JOHN BUSKER, Plaintiff and Appellant, v. WABTEC CORPORATION et al., Defendants and Respondents.
S251135
IN THE SUPREME COURT OF CALIFORNIA
August 16, 2021
Ninth Circuit 17-55165
Northern District of California 2:15-cv-08194-ODW-AFM
Justice Liu filed a dissenting opinion, in which Justice Cuéllar concurred.
Justice Cuéllar filed a dissenting opinion, in which Justice Liu concurred.
California’s prevailing wage law (
I. BACKGROUND
The Southern California Regional Rail Authority operates a large train system known as Metrolink. In 2010, it entered into the prime contract with Parsons Transportation Group, Inc. (Parsons) to design, furnish, and install a comprehensive communications network called Positive Train Control (PTC) to prevent collisions and other dangerous train movement.
The project was publicly funded and cost over $216 million. The expansive undertaking included wayside signals, systems on locomotives and rail cars, back office servers, a communications network, and a centralized dispatching system, along with software development and installation. The system required integration of various components located on trains, at
Only two aspects of the project are at issue here: field work and onboard work.3 Field work included building and outfitting radio towers on land adjacent to train tracks. The labor required trenching, driving forklifts, operating cranes, and welding. Onboard work primarily involved installing electronic components on the train cars and locomotives themselves.
Defendant Wabtec Corporation (Wabtec) subcontracted to install system components on locomotives and rail cars. The subcontract incorporated various provisions of the prime contract, including compliance with applicable prevailing wage laws. Wabtec performed no field work.
Plaintiff John Busker was one of over 100 Wabtec workers assigned to the project. For approximately two years, he did traditional electrical onboard installation. Wabtec did not pay prevailing wages to any of its employees.
Busker filed a prevailing wage complaint against Wabtec with the Division of Labor Standards Enforcement (DLSE), a division of the Department of Industrial Relations (Department)
After review, the DLSE vacated the assessment and took no further action. In this case, a DLSE officer testified his superior directed him to vacate the assessment because, historically, work performed on rolling stock is not covered by the prevailing wage law. The Department never formally determined whether the prevailing wage law covers onboard work.
While the review of the assessment was pending, Busker sued Wabtec and the project manager6 in state court for failing
Busker appealed and we accepted a request from the United States Court of Appeals for the Ninth Circuit to decide a question of state law. (
II. DISCUSSION
A. Overview of California’s Prevailing Wage Law
Economic conditions in the Great Depression prompted the passage of prevailing wage laws designed to ensure that workers employed on public building programs would be paid daily wages commensurate with those prevailing in the local area for work of a similar character. (See Universities Research Assn. v. Coutu (1981) 450 U.S. 754, 773–774; Azusa Land Partners v. Department of Industrial Relations (2010) 191 Cal.App.4th 1, 14–15.)
The prevailing wage law was enacted in 1931 as an uncodified measure. (1931 Act;
“The overall purpose of the prevailing wage law is to protect and benefit employees on public works projects.” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985 (Lusardi).) “This general objective subsumes within it a number of specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to сompete with nonunion contractors; to benefit the public through the superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees.” (Id. at p. 987.) Courts liberally construe the law to fulfill its purpose. (City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 949–950 (City of Long Beach).)
Generally, those employed on public works must be paid at least the prevailing rate of per diem wages paid locally for
B. Onboard Work as “Construction” or “Installation” Under Section 1720, Subdivision (a)(1)
The first question is whether the onboard work done exclusively on locomotives and rail cars (rolling stock) falls under the definition of “public work.” An examination of the relevant statute establishes that it does not.
The prevailing wage law has its roots in the Depression Era. Then, as now, when a governmental entity decided to build a courthouse in the town square, a great many aspects of that project would come into play. Architects in Los Angeles might devise the plans. Lawyers in San Francisco might draft the contracts. But when it came time to excavate the basement, lay the foundation, and raise the walls, local daily wage workers would be hired to do the work. It was their livelihood that the
The term of art “public works” is defined in
Under
Familiar principles guide our interpretation of
While neither “construction” nor “installation” is explicitly defined in the prevailing wage law, City of Long Beach considered various definitions of the term “construction.” (City of Long Beach, supra, 34 Cal.4th at p. 951.) Those include “ ‘the action of framing, devising, or forming, by putting together of parts; erection, building’ ” (ibid., quoting 3 Oxford English Dict. (2d ed. 1989) p. 794) and “ ‘[t]he act of putting parts together to
Similarly, dictionary definitions of “installation” do not limit that activity to a fixed work on real property. Webster’s Third New International Dictionary defines one sense of “installation” as “the setting uр or placing in position for service or use.” (Webster’s 3d New Internat. Dict., supra, at p. 1171, col. 1.) That broad definition could conceivably encompass onboard work.
However, words used in a statute are not considered in isolation. They are construed in context, honoring the statutory purpose, and harmonizing statutes relating to the same subject to the extent possible. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) Here, the general terms “construction” and “installation” are offered as categories of “public works,” a term which itself has a generally understood meaning that substantially predates the prevailing wage law. It is that definition that gives context to the Legislature’s use of the terms construction and installation.
