“While this court may restate the certified question . . . , we lack the power to reshape the federal litigation that gave rise to the question in the first instance.”
How later courts described this case
- “While this court may restate the certified question . . . , we lack the power to reshape the federal litigation that gave rise to the question in the first instance.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF
CALIFORNIA
LEOPOLDO PENA MENDOZA et al.,
Plaintiffs and Appellants,
v.
FONSECA MCELROY GRINDING CO., INC., et al.,
Defendants and Respondents.
S253574
Ninth Circuit
17-15221
Northern District of California
3:15-cv-05143-WHO
August 16, 2021
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Kruger, Groban,
and Jenkins concurred.
Justice Cuéllar filed a dissenting opinion, in which Justice Liu
concurred.
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
S253574
Opinion of the Court by Corrigan, J.
California’s Labor Code requires that certain kinds of jobs
performed on a public works project be compensated at a per
diem rate no less than the prevailing wage paid in the area
where the work is done. (Lab. Code,1 § 1771.) The Labor Code
delineates with specificity the kinds of “public work” covered by
the prevailing wage statutes. (See §§ 1720–1720.9.)
The question here is whether the prevailing wage must be
paid for plaintiffs’ mobilization work, which involved
transporting heavy machinery to and from a public works site.
It is undisputed that operation of the machinery at the site
qualifies as “public work.” However, plaintiffs do not contend
that mobilization is “public work” as that term is defined in the
applicable statutes. Instead, they argue that, under Labor Code
section 1772, they are “deemed to be employed upon public
work” because their mobilization work was performed “in the
execution” of a public works contract. Plaintiffs urge an
interpretation of section 1772 that would enlarge the scope of
the prevailing wage law to encompass activities that the
Legislature has not otherwise defined as public work.
This expansive interpretation is unsupported by either the
statutory language or legislative history. Section 1772 was not
intended to define or expand the categories of work covered by
1
Further unspecified section references are to the Labor Code.
1
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
the prevailing wage law. As a result, plaintiffs’ reliance on that
statute is misplaced.2
I. BACKGROUND
Defendants are a roadwork construction company and its
successor, which work on both public and private projects. Part
of the road construction process involves using milling
equipment to break up existing roadbeds so that new roads can
be built. Plaintiffs are unionized engineers who operate the
equipment. Sometimes the heavy milling machines are not kept
at the job site but are stored instead at a permanent yard or
other offsite location. In such cases, plaintiffs report to the
offsite location, load the equipment onto trailers, and bring it to
the job site. This preparatory activity and equipment
transportation is known as mobilization.3
A master agreement between defendants and plaintiffs’
union established wage rates for onsite construction. A separate
memorandum of agreement (memorandum) set a lower wage
rate for mobilization. When assigned to public works projects,
plaintiffs here were paid according to the master agreement and
memorandum, receiving the prevailing wage for onsite work and
the lesser memorandum rate for mobilization.
2
To be clear, although we conclude that section 1772, standing
alone, does not afford coverage for mobilization, we do not hold
more broadly that mobilization necessarily falls outside the
scope of the prevailing wage law’s protections. (See post, at pp.
33–34.)
3
More specifically, mobilization entails: loading the milling
machines onto a trailer; securing the equipment; checking light,
brake, and fluid levels of the truck transporting the trailer;
driving to the construction site; and returning the truck and
trailer to the storage yard.
2
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
Plaintiffs sued in federal court alleging, inter alia, failure
to pay the prevailing wage for mobilization done in connection
with public works projects. The parties filed cross-motions for
partial summary judgment limited to whether mobilization fell
under the prevailing wage law. The district court ruled for
defendants, concluding that mobilization was not covered by
prevailing wage protection.
