Frank Bros., Inc. v. Wisconsin Dept. of Transp.

Decision Date03 June 2005
Docket NumberNo. 03-3207.,03-3207.
Citation409 F.3d 880
PartiesFRANK BROS., INC., Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Frank Busalacchi, Secretary, and Marilyn Kuick, Chief EEO/Labor Compliance, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Dennis M. White (Argued), Brennan, Steil, Basting & MacDougall, Madison, WI, for Plaintiff-Appellant.

William H. Ramsey (Argued), Office of the Attorney General, Wisconsin Department

of Justice, Madison, WI, for Defendants-Appellees.

Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff-appellant Frank Bros., Inc., ("Frank Bros.") appeals an order of the district court dismissing their complaint seeking a declaratory judgment and injunctive relief against the Wisconsin Department of Transportation, Frank Busalacchi, Secretary, and Marilyn Kuick, Chief EEO/Labor Compliance for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In the district court, Frank Bros. unsuccessfully argued that provisions of the Davis-Bacon Act, 40 U.S.C. §§ 3141-3148, and the Federal-Aid Highway Act, 23 U.S.C. §§ 101, et seq., preempt application of Wisconsin's prevailing wage law, Wis. Stat. § 103.50, to truck drivers who perform transportation and delivery work pursuant to joint federal-state highway contracts. We affirm.


Frank Bros. is a construction company with its principal place of business in Janesville, Wisconsin. In 2002, Frank Bros. entered into two separate contracts with the Wisconsin Department of Transportation ("WisDOT") agreeing to act as a subcontractor on road construction projects in Rock County, Wisconsin. Under these contracts, which were funded by capital from both federal and state agencies through the provisions of the Federal-Aid Highway Act ("FHWA"), 23 U.S.C. §§ 101, et seq., Frank Bros. agreed to procure and transport various aggregates, e.g., limestone and other materials, to the construction sites. Frank Bros. was also responsible for hauling recycled materials away from the job sites. In accordance with the transportation obligations created under the contracts, Frank Bros. hired a number of independent trucking contractors and subcontractors to haul the aggregate materials to and from a commercial quarry owned and operated by Frank Bros.

The two highway construction contracts that Frank Bros. entered into with the WisDOT required that the company comply with all state and federal laws applicable to federally funded highway construction projects. See 23 U.S.C. § 114. Also, pursuant to federal law, both contracts incorporated the terms of the Davis-Bacon Act, 40 U.S.C. §§ 3141-3148, which requires that contractors and subcontractors on federal construction projects pay qualified employees (as defined below) the prevailing wage rate for their job classification as determined by the Secretary of Labor. See 40 U.S.C. § 3142(b); 23 U.S.C. § 113; 23 C.F.R. § 633.102. In order to demonstrate compliance with the terms of the Davis-Bacon Act, contractors and subcontractors subject to the Act's prevailing wage provisions, such as Frank Bros., are required to submit weekly payroll records to the Department of Labor disclosing the wages paid and hours worked by covered employees. See 29 C.F.R. § 5.5(a)(3).

Not all persons performing work related to a federally funded construction project will fall within the scope of the Davis-Bacon Act's prevailing wage and reporting requirements. Qualified employees under the Davis-Bacon Act include, "laborers and mechanics," 40 U.S.C. § 3142(b), employed on the site of federally assisted building projects (either by contractors or subcontractors) performing tasks such as "[a]ltering, remodeling, [and] installation." 29 C.F.R. § 5.2(j)(1)(i). Specifically excluded from the Act are contractors and subcontractors, or employees thereof, engaged in "the transportation of materials or supplies to or from the site of the work." 29 C.F.R. § 5.2(j)(2) (citing Bldg. & Constr. Trades Dep't AFL-CIO v. United States Dep't of Labor Wage App. Bd., 932 F.2d 985 (D.C.Cir.1991)). Thus, under the Davis-Bacon Act, Frank Bros. properly concluded that they were not required by federal law to pay prevailing wages to subcontractors or employees of subcontractors working as truck drivers.