Dictionary definitions dating back to the turn of the 20th century uniformly define “public works” as fixed works on real property. The term is defined in a 1906 edition as “all fixed works constructed for public use, as railways, docks, canals,
The 1925 edition of California Jurisprudence, published in the decade before the prevailing wage law enactment, observed: “The term ‘public works’ may be said to embrace all fixed works constructed for public use or protection. . . . In view of the acts authorizing public improvements the term probably includes bridges, waterworks, sewers, light and power plants, public buildings, wharves, breakwaters, jetties, seawalls, schoolhouses and street improvements.” (22 Cal.Jur. (1925) Public Works, §2, pp. 74–75, fn. omitted.) Swanton v. Corby (1940) 38 Cal.App.2d 227, 230, relied upon this definition to hold that installing a two-way police radio system did not constitute a public work within the meaning of a law requiring competitive bidding. There, the relevant statutory scheme applied to the “ ‘erection, improvement, and repair of all public buildings and works . . . .’ ” (Id. at p. 229.) The court concluded the radio system was analogous to “furniture and furnishings,” which had “never been held to be ‘public works.’ ” (Id. at p. 230.) While Swanton did not involve the prevailing wage law, it did rely on the established common understanding of public works to interpret the otherwise undefined terms “ ‘erection, improvement, and repair’ ” as work associated with fixed works on real proрerty. (Id. at p. 229.)
An examination of the original enactment and later codification of the prevailing wage law provides that context. As originally enacted, the prevailing wage law said only that certain “construction or repair work . . . shall be held to be ‘public works’ within the meaning of this act.” (
The prevailing wage law, codified in 1937, continued to apply to specified “[c]onstruction or repair work.” (
Indeed, the Legislature gave no indication it intended to confer on the terms “construction” or “repair” a more expansive meaning when it codified the existing law. If the Legislature had intended such a departure from the well-established understanding of the term “public work,” one would expect that intent to be reflected in the statutory history, rather than requiring divination from a simple modification to an ancillary provision. (See Garcia v. McCutchen (1997) 16 Cal.4th 469, 482.) In fact, the legislative history points to a contrary conclusion. In 1936, the California Code Commission (Commission) prepared a Proposed Labor Code for the Legislature’s consideration. In a note to proposed
Nevertheless, Busker claims that subsequent amendments establish that the Legislature sought to give “public works” a broader connotation than the original common usage. He notes that a 2000 amendment to
Nothing in the 2000 amendment signals an intent to uncouple the term “construction” from the context of “public work.” The examples of work that are included in “construction,” like land surveying, are consistent with a definition of “construction” related to land-based activity. The legislative history of the 2000 amendment confirms that it was
Busker also contends that the 2001 addition of the word “installation” to
In 2012, the Legislature again amended
In his dissent, Justice Liu argues that modular office systems are like rolling stock in that they “can be easily moved and transported to other locations.” (Dis. opn. of Liu, J., post, at p. 8.) However, there is no indication that the moveable aspect of modular office systems motivated the amendment to
Busker contends that if the Legislature intended “public works” to refer exclusively to construction projects involving fixed works on realty, it knew how to do so. He points to
Busker relies on the principle that “ ‘when different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended.’ ” (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343.) That principle is inapplicable here. The definitions he cites are not contained in subdivisions that adjoin There is no reason to believe the Legislature deliberately defined “public works” in the prevailing wagе law to distinguish it from definitions contained in other codes enacted at different times. Instead of suggesting by implication that “public works” as used in the prevailing wage law is broad enough to encompass rolling stock, the definitions contained in the Government Code and Public Contract Code tend to confirm the common understanding that “public works” generally refers to fixed works on real property. Indeed, within the prevailing wage law, the Legislature defined “ ‘[p]ublic works project’ ” in The New York case of De La Cruz v. Caddell Dry Dock & Repair Co. (2013) 21 N.Y.3d 530 (De La Cruz) declined to employ the common understanding that “public works” is limited to labor on land. (See dis. opn. of Liu, J., post, at p. 5.) However, the particular state law it applied was worded and structured differently from California’s statutory scheme. De La Cruz held that New York’s law covers work performed on various boats used for public purposes. (De La Cruz, at pp. 538–539.) The New York court’s holding is, of course, not binding. Further, its analysis provides no assistance. First, unlike California’s law, which limits the definition of “public works” to defined categories like construction and installation (see (See De La Cruz also purported to rely on federal authority detaching the understanding of “public works” from work on land.15 (De La Cruz, supra, 21 N.Y.3d at p. 535.) It pointed to a case decided more than a century earlier in which the United States Supreme Court concluded it was not bound to read the term ” ‘public work’ ” as “confined to work on land.” (Title Guaranty & Trust Co. of Scranton v. Crane Co. (1910) 219 U.S. 24, 33.) This reliance is tenuous. Crane did not involve a question of prevailing wage entitlement. Aside from acknowledging that “public works usually are of a permanent nature,” Crane focused solely on the meaning of the word “public.” (Ibid.) These points