the scope of that section. Again, the legislative history suggests
otherwise. The purpose of the legislation was to codify then-
existing interpretations by the Department treating installation
of fixtures on real property as part of the construction process.
(Cal. Dept. of Industrial Relations, Enrolled Bill Rep. on Sen.
Bill No. 975 (2001–2002 Reg. Sess.) prepared for Governor Davis
(Sept. 20, 2001), p. 2.) The Legislature was concerned that a
future administration might “rescind the [Department’s]
precedential determinations” and exclude installation work as
not “ris[ing] to the level of construction . . . .” (Id., p. 3.) Thus,
the addition of “installation” to section 1720(a)(1) should not be
interpreted as expanding the scope of public works to rolling
stock. Instead, it was merely intended to confirm that the
installation of fixtures on land is part of the “construction”
process.
In 2012, the Legislature again amended section 1720(a)(1)
to clarify that “[f]or purposes of this paragraph, ‘installation’
includes, but is not limited to, the assembly and disassembly of
freestanding and affixed modular office systems.” (Stats. 2012,
ch. 810, § 1.) Seizing upon the reference to “freestanding”
systems, Busker contends the Legislature has rejected the
notion that an “installation” must involve “fixed works or work
that is ‘affixed’ or ‘bolted’ to realty . . . .” Busker reads too much
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into the amendment. The change was enacted to overrule a
specific line of Department decisions that treated the assembly
or disassembly of modular office systems as “installation” work
only if the systems were bolted, secured, or otherwise mounted
to real property. (Assem. Com. on Labor & Employment,
Analysis of Assem. Bill No. 1598 (2011–2012 Reg. Sess.) as
introduced Feb. 6, 2012, p. 2.) The legislative history explains
that the process of assembling freestanding office systems, like
cubicles, involves work analogous to installing modular walls
secured to a structure. (Id. at p. 3.) The legislation sought to
eliminate what was viewed as an unwarranted distinction
between fixed and freestanding modular office systems. The
amendment was limited to that aim. Even after the 2012
amendment, aside from modular office systems, the Department
continues to apply the rule that “installation” means “bolting,
securing or mounting of fixtures to realty.”13
In his dissent, Justice Liu argues that modular office
systems are like rolling stock in that they “can be easily moved
and transported to other locations.” (Dis. opn. of Liu, J., post, at
p. 8.) However, there is no indication that the moveable aspect
of modular office systems motivated the amendment to section
1720(a)(1). The Legislature’s focus was on the nature of the
work that takes place in a structure, not on the fact the office
systems could be easily moved. Regardless of whether a
modular system is fixed or freestanding, it remains the case that
13
County-Sponsored Messages on Private Billboards,
Department of Industrial Relations, PW Case No. 2015-15 (Sept.
9, 2016) page 3 [as of Aug. 16, 2021].) The Internet
citations in this opinion are archived by year, docket number,
and case name at .
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Opinion of the Court by Corrigan, J.
office systems are installed in buildings. The work takes place
in a fixed structure on land. The same is not true of installation
performed on train cars. Nothing in the 2012 amendment
suggests the Legislature sought to include rolling stock. If the
Legislature had intended the statute to broadly cover all
installation projects beyond those on real property, it could have
easily said so.
Busker contends that if the Legislature intended “public
works” to refer exclusively to construction projects involving
fixed works on realty, it knew how to do so. He points to
Government Code section 4002, which defines “ ‘public work’ ”
for purposes of record-keeping requirements to mean “the
construction of any bridge, road, street, highway, ditch, canal,
dam, tunnel, excavation, building or structure . . . .” He also
cites Public Contract Code section 1101, which defines “ ‘[p]ublic
works contract’ ” as “an agreement for the erection,
construction, alteration, repair, or improvement of any public
structure, building, road, or other public improvement of any
kind.” According to Busker, the fact that the Legislature defined
“public work” to mean only certain construction projects on real
property in the Government and Public Contract Codes shows
that it did not intend a similar meaning in section 1720(a)(1),
which omits any reference to fixed works or real property. The
contention fails.
Busker relies on the principle that “ ‘when different words
are used in contemporaneously enacted, adjoining subdivisions
of a statute, the inference is compelling that a difference in
meaning was intended.’ ” (Kleffman v. Vonage Holdings Corp.
(2010) 49 Cal.4th 334, 343.) That principle is inapplicable here.
The definitions he cites are not contained in subdivisions that
adjoin section 1720(a)(1) or even in neighboring statutes in the
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Opinion of the Court by Corrigan, J.
Labor Code. Instead, they are found in entirely separate codes.
They were also not enacted contemporaneously with the
statutory language at issue here. Public Contract Code section
1101 was enacted in 1982. (Stats. 1982, ch. 1120, § 3, p. 4046.)
Government Code section 4002’s record-keeping provisions
derive from an uncodified statute enacted in 1923. (Stats. 1923,
ch. 448, § 1, p. 1053.) The inference Busker seeks to draw is
unsupported.
There is no reason to believe the Legislature deliberately
defined “public works” in the prevailing wage law to distinguish
it from definitions contained in other codes enacted at different
times. Instead of suggesting by implication that “public works”
as used in the prevailing wage law is broad enough to encompass
rolling stock, the definitions contained in the Government Code
and Public Contract Code tend to confirm the common
understanding that “public works” generally refers to fixed
works on real property.
Indeed, within the prevailing wage law, the Legislature
defined “ ‘[p]ublic works project’ ” in section 1750, subdivision
(b)(1) to mean “the construction, repair, remodeling, alteration,
conversion, modernization, improvement, rehabilitation,
replacement, or renovation of a public building or structure.”
(Italics added.) The definition is limited to fixed works. Section
1750 speaks to a narrow circumstance to authorize a private
right of action by the second lowest bidder on a public works
project when the successful bid was premised upon a violation
of the law for which the successful bidder was convicted.
(§ 1750, subd. (a)(1).) The definition of “ ‘[p]ublic works project’ ”
in the narrow context of section 1750 was enacted long after the
1930’s codification of the Labor Code. Nevertheless, it tends to
demonstrate that the term “public works” as used in the
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Opinion of the Court by Corrigan, J.
prevailing wage law is still generally confined to work on
buildings or other structures. The Legislature may, of course,
define “public works” more broadly. But there is nothing to
suggest the Legislature has thus far intended to expand the
term as used in section 1720(a)(1) beyond fixed works on land.
The New York case of De La Cruz v. Caddell Dry Dock &
Repair Co. (2013) 21 N.Y.3d 530 (De La Cruz) declined to employ
the common understanding that “public works” is limited to
labor on land. (See dis. opn. of Liu, J., post, at p. 5.) However,
the particular state law it applied was worded and structured
differently from California’s statutory scheme. De La Cruz held
that New York’s law covers work performed on various boats
used for public purposes. (De La Cruz, at pp. 538–539.) The
New York court’s holding is, of course, not binding. Further, its
analysis provides no assistance.
First, unlike California’s law, which limits the definition
of “public works” to defined categories like construction and
installation (see § 1720 et seq.), New York’s prevailing wage
scheme contains no definition of “public works.” (See N.Y. Labor
Law, § 220(3).) New York’s law is unique in this respect.
(Johnson, Prevailing Wage Legislation in the States (Aug. 1961)
84:8 Monthly Lab. Rev. 839, 841.) Confronted with a statute
that did not define the term, the New York court created a three-
pronged test to assess whether a project is subject to prevailing
wage requirements. (De La Cruz, supra, 21 N.Y.3d at p. 538.)
Under the De La Cruz test, New York’s law may apply if the
“project . . . primarily involves construction-like labor . . . .”
(Ibid, italics added.) This definition, focusing not on the specific
labor but the project for which it is done, sweeps more broadly
than the expressly defined categories of “public works” in
California’s prevailing wage law. Further, the New York court
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Opinion of the Court by Corrigan, J.
focused on its statutory scheme and state constitution, which
specified that the applicable prevailing wage is based on the
locality where the “ ‘public work is to be situated, erected or
used.’ ” (Id. at p. 535, some italics omitted.) Whereas a boat
used for a public purpose would not be described as “ ‘erected,’ ”
the court observed that the terms “ ‘situated’ ” and “ ‘used’ ”
could apply. (Ibid.) There is no similar language in California’s
statute defining the locality in which public work is performed.14
(See § 1724.)
De La Cruz also purported to rely on federal authority
detaching the understanding of “public works” from work on
land.15 (De La Cruz, supra, 21 N.Y.3d at p. 535.) It pointed to a
case decided more than a century earlier in which the United
States Supreme Court concluded it was not bound to read the
term “ ‘public work’ ” as “confined to work on land.” (Title
14
It will be recalled that California’s 1937 codification omitted
the previous use of the term “project” in describing the locality
in which the work is done. (See ante, at pp. 12–13; § 1724.)
15
De La Cruz reviewed dictionary definitions of “ ‘public works’ ”
from 1891 to 2013. It observed that “illustrative examples given
in dictionary entries are frequently fixed structures . . . .” (De
La Cruz, supra, 21 N.Y.3d at p. 538.) The court went on to opine:
“[I]t is clear that the notion that a ‘public work’ must be attached
to the land is not part of [the] central meaning” of the term.
(Ibid.) However, all of the illustrative examples in the
dictionary entries quoted in Del La Cruz are fixed works:
“ ‘[s]tructures (such as road or dams),’ ” “ ‘public buildings,
roads, aqueducts, parks, etc.,’ ” “ ‘roads, railways, bridges, etc.,’ ”
and “ ‘schools, highways, docks.’ ” (Id. at p. 537.) De La Cruz
relegated to a footnote a definition that explicitly incorporates
“ ‘fixed’ ” in the definition of “public works.” (Id. at p. 538, fn. 5.)
The dictionary definitions cited in De La Cruz support rather
than undermine the common understanding that “public works”
is generally limited to fixed works on real property.
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Opinion of the Court by Corrigan, J.
Guaranty & Trust Co. of Scranton v. Crane Co. (1910) 219 U.S.