However, in addition to complying with mandatory federal prevailing wage laws, subcontractors on joint federal and state construction projects are also required to abide by the laws and regulations of the various states in which they are performing work. In a number of states, including Wisconsin, this means adhering to supplemental state prevailing wage laws, sometimes referred to as the "little Davis-Bacon Acts." See generally, A. Thieblot, PREVAILING WAGE LEGISLATION: THE DAVIS-BACON ACT, STATE "LITTLE DAVIS-BACON" ACTS, THE WALSH-HEALEY ACT, AND THE SERVICE CONTRACT ACT 21-135 (1986). The same year that the Davis-Bacon Act was enacted by the United States Congress, the State of Wisconsin followed suit and passed its own prevailing wage laws, which remain in place today in substantively the same form as when they were enacted in 1931. Wis. Stat. §§ 66.0903 (municipal projects), 103.49 (state projects), 103.50 (highway projects). The Wisconsin statute defines the State's "prevailing wage rate" as "the hourly basic rate of pay, plus the hourly contribution for [fringe benefits] ... paid directly or indirectly, for a majority of the hours worked in the trade or occupation in the area." Wis. Stat. § 103.50(1)(d). The prevailing wage in Wisconsin for a particular class of workers is determined on a project-by-project basis by the Wisconsin Department of Workforce Development ("DWD"), which shall "conduct investigations and hold public hearings" to assist in defining the job classifications necessary for a given project as well as the appropriate wage minimums for those jobs. § 103.50(3). The prevailing wages determined pursuant to § 103.50 by the Wisconsin DWD thus may or may not be identical to the federal wage rate determined by the United States Secretary of Labor under the Davis-Bacon Act.1

More importantly though, Wisconsin's prevailing wage enactment, unlike the Davis-Bacon Act and the regulations promulgated thereunder, expressly provides that "[a]ll laborers, workers, mechanics and truck drivers employed," on public works projects shall be paid the prevailing wage determined by the DWD. Wis. Stat. § 103.50(2m)(a)(2) (emphasis added). Thus, while the federal government does not provide for a prevailing minimum wage rate for truck drivers performing work on federally funded state highway projects, the State of Wisconsin expressly requires that truck drivers rendering services such as hauling materials to and from federally funded construction projects in Wisconsin be paid the state mandated prevailing wage. Like the Davis-Bacon Act, § 103.50 of the Wisconsin Statutes must be incorporated into all WisDOT highway construction contracts, Wis. Stat. § 103.50(6), meaning the contracts Frank Bros. entered into require compliance with both the federal and state prevailing wage schemes.

Confronted with this legislative and contractual scenario, Frank Bros. chose to comply fully with the federal prevailing wage requirements, but did not pay — or require its subcontractors to pay — the prevailing wage required under Wisconsin law to truck drivers employed in hauling limestone and other aggregates from the Frank Bros. quarry to the job sites. Frank Bros. also failed to comply with Wisconsin law by not providing the required (weekly) supporting payroll documentation to the WisDOT (such as the wages paid and number of hours worked by truck drivers employed either directly or indirectly on the project).

Having learned of this situation, Marilyn Kuick, Chief of the EEO/Labor Compliance Bureau for the WisDOT, ordered Frank Bros. to immediately comply with Wisconsin law. In a letter dated January 15, 2003, Kuick directed the company to begin paying all truck drivers employed in hauling materials to and from the construction sites Wisconsin's prevailing wage rate. The letter further instructed Frank Bros. to comply with the reporting provisions of § 103.50, provide the required weekly payroll information and, if necessary, pay any back wages to those workers who might have been paid less than the State's prevailing wage while working on the project. Kuick explained the rationale of her order by stating that the WisDOT would apply the definition of "covered employees" in Wis. Stat. § 103.50, which includes truck drivers, instead of the narrower definition found in regulations implementing federal law.

On February 19, 2003, Frank Bros. filed suit in the United States District Court for the Western District of Wisconsin. The company sought a declaratory judgment and injunctive relief against the WisDOT and other named defendants pursuant to the Davis-Bacon Act, 40 U.S.C. §§ 3141-3148, the Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. In essence, Frank Bros. claimed that Wisconsin's prevailing wage statute is preempted by federal law and that WisDOT is thus precluded from requiring that truck drivers be paid the prevailing wage mandated under Wis. Stat. § 103.50.

Shortly after the complaint was filed, but before discovery had commenced, the defendants-appellees moved to dismiss pursuant to Rule 12(b)(6) claiming that Frank Bros. had failed to state a claim upon which relief could be granted. See FED. R. CIV. P. 12(b)(6). The district court granted WisDOT's motion, finding that Frank Bros. had failed to demonstrate that anything in the Davis-Bacon Act or related federal legislation precluded the State of Wisconsin from placing additional wage rate requirements on subcontractors working on joint federal and state highway...

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