distinguish De La Cruz from the question we encounter. An interpretation that considers the history of California‘s prevailing wage law along with the historical meaning of “public works” supports an interpretation that generally limits the term to labor performed on fixed works. This interpretation is confirmed in determinations made by the Department, which has consistently excluded work on rolling stock. For example, in a 1990 coverage determination, the Department‘s director concluded that the repair of police boats wаs not a public work, reasoning that the term has been construed “as having a restricted meaning as applying to work done on fixed works for public use or production.” (Dept. of Industrial Relations, Director Ron Rinaldi, letter to Port of San Diego Section Chief Kenneth E. White, June 26, 1990.) Similarly, in 1994, a public agency sought prevailing wage determinations for contracts involving ship repairs. The Department “determined, consistent with previous court rulings and opinions from the Attorney General‘s Office, that maintenance/repair of rolling stock, i.e. vehicles, vessel[s], rail cars, etc., is not covered under the prevailing wage laws.” (Dept. of Industrial Relations, Div. of Labor Statistics & Research Chief Dorothy Vuksich, letter to Attorney Madeline Chun, March 18, 1994.) The Department has also declined to apply the prevailing wage law to seat installation on rail cars and the installation of equipment on police motorcycles. Attorney General opinions also support excluding work on rolling stock. In 2012, the Attorney General concluded that the term “public works” as used in various statutory schemes, including section 1720(a)(1), “comport[s] with the common usage and ordinary meaning of ‘public works’ as reflected in dictionary definitions” that define the term as ” ‘fixed works (as school, highways, docks) constructed for public use . . . .’ ” (95 Ops.Cal.Atty.Gen. 102, 108 (2012).) Over 50 years of Attorney General opinions contain similar reasoning. (See 69 Ops.Cal.Atty.Gen. 300, 305 (1986); 25 Ops.Cal.Atty.Gen. 153, 154 (1955).) The parties strenuously debate how much deference we should pay to the Department‘s decisions, which do not have precedential effect. (See Kaanaana v. Barrett Business Services (2021) 11 Cal.5th 158, 179.) It is true that “[d]eference to administrative interpretations always is ‘situational’ and depends on ‘a complex of factors’ [citation], but where the agency has special expertise and its decision is carefully considered by senior agency officials, that decision is entitled to We need not be drawn too deeply into this thicket. Our task is to discern the legislative intent. In that regard, the most pertinent fact is that the Department‘s interpretation has been long-standing and consistent. The same is true of the Attorney General opinions. Indeed, Busker cites not a single example in which the Department or the Attorney General has ultimately concluded that work on rolling stock is covered by the prevailing wage law.16 Of course, simply because an administrative interpretation has endured for decades does not mean it is correct. The ultimate responsibility for the construction of a statute rests with the court. An agency‘s interpretation is just one of several tools that may assist the court. (City of Long Beach, supra, 34 Cal.4th at p. 951.) Nevertheless, ” ’ “[c]onsistent administrative construction of statute over many years, particularly when it originated with those charged with putting the statutory machinery into effect, is entitled to great weight and will not be overturned unless clearly erroneous.” ’ ” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012.) Here, the long-standing administrative interpretations It might be argued that paying the prevailing wage for onboard work serves the general purposes of the prevailing wage law. (See Lusardi, supra, 1 Cal.4th at p. 985.) Of course, there are many specific ways to serve that general purpose. Our interpretation is dictated by the relevant language in the statutory scheme. The prevailing wage law has never been applied to all work financed by public funds. The Legislature has explicitly limited the protection to labor defined as “public work.” The application of the law will necessarily involve line-drawing exercises that distinguish between types of work that may be similar in many respects. Further, there is at least some reason to believe the Legislature intended to treat work performed on rolling stock differently from that done on fixed works. One of the primary purposes of the law is to protect local labor markets from cheaper outside labor. (See State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 555.) Paying the prevailing wage to workers constructing a public building located in a particular city or county obviously serves that purpose. But work on rolling stock could conceivably be performed almost anywhere, then delivered to wherever it might be used. This practical reality raises a question about whether the law‘s purpose is served by paying prevailing wages The rule favoring liberal construction is subject to an important proviso: Courts ” ‘cannot interfere where the Legislature has demonstrated the ability to make its intent clear and chosen not to act [citation].’ ” (City of Long Beach, supra, 34 Cal.4th at p. 950.) For the reasons explained above, “construction” and “installation” in Busker argues that even if the onboard installation does not independently meet the definition of “public work,” it is still subject to the prevailing wage law because it is integrally related to building the towers on the trackside, which is The Ninth Circuit identified two lines of cases that may bear upon the question. First, it referenced a group of opinions that frame the inquiry as whether the work at issue “is integrated into the flow process of construction.” (Sheet Metal Workers’ Internat. Assn., Local 104 v. Duncan (2014) 229 Cal.App.4th 192, 206 (Sheet Metal); see also Williams v. SnSands Corp. (2007) 156 Cal.App.4th 742, 752 (Williams); O.G. Sansone Co. v. Department of Transportation (1976) 55 Cal.App.3d 434, 443-444 (Sansone).) These cases turn on the application of This body of law cannot aid Busker. In Mendoza, a decision filed concurrently with this opinion, we reject the interpretation of Other cases mentioned by the Ninth Circuit purportedly stand for the principle that prevailing wage entitlement may arise even if the work at issue does not meet the statutory definition. Under this approach, work that would not otherwise qualify may be covered so long as other associated labor would constitute public work. The conclusion fails because the cases on which it relies do not support it. As noted earlier, Oxbow concerned a petroleum coke facility. Conveyors used to bring coke into the plant were built under a contract using public funds. A separate, privately funded contract was used to build a roof over the conveyors. (Oxbow, supra, 194 Cal.App.4th at pp. 542-545.) The question in Oxbow was whether the privately funded roof work fell within the scope of the prevailing wage law because it was part of a “complete integrated object” that included the publicly funded conveyor work. (Id. at pp. 548-550.) Cinema West considered a similar issue. There, a city entered into an agreement with a private developer to build a movie theater complex. As part of the agreement, the city used public funds to build an adjacent parking lot. Theater patrons could use the lot, thus facilitating theater development. (Cinema West, supra, 13 Cal.App.5th at pp. 197-202, 214.) The Cinema West court considered whether laborers on the privately funded theater complex were entitled to the prevailing wage because the theater, together with the publicly funded parking lot, formed a “complete integrated object.” (Id. at p. 215; see id. at pp. 210-215.) Both Oxbow and Cinema West turned on the phrase “paid for in whole or in part out of public funds.” (Oxbow, supra, 194 Cal.App.4th at p. 547; Cinema West, supra, 13 Cal.App.5th at pp. 214-215.) All the labor at issue in both cases was indisputably construction work that built or installed facilities on real property. The only question was what construction work could be considered in determining the public funding question. Both cases extended prevailing wage protection because, in their view, all the construction labor, both publicly and privately The “complete integrated object” test employed in Oxbow and Cinema West was derived from City of Long Beach, which noted that “construction” involves ” ‘[t]he act of putting parts together to form a complete integrated object.’ ” (City of Long Beach, supra, 34 Cal.4th at p. 951, quoting 3 Oxford English Dict., supra, at p. 794, italics added; see Oxbow, supra, 194 Cal.App.4th at p. 549; Cinema West, supra, 13 Cal.App.5th at pp. 210-211.) The City of Long Beach court considered whether labor on an animal control facility built with private funds might still qualify as “public work” because the city contributed public funds toward preconstruction expenses, including architectural design, surveying, and other professional fees. (City of Long Beach, at p. 950Id. at pp. 946, 950.) Like OxbowCinema West, the question in City of Long Beach revolved around whether labor done under a privately funded contract could be considered part of “construction . . . paid for in whole or in part out of public funds” under Here, it is the field work that qualifies as “public work” under the statutory definition of cоnstruction in It is true that the components installed on trains partner with the field work, in the sense that they ultimately function together as part of an overall communication system. But that interface does not make the onboard installation integral to the completion of the actual construction work. If “construction” included any activity necessary to the operation of a public work, that term would bring within its expansive sweep any activity necessary to make the public work functional, whether or not the activity is related to the construction process. That approach has no discernable limiting principle. Here, the labor of those who wrote the software used in the PTC system, as well as those who manufactured the needed computer chips, could be Neither Oxbow nor Cinema West suggests that an activity is considered “construction” simply because it somehow makes other public work functional. In those cases, it was clear that both the publicly and privately funded contracts involved actual building or installation on land. A communication system is not like a manufacturing plant or theater/parking complex. The PTC system involves a “completed integrated object” only if viewed at an unduly high level of abstraction. The overall undertaking is much broаder and more complex than building things on land. It is, instead, a multifaceted communications network. Some components of that system may indeed be structures or other fixed works, so that building them might qualify as “construction.” But work that is not otherwise defined as “construction” does not become so simply because it plays some role in making the overall communications system functional. For these reasons, the “complete integrated object” test does not transform the onboard installation into “public work.” Justice Cuéllar‘s dissents in both this case and Mendoza risk mischaracterization of our holdings. Like our holding in Mendoza, the holding here is quite narrow. (See Mendoza, supra, ___ Cal.5th at ___ [p. 36].) We merely address the questions posed by the Ninth Circuit. In this case, those questions are whether the onboard work is included in the definition of public works under We answer the Ninth Circuit‘s question as follows: The onboard work performed under the Wabtec subcontract is not itself “public work” because it is not “construction” or “installation” involving fixed works on land. Further, merely because the onboard work permits the field work and the broader PTC communications system to function does not transform it into “public work.” CORRIGAN, J. We Concur: CANTIL-SAKAUYE, C. J. BUSKER v. WABTEC CORPORATION S251135 I agree with Justice Cuéllar that plaintiff