24, 33.) This reliance is tenuous. Crane did not involve a
question of prevailing wage entitlement. Aside from
acknowledging that “public works usually are of a permanent
nature,” Crane focused solely on the meaning of the word
“public.” (Ibid.) These points distinguish De La Cruz from the
question we encounter. An interpretation that considers the
history of California’s prevailing wage law along with the
historical meaning of “public works” supports an interpretation
that generally limits the term to labor performed on fixed works.
This interpretation is confirmed in determinations made
by the Department, which has consistently excluded work on
rolling stock. For example, in a 1990 coverage determination,
the Department’s director concluded that the repair of police
boats was not a public work, reasoning that the term has been
construed “as having a restricted meaning as applying to work
done on fixed works for public use or production.” (Dept. of
Industrial Relations, Director Ron Rinaldi, letter to Port of San
Diego Section Chief Kenneth E. White, June 26, 1990.)
Similarly, in 1994, a public agency sought prevailing wage
determinations for contracts involving ship repairs. The
Department “determined, consistent with previous court rulings
and opinions from the Attorney General’s Office, that
maintenance/repair of rolling stock, i.e. vehicles, vessel[s], rail
cars, etc., is not covered under the prevailing wage laws.” (Dept.
of Industrial Relations, Div. of Labor Statistics & Research
Chief Dorothy Vuksich, letter to Attorney Madeline Chun,
March 18, 1994.) The Department has also declined to apply the
prevailing wage law to seat installation on rail cars and the
installation of equipment on police motorcycles.
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Opinion of the Court by Corrigan, J.
The Department twice concluded that work similar to the
onboard work here was not covered under the prevailing wage
law. One situation concerned the installation and testing of
equipment on Bay Area Rapid Transit cars. Another involved
the installation of a radio system for the Southern California
Rapid Transit District. There, work installing the radio system
“in buildings and other structures” was determined to fall within
the scope of the prevailing wage law while installation in
“trains, buses, and other vehicles” was not. (Dept. of Industrial
Relations, Industrial Relations Counsel James M. Robbins,
mem. to Asst. Labor Commissioner Simon D. Reyes, Dec. 28,
1987, italics added.)
Attorney General opinions also support excluding work on
rolling stock. In 2012, the Attorney General concluded that the
term “public works” as used in various statutory schemes,
including section 1720(a)(1), “comport[s] with the common usage
and ordinary meaning of ‘public works’ as reflected in dictionary
definitions” that define the term as “ ‘fixed works (as school,
highways, docks) constructed for public use . . . .’ ” (95
Ops.Cal.Atty.Gen. 102, 108 (2012).) Over 50 years of Attorney
General opinions contain similar reasoning. (See
69 Ops.Cal.Atty.Gen. 300, 305 (1986); 25 Ops.Cal.Atty.Gen.
153, 154 (1955).)
The parties strenuously debate how much deference we
should pay to the Department’s decisions, which do not have
precedential effect. (See Kaanaana v. Barrett Business Services
(2021) 11 Cal.5th 158, 179.) It is true that “[d]eference to
administrative interpretations always is ‘situational’ and
depends on ‘a complex of factors’ [citation], but where the agency
has special expertise and its decision is carefully considered by
senior agency officials, that decision is entitled to
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Opinion of the Court by Corrigan, J.
correspondingly greater weight.” (Sharon S. v. Superior Court
(2003) 31 Cal.4th 417, 436.)
We need not be drawn too deeply into this thicket. Our
task is to discern the legislative intent. In that regard, the most
pertinent fact is that the Department’s interpretation has been
long-standing and consistent. The same is true of the Attorney
General opinions. Indeed, Busker cites not a single example in
which the Department or the Attorney General has ultimately
concluded that work on rolling stock is covered by the prevailing
wage law.16
Of course, simply because an administrative
interpretation has endured for decades does not mean it is
correct. The ultimate responsibility for the construction of a
statute rests with the court. An agency’s interpretation is just
one of several tools that may assist the court. (City of Long
Beach, supra, 34 Cal.4th at p. 951.) Nevertheless,
“ ‘ “[c]onsistent administrative construction of statute over
many years, particularly when it originated with those charged
with putting the statutory machinery into effect, is entitled to
great weight and will not be overturned unless clearly
erroneous.” ’ ” (Sara M. v. Superior Court (2005) 36 Cal.4th 998,
1012.) Here, the long-standing administrative interpretations
16
Busker claims the Department has been inconsistent in its
approach in this very case, citing the DLSE’s release of this
assessment only after initially concluding prevailing wages were
owed for the onboard work. But that initial assessment was
quickly vacated because it was found to be inconsistent with
long-standing policy. The sequence of events here does not
indicate that the policy has itself been inconsistent over time. It
reflects the Department’s adherence to its established
interpretation.
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Opinion of the Court by Corrigan, J.
are not clearly erroneous but instead are consistent with this
court’s construction of the relevant statutory language. They
are significant because they tend to confirm the common
understanding of “public works” that excludes labor on rolling
stock. There is no indication in the record before this court that
the administrative construction has vacillated over time or that
there has been any call for the Legislature to step in and either
confirm or reject this established approach.
It might be argued that paying the prevailing wage for
onboard work serves the general purposes of the prevailing
wage law. (See Lusardi, supra, 1 Cal.4th at p. 985.) Of course,
there are many specific ways to serve that general purpose. Our
interpretation is dictated by the relevant language in the
statutory scheme. The prevailing wage law has never been
applied to all work financed by public funds. The Legislature
has explicitly limited the protection to labor defined as “public
work.” The application of the law will necessarily involve line-
drawing exercises that distinguish between types of work that
may be similar in many respects.
Further, there is at least some reason to believe the
Legislature intended to treat work performed on rolling stock
differently from that done on fixed works. One of the primary
purposes of the law is to protect local labor markets from
cheaper outside labor. (See State Building & Construction
Trades Council of California v. City of Vista (2012) 54 Cal.4th
547, 555.) Paying the prevailing wage to workers constructing
a public building located in a particular city or county obviously
serves that purpose. But work on rolling stock could conceivably
be performed almost anywhere, then delivered to wherever it
might be used. This practical reality raises a question about
whether the law’s purpose is served by paying prevailing wages
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Opinion of the Court by Corrigan, J.
to workers that may be far away from the location of the
governmental entity paying for the work. It also raises
significant administrative concerns. Does the law apply to
someone working on a high-speed rail car in a different state?
If so, what is the relevant locality for purposes of calculating the
prevailing wage and including those rates in the bidding and
contracting process? (See §§ 1724, 1773, 1773.2.) At least for
purposes of the prevailing wage law, the distinction between
labor performed on fixed works and that done on rolling stock is
not an arbitrary one.
The rule favoring liberal construction is subject to an
important proviso: Courts “ ‘cannot interfere where the
Legislature has demonstrated the ability to make its intent
clear and chosen not to act [citation].’ ” (City of Long Beach,
supra, 34 Cal.4th at p. 950.) For the reasons explained above,
“construction” and “installation” in section 1720(a)(1) are
generally restricted to activities associated with fixed works on
land. Where the Legislature has expanded the meaning of
“public works” to activities that do not directly involve
construction work, like refuse hauling (§ 1720.3) or the delivery
of concrete (§ 1720.9), it has done so with narrowly defined
provisions that involve tasks intimately connected to fixed
works on real property. The Legislature has had ample
opportunity to expand the understanding of “public works” to
include work on rolling stock, but it has not done so.
C. Onboard Work as “Integral” to Field Work
Busker argues that even if the onboard installation does
not independently meet the definition of “public work,” it is still
subject to the prevailing wage law because it is integrally
related to building the towers on the trackside, which is
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Opinion of the Court by Corrigan, J.
indisputably “public work.” The Ninth Circuit asked us to
consider Busker’s argument. As we explain, the onboard
installation labor is not transformed into “public work” merely
because the railcar and locomotive components operate together
with the towers built on land next to the tracks.
The Ninth Circuit identified two lines of cases that may
bear upon the question. First, it referenced a group of opinions
that frame the inquiry as whether the work at issue “is
integrated into the flow process of construction.” (Sheet Metal
Workers’ Internat. Assn., Local 104 v. Duncan (2014) 229
Cal.App.4th 192, 206 (Sheet Metal); see also Williams v.
SnSands Corp. (2007) 156 Cal.App.4th 742, 752 (Williams);
O.G. Sansone Co. v. Department of Transportation (1976) 55
Cal.App.3d 434, 443–444 (Sansone).) These cases turn on the
application of section 1772, which provides: “Workers employed
by contractors or subcontractors in the execution of any contract
of public work are deemed employed upon public work.” Under
the approach to section 1772 taken in this case law, coverage
under the prevailing wage law extends “to activities not
statutorily defined as ‘public work,’ so long as that labor is
integrated into construction or other defined public work.”
(Mendoza v. Fonseca McElroy Grinding Co., Inc. (Aug. 16, 2021,
S253574) __ Cal.5th __, [pp. 6–7] (Mendoza).)
This body of law cannot aid Busker. In Mendoza, a
decision filed concurrently with this opinion, we reject the
interpretation of section 1772 derived from Sansone, Williams,
and Sheet Metal. Mendoza disapproves those cases to the extent
they interpreted section 1772 to expand the statutory
definitions of “public works.” (Mendoza, supra, ___ Cal.5th at
___ [pp. 29–30].) Section 1772 simply serves to confirm that the
protections of the prevailing wage law extend to workers
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Opinion of the Court by Corrigan, J.
employed by contractors or subcontractors. (Mendoza, at p. ___
[p. 16].) It was not intended to define or expand the categories
of work that are covered by the prevailing wage law, a function
adequately served by the provisions that define “public works.”
Accordingly, because the onboard installation does not qualify
as a defined “public work,” it is not subject to prevailing wage
requirements under section 1772. 17
Other cases mentioned by the Ninth Circuit purportedly
stand for the principle that prevailing wage entitlement may
arise even if the work at issue does not meet the statutory
definition. Under this approach, work that would not otherwise
qualify may be covered so long as other associated labor would
constitute public work. The conclusion fails because the cases
on which it relies do not support it. As noted earlier, section
1720(a)(1)’s definition of public works has three facets. The
work (1) entails construction, etc., (2) is done under contract,
and (3) is paid for, at least in part, by public funds.
