Untitled Texas Attorney General Opinion ( 1986 )

The Attorne,y General of Texas
March 31, 1986
JIM MATTOX
Attorney General
Supreme C~NI Building Honorable George I'ierce Opinion No. .x+463
P. 0. BOX 12548
Chairman
Austin. TX. 7871% 2548
512/475-2501
Committee on Urbar.Affairs Re: Whether an ordinance of the
Telex 9101874-1367 Texas House of Rel'resentatives city of San Antonio, which requires
Telecopier 512l475.0286 P. 0. Box 2910 apprentices and/or trainees in city
Austin, Texas 7E769 projects to be enrolled in a pro-
714 Jackson, Suite 700
gram registered with the United
Dallas. TX. 752024506 States Department of Labor, is vio-
21~7428~44 lative of state right-to-work laws
Dear Representatix,ePierce:
4824 Alberta Ave., Suite 160
El Paso. TX. 798042793
915453334B4 You ask whet'xr a'San Antonio ordinance, which requires appren-
tices on city proiects to be enrolled in-an apprentice program regis-
- tered with the lJmi.tedStates Department of Labor, violates Texas'
91 Texas, Suite 700 "right-to-work" 1~s. See V.T.C.S. art. 5207a. Section 2 of article
,“ston. TX. 77002-3111 5207a. commonly known ashe "right-to-work" law, provides that "[nlo
713l2255eaS
person shall be clenied employment on account of membership or non-
membership in a lebor union." You state that
808 Broadway, Suite 312
Lubbock. TX. 79401-3479 tslince apprentice programs now in operation in
5081747-5238 Bexar Ccunty are operated by unions, and are open
only to union members, workers seem to be pre-
4309 N. Tenth, Suite B cluded from participation in these programs unless
f&Allen, TX. 78501-1885 they become union members.
512l582-4547
As will be shown :Lnthe discussion to follow, however, the registered
200 Main Plaza, Suite 400
apprentice programa required under the San Antonio ordinance are not
San Antonio, TX. 78205.2797 limited to union Trograms.
5121225-4191
The ordinance in question provides, in part, as follows:
An Equal OpportunItyI
AffIrmaWe Action Employer
p. 2120
Eonorable George Pierce - Page 2 (JM-463)
employment as an a-Fprenticein such an apprentice-
ship program; wht;is not individually registered
in the program, tit who has been certified by the
Bureau of Appren~lceship & Training or a State
Apprenticeship A@ncy (where appropriate) to be
eligible for probationary employment as an appren-
tice. The all&able ratio of apprentices to
joutaeymen in any craft classification shall not
be greater thar. the ratio permitted to the
contractor/subcont.ractoras to his entire work
force under the registered program. . . . The
wage rate paid ay'prenticesshall be not less than
the specified ra1:e la the registered program for
the apprentice's level of progress expressed as
the appropriate percentage of the journeyman's
rate contained in the applicable wage determina-
tion decision. (Emphasis added).
General Conditions of San Antonio Ordinance 515.a. No. 60110 (Jan. 17,
1985).
The underscored language in the portion of the ordinance which is
quoted above tracks the 1anSuage in the federal regulations governing
apprentice programs. See 29 C.P.R. 55.5(a)(4)(1) (1985). Consequently,
an explanation of thErig:Ln, operation, and purpose of federally-
approved apprentice prograns for public works projects will illuminate
the reasons for the adoption of the requirement in question and must
precede our response to your specific question.
Registered apprentice programs are part of the federal regulatory
scheme requiring prevailing wages and minimum working conditions on
contracts for the construction, repair, or improvement of public
buildings or works which receive or expect to receive federal
financial assistance. See 29 C.F.R. 15.1 (19851, et seq.; see
generally North Georgia xzlding and Construction Trades Councils
Goldschmidt, 621 F.2d 697 (5th Cir. 1980). The regulations coordinate
the administration and enftxcement of the labor standards provisions
of numerous federal acts w!xlchauthorize federal financial assistance
for a variety of state and l.ocalprojects. See S5.1. The main labor
legislation incorporated in these acts and forming the basis for the
regulations is the Davis-Bacon Act, 40 U.S.C. 5276a (1982). et seq.
This act requires the payment of wages on certain public contracts
which are at least equivalent to those which prevail in the locality
for the same classification of work on similar projects. Sec.
276a(a). The act protect;3 the employees of government contractors
from substandard wages a,nd ensures that local workers are not
precluded from work on gove,rnmentprojects by the importation of cheap
labor from distant sources. Tennessee Roadbuilders Assn. v. Marshall,
446 F. Supp. 399, 401 (MD. Yean. 1977); -See United States v. Binghamton
p. 2121
Honorable George Pierce - Eage 3 (~~-463)
Construction Company, Inc., 347 U.S. 171 (1954); North Georgia
Building and Construction 'Fades Council v. Goldschmidt, 621 F.2d 697
(5th Cir. 1980).
