Case Information
*1 The Attorney General of Texas July 1, 1985
JIM MATTOX Opinion No. Eouorable Lloyd Cr,l~w JM-329 Supreme Coun Building cheirQlan P. 0. Box 12548 Re: Authority of a city Committee on Labor and Employment to A”,llrl. TX. 78711.2546 5121475.2501 Telex 9101674.1367 ~e,scopier [51214750266] Texas Rouse of Repmaentativea P. 0. Box 2910 Relations V.T.C.S. rates under article 5159a, wage
Austin, Texas 78X9
714 Jackson. Suits 700 Da~hr. TX. 75202-4506 [2147428944] Dear Representative Criss:
You have inquired about the propriety of the procedures being used by the city elf Rouston to determine prevailing wage rates u)24 Albd,,~ Ave.. Suit0 160 be paid to workem engaged of public vorka E, paso. TX. 793052793 the construction that city. You state 9lY533-3464
1001 Texas. Suite 700 “ous.,o~, TX. 77002-3111 7l312235886 establishment P.ouston will dramatically obvioual.g , rate many voxking people for building in the Earris County area. effect of prevailing wage by livelihood city of of 906 Broadway. Suite It i~r my understanding thst the city of Eouston ,.ubWck. TX. 79401.3479 city corn~cil intends to adopt an alleged wage rate 806i747-52% study recently completed by 5n independent con-
tractor ‘to the city in the very near future. The
4309 N. Tenth. Suite B basis I’or the findings and conclu5iona of McAllen. TX. 78501~1685 alleged atudy~ is a veighted average rather than 512l6S.24547 determixlng a general prevailing wage rate. My concern relates to the methods used ‘by 200 Main Plaza. Suite 400 San An,on,o. TX. 782052797 city’s agent to establish such a prevailing wage 5121225-4191 rate vhen tested by the una.mbiguoua proscriptions 5159a. and a~:atutox-y directives article V.T.C.S. An Equal OppOftunilYl Affirmalive Aclion EmPbYer
The pertinent parts of article 5159s read as follova: Section 1. Not leas than the general pre- rate of per diem wages for vork of a aimilax in which the character work is performed . . . shall be paid to al1 laborel s, workmen and mechanics employed by or on behalf of the State of Texas, or by or on behalf of anJ’ county , city and county, city, town. *2 (RI-329)
llonorable Lloyd Crlar - Paat.
district or other political subdivision engaged III the of public
Stste.
works . . . .
Sec. 2. The public body awarding any coutract for public work . . . or otherwise undertaking any public work, ahat:, ascertain the general pre- rate of per diem wages in vhich the vork is to be performed for each craft or type of vorkmm or mechanic needed to execute the contract. . . .
. . . . . The term ‘general prevailing Sec.4. . . rate of per diem wages’ shall be the rate deter- mined upon as such rate by the public body avardlng the contract, or authorizing the work, whose decision ia the matter shall be final. It is mandatory thrt the public body state such prevailing wage as a sum certain, in dollars and cents. Nothing 111 this Act, however, ahhall be construed to prohibit the payment to, any laborer, workman or mechanic employed on any public work as aforesaid of more ,than the said general prevailing rate of wages.
One of the primary purposes of statute is to
protect workmen, laborers. mechanics from being required, if they accept employment, to work for leas than the prevailing wages paid . . . for the same class at.d character of work.
Southern Prison Co. v. Renuels. 110 S.W.Zd 606, 609 (Tex. Civ. App. - Auarlllo 1937. writ diam’d~, This conclusion “aa quoted [55] authori- tative by Texas Supreme Court in Texas Righvay Cosmiaaion v. El Paso Building and Conatrwtion Co., 234 S.W.Zd 857 (1941). and has been recently reaffirmed cl a case vhich reiterated that a primary rre.5 “to protect the workman from working at objective of the statute rates below the prevailing; wages locality.” Cullipher- v. Weatherby-Godbe Construction Company Inc., 570 S.W.2d 161. 164 (Tex. Civ. App. - Texarkana 1978, writ dism’d).
The genesis of the Texas Prevailing Wage Statute, like that of the federal Davis-Bacon Act, 46 Stat. 1494 (codified as amended at 40 U.S.C. 55276a to 276a-5 (13132)). upon which it was modeled, is clearly stated the act’s “emergancy clause” as follows:
Sec. 7. The fact that there uo adequate lav protecting laborers. workmen and mechanics engaged
. . ’
[*]
Ronorabla Lloyd Criaa - Paga 3 (J&329)
in doing perfomiug on public vorka in vork Texas ita political aubdivlalona. and the and fact further that many contrqctora are taking advantage of iaduatrisl and ccoaomic the present condition to beat d,wn vages to a lavel far belov required co mslntain a laborer. vorkman or that mechanic in reasonable circumstances, and the further fact condltloa has created a social problem dewnding the immediate attention of the legislative department of our State, create an emergency and an imperative public neces- sity. . .
Acts 1933, 43rd Leg., ch. 65, 07, at 93. While the Texas lav did not set out a methodology for t!x determination of the prevailing vage rates for the respective trades, this office very early held that It vas duty of appropriate governing body ‘to ascertain general prevailing vage rates” for the respective trades question. Atto,rney General Opinion O-2059 (1944). This opinion simply restated thd straightforward statutory directive is “the gexral rate” of pay for each what particular craft and trade. The essence of this statutory mandate 1s simply that the governmental entity determine its locality what actual wage rate is predominant for each craft.
Article 5159a requires a governmental body to pay “the general prevalllng rate of per diem Tdages.” but it does not define the term. Although section 4 delegates that determination to “the public body awarding the contract ,” the statute clearly requires that, in making determination, a methodology be adopted vhich demonstrates compliance with the “prevailing wage” standard. Your question Implies that “prevailing Wage” and “veighted average” constitute different standards. Assuming this ~1s correct, if a city adopts a “veighted average” standard, in cont’rast to a “‘prevailing vage” standard, it has. in our view, failed to c,omply vith the statute.
SUMMARY A city is requl,red by article 5159a. V.T.C.S.. to pay “the gene,:al prevailing rate of per diem wages” in avarding a contract for public works construction.
- JIH MATTOX Attorney General of Texas ‘,. 1509
Hooorable Lloyd Criss - Page (Jn-329)
TO?l GREEN
First Assistant Attorney Ceruxal
DAViD R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Colin J. Carl 6
Rick Gilpln
Assistant Attorneys
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Robert Gray
Jim noellinger
Jennifer Riggs
Sarah Woelk