(§ 1720(a)(1).) The Ninth Circuit points to Oxbow, supra, 194
Cal.App.4th 538, and Cinema West, LLC v. Baker (2017) 13
Cal.App.5th 194 (Cinema West). As discussed below, those cases
17
Although the interpretation of section 1772 is addressed in
detail in Mendoza, Justice Cuéllar has chosen to critique that
analysis at length in a separate opinion filed in this case. (See
generally dis. opn. of Cuéllar, J., post, at pp. 1–24.) That is so
even though the same analysis serves as the basis for the dissent
in Mendoza, albeit in an abbreviated fashion. (Mendoza, supra,
___ Cal.5th at ___ [pp. 1–5] (dis. opn. of Cuéllar, J.).) It makes
little sense to reply here to the dissent when the analytical
framework for the majority’s analysis is contained in a different
case. Suffice it to say that the majority analysis in Mendoza
rejects the critique set forth in Justice Cuéllar’s dissent in this
case. To aid the reader, we refer generally to our analysis of
section 1772 in Mendoza, supra, ___ Cal.5th at ___ [pp. 7–36].
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Opinion of the Court by Corrigan, J.
focus on the public funding question, not the nature of the work
itself. Accordingly, they do not support an expanded meaning of
“public work.”
Oxbow concerned a petroleum coke facility. Conveyors
used to bring coke into the plant were built under a contract
using public funds. A separate, privately funded contract was
used to build a roof over the conveyors. (Oxbow, supra, 194
Cal.App.4th at pp. 542–545.) The question in Oxbow was
whether the privately funded roof work fell within the scope of
the prevailing wage law because it was part of a “complete
integrated object” that included the publicly funded conveyor
work. (Id. at pp. 548–550.) Cinema West considered a similar
issue. There, a city entered into an agreement with a private
developer to build a movie theater complex. As part of the
agreement, the city used public funds to build an adjacent
parking lot. Theater patrons could use the lot, thus facilitating
theater development. (Cinema West, supra, 13 Cal.App.5th at
pp. 197–202, 214.) The Cinema West court considered whether
laborers on the privately funded theater complex were entitled
to the prevailing wage because the theater, together with the
publicly funded parking lot, formed a “complete integrated
object.” (Id. at p. 215; see id. at pp. 210–215.)
Both Oxbow and Cinema West turned on the phrase “paid
for in whole or in part out of public funds.” (Oxbow, supra, 194
Cal.App.4th at p. 547; Cinema West, supra, 13 Cal.App.5th at
pp. 214–215.) All the labor at issue in both cases was
indisputably construction work that built or installed facilities
on real property. The only question was what construction work
could be considered in determining the public funding question.
Both cases extended prevailing wage protection because, in
their view, all the construction labor, both publicly and privately
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Opinion of the Court by Corrigan, J.
financed, was done to achieve a “complete integrated object” that
was paid for in part by public funds. Neither case is implicated
here. (Oxbow, at p. 550; see id. at p. 552; Cinema West, at p.
215.) No private funding was used to build the PTC
communications network.
The “complete integrated object” test employed in Oxbow
and Cinema West was derived from City of Long Beach, which
noted that “construction” involves “ ‘[t]he act of putting parts
together to form a complete integrated object.’ ” (City of Long
Beach, supra, 34 Cal.4th at p. 951, quoting 3 Oxford English
Dict., supra, at p. 794, italics added; see Oxbow, supra, 194
Cal.App.4th at p. 549; Cinema West, supra, 13 Cal.App.5th at
pp. 210–211.) The City of Long Beach court considered whether
labor on an animal control facility built with private funds might
still qualify as “public work” because the city contributed public
funds toward preconstruction expenses, including architectural
design, surveying, and other professional fees. (City of Long
Beach, at p. 950.) The city’s contribution was made several
years before the definition of “construction” was amended to
include preconstruction activities. (Id. at pp. 946, 950.) Like
Oxbow and Cinema West, the question in City of Long Beach
revolved around whether labor done under a privately funded
contract could be considered part of “construction . . . paid for in
whole or in part out of public funds” under section 1720(a)(1).
Because, under the statutory definition operative at the time,
preconstruction labor was not included in the definition of
“construction,” City of Long Beach concluded the
preconstruction work could not be considered part of the
privately funded facility to bring it under prevailing wage
requirements. (City of Long Beach, at p. 946.)
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Opinion of the Court by Corrigan, J.
City of Long Beach demonstrates a fundamental
limitation on the “complete integrated object” test. An activity
that may be necessary or integral to complete a structure or
other fixed work is not considered “construction” merely because
of that relationship. In City of Long Beach, the publicly funded
work was necessary before the privately financed facility could
be built. But that necessity did not transform the earlier labor
into “public work” as it was then defined by statute.
Here, it is the field work that qualifies as “public work”
under the statutory definition of construction in section
1720(a)(1). That field work could be accomplished without any
installation labor done under the Wabtec contract. Indeed, the
distinction between the two activities is even more attenuated
than in City of Long Beach. In that case the actual building of
the facility could not have proceeded at all without the publicly
financed preconstruction labor. Yet, because preconstruction
labor was not, at the time, included in the definition of
“construction,” the attempt to meld the two in order to fall under
the public funding requirement failed.
It is true that the components installed on trains partner
with the field work, in the sense that they ultimately function
together as part of an overall communication system. But that
interface does not make the onboard installation integral to the
completion of the actual construction work. If “construction”
included any activity necessary to the operation of a public work,
that term would bring within its expansive sweep any activity
necessary to make the public work functional, whether or not
the activity is related to the construction process. That
approach has no discernable limiting principle. Here, the labor
of those who wrote the software used in the PTC system, as well
as those who manufactured the needed computer chips, could be
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Opinion of the Court by Corrigan, J.
considered integral to the field work because the overall system
would not function without it. For that matter, the towers built
on the trackside would be useless without the trains, so
arguably the initial building of the railcars would be covered.
Neither Oxbow nor Cinema West suggests that an activity
is considered “construction” simply because it somehow makes
other public work functional. In those cases, it was clear that
both the publicly and privately funded contracts involved actual
building or installation on land. A communication system is not
like a manufacturing plant or theater/parking complex. The
PTC system involves a “completed integrated object” only if
viewed at an unduly high level of abstraction. The overall
undertaking is much broader and more complex than building
things on land. It is, instead, a multifaceted communications
network. Some components of that system may indeed be
structures or other fixed works, so that building them might
qualify as “construction.” But work that is not otherwise defined
as “construction” does not become so simply because it plays
some role in making the overall communications system
functional.
For these reasons, the “complete integrated object” test
does not transform the onboard installation into “public work.”
Justice Cuéllar’s dissents in both this case and Mendoza
risk mischaracterization of our holdings. Like our holding in
Mendoza, the holding here is quite narrow. (See Mendoza,
supra, ___ Cal.5th at ___ [p. 36].) We merely address the
questions posed by the Ninth Circuit. In this case, those
questions are whether the onboard work is included in the
definition of public works under section 1720(a)(1), or whether
it may be so included as “integral” to other qualifying public
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Opinion of the Court by Corrigan, J.
work. (See ante, at p. 4.) Because Justice Cuéllar’s dissent here
has included reference to the Mendoza case as well, we
emphasize again that nothing we say in either case should be
read to condone any attempt to ignore the protections or
obligations of the prevailing wage law.
III. CONCLUSION
We answer the Ninth Circuit’s question as follows: The
onboard work performed under the Wabtec subcontract is not
itself “public work” because it is not “construction” or
“installation” involving fixed works on land. Further, merely
because the onboard work permits the field work and the
broader PTC communications system to function does not
transform it into “public work.”
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
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S251135
Dissenting Opinion by Justice Liu
I agree with Justice Cuéllar that plaintiff John Busker is
entitled to prevailing wage protection under Labor Code
section 1772 for his work installing electronic components on
Metrolink locomotives and rail cars. (Dis. opn. of Cuéllar, J.,
post; all undesignated statutory references are to the Labor
Code.) I write separately to explain that Busker’s labor is also
entitled to prevailing wage protection under section 1720,
subdivision (a)(1) (section 1720(a)(1)).
Section 1771 generally provides that the prevailing wage
“shall be paid to all workers employed on public works.”
Section 1720(a)(1) defines “public works” to include
“[c]onstruction, alteration, demolition, installation, or repair
work done under contract and paid for in whole or in part out of
public funds.” There is no dispute that Busker’s work onboard
Metrolink trains “was done under contract and paid for with
public money.” (Maj. opn., ante, at p. 8.) The question is
whether his work qualifies as “construction” or “installation”
work within the meaning of the statute.
The text, purpose, and history of the prevailing wage law
indicate that section 1720(a)(1) covers Busker’s onboard work.
As today’s opinion observes, the ordinary meaning of
“construction” and “installation” is not limited to fixed works on
real property and can encompass work done on rolling stock.
(Maj. opn., ante, at p. 9.) Instead of accepting the ordinary
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Liu, J., dissenting
meaning of these words, however, the court says “the general
terms ‘construction’ and ‘installation’ are offered as categories of
‘public works,’ a term which itself has a generally understood
meaning that substantially predates the prevailing wage law. It
is that definition that gives context to the Legislature’s use of
the terms construction and installation.” (Ibid.)
But this has the analysis backward. The Legislature
defined “public works” by reference to the terms “construction”
and “installation”; it did not define “construction” and
“installation” by reference to the term “public works.” Today’s
opinion seems to ask what the terms “construction” and
“installation” mean in light of what the term “public works”
meant before enactment of the prevailing wage law. But the
Legislature opted to define what “public works” means by
including “construction” and “installation” as covered work.
Citing early 1900s’ dictionary definitions of “public
works,” the court concludes that the generally understood
meaning of the term is limited to fixed work on land and realty.
“It is that definition,” the court says, that informs the terms
“construction” and “installation.” (Maj. opn., ante, at p. 9.) But
courts typically rely on dictionary definitions when a statute
uses language that is not otherwise defined. (See, e.g., Outfitter
Properties, LLC v. Wildlife Conservation Bd. (2012)
207 Cal.App.4th 237, 244.) Section 1720, subdivision (a) does
not leave “public works” undefined; it provides an expansive and
detailed definition of “public works” using language that, the
court concedes, is not necessarily tied to land or realty.