John Busker is entitled to prevailing wage protection under The text, purpose, and history of the prevailing wage law indicate that But this has the analysis backward. The Legislature defined “public works” by reference to the terms “construction” and “installation“; it did not define “construction” and “installation” by reference to the term “public works.” Today‘s opinion seems to ask what the terms “construction” and “installation” mean in light of what the term “public works” meant before enactment of the prevailing wage law. But the Legislature opted to define what “public works” means by including “construction” and “installation” as covered work. Citing early 1900s’ dictionary definitions of “public works,” the court concludes that the generally understood meaning of the term is limited to fixed work on land and realty. “It is that definition,” the court says, that informs the terms “construction” and “installation.” (Maj. opn., ante, at p. 9.) But courts typically rely on dictionary definitions when a statute uses language that is not otherwise defined. (See, e.g., Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 Cal.App.4th 237, 244.) In addition, as Busker notes, the Legislature has used different language to define “public works” in other statutes, in some cases making clear that the definition is limited to fixed The court says The 1931 version of the prevailing wage law defined “locality” as the “city and county, county or counties in which the building, highway, road, excavation, or other structure, project, development or improvement is situated.” (Stats. 1931, ch. 397, § 4, p. 912.) Today‘s opinion cites this provision as evidence that the Legislature viewed “public works” as tied to land. (Maj. opn., ante, at p. 12 & fn. 11.) But a “project” may be “situated” in a city or county without necessarily being tied to land. The court says the Legislature could not have intended “project” to have such a broad meaning because it “would render that term markedly different from the other listed items.” (Id. at p. 12, It is also notable that other subparts of Even if the Legislature did intend for the words “construction” and “installation” to be read in light of the general understanding of “public works,” it is evident that historical usage of the term “public works” did not exclusively apply to fixed works attached to land. In De La Cruz v. Caddell Dry Dock & Repair Co. (2013) 21 N.Y.3d 530, for example, the New York high court analyzed dictionary definitions of the phrase “public works” from 1891 to 2013 and found that “[a]lthough the illustrative examples given in dictionary entries are frequently fixed structures, it is clear that the notion that a ‘public work’ must be attached to the land is not part of [the] central meaning” of the term. (Id. at p. 538.) Similarly, the United States Supreme Court said in Title Guaranty & Trust Co. v. Crane Co. (1910) 219 U.S. 24 that although “public works usually are of a permanent nature and that fact leads to a certain degree of association between the notion of permanence and the phrase,” that “association is only empirical, not one of logic. Whether a work is public or not does not depend upon its being attached to the soil . . . .” (Id. at p. 33; see also Housing by Vogue, Inc. v. State, Dept. of Revenue (Fla.Dist.Ct.App. 1981) 403 So.2d 478, 480 [although all fixed works constructed for the state or its subdivisions qualify as public works, the term public works is not limited solely to fixed works]; Maurer v. Werner (Mo.Ct.App. 1988) 748 S.W.2d 839, 841 [rejecting the view that “public works” encompasses only the construction or repair of fixed works].) The applicability of the prevailing wage law to Busker‘s onboard work is fully consistent with the statute‘s purposes. Not only does it further the law‘s ” ‘general objective’ ” of protecting and benefitting employees on public works; it also promotes many of the law‘s ” ‘specific goals,’ ” including attracting talented workers to public works projects and thereby improving the efficiency and quality of such projects, and protecting union workers from underbidding by non-union workers. (Maj. opn., ante, at p. 5, citing Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985 (Lusardi).) By contrast, The court says “there is at least some reason to believe the Legislature intended to treat work performed on rolling stock differently from that done on fixed works. One of the primary purposes of the law is to protect local labor markets from cheaper outside labor. [Citation.] Paying the prevailing wage to workers constructing a public building located in a particular city or county obviously serves that purpose. But work on rolling stock could conceivably be performed almost anywhere, then delivered to wherever it might be used. This practical reality raises a question about whether the law‘s purpose is served by paying prevailing wages to workers that may be far away from the location of the governmental entity paying for the work.” (Maj. opn., ante, at pp. 24-25.) It is true that “work on rolling stock could conceivably be performed almost anywhere, then delivered to wherever it might be used.” (Maj. opn., ante, at p. 24.) But today‘s holding tips the calculus for public entities by incentivizing them to bid down local wages or utilize cheap out-of-market labor to perform such tasks. Why would a public entity choose to have such tasks done locally at local wage rates if they can be done at much lower wages overseas, out-of-state, or in other regions of California? By contrast, in the absence of a wage differential, public entities would have less or no reason to favor those workers over local unionized workers, consistent with the purposes of the prevailing wage law. (See Lusardi, supra, 1 Cal.4th at p. 987 [“specific goals” of prevailing wage law include “protect[ing] employees from substandard wages that might be paid if I see no discussion in the legislative history — and the court cites none — explaining why it would make sense to exclude construction or installation work performed on rolling stock from the