913 F.3d 911
9th Cir.2019Background
- Plaintiffs (operating engineers and union members) performed road-grinding work for Fonseca McElroy Grinding Co. and later Granite Rock, including on public-works projects.
- Plaintiffs sometimes performed "mobilization" offsite: preparing, securing, and transporting large milling machines from permanent/offsite yards to public works sites and back.
- Plaintiffs were paid a lower "Lowbed Transport" rate for mobilization under a Memorandum of Agreement (MOA) rather than the higher prevailing wage they received for onsite public-works construction.
- Plaintiffs sued for unpaid wages under federal and California law; the district court held offsite mobilization was not "in the execution of" a public-works contract for prevailing-wage purposes.
- The Ninth Circuit found no controlling California precedent and certified the central legal question to the California Supreme Court under Cal. R. Ct. 8.548.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether offsite mobilization (loading, maintenance, transport of milling machines from a contractor yard) is work "in the execution of" a public works contract under Cal. Lab. Code §§ 1771–72 | Mobilization is incidental to and necessary for the execution of the public-works contract; travel and mobilization time should be paid at prevailing wage (DIR guidance supports this) | Mobilization occurred offsite at yards that are not project-specific; the activity is not part of contract execution and thus is not subject to prevailing-wage requirements | No California court has authoritatively decided; Ninth Circuit certified the question to the California Supreme Court (case stayed pending its decision) |
Key Cases Cited
- Lusardi Constr. Co. v. Aubry, 824 P.2d 643 (Cal. 1992) (explains prevailing wage law purpose and prescribes liberal construction to protect public-works employees)
- City of Long Beach v. Dep’t of Indus. Relations, 102 P.3d 904 (Cal. 2004) (courts should construe prevailing wage provisions liberally and may consult administrative interpretations)
- O. G. Sansone Co. v. Dep’t of Transp., 127 Cal. Rptr. 799 (Ct. App. 1976) (material-supplier/hauling analysis; factors for when offsite hauling is integral to a contract)
- Williams v. SnSands Corp., 67 Cal. Rptr. 3d 606 (Ct. App. 2007) (articulates three-factor test for whether transport/offsite work is part of contract execution)
- Sheet Metal Workers’ Int’l Ass’n v. Duncan, 176 Cal. Rptr. 3d 634 (Ct. App. 2014) (addresses geographic scope of prevailing-wage law and treats permanent offsite fabrication as generally outside coverage)