Busker v. Wabtec Corp.

• Decision Date: 06 September 2018
• Docket Number: No. 17-55165,17-55165
• Citation: 903 F.3d 881
• Parties: John BUSKER, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant, v. WABTEC CORPORATION, a Pennsylvania corporation; Mark Martin, an individual; DOES, 1 through 100, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

903 F.3d 881

John BUSKER, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant,

v.WABTEC CORPORATION, a Pennsylvania corporation; Mark Martin, an individual; DOES, 1 through 100, Defendants-Appellees.

No. 17-55165

United States Court of Appeals, Ninth Circuit.

Filed September 6, 2018

The names and addresses of counsel are: For Plaintiff-Appellant: Richard E. Donahoo, Donahoo & Associates, Tustin, California; Thomas G. Foley, Jr., Kevin D. Gamarni, Foley, Bezek, Behle & Curtis, LLP, Santa Barbara, California; Tiffany J. Gates, Law Offices of Tiffany J. Gates, Santa Rosa, California; Stuart B. Esner,

Holly N. Boyer, Shea S. Murphy, Esner, Chang & Boyer, Pasadena, California.

For Defendants-Appellees: Patrick Madden, Todd L. Nunn, K&L Gates LLP, Seattle, Washington.

D.C. No. 2:15-cv-08194-ODW-AFM

Before: Richard R. Clifton and Consuelo M. Callahan, Circuit Judges, and Kenneth M. Hoyt,^* District Judge.

ORDER

We respectfully ask the Supreme Court of California to exercise its discretion to decide the certified question set forth in Part II of this Order, below. See Cal. R. Ct. 8.548. The answer to this question of California law will be dispositive of the appeal before us, and no clear controlling California precedent exists. Id. Moreover, because the question that we certify is of great importance to many employees in California, considerations of comity and federalism suggest that the court of last resort in California, rather than our court, should have the opportunity to answer the question in the first instance. See Kilby v. CVS Pharmacy, Inc. , 739 F.3d 1192, 1196–97 (9th Cir. 2013) ; Klein v. United States , 537 F.3d 1027, 1028 (9th Cir. 2008).

I. Administrative Information

We provide the following information as required by California Rule of Court 8.548(b)(1) :

The title of this case is: JOHN BUSKER, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant v. WABTEC CORPORATION, a Pennsylvania corporation, and MARK MARTIN, an individual, Defendants-Appellees.

The case number in our court is 17-55165.

We designate John Busker as the petitioner if our request for a decision is granted. He is the appellant before our court, and he moved for an order requesting a decision from the Supreme Court of California on a question of state law.

II. Certified Question

We request a decision by the Supreme Court of California on the following question of state law that is now before us:

Whether work installing electrical equipment on locomotives and rail cars (i.e., the "on-board work" for Metrolink’s PTC project) falls within the definition of "public works" under California Labor Code § 1720(a)(1) either (a) as constituting "construction" or "installation" under the statute or (b) as being integral to other work performed for the PTC project on the wayside (i.e., the "field installation work")?

Our phrasing of the question should not restrict the Supreme Court of California’s consideration of the issues involved; that court may reformulate the question. Cal. R. Ct. 8.548(f)(5).

We agree to accept and to follow the decision of the Supreme Court of California, as we are required by both California Rule of Court 8.548(b)(2) and our own precedent. See Klein v. United States , 537 F.3d 1027, 1029 (9th Cir. 2008).

III. Statement of Facts

In October 2010, the Southern California Regional Rail Authority ("Metrolink") entered into a contract with Parsons Transportation Group, Inc., under which Parsons agreed to design, furnish, and install a federally-mandated comprehensive communications network known as Positive Train Control ("PTC"). PTC systems are designed to make rail transportation safer through the use of integrated software and a GPS-based command, control, communications, and information system to prevent collisions between trains, derailments caused by excessive speed, incursions into established work zone limits, and the movement of a train through an improperly positioned switch.

The project, which in total costs more than $216 million, was publicly funded with most of the funding coming from state and local sources. The prime contract for the PTC project contemplated two types of work. "On-board work" involved installing PTC equipment on Metrolink’s locomotives and rail cars. "Field installation work" involved installing PTC systems along the wayside or tracks, including trenching, welding, installing towers for radio antennas, driving forklifts, and operating cranes. The prime contract specified that California’s prevailing wage law would be applicable to the field installation work.