scope of the prevailing wage law. No one disputes that if Busker‘s electrical installation work had been performed on the wayside instead of on individual Metrolink train cars, his labor would have been covered under the prevailing wage law. By drawing a distinction between identical work performed on the wayside versus on rolling stock — even though the same underlying tools, processes, materials, skills, and expertise would be used to perform that work — today‘s opinion attributes to the Legislature a limitation that is not evident in the statute‘s text or legislative history. Today‘s opinion notes that in 2012, the Legislature amended But freestanding modulаr office systems, unlike fixed modular office systems, can be easily moved and transported to other locations; they are not permanently affixed to structures. In that sense, they are similar to rolling stock. And while freestanding modular office systems are typically found in buildings or on land, the same is true with respect to rolling stock, which is typically found in buildings like train stations or on fixed structures attached to land like train tracks. Further, the phrase “includes, but is not limited to” in the 2012 amendment (Stats. 2012, ch. 810, § 1) suggests that the distinction between fixed and freestanding work has significance beyond modular office systems. Indeed, the legislative history of the amendment explains that the reasoning of the Department of Industrial Relations (Department) in some cases focused to an inordinate degree on whether a construction or installation project was affixed to real property, when the proper focus of its inquiry should have been on the nature of the workers’ labor. (Assem. Com. on Labor and Employment, Analysis of Assem. Bill No. 1598 (2011–2012 Reg. Sess.) as introduced Feb. 6, 2012, pp. 2–3 (Analysis of Assem. Bill No. 1598); see also maj. opn., ante, at p. 16 [“the Legislature‘s focus was on the nature of the work“].) Specifically, the Legislature noted that failing to amend the prevailing wage law to rebut the Department‘s reasoning would Finally, today‘s opinion observes that the Department and the Attorney General have consistently excluded rolling stock from coverage under the prevailing wage law. (Maj. opn., ante, at p. 23.) But Deрartment decisions “do not have precedential effect,” and “[t]he ultimate responsibility for the construction of a statute rests with the court.” (Id. at pp. 22–23, citing City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 951.) Here, the Department‘s interpretation is in conflict with the statute‘s text and other indicia of legislative intent. In sum, Busker‘s work meets the three elements of “public work” set forth in LIU, J. I Concur: CUÉLLAR, J. BUSKER v. WABTEC CORPORATION S251135 Over the years, tens of thousands of Californians have been employed on public works — from carpenters to sheet metal workers to electricians and a host of other “laborer[s], worker[s], and mechanic[s].” ( The majority breaks with this history for no good reason. Here and in the other prevailing wage case we also decide today, Mendoza v. Fonseca McElroy Grinding Co., Inc. (Aug. 16, 2021, S253574) __ Cal.5th __ (Mendoza),2 it radically constricts the prevailing wage law‘s scope and undoes an established line of decisions — all under the rubric of judicial modesty. Casting aside our obligation to construe the law liberally, the majority holds that The majority fails to persuade. It papers over With respect, I dissent. A careful reading of Second, the section uses the word “deemed” when it explains what happens to workers engaged in such integral activities. To wit: The laborers “are deemed to be employed upon public work.” ( The majority glosses over these two aspects of The majority also argues that the statutory structure confirms its interpretation. Not so. What the majority reasons is this: article 1 of the law, titled “Scope and Operation,” sets the scope of the law by carefully defining the “public works” to which the law applies, whereas article 2, titled “Wages,” simply concerns the wages to be paid to workers covered under article 1. (Mendoza, supra, __ Cal.5th at p. __ [pp. 9–10, 20–21].) Notice how much this argument depends on article titles — titles that don‘t fundamentally change a statute‘s meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 602.) The language of a statutory provision such as The majority responds that reading the statutory language here to expand coverage places “undue impоrtance” on Also providing a clear limit: how the prevailing wage law defines the type of individual it protects. ” ‘Worker’ ” as used in the law “includes laborer, worker, or mechanic.” ( Over more than four decades, the Courts of Appeal and the DIR have consistently construed Three appellate decisions have interpreted Williams, supra, 156 Cal.App.4th 742 embraced Sansone. Williams concеrned truckers who hauled excess rock and sand from construction sites for later use at nonpublic worksites. (Williams, at pp. 746–747.) It explained that the critical aspect of Sansone and its own determination was whether the trucking represented “an operation truly independent of the performance of the general contract for public work, as opposed to . . . work that was integral to the performance of that general contract.” (Williams, at p. 752.) Applying this test, the Williams court concluded that the rock and sand haulers did not perform covered labor under Finally, we consider Sheet Metal Workers’ Internat. Assn., Local 104 v. Duncan (2014) 229 Cal.App.4th 192 (Sheet Metal). Three factors emerge from Sansone, Williams, and Sheet Metal that help determine whether labor is done in “the execution of [a] contract for public work” under Work is functionally related to the execution of the construction process if it requires similar labor, skills, or other natural relationship to covered work, and if the construction could not be completed as contracted for without the work in question. This framework provides a clear limit to prevent coverage for ancillary tasks, which may be required under a contract that