In addition, as Busker notes, the Legislature has used
different language to define “public works” in other statutes, in
some cases making clear that the definition is limited to fixed
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Liu, J., dissenting
structures on real property. For example, Government Code
section 4002 defines “public work” as “the construction of any
bridge, road, street, highway, ditch, canal, dam, tunnel,
excavation, building or structure.” The fact that the Legislature
defined “public work” to mean certain construction projects on
real property in other statutes suggests it did not intend a
similar meaning in section 1720(a)(1).
The court says Government Code section 4002 was “not
enacted contemporaneously with the statutory language at
issue here.” (Maj. opn., ante, at p. 18.) But Government Code
section 4002 “derive[s] from an uncodified statute enacted in
1923.” (Ibid.) That statute was passed only eight years before
the original 1931 version of the prevailing wage law. (Id. at p. 5,
citing Stats. 1931, ch. 397, p. 910.) It is reasonable to presume
that the Legislature was aware of the definition in Government
Code section 4002 when it adopted a broader definition of “public
works” in the prevailing wage law. (Voters for Responsible
Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 779,
fn. 3 [“the Legislature is presumed to be aware of all laws
existent at the time it passes a statute”].)
The 1931 version of the prevailing wage law defined
“locality” as the “city and county, county or counties in which the
building, highway, road, excavation, or other structure, project,
development or improvement is situated.” (Stats. 1931, ch. 397,
§ 4, p. 912.) Today’s opinion cites this provision as evidence that
the Legislature viewed “public works” as tied to land. (Maj. opn.,
ante, at p. 12 & fn. 11.) But a “project” may be “situated” in a
city or county without necessarily being tied to land. The court
says the Legislature could not have intended “project” to have
such a broad meaning because it “would render that term
markedly different from the other listed items.” (Id. at p. 12,
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Liu, J., dissenting
fn. 11.) But that simply assumes the answer to the question
presented. If the Legislature intended to restrict public works
to real property, why did it include a term (“project”) whose
meaning so naturally extends beyond real property? The
Legislature could have easily omitted the term “project” in the
1931 law but instead chose to include it. (People v. Valencia
(2017) 3 Cal.5th 347, 357 [“ ‘[a] construction making some words
surplusage is to be avoided’ ”].)
It is also notable that other subparts of section 1720,
subdivision (a) refer to real property whereas section 1720(a)(1)
does not. (See, e.g., § 1720, subd. (a)(5) [laying of carpet in
public buildings]; § 1720, subd. (a)(8) [tree removal work
performed on land].) Although subdivision (a)(5) and
subdivision (a)(8) were not passed contemporaneously with
section 1720(a)(1), their inclusion in the statute shows that the
Legislature knows how to limit the definition of “public works”
to work on land or realty when it so intends. Further, whereas
California’s prevailing wage law does not contain an express
“fixed work” requirement, other states’ statutes do. (See, e.g.,
820 Ill. Comp. Stat. Ann. 130/2 [“ ‘Public works’ means all fixed
works constructed or demolished by any public body, or paid for
wholly or in part out of public funds”]; Wyo. Stat. Ann.
§ 27-4-402(a)(vii) [“ ‘Public works’ means all fixed works
constructed for public use, whether or not done under public
supervision or direction, or paid for wholly or in part out of
public funds or assessment of property owners or rights users”].)
Even if the Legislature did intend for the words
“construction” and “installation” to be read in light of the
general understanding of “public works,” it is evident that
historical usage of the term “public works” did not exclusively
apply to fixed works attached to land. In De La Cruz v. Caddell
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Liu, J., dissenting
Dry Dock & Repair Co. (2013) 21 N.Y.3d 530, for example, the
New York high court analyzed dictionary definitions of the
phrase “public works” from 1891 to 2013 and found that
“[a]lthough the illustrative examples given in dictionary entries
are frequently fixed structures, it is clear that the notion that a
‘public work’ must be attached to the land is not part of [the]
central meaning” of the term. (Id. at p. 538.) Similarly, the
United States Supreme Court said in Title Guaranty & Trust
Co. v. Crane Co. (1910) 219 U.S. 24 that although “public works
usually are of a permanent nature and that fact leads to a
certain degree of association between the notion of permanence
and the phrase,” that “association is only empirical, not one of
logic. Whether a work is public or not does not depend upon its
being attached to the soil . . . .” (Id. at p. 33; see also Housing by
Vogue, Inc. v. State, Dept. of Revenue (Fla.Dist.Ct.App. 1981)
403 So.2d 478, 480 [although all fixed works constructed for the
state or its subdivisions qualify as public works, the term public
works is not limited solely to fixed works]; Maurer v. Werner
(Mo.Ct.App. 1988) 748 S.W.2d 839, 841 [rejecting the view that
“public works” encompasses only the construction or repair of
fixed works].)
The applicability of the prevailing wage law to Busker’s
onboard work is fully consistent with the statute’s purposes.
Not only does it further the law’s “ ‘general objective’ ” of
protecting and benefitting employees on public works; it also
promotes many of the law’s “ ‘specific goals,’ ” including
attracting talented workers to public works projects and thereby
improving the efficiency and quality of such projects, and
protecting union workers from underbidding by non-union
workers. (Maj. opn., ante, at p. 5, citing Lusardi Construction
Co. v. Aubry (1992) 1 Cal.4th 976, 985 (Lusardi).) By contrast,
5
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Liu, J., dissenting
today’s opinion authorizes contractors to provide different pay
to workers engaged in virtually identical construction or
installation tasks, even at the same jobsite, solely on the basis
of whether the work occurs on a fixed structure.
The court says “there is at least some reason to believe the
Legislature intended to treat work performed on rolling stock
differently from that done on fixed works. One of the primary
purposes of the law is to protect local labor markets from
cheaper outside labor. [Citation.] Paying the prevailing wage
to workers constructing a public building located in a particular
city or county obviously serves that purpose. But work on rolling
stock could conceivably be performed almost anywhere, then
delivered to wherever it might be used. This practical reality
raises a question about whether the law’s purpose is served by
paying prevailing wages to workers that may be far away from
the location of the governmental entity paying for the work.”
(Maj. opn., ante, at pp. 24–25.)
It is true that “work on rolling stock could conceivably be
performed almost anywhere, then delivered to wherever it
might be used.” (Maj. opn., ante, at p. 24.) But today’s holding
tips the calculus for public entities by incentivizing them to bid
down local wages or utilize cheap out-of-market labor to perform
such tasks. Why would a public entity choose to have such tasks
done locally at local wage rates if they can be done at much lower
wages overseas, out-of-state, or in other regions of California?
By contrast, in the absence of a wage differential, public entities
would have less or no reason to favor those workers over local
unionized workers, consistent with the purposes of the
prevailing wage law. (See Lusardi, supra, 1 Cal.4th at p. 987
[“specific goals” of prevailing wage law include “protect[ing]
employees from substandard wages that might be paid if
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Liu, J., dissenting
contractors could recruit labor from distant cheap-labor areas”
and “permit[ting] union contractors to compete with nonunion
contractors”].) In other words, requiring public entities to pay
the prevailing wage for onboard work is precisely what would
serve the “goal” of the statute: “to give local contractors and
labor a fair opportunity to work on public building projects that
might otherwise be awarded to contractors who hired cheaper
out-of-market labor.” (Maj. opn., ante, at p. 5.)
I see no discussion in the legislative history — and the
court cites none — explaining why it would make sense to
exclude construction or installation work performed on rolling
stock from the scope of the prevailing wage law. No one disputes
that if Busker’s electrical installation work had been performed
on the wayside instead of on individual Metrolink train cars, his
labor would have been covered under the prevailing wage law.
By drawing a distinction between identical work performed on
the wayside versus on rolling stock — even though the same
underlying tools, processes, materials, skills, and expertise
would be used to perform that work — today’s opinion attributes
to the Legislature a limitation that is not evident in the statute’s
text or legislative history.
Today’s opinion notes that in 2012, the Legislature
amended section 1720(a)(1) to clarify that “ ‘ “installation”
includes, but is not limited to, the assembly and disassembly of
freestanding and affixed modular office systems.’ (Stats. 2012,
ch. 810, § 1.)” (Maj. opn., ante, at p. 15.) “The change was
enacted to overrule a specific line of [Department of Industrial
Relations] decisions that treated the assembly or disassembly of
modular office systems as ‘installation’ work only if the systems
were bolted, secured, or otherwise mounted to real property.”
(Id. at p. 16.) The Legislature “sought to eliminate what was
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BUSKER v. WABTEC CORPORATION
Liu, J., dissenting
viewed as an unwarranted distinction between fixed and
freestanding modular office systems.” (Ibid.) The court says
this legislative history does not support Busker’s argument
because “[r]egardless of whether a modular system is fixed or
freestanding, it remains the case that office systems are
installed in buildings. The work takes place in a fixed structure
on land.” (Id. at pp. 16–17.)
But freestanding modular office systems, unlike fixed
modular office systems, can be easily moved and transported to
other locations; they are not permanently affixed to structures.
In that sense, they are similar to rolling stock. And while
freestanding modular office systems are typically found in
buildings or on land, the same is true with respect to rolling
stock, which is typically found in buildings like train stations or
on fixed structures attached to land like train tracks. Further,
the phrase “includes, but is not limited to” in the
2012 amendment (Stats. 2012, ch. 810, § 1) suggests that the
distinction between fixed and freestanding work has
significance beyond modular office systems.
Indeed, the legislative history of the amendment explains
that the reasoning of the Department of Industrial Relations
(Department) in some cases focused to an inordinate degree on
whether a construction or installation project was affixed to real
property, when the proper focus of its inquiry should have been
on the nature of the workers’ labor. (Assem. Com. on Labor and
Employment, Analysis of Assem. Bill No. 1598 (2011–2012 Reg.
Sess.) as introduced Feb. 6, 2012, pp. 2–3 (Analysis of Assem.