Parsons entered into a subcontract with defendant Wabtec Corporation, which Metrolink expressly approved as a subcontractor for the project. In accordance with the Wabtec subcontract, Wabtec supplied and installed on-board PTC systems on Metrolink’s locomotives and rail cars. Wabtec also provided back office engineering and systems integration support and enhanced locomotive simulators. Wabtec did not perform any of the field installation work.

Plaintiff, John Busker, is a former employee of Wabtec. Busker was one of over 100 workers Wabtec hired to execute the on-board work specified in the Wabtec subcontract. Busker worked on the Metrolink project for approximately two years, performing traditional electrical and electronic technician work exclusively on the locomotives and rail cars.

In May 2015, Busker filed a prevailing wage complaint with the California Department of Industrial Relations ("DIR"), Division of Labor Standards Enforcement ("DLSE"). The DLSE opened an investigation in June 2015. The DLSE investigator initially concluded the Metrolink PTC project was a public works project and issued a Civil Wage and Penalty Assessment against Parsons and Wabtec for prevailing wages of $5,786,349 and related penalties of $682,215.

Parsons and Wabtec requested review of the assessment by the Labor Commissioner. Although Metrolink acknowledged that the installation work performed on the wayside (i.e., the field installation work) is subject to prevailing wage requirements, Metrolink, Parsons, and Wabtec all took the position that the prevailing wage law does not apply to the on-board work performed under the Wabtec subcontract because trains are not "fixed works" but instead are "rolling stock." By the time Parsons and Wabtec requested review of the assessment, Busker had already filed a putative class action in Los Angeles County Superior Court, alleging that Wabtec failed to pay its employees a prevailing wage. Before the assessment was reviewed, the DLSE released the assessment, allowing the parties to litigate the dispute exclusively in court.¹

Wabtec removed the action to federal district court under the Class Action Fairness Act, 28 U.S.C. § 1332(d). The district court denied Busker’s motion for an order remanding the case to state court, and we have affirmed that decision. The parties then agreed the prevailing wage coverage issue could be determined through a summary judgment motion. The district court granted summary judgment in favor of Wabtec. Busker timely appealed.

IV. Explanation for Request for a Decision

No controlling California precedent answers the certified question of statutory interpretation. We recognize that, under California law, statutory interpretation begins with the text. People v. Scott , 58 Cal. 4th 1415, 1421, 171 Cal.Rptr.3d 638, 324 P.3d 827 (2014). But the text of the prevailing wage law is susceptible to both of the opposing interpretations offered by the parties. We do not find the answer to the issues of state law presented by this case to be obvious.

As discussed below, although administrative guidance favors Wabtec’s view of the statute, countervailing policy considerations appear to support Busker’s interpretation and no controlling California judicial precedent compels a resolution for either party. We perceive tension between the general purposes of the prevailing wage law and courts’ duty to interpret the law liberally, on the one hand, and extra-textual administrative guidance, on the other hand. Additionally, although Busker’s interpretation of the prevailing wage law is reasonable, adopting that interpretation arguably would require an extension of the state law (and implicit disapproval of the interpretation of the state agency tasked with enforcing the law), a decision more appropriately made by the state court.

Conceivably, resolution of the issues of statutory interpretation will have profound legal, economic, and practical consequences for employers and employees who work on publicly-funded projects in the state of California. Because of the Class Action Fairness Act, other prevailing wage disputes could (just like this one) end up being decided in federal court. Although a federal court is capable of deciding the case, a Ninth Circuit opinion would not provide the same definitive resolution to the issues of state law that the Supreme Court of California could provide.

A. Whether the on-board work constitutes "construction" or "installation"

California Labor Code § 1771 requires that "all workers employed on public works" be paid "not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed."² Subject to an exception not relevant here, "public works" "means," "[c]onstruction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds." Cal. Lab. Code § 1720(a)(1).³ "The overall purpose of the prevailing wage law is to protect and benefit employees on public works projects." Lusardi Constr. Co. v. Aubry , 1 Cal. 4th 976, 985, 4 Cal.Rptr.2d 837, 824 P.2d 643 (1992).

Busker argues that the work performed by Wabtec employees (i.e., the on-board work) was "[c]onstruction" and "installation" as those terms are used in California Labor Code § 1720(a)(1). Wabtec argues the on-board...