Approved apprentice programs involve the payment, under certain
conditions, of wages which sre less than the prevailing wage and which
are stated as a percentage of the prevailing journeyman wage. See 29
C.F.R. $5.5(a)(4). The secretary of labor is charged by stat= to
formulate and promote labor standards necessary to safeguard the
welfare of apprentices. ---
!k!e 29 U.S.C. 1150, 50a (1982). The idea
behind apprentice prograna is that the apprentice will receive
training in return for h:Ls work at lower than minimum prevailing
wages. See 29 U.S.C. 521'4 (1982). The main focus of the approved
programslimits the allowable ratio of apprentices to journeymen on
the job site in each craft ~classification. See 29 C.F.R. 95.5(a)(4):
In re Repp 8 Mundt, Inc. and Goedde Plumbi~k Heating Co.,. Idc:;
U.S. Dept. of Labor Wage AEpeals Board Case No. 80-11 (1984).
This focus serves a number of purposes. The limit on the number
of apprentices assures that the apprentice actually receives the
training contemplated by t1.eprogram, i.e., from observing and working
under a variety of qualif:ladjourneymen in the work classification.
See id. The ratio also assures that the overall quality of the public
--
project will not suffer bec,auseof a lack of qualified journeymen. In
re Repp 8 Mundt, Inc., at 9 (n. 3). Moreover, because certain wax
performed by apprentices artybe inherently dangerous, incompetence or
inadequate supervision of one employee can endanger the health,
safety, and lives of others. Id. Finally, the ratio limit prevents
contractors from undercuttinathe urevailina waae reauirement bv
hiring apprentices to do the work of‘journeym&. Ia. at'6; see also
Building A Construction Trs,desDepartment, AFL-CIO, v. Donovan, 553 F.
Supp. 352, 355 (D.D.C. 19827 (undercutting the act by hiring aelpers"
to perform the work of journeymen is prohibited), modified (on other
grounds) 712 F.2d 611 (D.]:.. Cir. 1983), cert. denied 464 U.S. 1069
(1984).
Thus, local government.albodies must require that public works
contractors comply with federal regulations regarding apprentice
programs in order to rewive federal financial assistance under a
variety of federal acts. ---
!:t!e
29 C.F.R. 05.5(a)(4). The ordinance in
question, however, applies by its terms to 100% locally-funded city
public works construction projects. See General Conditions of San
Antonio Ordinance No. 60110, 512, 3. -
The San Antonio ordinance was enacted "[iln accordance with
article 5159a.u General C:onditions of San Antonio Ordinance No.
60110, $2. Section 1 of article 5159a provides, in part:
p. 2122
,
.
Honorable George Pierce - l?age4 (JM-463)
Not less than tlur general prevailing rate of per
dieaiwages for \ra#rkof a similar character in the
locality in which the work is performed . . . shall
be paid to all laborers, workmen and mechanics
employed by or on behalf of the State of Texas, or
by or on behalf of any county, city and county,
city, town, dist:rictor other political subdivision
of the State, enlbagedin the construction of public
works. . . .
Thus, the Texas Legislature has not only authorized but required the
payment of prevailing wage83on state and local public works projects.
State and local prevailing wage ordinances have been upheld in s
number of jurisdictions. See, e.g., Bernard1 v. City of Highland
Park, 482 N.E.2d 114 (Ill. App. Ct. 1935); Roland Electrical Co. V.
Er and City Council of ILaltimore,124 A.2d 783 (Md. 1956); see also
Conunissionof Labor and In&tries v. Worcester Housing Authority, 393
N.E.2d 944 (Mass. App. Ct: 1979); In re Sellers, 215 N.Y.S.2d 385
(N.Y. App. Div. - 1961). 'The Supremacy Clause of the United States
Constitution does not require a state or city to adopt the federal
prevailing wage scheme on wholly locally-funded public works projects.
See Hayen v. County of Cgle, Illinois, 463 N.E.2d 124, 129 (Ill.
im4); cf. Attorney Genecal Opinion R-911 (1976). Its adoution.
however,x certai&y not prohibited. See, -e.g.; Ritchie P&ing;
Inc.. V. Kansas DepartmerE of Transportation, 654 P.2d 440 (Kan.
1982). In Ritchie Paving, the Kansas Department of Transportation
adopted the federal wage rz.tesfor a wholly state-funded project. The
Kansas Supreme Court upheld this action against a challenge that it
violated the state's prevailing wage statute. The court reasoned
that, because the state prjcvailingwage statute was modeled after the
federal act, the federal standard was not inconsistent with the
purpose of the state act. 654 P.2d at 444-45. The court also
indicated that the adoption of the federal standard was not an invalid
delegation of authority be~:ausethe decision to use the federal scale
was that of the state tcsnsportation department, not the 'federal
department of labor. 654 I'.2dat 445.