Bill No. 1598); see also maj. opn., ante, at p. 16 [“the
Legislature’s focus was on the nature of the work”].)
Specifically, the Legislature noted that failing to amend the
prevailing wage law to rebut the Department’s reasoning would
8
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Liu, J., dissenting
“mean[] that the intent of [Senate Bill No. 975’s] addition of the
term ‘installation’ [into section 1720(a)(1)] has not been
completely effectuated” because “ ‘[t]he tools, processes and
materials used to build and install “free standing” office
modular systems are . . . either analogous or identical to those
used in the construction of interior office walls’ ” and other
aspects of installing freestanding modular office systems rely on
the same skills and expertise as installing fixed modular office
systems. (Analysis of Assem. Bill No. 1598, at p. 3.) Analogous
reasoning supports Busker’s claim here.
Finally, today’s opinion observes that the Department and
the Attorney General have consistently excluded rolling stock
from coverage under the prevailing wage law. (Maj. opn., ante,
at p. 23.) But Department decisions “do not have precedential
effect,” and “[t]he ultimate responsibility for the construction of
a statute rests with the court.” (Id. at pp. 22–23, citing City of
Long Beach v. Department of Industrial Relations (2004)
34 Cal.4th 942, 951.) Here, the Department’s interpretation is
in conflict with the statute’s text and other indicia of legislative
intent.
In sum, Busker’s work meets the three elements of “public
work” set forth in section 1720(a)(1): His work was performed
under contract. It was paid for using public funds. And his work
onboard Metrolink trains was “construction” or “installation”
work, and therefore “public work,” within the meaning of
section 1720(a)(1). Busker is therefore entitled to the prevailing
wage for his onboard labor. Although courts applying California
law must abide by today’s contrary holding, the Legislature
need not. It may amend section 1720, subdivision (a) to make
clear that labor that otherwise qualifies as “public work” is not
exempt from prevailing wage protection simply because it does
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not occur on a fixed structure on land. Doing so would further
the purpose of the prevailing wage law as the Legislature has
long understood it. I respectfully dissent.
LIU, J.
I Concur:
CUÉLLAR, J.
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S251135
Dissenting Opinion by Justice Cuéllar
Over the years, tens of thousands of Californians have
been employed on public works — from carpenters to sheet
metal workers to electricians and a host of other “laborer[s],
worker[s], and mechanic[s].” (Lab. Code, § 1723.)1 California’s
prevailing wage law (§ 1720 et seq.) guarantees these workers
pay commensurate with those in the local area for work of a
similar character (§ 1771). This pay protects them from
substandard wages that might be paid if contractors could hire
cheaper out-of-market labor — a purpose that harkens back to
the law’s Depression-era roots. (Kaanaana v. Barrett Bus.
Servs., Inc. (2021) 11 Cal.5th 158, 165–166 (Kaanaana).) It also
permits union contractors to compete with nonunion ones;
benefits the public through the superior efficiency of well-paid
employees; and compensates nonpublic employees with higher
wages for the absence of job security and employment benefits
enjoyed by their public counterparts. (Id. at p. 166.) As workers
have lost influence in the workplace for a variety of economic
and social reasons (Andrias, The New Labor Law (2016) 126
Yale L.J. 2, 5–7, 13–40), prevailing wage laws such as
California’s law have remained a key feature of labor and
employment.
1
Further unspecified references are to the Labor Code.
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Cuéllar, J., dissenting
The Legislature determined to whom these prevailing
wage protections apply: “to all workers employed on public
works.” (§ 1771, italics added.) Given this broad scope, and the
prevailing wage law’s critical function, our cases emphasize that
we must interpret the law liberally. (City of Long Beach v.
Department of Industrial Relations (2004) 34 Cal.4th 942, 949–
950 (City of Long Beach).) Over the past decades, the Courts of
Appeal and the Department of Industrial Relations (DIR) have
fulfilled this obligation in construing section 1772. That section
provides: “Workers employed by contractors or subcontractors
in the execution of any contract for public work are deemed to
be employed upon public work.” (§ 1772.) The Courts of Appeal
and the DIR have persuasively interpreted this section as
providing prevailing wage protection for certain work beyond
the codified definitions of “public works” (see §§ 1720–1720.9
[defining “ ‘public works’ ”]): Work critically related to the
“execution of” a public works contract.
The majority breaks with this history for no good reason.
Here and in the other prevailing wage case we also decide today,
Mendoza v. Fonseca McElroy Grinding Co., Inc. (Aug. 16, 2021,
S253574) __ Cal.5th __ (Mendoza),2 it radically constricts the
prevailing wage law’s scope and undoes an established line of
decisions — all under the rubric of judicial modesty. Casting
aside our obligation to construe the law liberally, the majority
holds that section 1772 does not cover functions or activities not
expressly defined as “ ‘public works.’ ” (Maj. opn., ante, at p. 27;
see Mendoza, at p. __ [pp. 1–2].) Instead, the majority reasons,
2
Mendoza contains a full discussion of section 1772, and the
majority here simply incorporates that analysis. (Maj. opn.,
ante, at pp. 26–27.)
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Cuéllar, J., dissenting
the section was originally intended simply to clarify that the law
extends to workers employed by contractors and subcontractors.
(E.g., maj. opn., ante, at p. 26; Mendoza, at p. __ [pp. 9–10, 12,
14].)
The majority fails to persuade. It papers over section
1772’s language. It overturns decades of legal decisions that had
established a persuasive, workable framework for interpreting
and applying the section. And it presents a strained reading of
the prevailing wage law’s legislative history. Its interpretation
creates odd and pernicious consequences, too: Workers fall
outside of the law’s scope even though they perform labor critical
to building, roadway, and other vital public infrastructure
projects. This despite how their labor mirrors or clearly relates
to covered work for these projects, and undoubtedly falls within
the heartland of the prevailing wage law’s concern; and even
though their exclusion contravenes the law’s purpose by, among
other things, encouraging public works employers to employ
cheaper workers for labor not defined as “public works,” but
nonetheless constituting labor as crucial as it is integral to
public works projects.
With respect, I dissent.
I.
A.
A careful reading of section 1772 readily serves up two
early hints that it extends prevailing wage coverage beyond the
codified definitions of public works. First, the section covers any
workers “employed . . . in the execution of” a public works
contract, sweeping broadly in its description of the workers to
which it applies. (§ 1772.) That phrase can naturally be
understood to cover any activity contributing to and critical to
3
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
the carrying out and completion of the public works project
being contracted for (see, e.g., Webster's 11th New Collegiate
Dict. (2003) p. 436 [defining “execute” as “to carry out fully,”
“put completely into effect,” or “to do what is provided or
required”]) — even if the activity isn’t under one of the codified
definitions.
Second, the section uses the word “deemed” when it
explains what happens to workers engaged in such integral
activities. To wit: The laborers “are deemed to be employed
upon public work.” (§ 1772, italics added.) To “deem” something
means to treat it “as if it were really something else . . . or
. . . has qualities that it does not have.” (Black’s Law Dict. (11th
ed. 2019) p. 523, col. 2.) Lawmakers frequently use the word to
establish legal fictions, including by positively “deeming”
something to be what it is not in a statute. (Id. at pp. 523–524,
citing Thornton, Legislative Drafting (4th ed. 1996) p. 99.) Here,
the word fits logically with section 1772’s description of the
workers covered; it extends prevailing wage coverage to those
working “in the execution of” a public works contract — deeming
their labor “public work” even if it would not ordinarily fall
within the term’s definitions.
The majority glosses over these two aspects of section
1772’s language. Instead, it presses the argument that the
language simply clarifies the category of persons entitled to
prevailing wages by indicating that the law applies to employees
of contractors and subcontractors performing public work under
contract. (See, e.g., Mendoza, supra, __ Cal.5th at p. __ [pp. 8–
9, 21].) But that reading promptly turns section 1772 into a fifth
wheel because of section 1771, which already covers “all workers
employed on public works” “under contract,” including those
employed by contractors and subcontractors. (§ 1771, italics
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BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
added.) Moreover, the majority ignores the significance of
“deemed” in the section. It effectively replaces “deemed” with
“regarded” or “are,” and thereby contends the word simply
describes the types of workers covered. (See Mendoza, at p. __
[p. 22].) But even under this reading, section 1772 would still
be surplusage. By definition, workers engaged in construction-
type activities on a publicly funded project are employed on
“public work,” regardless of whether they work for a contractor
or subcontractor. In other words, there is no need to “deem[]”
such workers to be employed on public work. (§ 1772.)
The majority also argues that the statutory structure
confirms its interpretation. Not so. What the majority reasons
is this: article 1 of the law, titled “Scope and Operation,” sets
the scope of the law by carefully defining the “public works” to
which the law applies, whereas article 2, titled “Wages,” simply
concerns the wages to be paid to workers covered under article
1. (Mendoza, supra, __ Cal.5th at p. __ [pp. 9–10, 20–21].)
Notice how much this argument depends on article titles —
titles that don’t fundamentally change a statute’s meaning.
(DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 602.) The
language of a statutory provision such as section 1772 cannot be
ignored simply because it might fit more logically in a different
part of the Labor Code. (Cf. Reliable Tree Experts v. Baker
(2011) 200 Cal.App.4th 785, 795 [“[T]he scope of the Prevailing
Wage Law is not to be ascertained solely from the [definitions
in] section 1720, subdivision (a)(1). Section 1771 [of article 2] is
also a part of the Prevailing Wage Law, and its language
[covering maintenance work] must be taken into account” (fn.
omitted)].)
The majority responds that reading the statutory
language here to expand coverage places “undue importance” on
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BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
“opaque” text that offers no “limiting principle.” (Mendoza,
supra, __ Cal.5th at p. __ [pp. 21–22].) But section 1772 speaks
clearly. It “deem[s]” only those employed “in the execution” of a
public works contract to be engaged in “public work.” (§ 1772.)
This limit ensures that the section covers only work that bears
an integral relationship with a public works project and the
underlying covered “public work” activity being performed — as
defined and constrained by provisions such as section 1720,
subdivision (a).3
Also providing a clear limit: how the prevailing wage law
defines the type of individual it protects. “ ‘Worker’ ” as used in
the law “includes laborer, worker, or mechanic.” (§ 1723.)
