SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit handed off to the California Supreme Court a case concerning the definition of “public works” in the California Labor Code.
The appeals court determined on Sept. 6 that the state Supreme Court can better resolve a dispute between John Busker and his former employer, Wabtec Corp.
The question at hand is “whether work installing electrical equipment on locomotives and rail cars falls within the definition of ‘public works’ under California Labor Code 1720(a)(1)… either as constituting ‘construction’ or ‘installation’ under the statute or as being integral to other work performed for the PTC (Positive Train Control) project on the wayside” such as “field installation work,” according to the opinion.
Judge Richard R. Clifton
Considering no lawsuit in California has ever answered the question and it is one that is relevant to several California workers, would make the Supreme Court a more appropriate venue to resolve the issue, the appeals court determined.
It also added the Supreme Court will have the ability to rephrase the question, and that the appeals court will accept whatever decision it rules.
Busker, who worked for Wabtec, was hired to fulfill on-board work for the company. Wabtec had entered a subcontract with Parsons Transportation Group to help Parsons fulfill its agreement with the Southern California Regional Rail Authority (Metrolink).
Metrolink and Parsons were completing a project that called for Parks to design, furnish, and install a communications network, the PTC, which required two different types of labor. The “on-board work” portion was meant to install PTC equipment to Metrolink’s rail cars.
“Field installation work” meant installing PTC systems on the wayside and tracks. This involved trenching, welding, installing towers for radio antennas, and operating cranes and forklifts. Parsons brought on Wabtec as a subcontractor to help complete the on-board portion and Metrolink okayed it.
Busker filed a wage lawsuit with the California Department of Industrial Relations and the Division of Labor Standards Enforcement. After the DLSE launched an investigation, it determined the project was considered “public works.” It charged Wabtec and Parsons with a Civil Wage and Penalty Assessment that resulted in $5,786,349 for prevailing wages and $682,215 for related penalties.
Parsons and Wabtec then asked for the Labor Commissioner to evaluate the case. Parsons, Wabtec, and Metrolink agreed that the prevailing wage law doesn’t protect on-board work as it is not considered “fixed works” but “rolling stock.”
Still, before they requested the review, Busker sued via a putative class action in Los Angeles County Superior Court, stating Wabtec didn’t pay workers a prevailing wage and DLSE released the assessment so they could settle the issue in court.
Wabtec then transferred the lawsuit to federal district court via the Class Action Fairness Act. That court denied Busker’s request to remand the case back to state court, and the appeals court confirmed.
All parties then agreed that the prevailing wage coverage issue would be settled through a summary judgment motion, which the district court granted for Wabtec.
Busker then appealed, bringing the case to the current court.
Circuit Judges Richard R. Clifton, Consuelo M. Callahan and District Judge Kenneth M. Hoyt authored the opinion.