After all remaining issues were settled, plaintiffs appealed
the mobilization decision to the United States Court of Appeals
for the Ninth Circuit. The sole issue raised was “whether
transporting heavy equipment to be used on public works
construction is [done] ‘in the execution of the contract’ under
California Labor Code section 1772.” We accepted the Ninth
Circuit’s request4 to decide whether the mobilization activity
was covered by section 1772.5
II. DISCUSSION
A. Prevailing Wage Law Overview
California’s prevailing wage law was enacted in 1931 as
an uncodified measure. (1931 Act; Stats. 1931, ch. 397, §§ 1–6,
pp. 910–912.) Its federal counterpart, the Davis-Bacon Act (40
U.S.C. § 3141 et seq.), was enacted the same year but is not
4
Cal. Rules of Court, rule 8.548(a).
5
The Ninth Circuit framed the question as follows: “Is
operating engineers’ offsite ‘mobilization work’ — including the
transportation to and from a public works site of roadwork
grinding equipment — performed ‘in the execution of [a]
contract for public work,’ [section 1772], such that it entitles
workers to ‘not less than the general prevailing rate of per diem
wages for work of a similar character in the locality in which the
public work is performed’ pursuant to section 1771 of the
California Labor Code?”
3
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
completely coextensive with California's version of the law.
(Kaanaana v. Barrett Business Services, Inc. (2021) 11 Cal.5th
158, 165 (Kaanaana).) State and federal prevailing wage laws
“responded to the dire economic conditions of the Great
Depression, when private construction diminished severely and
‘the oversupply of labor was exploited by unscrupulous
contractors to win government contracts . . . .’ ” (Kaanaana, at
pp. 165–166; see Universities Research Assn. v. Coutu (1981) 450
U.S. 754, 773–774.)
The prevailing wage law is a minimum wage provision
whose overall purpose 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 compete 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.)
Those employed on “public works” must generally be paid
at least the “prevailing rate of per diem wages for work of a
similar character” in the area. (§ 1771.) Under the current
statutory scheme, the prevailing wage law does not apply to
work done by a public agency with its own labor force. (Ibid.)
As we will discuss at some length, this statutory exclusion for
4
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
government workers was not always in place. (See post, at pp.
10–20.)
A contractor or subcontractor that does not pay the
prevailing wage rate on a public works project is liable for the
deficiency and subject to a penalty. (§ 1775, subd. (a).) The
statutory payment obligation is independent of any contractual
requirement. (Lusardi, supra, 1 Cal.4th at pp. 981–982.) For
that reason, the fact that the parties’ memorandum provides
lesser pay for mobilization does not settle the question here. If
the statutory scheme requires payment of the prevailing wage
for a particular type of labor, it is irrelevant that the parties may
have agreed to a lesser amount.
The prevailing wage law describes with particularity the
kind of “public works” that fall within its scope.6 Since the law’s
adoption in 1931, it has encompassed certain “construction or
repair work.” (Stats. 1931, ch. 397, § 4, p. 912.) Over the years,
the statutory definition of “public works” has been amended to
clarify and expand the scope of the activities it embraces. As
applicable here, section 1720, subdivision (a)(1) (hereafter
section 1720(a)(1)) currently defines “public works” as
“[c]onstruction, alteration, demolition, installation, or repair
work done under contract and paid for in whole or in part out of
public funds . . . .”7 Other provisions of section 1720,
6
The prevailing wage law uses the plural term “public works”
as well as the singular term “public work.” (See §§ 1720, subd.
(a)(1) & (2), 1770, 1771, 1772.) We use the terms
interchangeably.
7
Although plaintiffs apparently did mobilization work on both
public and private construction projects, we are concerned here
only with work done under contract paid for in whole or in part
with public funds.
5
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
subdivision (a) not involved here provide additional definitions
of “public works” in different contexts like street and sewer work
(subd. (a)(3)), carpet laying (subd. (a)(4) & (5)), and tree removal
(subd. (a)(8)). Still other definitions of “public works” are
contained in additional statutes. (§§ 1720.2–1720.9.)