includes public work but in no way impact a contractor‘s construction obligations. To be “deem[ed] . . . public work” under Finally, work falling under These three factors have provided a rubric for applying The Legislature has not amended or repealed The majority nonetheless somehow decides these cases impermissibly interfere with the Legislature‘s prerogative. (Mendoza, supra, __ Cal.5th at p. __ [pp. 21–22, 29].) It further contends that my embrace of these cases essentially calls on The majority‘s departure from settled law becomes even more puzzling once we consider DIR coverage determinations. The DIR Director has “quasi-legislative authority to determine coverage of projects or types of work under the prevailing wage laws.” ( The DIR has dutifully applied the approach in Sansone, Williams, and Sheet Metal for effectuating Like the Court of Appeal cases they apply, the agency decisions tell us something about the scope of The majority nonetheless urges that historical sources on The majority begins with the original language of According to the majority: The first sentence covered government workers — those ” ‘employed by’ ” the state on public works. (Mendoza, supra, __ Cal.5th at p. __, fn. __ [p. 11 & fn. 11].) And the second clarified that the law also extended to nongovernment laborers by ” ‘deem[ing] [them] to be employed upon public works.’ ” (Mendoza, at p. __, fn. __ [pp. 11–12 & fn. 12].) The majority draws a similar inference from the 1937 codification, which split the two sentences into the original versions of sections 1771 and 1772.7 It reasons that Yet this sidestep fails. So does the majority‘s interpretation more broadly, because it hinges on a premise the majority fails to fully substantiate: that the prevailing wage law as originally enacted generally covered government workers. That proposition appears debatable at best. On the one hand, the majority correctly observes that the 1931 and 1937 prevailing wage laws did not expressly exclude government workers (Mendoza, supra, __ Cal.5th at p. __, fn. __ [pp. 11, fn. 11, 15]), and it marshals some support from two Attorney General opinions and the early prevailing wage laws of some states (Mendoza, at p. __ [pp. 12–13, 16–17]). And the 1931 Act‘s use of the phrase “employed by or on behalf of” the state can plausibly be read to broadly cover direct government employees and contracted-for employees alike. (Stats. 1931, ch. 397, § 1, p. 910; see Mendoza, at p. __, fn. __ [p. 12, fn. 12].) On the other hand, that phrase can also plausibly be read merely to encompass the range of contract workers who engaged in labor on public works — irrespective of the precise nature of their relationship with the government, a contractor, or a subcontractor. (See Dept. of Industrial Relations, Div. of Labor Standards Enforcement, Public Works Manual (May 2018) § 2.2, pp. 2–3 [citing, inter alia, Sansone, supra, 55 Cal.App.3d at p. 463].) This view finds support in the express exclusion of coverage for government employees in the 1897 precursor to the prevailing wage law (Stats. 1897, ch. 88, § 1, p. 90); the absence of any discussion of such coverage in our cases addressing the uncodified prevailing wage law (see, e.g., Metropolitan Water Dist. of Southern California v. Whitsett (1932) 215 Cal. 400); and how many states historically limited their prevailing wage laws More importantly, we held in Bishop v. City of San Jose (1969) 1 Cal.3d 56 (Bishop) that the prevailing wage law as originally enacted did not cover government employees. (Bishop, at p. 64.) Though the majority offers some potentially tenable critiques of the decision (e.g., Mendoza, supra, __ Cal.5th at p. __ [pp. 18-19] [it failed to address how what is now But suppose the law did apply to these very workers. The majority fails to explain why it would have been necessary to include section 1772 simply to clarify that the law also protected those employed by contractors and subcontractors. As originally enacted in 1931 and codified in 1937, the prevailing wage law unquestionably applied to work done by contract. In fact, that represented the primary focus of the law. (See Bishop, supra, 1 Legislatures don‘t always manage to write laws that are perfectly clear. But it‘s doubtful the Legislature used extra words via section 1772 to say nothing new regarding contract labor. It‘s likewise doubtful the Legislature enacted the section merely to clarify the types of private workers covered. According to the majority, even if the prevailing wage law did not apply to government workers, section 1772 still originally served and continues to serve the purpose of removing any doubt that the law applies to the gamut of contract workers potentially employed on a public works project, from those contracting directly with the government to those formally or informally employed by a contractor or subcontractor. (Mendoza, supra, __ Cal.5th at p. __ [pp. 8-9, 19-20].) But the majority provides nothing in the way of case law, legislative history, or historical context to support this alternative view. Indeed, the precursor language to section 1771 swept quite broadly, covering “all laborers, workmen and mechanics employed by or on behalf of the State . . . engaged in the construction of public works.” (Stats. 