903 F.3d 881
9th Cir.2018Background
- Metrolink contracted Parsons to design and install a federally‑mandated Positive Train Control (PTC) system; project was publicly funded and exceeded $216 million.
- Prime contract split work into (a) field installation on the wayside (trenching, towers, welding, etc.) and (b) on‑board installation of electrical/PTC equipment on locomotives and rail cars.
- Parsons subcontracted the on‑board work to Wabtec (approved by Metrolink); Wabtec performed only on‑board work and related back‑office support.
- Plaintiff John Busker, a former Wabtec employee who did on‑board electrical work, filed a prevailing wage claim; the DLSE initially assessed wages/penalties but later released the assessment and the parties litigated in court.
- The district court granted summary judgment for Wabtec; the Ninth Circuit panel certified to the California Supreme Court the question whether on‑board work is a “public work” under Cal. Lab. Code § 1720(a)(1), either as construction/installation or as integral to covered field work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether on‑board installation qualifies as “construction” or “installation” under Cal. Lab. Code § 1720(a)(1) | Busker: broad dictionary/ statutory reading—on‑board electrical assembly is construction/installation and should be liberally construed to protect workers | Wabtec: rolling stock (trains) are not fixed public works; administrative guidance treats work on rolling stock as outside prevailing wage law | Panel found text ambiguous and state law unclear; certified the question to the California Supreme Court for definitive interpretation |
| Whether on‑board work is covered because it is integral/connected to the field (wayside) work | Busker: even if not independently a public work, on‑board work is sufficiently integrated with field work to fall within prevailing wage coverage | Wabtec: contracts and project structure show on‑board work is separate from wayside construction and analogous to off‑site work courts have held noncovered | Panel concluded outcome depends on choice of legal standard (integration into construction flow vs. forming a complete integrated object) and therefore certified the question to the California Supreme Court |
| Whether administrative agency interpretation (DIR/DLSE) excluding rolling stock controls | Busker: agency position should not override liberal statutory construction favoring workers | Wabtec: longstanding administrative guidance supports excluding on‑board/rolling stock work | Panel noted agency guidance favors Wabtec but that adopting Busker’s view would be a state‑law extension better resolved by state high court |
| Whether federal court should decide novel question of California law | Busker: state law governs prevailing wage scope; state court best placed to decide | Wabtec: federal courts can resolve state law issues when necessary | Panel: certified question to California Supreme Court under Cal. R. Ct. 8.548 for authoritative state‑law resolution; stayed further proceedings |
Key Cases Cited
- Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192 (9th Cir. 2013) (federal court may certify state‑law questions for comity)
- Klein v. United States, 537 F.3d 1027 (9th Cir. 2008) (federal court must follow state supreme court decision if accepted)
- People v. Scott, 58 Cal.4th 1415 (2014) (statutory interpretation begins with text)
- City of Long Beach v. Dep’t of Indus. Relations, 34 Cal.4th 942 (2004) (prevailing wage statute must be liberally construed to benefit workers)
- Lusardi Constr. Co. v. Aubry, 1 Cal.4th 976 (1992) (overall purpose of prevailing wage law is to protect employees on public works)
- Sheet Metal Workers’ Int’l Ass’n, Local 104 v. Duncan, 229 Cal. App.4th 192 (2014) (tests for when off‑site work is covered by prevailing wage law)
- Williams v. SnSands Corp., 156 Cal. App.4th 742 (2007) (off‑hauling/materials removal treated as separate from onsite construction)
- O. G. Sansone Co. v. Dep’t of Transp., 55 Cal. App.3d 434 (1976) (prevailing wage can cover off‑hauling when integral to project)
- Oxbow Carbon & Minerals, LLC v. Dep’t of Indus. Relations, 194 Cal. App.4th 538 (2011) (focus on whether combined work yields a complete integrated object)
- Cinema W., LLC v. Baker, 13 Cal. App.5th 194 (2017) (analysis of necessity/integration between publicly funded and privately funded work)