Independent Roofing Contractors v. Department of Industrial Relations

• Citation: 23 Cal.App.4th 345,28 Cal.Rptr.2d 550
• Decision Date: 17 March 1994
• Docket Number: No. A059714,No. 51,51,A059714
• Court: California Court of Appeals
• Parties: , 128 Lab.Cas. P 57,691, 1 Wage & Hour Cas.2d (BNA) 1577 INDEPENDENT ROOFING CONTRACTORS OF CALIFORNIA, INC., et al., Plaintiffs and Appellants, v. DEPARTMENT OF INDUSTRIAL RELATIONS et al., Defendants and Respondents; Pipe Trades District Council, et al., Interveners and Respondents.

Page 550

28 Cal.Rptr.2d 550

23 Cal.App.4th 345, 128 Lab.Cas. P 57,691,

1 Wage & Hour Cas.2d (BNA) 1577

INDEPENDENT ROOFING CONTRACTORS OF CALIFORNIA, INC., et al., Plaintiffs and Appellants, v. DEPARTMENT OF INDUSTRIAL RELATIONS et al., Defendants and Respondents Pipe Trades District Council No. 51, et al., Interveners and Respondents.

No. A059714.

Court of Appeal, First District, Division 2, California.

March 17, 1994.

[23 Cal.App.4th 348] Mark R. Thierman, San Francisco, for plaintiffs and appellants.

Douglas P. Elliott, Counsel Dept. of Indus. Relations, San Francisco, for defendants and respondents.

John J. Davis, Jr., Blythe Mickelson, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, and Lawrence H. Kay, Sacramento, for interveners and respondents.

James Baker, San Francisco, for amicus curiae for defendants and respondents.

KLINE, Presiding Justice.

California law requires that workers on public works projects be accorded the same working conditions and wages that prevail in private industry. The California Department of Industrial Relations ("Department") is charged with determining what wages are prevailing for specific types of work at any given place and time; its determinations are binding on the parties to public construction contracts. Here, two associations of building contractors bring various constitutional challenges to the Department's decision to delete a particular wage determination. They complain that the Department's policies and the statutory scheme effectively allow the parties to private collective bargaining agreements to dictate the wages that will be paid on public projects, regardless whether those wages are actually prevailing. The trial court rejected their contentions. We affirm.

Facts

On October 5, 1989, the business manager of the Craft Tenders Union Local 343 of Vallejo, California, requested that the Department determine prevailing wage rates for craft tender employees. Before the request was made, there had been no such classification for prevailing wage purposes. In support of the request, Local 343 submitted a copy of its standard collective bargaining agreement. The agreement described craft tenders as unskilled or semi-skilled construction workers who "tend" skilled construction crafts, or in other words, perform unskilled cleanup, material handling, and other essential but menial tasks necessary to assist skilled workers. In January 1990, in response to the Department's request, Local 343 provided additional information, including the number of workers covered in each county, a list of signatory contractors, and the names and locations of projects on which craft tenders were employed. In May 1990, based on the information submitted to it and "other available information," the Department published prevailing wage rates for the craft tender classification.

On July 5, 1990, the Northern California District Council of Laborers ("Laborers") filed a petition to review the craft tender determination. The Laborers claimed the craft tender determination had been made in violation of certain provisions of the California Code of Regulations, and that the classification performed work historically performed by laborers. On July 26, the Department denied the petition, noting that the Department avoided involvement in jurisdictional disputes between crafts, and that the specific designation of classifications to be used on a particular public work was the responsibility of the awarding body, not the Department.

In January 1991, the Laborers requested reconsideration of their petition, and submitted additional information. In response to the request, the Department began an investigation, in which it conducted a survey of Northern California contractors. While the investigation was proceeding, the Department received additional requests from various employee associations that it delete the craft tender classification from its published wage determinations, and a formal petition to delete the classification from the Carpenter's Work Preservation Fund. On August 2, 1991, in response to the petitions and other comments, the Department solicited additional comment from "interested parties" on various specific questions, including whether craft tenders as defined by the collective bargaining agreement were a distinct craft within the meaning of Labor Code section 1773. According to a declaration filed in opposition to the petition for writ of administrative mandate, the request generated a considerable quantity of correspondence.