Pertinent legislative history and DIR job classifications confirm
that the law has generally applied only to craftspersons and
manual laborers, many of whom perform construction-related
tasks. (See Assem. Com. on Labor and Employment, Rep. on
Sen. Bill No. 1999 (1999–2000 Reg. Sess.) as amended Aug. 18,
2000, p. 4 [“Historically, workers entitled to prevailing wages
. . . are blue collar workers”]; see also Office of the Director,
Director’s General Prevailing Wage Determinations (June 2021)
Dept. of Industrial Relations 4 [as of Aug. 11, 2021] [providing
3
Fulfilling a public works contract typically requires a host
of tasks that don’t bear any real connection to public works. For
example, projects may require accounting. And the Positive
Train Control (PTC) system here required software
development. (Maj. opn., ante, at pp. 1, 30.) No one suggests
that these tasks, which are ancillary to covered public work, fall
within the prevailing wage law’s ambit.
4
All Internet citations in this opinion are archived by year,
docket number, and case name at .
6
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
links to a range of prevailing wage determinations for blue-
collar workers].) In other words, the language of section 1772
can, in context, only be understood to cover blue-collar workers
engaged “in the execution” of a public works contract through
construction and related trades — just like their fellow workers
engaged in labor under one of the statutory definitions of “public
work.”
B.
Over more than four decades, the Courts of Appeal and the
DIR have consistently construed section 1772 as covering
certain work substantially related to “the execution” of a public
works contract, even though that work would not otherwise
meet the statutory definition of public work. These decisions are
no surprise given what the statute says — and they don’t bind
us. But they deserve serious consideration and offer further
insight into what the statute means. (Hoyt v. Board of Civil
Service Commissioners of the City of Los Angeles (1942) 21
Cal.2d 399, 402 [the practical construction of a statute by
decisions of the Courts of Appeal, covering many years, is
entitled to consideration and should not be overruled unless
clearly unsupportable]; Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 11–13 (Yamaha) [courts defer
to agency interpretations that are embodied in quasi-legislative
regulations, are a product of the agency’s expertise and technical
knowledge of the issue, or constitute long-standing, consistent,
and contemporaneous interpretations].) We address them in
turn.
1.
Three appellate decisions have interpreted section 1772.
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Cuéllar, J., dissenting
The first case is O.G. Sansone Co. v. Department of
Transportation (1976) 55 Cal.App.3d 434, 441 (Sansone). At
issue was whether the prevailing wage law covered truck
drivers who delivered building materials to a public works
highway construction site — delivery work that did not
represent defined public work. While Sansone did not explicitly
resolve whether the drivers fell under section 1772, it effectively
addressed that question by addressing whether the trucking
companies that employed the drivers were subcontractors
within the meaning of the prevailing wage law, including under
the section. (Sansone, at p. 441; see Williams v. SnSands Corp.
(2007) 156 Cal.App.4th 742, 752 (Williams).) The court held
that the drivers qualified for prevailing wages because they
worked under subcontracts to fulfill “an integral part of” the
prime contractor’s contractual obligation. (Sansone, at p. 445.)
As the court explained, the contract obligated the prime
contractor to provide the project materials, including aggregate
subbase for the roadway. (Id. at p. 443.) Rather than acquiring
materials from a standard material supplier, the contractor
entered into “ ‘borrow agreements’ ” with third parties. (Ibid.)
These agreements allowed access to private sites where
aggregate could be extracted from pits, specifically for use on the
project. (Ibid.) The contractor engaged the trucking companies
to deliver that material to the project. (Ibid.) The truckers did
no construction; their delivery of necessary materials from a
dedicated site nonetheless allowed their labor to effectively be
“deemed” public work. The court also observed that even
truckers making deliveries for standard material suppliers — a
task ordinarily independent of construction activity — might be
8
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Cuéllar, J., dissenting
entitled to prevailing wages if the delivery was “ ‘functionally
related to the process of construction.’ ” (Id. at p. 444.)5
Williams, supra, 156 Cal.App.4th 742 embraced Sansone.
Williams concerned truckers who hauled excess rock and sand
from construction sites for later use at nonpublic worksites.
(Williams, at pp. 746–747.) It explained that the critical aspect
of Sansone and its own determination was whether the trucking
represented “an operation truly independent of the performance
of the general contract for public work, as opposed to . . . work
that was integral to the performance of that general contract.”
(Williams, at p. 752.) Applying this test, the Williams court
concluded that the rock and sand haulers did not perform
covered labor under section 1772. Unlike in Sansone, no
evidence indicated that the contract or industry custom
obligated the lead contractor to do the hauling work. (Williams,
at p. 753.) Nor did any evidence indicate the contractor directed
how the trucking company would deliver the excess materials
offsite, or how the offsite location would use the materials.
(Ibid.) On this record, the removal of materials was “unrelated
to the performance of the prime public works contract” and was
“no more an integral part of the process of the public works
project than the delivery of generic materials to the public works
site by a [standard] material supplier.” (Ibid.)
Finally, we consider Sheet Metal Workers’ Internat. Assn.,
Local 104 v. Duncan (2014) 229 Cal.App.4th 192 (Sheet Metal).
5
Although Sansone refers to the “construction” process (see,
e.g., Sansone, supra, 55 Cal.App.3d at p. 444), its principles
would apply to any other type of activity that qualifies as public
work. Going forward, I occasionally use “construction” as an
umbrella term for all the kinds of labor defined by the statute as
public work.
9
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
Here the court applied Sansone and Williams to the offsite
fabrication context. Sheet Metal explained that the two cases
“set forth a general framework for considering whether certain
functions are integral to the performance of a public works
contract.” (Sheet Metal, at pp. 205–206.) Under this framework,
the court held that certain offsite fabrication work — fabrication
of sheet metal components at a permanent and independent
offsite plant — did not qualify for coverage under section 1772.
(Sheet Metal, at pp. 196–197, 214.) The public works contract at
issue concerned the upgrade of a community college’s facilities,
including its heating and cooling system. (Id. at p. 196.) The
prevailing wage law applied to the workers of the subcontracted
sheet metal firm who installed components for the system, as
they engaged in “construction” or “installation” under section
1720, subdivision (a)(1). But the law did not apply to the
workers who fabricated the components at the firm — work not
covered by the “public work” definitions — because they
performed labor at a facility too remotely tethered to a
requirement or term in the public works contract and done
independently of the offsite construction and not integrated into
the construction process. (Sheet Metal, at pp. 211–212, 214.)6
Three factors emerge from Sansone, Williams, and Sheet
Metal that help determine whether labor is done in “the
execution of [a] contract for public work” under section 1772:
whether the labor is (1) functionally related to the construction
process; (2) integrated into that process; and (3) done to fulfill
6
I do not rely on Sheet Metal to endorse or develop any
particular viewpoint about when section 1772 would apply to
offsite fabrication — a question we needn’t address here.
10
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
the prime contractor’s obligation to complete a public works
aspect of the project.
Work is functionally related to the execution of the
construction process if it requires similar labor, skills, or other
natural relationship to covered work, and if the construction
could not be completed as contracted for without the work in
question. This framework provides a clear limit to prevent
coverage for ancillary tasks, which may be required under a
contract that includes public work but in no way impact a
contractor’s construction obligations.
To be “deem[ed] . . . public work” under section 1772, labor
often must be both functionally related to the construction and
integrated into that process. (§ 1772.) The cases provide
specific, nonexhaustive examples of integration. Work done at
an exclusively dedicated facility established solely to supply a
public works project could be considered as integrated into the
project. The facility’s existence and the work done there are
driven entirely by the needs of the public works construction.
(See Sheet Metal, supra, 229 Cal.App.4th at p. 212.) Sansone
and Williams also posit other examples of integration, including
where material is delivered and immediately incorporated as
part of the flow of construction, or when dirt removal is required
for pipe to be laid. (Sansone, supra, 55 Cal.App.3d at p. 444;
Williams, supra, 156 Cal.App.4th at pp. 753–754.) What
generally unites these differing, fact-specific examples: Each
reflects labor that is not unduly attenuated from the actual
construction work or other defined public work, and instead
bears a logical connection to the preconstruction, construction,
or postconstruction process. Unlike the federal prevailing wage
law, California’s version does not appear to include a
geographical limitation. (40 U.S.C. § 3142(c)(1) [limiting
11
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
coverage to persons “employed directly on the site of the work”].)
The integration requirement for section 1772 should not be read
to impose one.
Finally, work falling under section 1772 generally fulfills
the prime contractor’s obligation to complete a public works
aspect of the project. If neither the contract nor industry
practice nor practical circumstances impose such an obligation,
the work done likely cannot be deemed public work. (See
Williams, supra, 156 Cal.App.4th at p. 753.)
These three factors have provided a rubric for applying
section 1772 — one that’s not only longstanding, but eminently
administrable. Applying these factors, Sansome, Williams, and
Sheet Metal have provided clear guideposts: They have
illustrated how courts can construe section 1772 as expanding
the scope of the prevailing wage law and can carefully apply it
in a fact-intensive manner — consistent with the law’s purpose
of protecting workers and our obligation to construe the law
liberally — without stretching beyond reason what qualifies as
labor “in the execution of” a public works contract. (§ 1772.) Or,
put differently, without “ ‘interfere[ing] where the Legislature
has demonstrated the ability to make its intent clear and chosen
not to act [citation].’ ” (City of Long Beach, supra, 34 Cal.4th at
p. 950.)
The Legislature has not amended or repealed section 1772
since the Sansone-Williams-Sheet Metal line of cases have been
on the books.
The majority nonetheless somehow decides these cases
impermissibly interfere with the Legislature’s prerogative.
(Mendoza, supra, __ Cal.5th at p. __ [pp. 21–22, 29].) It further
contends that my embrace of these cases essentially calls on
12
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
courts to arrogate legislative power. (Mendoza, at p. __ [p. 35].)
