Apprentices on Public Works Projects: Sometimes it’s Not What You Do But Who You Do the Work For That Counts

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If you’re a public works contractor in California you’re familiar with prevailing wages. The Prevailing Wage Law, a Depression era law designed to encourage the hiring of local labor, sets a minimum wage that employers must pay to workers on public works projects.

But because the Prevailing Wage Law sets a floor on wages it also limits the opportunity for lesser-skilled workers to gain experience. To address this, the Prevailing Wage Law permits contractors to pay apprentices a lower “apprentice wage” if the apprentice is enrolled in a state-approved apprenticeship program and requires contractors who hire workers in an “apprenticeable craft or trade” to hire a certain number of apprentices.

But are particular apprentices required to be hired depending on the type of work being performed? In Henson v. C. Overaa & Company, Case No A139966 (June 29, 2015), the California Court of Appeals for the First District held that apprentices are required to be hired based on the craft or trade of the journeymen performing work not based on the type of work being performed.

Background

In Overaa, general contractor C. Overaa & Company (“Overaa”) was involved in the construction of dozens of water and sewage treatment systems in Northern California. Overaa was a signatory to a collective bargaining agreement with the Northern California District Council of Laborers (“Laborers Union”). Under the terms of the bargaining agreement, Overaa was required to employ craft laborers represented by the Laborers Union and to hire apprentices enrolled in a state-approved apprenticeship program sponsored by the Laborers Union. Much of the work involved the installation of process piping.

The Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (“Pipefitters Union”), through its member Floyd Henson, filed suit against Overaa alleging that it was required by law to hire apprentices qualified to work on process piping.

Labor Code Section 1777.5

At issue was the application of Labor Code section 1777.5 which provides that “[e]very apprentice employed upon public works . . . shall be employed only at the work of the craft or trade to which he or she is registered.”

According to the Pipefitters Union, the journeymen hired by Overaa from the Laborers Union, while calling themselves laborers, were actually performing pipefitting work since the work involved the installation of process piping.  And because the work being performed was pipefitting work, argued the Pipefitters Union, only apprentices in the “craft or trade” of pipefitting could be employed by Overaa.

In short, according to the Pipefitters Union, under Labor Code section 1777.5 one has to look at the type of work being performed, which in turn,  determine what apprentices from which apprentice programs must be hired.

The Court of Appeals Decision

The Court of Appeals disagreed.

It held that the Prevailing Wage Law is framed, not necessarily on the type of work, but on the craft or trade of journeyman authorized to perform the particular work. And because journeyman laborers are authorized to perform process piping work, apprentice laborers are permissible apprentices under the Prevailing Law, and not solely apprentice pipefitters as argued by the Pipefitters Union.

“If, as [the Pipefitters Union] contends,” concluded the Court, “a journeyman’s craft or trade is defined exclusively by the work processes that he or she is carrying out, that journeyman’s craft or trade can vary from moment to moment. This would also mean that a contractor might need to constantly rotate apprentices to match the craft or trade being performed on the jobsite . . . [which] has the potential to place an unreasonable burden on contractors.”

Conclusion

This was a difficult case. The statute was less than clear. The legislative history provided no guidance. And the rules and regulations did not squarely address the issue before the Court. As a result, the Court had to rely on pragmatism, which some might say, guides all court decisions.

In the end, it was a win for the contractor. And I’m not saying this just because I wrote this post on Labor Day, but it wasn’t exactly a loss for labor unions either, just the particular one bringing this case.

Happy Day After Labor Day.

 

8 Responses to “Apprentices on Public Works Projects: Sometimes it’s Not What You Do But Who You Do the Work For That Counts”

  1. Evan Adams (@evan_adams)

    Great post. I plan on relying on this decision in asking for dispatch of apprentices on an upcoming project. Question: does Wendell Rosin do this sort of law? Labor type law? My construction attorney just does contracts etc…

    Reply
  2. Justin M

    Does this holding allow project managers to hire the cheaper labor union journeyman and apprentices to do any tasks that the labor journeyman are proficient in? I have a CBA with a labor union that has journeyman who are proficient in running electrical wiring. The holding states DAS approval provides a floor of tasks a union can perform not a ceiling or limit on tasks a union can perform. Could I hire my labor union and apprentices to do the electrical task? My goal is to pay more than a normal labor journeyman but less than a electrical journeyman and apprentice. The electrical is a hypothetical task and so is the labor union. Perhaps I could use a ground maintenance union to do labor union tasks etc.

    Reply
    • Garret Murai

      Hi Justin. Sorry for the late reply. I would cautiously say no. The Prevailing Wage Law sets a floor on wages, not tasks. Thus, for any particular task or work being performed, you still need to use laborers who are qualified to perform the particular work being performed.

      Reply
  3. Al

    Hello,

    If the contractor bids the work in question based on the prevailing wage of a certain craft and if a warded the work decides to hire a laborer pay the laborer a lower wage and pocket the difference, would you call this wage theft?

    Reply
    • Garret Murai

      Hi Al. Thanks for reading. I don’t know if it would be considered wage theft but if you are required to pay prevailing wages for a certain craft those prevailing wages should be paid. You are required to submit certified payroll showing that prevailing wages were paid.

      Reply
    • Evan Adams

      I don’t think you can downgrade to laborer if the scope is claimed under another higher paid determination. Also, if a sub is listed at bid time you also can’t just switch out subs without some cause. Tiered subs though, that I don’t think matters as tiered subs are not listed at bid.

      Reply

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