On May 11, 1992, while the Department's investigation of the controversy was proceeding, Local 343, the craft tender local which had originally requested the new classification, informed the Department that its collective bargaining agreement had been rescinded. The letter was signed by the business agent for Local 343, and by three contractors, two of whom had been identified as signatories in the materials supporting the original petition to establish the craft tender classification. Apparently in response to that letter, the Department issued a notice to awarding bodies in which it rescinded the published wage determinations for the craft tender classification effective June 1, 1992. The notice was sent to all interested parties, with a cover letter explaining that the Department had determined to rescind the craft tender wage determination because rescission of the craft tender collective bargaining agreement had eliminated the only basis upon which the Department had initially recognized the classification. Both the notice and the letter informed recipients that they were free to file additional petitions and supporting information if they wished to re-establish the classification.

On June 12, 1992, in response to the Department's notice, appellants Independent Roofing Contractors of California, Inc. and Associated Builders and Contractors, Inc. ("appellants") filed a petition for writ of mandate, naming the Department and its Director After conducting a hearing and reviewing the affidavits and supporting documents, the trial court found the Department's decision was within its authority under applicable statutes and regulations, and that the procedure prescribed by those statutes and regulations did not violate any constitutional provision. This appeal followed.

                as respondents. 1  They sought an order directing the Department to set aside its decision rescinding the craft tender wage determination, a declaration that the Department's decision was void, a declaration that Labor Code section 1773 and associated administrative regulations were unconstitutional and therefore void, and assorted injunctive relief aimed at preventing the Department from relying on the provisions of collective bargaining agreements as the basis for wage determinations. 2  By stipulation, numerous employee organizations filed complaints in intervention on behalf of the respondent Department;  hereafter, we refer to those organizations as "interveners."
                

DISCUSSION

I. Introduction: The Prevailing Wage Law

To effect public policy in favor of enforcing minimum labor standards, the conditions of employment on publicly financed construction projects are governed by California's prevailing wage law. (Lab.Code, §§ 90.5, 1720-1861; see Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 986, 4 Cal.Rptr.2d 837, 824 P.2d 643.) ³ With certain exceptions, all workers employed on public works shall be paid the general prevailing rate of per diem wages in the locality in which the public work is performed, as determined by the Director of the Department. ⁴ (§ 1771.) A public entity awarding a contract for public works must obtain prevailing wage data from the Director, and must "specify those rates in its call for bids, in bid specifications, and in the contract, or alternatively, must specify in those documents that the prevailing wage rates are on file in its principal office." (Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at p. 986, 4 Cal.Rptr.2d 837, 824 P.2d 643; §§ 1773, 1773.2.) The Director's determination of the prevailing wage is to be based on consideration of wage rates set by collective bargaining agreements and for federal public works in the same area, unless those rates do not "constitute the rates actually prevailing in the locality," in which case the Director is to "obtain and consider" other data from labor organizations, employers, and employer associations. (§ 1773.) If any bidder, employee representative, or awarding body desires to challenge a rate set by the Director, it may file a petition to review the determination with the Director within 20 days after the "commencement of advertising of the call for bids by the awarding body." (§ 1773.4.) Upon receiving such a petition, the Director must notify interested parties and conduct an investigation. (§ 1773.4.) Within 20 days of the filing of the petition, or after such time as may be agreed on by the awarding body, the Director, and all interested parties, the Director shall make a new determination which is final and binding on the awarding body. (§ 1773.4.)

Though the parties occasionally characterize the Department's action as the deletion or addition of a craft category from prevailing wage schedules, no specific statute or rule explicitly provides for the deletion or addition of craft categories as such. The actual authority of the Department is to make two determinations; first, whether a particular type of worker or work is covered by the prevailing wage laws, and second, if so, what the prevailing wage for that category of worker should be. (§ 1772, 1773; see Winzler & Kelly v. Department of Industrial Relations (1981) 121 Cal.App.3d 120, 127, 174 Cal.Rptr. 744 [review of Department's determination that surveyors were covered by prevailing wage law].) These determinations have the corollary effect of allowing awarding bodies and interested parties to specify that...