Not at all: Giving full effect to section 1772 based on its
language and other indicia of legislative purpose is as far from
a judicial encroachment into the safeguards provided by the
separation of powers (Mendoza, at p. __ [p. 35]) as Chico is from
Chula Vista. What the appellate courts have been doing since
they started interpreting section 1772 is precisely what we
rightly expect courts to do when they interpret statutes. (See
Gund v. County of Trinity (2020) 10 Cal.5th 503, 511, 514 517–
518.) By upending decades of authority on section 1772, it would
seem that it’s the majority that’s interfered.
2.
The majority’s departure from settled law becomes even
more puzzling once we consider DIR coverage determinations.
The DIR Director has “quasi-legislative authority to
determine coverage of projects or types of work under
the prevailing wage laws.” (§ 1773.5, subd. (d).) These
determinations, and the statutory constructions that undergird
them, merit deference if they represent the DIR’s long-standing,
consistent, and contemporaneous position. (Kaanaana, supra,
11 Cal.5th at p. 178.) Such is the case here.
The DIR has dutifully applied the approach in Sansome,
Williams, and Sheet Metal for effectuating section 1772. In
numerous determinations across many years, the DIR has
applied the factors laid out in these cases to determine whether
particular types of labor fall under the prevailing wage law by
virtue of their relationship to defined public work. (See, e.g.,
Dept. of Industrial Relations, PW Case No. 2008-008 (May 28,
2008) [as of Aug. 11, 2021] [applying Sansone and Williams
13
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
to determine that section 1772 did not cover the off-site
manufacture of components, such as trusses and wall panels, for
an apartment construction project, but did cover the hauling of
such components]; Dept. of Industrial Relations, PW Case No.
2014-023 (Nov. 6, 2014) [as of Aug. 11, 2021] [applying
all three cases to conclude that section 1772 covered the
dismantling and removal of modular classrooms]; Dept. of
Industrial Relations, PW Case Nos. 2018-028, 2018-031 (May 9,
2020) [as of Aug. 11, 2021] [applying all
three cases to determine that section 1772 covered
commissioning work to ensure that installed heating,
ventilation, and air conditioning systems performed according
to design and in conformity with operational needs].)
Like the Court of Appeal cases they apply, the agency
decisions tell us something about the scope of section 1772 and
the practical viability of the more settled interpretation. It may
take some judgement to discern whether a particular type of
labor has a functional or integrated relationship with
contracted-for public work. (See Mendoza, supra, __ Cal.5th at
p. __ [pp. 6–7, 31–32].) But this challenge is not unique to
section 1772. Prevailing wage coverage determinations
generally require examination of the “totality of the underlying
facts” and circumstances bearing on the nature of the work at
issue. (Oxbow Carbon & Minerals, LLC v. Department of
Industrial Relations (2011) 194 Cal.App.4th 538, 550.) In
engaging in this type of careful, holistic analysis under section
1772, the DIR and courts have proven up to the task, guided by
a longstanding framework applicable across public works
projects.
14
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
The majority upends this framework, disapproving of the
Court of Appeal cases undergirding it and rendering existing
administrative decisions relying on it meaningless. (See
Mendoza, supra, __ Cal.5th at p. __ [pp. 29–30, 33].) Yet its main
basis for doing so — legislative history — provides no plausible
support.
C.
Section 1772’s legislative history is quite thin. The section
has remained substantively unchanged since the Legislature
first enacted the prevailing wage law as an uncodified measure
in 1931 (Mendoza, supra, __ Cal.5th at p. __ [p. 8]), and no
materials from then or the law’s 1937 codification offer
commentary on the section’s meaning (see Cal. Code Com.
Office, Proposed Labor Code (1936), p. 88).
The majority nonetheless urges that historical sources on
section 1772’s original intended purpose mandate reading the
section narrowly: as simply clarifying that the law covers
employees of contractors and subcontractors performing defined
public work. (Mendoza, supra, __ Cal.5th at p. __ [pp. 10–20].)
Discerning this purpose from the section’s spare historical
materials seems like trying to draw blood from a stone. And,
ultimately, the majority’s read of these materials and historical
context proves strained and doesn’t come remotely close to
justifying its radical interpretation.
The majority begins with the original language of section
1772, which traces back to the 1931 uncodified prevailing wage
law. (Stats. 1931, ch. 397, § 1, p. 910.) The relevant text
provided that prevailing wages “shall be paid to all laborers,
workmen and mechanics employed by or on behalf of the State of
California, or by or on behalf of any county, city and county, city,
15
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
town, district or other political subdivision of the said state,
engaged in the construction of public works, exclusive of
maintenance work. Laborers, workmen and mechanics
employed by contractors or subcontractors in the execution of any
contract or contracts for public works with the State of
California, or any officer or public body thereof, . . . [or any
political subdivision] . . . , shall be deemed to be employed upon
public works.” (Ibid., italics added.) Section 1772 derives from
the second sentence, whereas section 1771 derives from the first
sentence.
According to the majority: The first sentence covered
government workers — those “ ‘employed by’ ” the state on
public works. (Mendoza, supra, __ Cal.5th at p. __, fn. __ [p. 11
& fn. 11].) And the second clarified that the law also extended
to nongovernment laborers by “ ‘deem[ing] [them] to be
employed upon public works.’ ” (Mendoza, at p. __, fn. __ [pp.
11–12 & fn. 12].) The majority draws a similar inference from
the 1937 codification, which split the two sentences into the
original versions of sections 1771 and 1772. 7 It reasons that
section 1771 originally covered all those employed on public
works, including government workers, and section 1772 “simply
. . . ensure[d] that those employed by a contractor or
subcontractor” had “the same protection . . . .” (Mendoza, at p.
__ [p. 14].) The majority acknowledges that the 1974 legislative
amendment to limit section 1771 to contract work potentially
renders its reading of section 1772 surplusage, but it attempts
7
Section 1771 as originally enacted applied “to all workmen
employed on public works . . . .” (Former § 1771, added by Stats.
1937, ch. 90, p. 243.)
16
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
to sidestep this by urging that the section was not originally
surplusage. (Mendoza, at p. __ [p. 16].)
Yet this sidestep fails. So does the majority’s
interpretation more broadly, because it hinges on a premise the
majority fails to fully substantiate: that the prevailing wage law
as originally enacted generally covered government workers.
That proposition appears debatable at best. On the one hand,
the majority correctly observes that the 1931 and 1937
prevailing wage laws did not expressly exclude government
workers (Mendoza, supra, __ Cal.5th at p. __, fn. __ [pp. 11, fn.
11, 15]), and it marshals some support from two Attorney
General opinions and the early prevailing wage laws of some
states (Mendoza, at p. __ [pp. 12–13, 16–17]). And the 1931 Act’s
use of the phrase “employed by or on behalf of” the state can
plausibly be read to broadly cover direct government employees
and contracted-for employees alike. (Stats. 1931, ch. 397, § 1,
p. 910; see Mendoza, at p. __, fn. __ [p. 12, fn. 12].) On the other
hand, that phrase can also plausibly be read merely to
encompass the range of contract workers who engaged in labor
on public works — irrespective of the precise nature of their
relationship with the government, a contractor, or a
subcontractor. (See Dept. of Industrial Relations, Div. of Labor
Standards Enforcement, Public Works Manual (May 2018) § 2.2,
pp. 2–3 [citing, inter alia, Sansone, supra, 55 Cal.App.3d at p.
463].) This view finds support in the express exclusion of
coverage for government employees in the 1897 precursor to the
prevailing wage law (Stats. 1897, ch. 88, § 1, p. 90); the absence
of any discussion of such coverage in our cases addressing the
uncodified prevailing wage law (see, e.g., Metropolitan Water
Dist. of Southern California v. Whitsett (1932) 215 Cal. 400); and
how many states historically limited their prevailing wage laws
17
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
to contract work (Johnson, Prevailing Wage Legislation in the
States (Aug. 1961) 84:8 Monthly Lab. Rev. 839, 842).
More importantly, we held in Bishop v. City of San Jose
(1969) 1 Cal.3d 56 (Bishop) that the prevailing wage law as
originally enacted did not cover government employees.
(Bishop, at p. 64.) Though the majority offers some potentially
tenable critiques of the decision (e.g., Mendoza, supra, __
Cal.5th at p. __ [pp. 18–19] [it failed to address how what is now
§ 1720, subd. (a)(3) appears to cover street, sewer, and
improvement work not performed under contract]), Bishop
nonetheless remains equally plausible, if not more so, compared
to the majority’s view. That view fails to take into account the
impetus behind the prevailing wage law: It emerged to prevent
“ ‘government contractors’ ” from “ ‘circumvent[ing] locally
prevailing labor market conditions by importing cheap labor
from other areas’ ” (State Building & Construction Trades
Council of California v. City of Vista (2012) 54 Cal.4th 547, 555,
italics added), and one of its main purposes has always been to
“compensate nonpublic employees with higher wages for the
absence of job security and employment benefits enjoyed by
public employees” (Lusardi Construction Co. v. Aubry (1992) 1
Cal.4th 976, 987; see Sansone, supra, 55 Cal.App.3d at p. 459).
Under these circumstances, we have reason to think that the
purpose of the law did not entail covering government workers.
But suppose the law did apply to these very workers. The
majority fails to explain why it would have been necessary to
include section 1772 simply to clarify that the law also protected
those employed by contractors and subcontractors. As originally
enacted in 1931 and codified in 1937, the prevailing wage law
unquestionably applied to work done by contract. In fact, that
represented the primary focus of the law. (See Bishop, supra, 1
18
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
Cal.3d at p. 64; Sansone, supra, 55 Cal.App.3d at pp. 458–460.)
Even the 1960 Attorney General opinion cited by the majority
(Mendoza, supra, __ Cal.5th at p. __ [pp. 16–17]) acknowledged
this reality (35 Ops.Cal.Atty.Gen. 1, 3 (1960)). If the law as a
whole so obviously focused on contract work, there should have
been no need to clarify that public agencies could not avoid the
law by having the work done by contractors instead of their own
forces. In other words, the majority not only makes section 1772
redundant today, but also renders the Legislature’s original
action in enacting the provision as surplusage.
Legislatures don’t always manage to write laws that are
perfectly clear. But it’s doubtful the Legislature used extra
words via section 1772 to say nothing new regarding contract
labor.