1931, ch. 397, § 1, p. 910, italics added.) So too did the original version of section 1771; it covered “all workmen Finally, even if the majority‘s arguments regarding section 1772‘s narrow purpose make this case close, that is of no moment. The prevailing wage statute‘s liberal construction rule requires us to select the longstanding, broader interpretation offered by Sansone and its progeny. (City of Long Beach, supra, 34 Cal.4th at pp. 949-950.) The majority doesn‘t reject this rule; it merely pays lip service to it (Mendoza, supra, __ Cal.5th at p. __ [p. 4]) and ultimately flouts it in practice. The facts of this case underscore why reading section 1772 liberally, to cover critical labor beyond defined “public work” activities, furthers the purpose of protecting and benefitting those employed on public works. Plaintiff John Busker performed a range of electrical installation tasks for a public works project to create a communication system for Metrolink public transit trains. He was a blue-collar worker (cf., e.g., Public Employer‘s Guide to FLSA Employee Classification § 900), and his work would indisputably be covered under the prevailing wage law had it been performed on the wayside, rather than onboard rolling stock (maj. opn., ante, at pp. 25-26). In other words, he performed the type of work the prevailing wage law targets and he fits within the class of workers the Legislature designed the prevailing wage law to protect. Busker‘s onboard labor readily qualifies as “construction” and “installation” work within the meaning of section 1720, First, the completion of Busker‘s onboard work served as a necessary component for Parsons, the prime contractor, to meet its obligation under the prime contract requiring creation of a functional Metrolink rail safety system. The prime contract required Parsons to “deliver[] . . . a fully integrated and fully functional PTC System that has been completely tested” and shown to reliably perform “under full-scale and full-service operation.” (See also Busker v. Wabtec Corporation (9th Cir. 2018) 903 F.3d 881, 883.) Because the onboard work supplied equipment for the system, the work had to be completed for Parsons to fulfill its contractual duty. Second, Busker‘s onboard work was integrally related to the covered wayside work and the PTC system as a whole. The onboard work occurred on-site at the project‘s railyard and central maintenance facility. Moreover, the onboard work served as a key component in the completely integrated, fully tested system that Parsons had to deliver. The wayside work and the system would both have been useless without the onboard work. Without it, thеre could be no communication between the trains and the wayside locations, and from the wayside to the centralized control system. In other words, because the onboard work was inherently tied to the wayside work, it cannot be viewed as independent from that work or installation of the PTC system as a whole. Third, Busker‘s onboard work related functionally to the covered field work. It‘s not just that the field equipment and the Covering Busker‘s labor based on this three-part framework for applying section 1772 achieves the specific goals of the prevailing wage law. For example, covering workers such as Busker helps attract talented craft workers to public works projects and thereby improves the efficiency and quality of such projects (Kaanaana, supra, 11 Cal.5th at p. 166) — an especially critical goal for a system installation aimed at preventing collisions and other dangerous train movements for public transportation. It would also protect union workers from underbidding by nonunion workers. (Ibid.) Now consider what the majority‘s interpretation will encourage contractors to do: easily circumvent the prevailing wage law. Under its interpretation, contractors can simply employ two sets of workers: one set of workers engaged in defined public work and a different set of cheaper workers to perform any work that necessarily facilitates and supports defined work but does not fall under one of the “public work” definitions. That outcome seriously undercuts the prevailing wage law‘s effectiveness. It essentially enables employers to section off portions of a public works contract in order to circumvent application of the prevailing wage law. As Busker Indeed, the odd consequences of the majority‘s holding in this case underscore the wayward nature of its interpretation. The idea that the prevailing wage law covers electricians and other skilled or manual work at a railyard and alongside a railway, but excludes coverage for functionally related, integrated, and contractually required work, simply because the worker happened to be working on a railcar parked at the railyard, strikes me as an arbitrary and implausible distinction — and one unsupported by any indicia of the prevailing wage law‘s purpose. In spite of — and perhaps especially because of — the majority‘s wholly unjustified constriction of section 1772, courts and the DIR must still strive to liberally construe the other provisions of the prevailing wage law, including its definitions of covered “public work.” Justice Liu‘s dissent, which I join, offers one potential template for doing so. (Dis. opn. of Liu, J., ante, at pp. 1-7 [illustrating how the language, legislative history, and purpose of Longstanding authority provided a persuasive and workable framework for applying section 1772 to cover certain labor critical to the “execution of” a public works contract and defined “public work.” The majority here and in Mendoza, supra, __ Cal.5th __ upends this established understanding of section 1772 without justification. By eviscerating the scope of section 1772, the majority fails to live up to our obligation to construe the prevailing wage law liberally. This failure strikes a heavy blow to the workers of our state. Across public works sites, laborers performing tasks vital to the performance and completion of covered “public work,” and public infrastructure projects as a whole, now lack prevailing wage law protections — even if they represent the very type of workers the prevailing wage law is designed to apply to, and even if they perform the very type of labor the law is meant to cover. With respect, I dissent. I urge the Legislature to amend section 1772 to restore the settled understanding of the section offered by Sansone and applied by the DIR: that work “in the execution of” a public work contract encompasses labor performed in preparation for, in furtherance of, or otherwise bearing a critical relationship to defined public work and the public works project as a whole, and that such labor is therefore subject to prevailing wage protections. ( CUÉLLAR, J. I Concur: LIU, J.C. Onboard Work as “Integral” to Field Work
III. CONCLUSION
KRUGER, J.
GROBAN, J.
JENKINS, J.Dissenting Opinion by Justice Liu
Dissenting Opinion by Justice Cuéllar
I.
A.
B.
1.
2.
C.
D.