Similar consideration3 apply to the case at hand. One of the
primary objectives of thl! statute is to protect workers. Texas
Highway Commission V. El. Paso Building and Construction Trades
Council, 234 S.W.2d 857 ?rex. 1950); Cullipher v. Weatherby-Godbe
Construction Co., Inc., 570 S.W.2d 161, 164 (Test. Civ. App. -
Texarkana 1978, writ ref'i. n.r.e.); Southern Prison Co. v. Rennels,
110 S.W.2d 606. 609 (Tex. Civ. App. - Amarillo 1937, writ dism'd);
Attorney General Opinion J&329 (1985). The act not only authorizes
the compliance with federal.standards that is necessary to.the receipt
of federal financial assistance but parallels the federal purpose on
p. 2123
Honorable George Pierce - Page 5 (JM-463)
100% locally-funded projexts. Article 5159a was modeled on the
Davis-Bacon Act. Attorney General Opinion JM-329. Consequently, we
do not believe that San Ant:onio’s adoption of the federal standards
for apprentice programs on 100% locally-funded projects is
inconsistent with the state ,prevallingwage statute.
Moreover, the courts in Rennels, Culllpher, and v
Commission ind1.cated that s city’s determination of ptnrailing wage is
not reviewable by the cour1:sbecause it is a function delegated in
article 5159a to the discretion of governing bodies. The conclusion
that a city has broad discretion in determining prevailing wage also
suggests that it has broad discretion in deciding the related matter
of apprentice program. Ece Attorney General Opinion H-350 (1974).
---
These cases, however, are based on the well-established principle that
determinations of fact that are delegated to a govermen tal body
cannot be reviewed. The legal meaning of prevailing wage and the
proper scope of a city’s powers under article 5159a are arguably legal
questions and therefore sti):Iect to review by the courts. A decision
on the meaning of prevaili:lSwage and on the scope of a city’s power
under article 5159a is currently pending court decision. (No.
CV-01-86-00018). The city of Houston appealed a ruling by the 152nd
.Dlstrict Court, on Dece&a:c 20th, 1985 (No. 85-66195), granting a
temporary injunction against the city’s enforcement of a “weighted
.-
average” interpretation ol’ prevailing wage. This office has long
followed a policy of refrrliningfrom issuing an opinion on a matter
which is before the courts, Because we find that the San Antonio
ordinance In question is consistent with article 5159a. however, we
need not address the issue of whether the city has broader powers
under article 5159a.
You indicate that th#: apprentice programs now in operation in
Buar County are operated by unions and are open only to union
members. Consequently, you suggest that non-union workers are
precluded frownparticipat%m In the -apprentice programs in violation
of article 5207a, the stattr’sright-to-work lav. This explanation of
the purpose and operation, of apprentice programs, however, damon-
strates that the programs are designed to benefit all workers, not
just union workers.
Nowhere do the San Antonio ordinance or the federal regulations
upon which the ordinance :Le based preclude non-union employers from
operating an apprentice program in accordance with the standards of
the Wired States Departmers of Labor. To decide that these programs,
which are designrd to protect workers under the prevailing wage law.
violate the state’s right-to-work laws would be akin to saying that
all minimum wage and maxirlcmhour laws and minimum safety standards
violate the law. See V.T.C.,S.art. 5159d (minimum wage); art. 5165.1
(maximum hours); aTt8. 5173-5175 and 5179-5180 (protection of health
r‘ and safety); art. 5181.1 (child labor); art. 5182-5182-1 (protection
p. 2124
Eonorable George Pierce - Page 6 (JM-463)
of workmen on buildings); art. 5182a (occupational safety). The
prevailing wage statute, article 5159a, and the right-to-work statute,
article 5207a, are part of the same statutory scheme protecting labor
in this state. The fact that those statutes have existed together for
nearly 40 years is a good indication that the Texas Legislature does
not consider them inconsistent. Consequently, we conclude that the
ordinance in question does not violate the state's right-to-work laws.
SUMMARY
An ordinaace of the city of San Antonio,
euacted pursuant to' the prevailing wage law,
article 5159a, V.'P.C~.S.,
that requires apprentices
or trainees on 100% locally-funded public works
projects to be cmolled in au apprentice program
which meets the federal labor specifications does
not violate the state's right-to-work law, article
5207a. V.T.C.S.
JIM MATTOX
Attorney General of Texas
JACK EIGRTCWRR
First Assistant Attorney Gemral
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICR GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 2125