It’s likewise doubtful the Legislature enacted the section
merely to clarify the types of private workers covered. According
to the majority, even if the prevailing wage law did not apply to
government workers, section 1772 still originally served and
continues to serve the purpose of removing any doubt that the
law applies to the gamut of contract workers potentially
employed on a public works project, from those contracting
directly with the government to those formally or informally
employed by a contractor or subcontractor. (Mendoza, supra, __
Cal.5th at p. __ [pp. 8–9, 19–20].) But the majority provides
nothing in the way of case law, legislative history, or historical
context to support this alternative view. Indeed, the precursor
language to section 1771 swept quite broadly, covering “all
laborers, workmen and mechanics employed by or on behalf of
the State . . . engaged in the construction of public works.”
(Stats. 1931, ch. 397, § 1, p. 910, italics added.) So too did the
original version of section 1771; it covered “all workmen
19
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
employed on public works.” (Former § 1771, added by Stats.
1937, ch. 90, p. 243, italics added.) In other words, the
prevailing wage law did not appear to require any clarification
regarding the types of private labor covered.
Finally, even if the majority’s arguments regarding
section 1772’s narrow purpose make this case close, that is of no
moment. The prevailing wage statute’s liberal construction rule
requires us to select the longstanding, broader interpretation
offered by Sansone and its progeny. (City of Long Beach, supra,
34 Cal.4th at pp. 949–950.) The majority doesn’t reject this rule;
it merely pays lip service to it (Mendoza, supra, __ Cal.5th at p.
__ [p. 4]) and ultimately flouts it in practice.
D.
The facts of this case underscore why reading section 1772
liberally, to cover critical labor beyond defined “public work”
activities, furthers the purpose of protecting and benefitting
those employed on public works.
Plaintiff John Busker performed a range of electrical
installation tasks for a public works project to create a
communication system for Metrolink public transit trains. He
was a blue-collar worker (cf., e.g., Public Employer’s Guide to
FLSA Employee Classification § 900), and his work would
indisputably be covered under the prevailing wage law had it
been performed on the wayside, rather than onboard rolling
stock (maj. opn., ante, at pp. 25–26). In other words, he
performed the type of work the prevailing wage law targets and
he fits within the class of workers the Legislature designed the
prevailing wage law to protect.
Busker’s onboard labor readily qualifies as “construction”
and “installation” work within the meaning of section 1720,
20
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
subdivision (a)(1). (Dis. opn. of Liu, J., ante.) But even if that
were not so, section 1772 naturally extends coverage to his
labor. Reinforcing this conclusion is the framework from
Sansone and subsequent cases.
First, the completion of Busker’s onboard work served as
a necessary component for Parsons, the prime contractor, to
meet its obligation under the prime contract requiring creation
of a functional Metrolink rail safety system. The prime contract
required Parsons to “deliver[] . . . a fully integrated and fully
functional PTC System that has been completely tested” and
shown to reliably perform “under full-scale and full-service
operation.” (See also Busker v. Wabtec Corporation (9th Cir.
2018) 903 F.3d 881, 883.) Because the onboard work supplied
equipment for the system, the work had to be completed for
Parsons to fulfill its contractual duty.
Second, Busker’s onboard work was integrally related to
the covered wayside work and the PTC system as a whole. The
onboard work occurred on-site at the project’s railyard and
central maintenance facility. Moreover, the onboard work
served as a key component in the completely integrated, fully
tested system that Parsons had to deliver. The wayside work
and the system would both have been useless without the
onboard work. Without it, there could be no communication
between the trains and the wayside locations, and from the
wayside to the centralized control system. In other words,
because the onboard work was inherently tied to the wayside
work, it cannot be viewed as independent from that work or
installation of the PTC system as a whole.
Third, Busker’s onboard work related functionally to the
covered field work. It’s not just that the field equipment and the
21
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
PTC system depended on completion of the onboard work. It’s
also that the electrical installation tasks Busker performed on
rolling stock related to analogous installation work being
performed just a few feet away, along the wayside. In other
words, if there was any distinction existed between onboard and
wayside work for purposes of section 1772, it was a not
meaningful one: the two sets of labor appear to involve similar
underlying tools, processes, materials, skills, and expertise —
all going toward the same, integrated project. (Dis. opn. of Liu,
J., ante, at p. 7.)
Covering Busker’s labor based on this three-part
framework for applying section 1772 achieves the specific goals
of the prevailing wage law. For example, covering workers such
as Busker helps attract talented craft workers to public works
projects and thereby improves the efficiency and quality of such
projects (Kaanaana, supra, 11 Cal.5th at p. 166) — an especially
critical goal for a system installation aimed at preventing
collisions and other dangerous train movements for public
transportation. It would also protect union workers from
underbidding by nonunion workers. (Ibid.)
Now consider what the majority’s interpretation will
encourage contractors to do: easily circumvent the prevailing
wage law. Under its interpretation, contractors can simply
employ two sets of workers: one set of workers engaged in
defined public work and a different set of cheaper workers to
perform any work that necessarily facilitates and supports
defined work but does not fall under one of the “public work”
definitions. That outcome seriously undercuts the prevailing
wage law’s effectiveness. It essentially enables employers to
section off portions of a public works contract in order to
circumvent application of the prevailing wage law. As Busker
22
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
points out, California Code of Regulations, title 8, section 16100,
subdivision (b)(6) states that the “awarding body” must
“[e]nsure that public works projects are not split or separated
into smaller work orders or projects for the purpose of evading
the applicable provisions of Labor Code Section 1771.”
Classifying Busker’s onboard labor as separate or distinct from
the wayside labor — even though both bodies of work represent
inherently linked aspects of one unified public works project —
would do exactly that.
Indeed, the odd consequences of the majority’s holding in
this case underscore the wayward nature of its interpretation.
The idea that the prevailing wage law covers electricians and
other skilled or manual work at a railyard and alongside a
railway, but excludes coverage for functionally related,
integrated, and contractually required work, simply because the
worker happened to be working on a railcar parked at the
railyard, strikes me as an arbitrary and implausible
distinction — and one unsupported by any indicia of the
prevailing wage law’s purpose.
In spite of — and perhaps especially because of — the
majority’s wholly unjustified constriction of section 1772, courts
and the DIR must still strive to liberally construe the other
provisions of the prevailing wage law, including its definitions
of covered “public work.” Justice Liu’s dissent, which I join,
offers one potential template for doing so. (Dis. opn. of Liu, J.,
ante, at pp. 1–7 [illustrating how the language, legislative
history, and purpose of section 1720, subd. (a)(1), mean it can’t
be read as limited to fixed work on land, and to therefore create
an arbitrary distinction between identical installation work
performed on the wayside versus rolling stock].)
23
BUSKER v. WABTEC CORPORATION
Cuéllar, J., dissenting
II.
Longstanding authority provided a persuasive and
workable framework for applying section 1772 to cover certain
labor critical to the “execution of” a public works contract and
defined “public work.” The majority here and in Mendoza,
supra, __ Cal.5th __ upends this established understanding of
section 1772 without justification.
By eviscerating the scope of section 1772, the majority
fails to live up to our obligation to construe the prevailing wage
law liberally. This failure strikes a heavy blow to the workers
of our state. Across public works sites, laborers performing
tasks vital to the performance and completion of covered “public
work,” and public infrastructure projects as a whole, now lack
prevailing wage law protections — even if they represent the
very type of workers the prevailing wage law is designed to
apply to, and even if they perform the very type of labor the law
is meant to cover.
With respect, I dissent. I urge the Legislature to amend
section 1772 to restore the settled understanding of the section
offered by Sansone and applied by the DIR: that work “in the
execution of” a public work contract encompasses labor
performed in preparation for, in furtherance of, or otherwise
bearing a critical relationship to defined public work and the
public works project as a whole, and that such labor is therefore
subject to prevailing wage protections. (§ 1772.)
CUÉLLAR, J.
I Concur:
LIU, J.
24
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Busker v. Wabtec Corporation
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding XX on request by 9th Circuit (Cal. Rules of
Court, rule 8.548)
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S251135
Date Filed: August 16, 2021
__________________________________________________________
Court:
County:
Judge:
__________________________________________________________
Counsel:
Donahoo & Associates, Richard E. Donahoo, William E. Donahoo;
Foley, Bezek, Behle & Curtis, Thomas G. Foley, Jr., Kevin D. Gamarni;
Esner, Chang & Boyer, Stuart B. Esner and Holly N. Boyer for
Plaintiff and Appellant.
Neyhart, Anderson, Flynn & Grosboll and Benjamin K. Lunch for
International Brotherhood of Electrical Workers, Local Union No. 6, as
Amicus Curiae on behalf of Plaintiff and Appellant.
Bush Gottlieb, Lisa C. Demidovich and Jason Wojciechowski for
International Brotherhood of Electrical Workers Local 11 as Amicus
Curiae on behalf of Plaintiff and Appellant.
Altshuler Berzon, Eileen Goldsmith and Zoe Palitz for International
Association of Sheet Metal, Air, Rail & Transportation Workers, Sheet
Metal Workers’ Local Union No. 104 as Amicus Curiae on behalf of
Plaintiff and Appellant.
Jones Day, Craig E. Stewart, Eric Tung, Shay Dvoretzky; K&L Gates
and Todd L. Nunn for Defendants and Respondents.
Lewis Brisbois Bisgaard & Smith and Lann G. McIntyre for California
State Association of Counties, League of California Cities, California
Association of Sanitation Agencies, California Special Districts
Association and American Public Transportation Association as Amici
Curiae on behalf of Defendants and Respondents.
Hanson Bridgett, Adam W. Hofmann and Josephine M. Petrick for
Southern California Regional Rail Authority as Amicus Curiae on
behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Stuart B. Esner
Esner, Chang & Boyer
234 East Colorado Boulevard, Suite 975
Pasadena, CA 91101
(626) 535-9860
Richard E. Donahoo
Donahoo & Associates, LLP
440 W. First Street, Suite 101
Tustin, CA 92780
(714) 955-5815
Craig E. Stewart
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
(415) 875-5714