Plaintiffs’ operation of milling machines at the job site
clearly constitutes “public work” under section 1720(a)(1)
because it involved “[c]onstruction, alteration, demolition,
installation, or repair work,” and all the labor engaged in here
was “done under contract and paid for in whole or in part out of
public funds . . . .” But here we are concerned with mobilization,
not onsite machine operation. Plaintiffs do not argue that
mobilization fits within one of the definitions of “public works”
in the prevailing wage law. Instead, they rely on section 1772,
which derives from a provision in the uncodified 1931 Act. (See
Stats. 1931, ch. 397, § 1, p. 910.) That section currently reads:
“Workers employed by contractors or subcontractors in the
execution of any contract for public work are deemed to be
employed upon public work.” (§ 1772.) Plaintiffs claim their
entitlement to the prevailing wage for offsite mobilization flows
from this “deeming” provision.
This court has not previously interpreted section 1772. As
discussed in more detail below, in recent decades a number of
lower courts have concluded that section 1772 applies to tasks
that are “ ‘ “an integrated aspect of the ‘flow’ process of
construction.” ’ ” (Williams v. SnSands Corp. (2007) 156
Cal.App.4th 742, 753 (Williams); see Sheet Metal Workers’
Internat. Assn., Local 104 v. Duncan (2014) 229 Cal.App.4th
192, 205–206 (Sheet Metal).) In effect, the framework adopted
by these cases extends the coverage of the prevailing wage law
to activities not statutorily defined as “public work,” so long as
6
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
that labor is integrated into construction or other defined public
work. Over the years that interpretation led to controversy as
to just what it meant for labor to be integrated into “the ‘flow’
process of construction” (Williams, at p. 753) and so to qualify
as part of the “execution of [a] contract for public work” (§ 1772).
The federal district court applied the “integrated aspect” test
(Williams, at p. 753) but sided with defendants, concluding that
mobilization is independent of, rather than integrated into, the
construction work performed by plaintiffs at the public works
site.
Before considering the interpretation of section 1772
adopted in recent lower court cases, we examine the section’s
meaning anew, focusing first on its language and then on its
legislative history.
B. Section 1772
Familiar principles guide our interpretation. Our
fundamental task is to determine the legislative intent and
effectuate the law’s purpose, giving the statutory language its
plain and commonsense meaning. We examine that language,
not in isolation, but in the context of the statutory framework as
a whole to discern its scope and to harmonize various parts of
the enactment. (Coalition of Concerned Communities, Inc. v.
City of Los Angeles (2004) 34 Cal.4th 733, 737.) “If the language
is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and
public policy.” (Ibid.)
7
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
The operative language of section 1772 has remained
largely unchanged since 1931, when it first appeared as part of
the uncodified prevailing wage law.8 (Stats. 1931, ch. 397, § 1,
p. 910.) Considering section 1772 in the context of the overall
development of the prevailing wage law, it appears its aim was
quite modest: to ensure that the benefits of the prevailing wage
law extend to those employed by contractors or subcontractors.
As noted, the obligation to pay prevailing wages does not
now apply to work carried out by a governmental entity’s own
labor force. Before the adoption of a statute expressly setting
forth this exclusion (§ 1771), there was a vigorous debate about
whether the prevailing wage law as originally enacted applied
to government workers, as we explain below. (See post, at pp.
16–18; see generally Bishop v. City of San Jose (1969) 1 Cal.3d
56 (Bishop).) One aim of the public works scheme was and is to
protect laborers who are not part of a governmental labor force.
(Lusardi, supra, 1 Cal.4th at p. 987.)
A governmental entity electing not to use its own labor
force on a public works project could, conceivably, contract
individually with outside workers to perform the required tasks.
Alternatively, it could award a public works contract to a
contractor or subcontractor that would use those it hired to do
the work. It appears that section 1772 was enacted to ensure
that nongovernmental laborers were entitled to the prevailing
wage whether they worked under a contract directly with a
government entity, or under an agreement with a contractor or
subcontractor awarded a public works contract. That is to say,
these nongovernmental workers are entitled to the prevailing
8
See post, at pages 10 to 15.
8
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
wage notwithstanding their employment relationship with a
private contractor. Even though their employment agreement
was with a private entity, they were “deemed” to be employed
upon public work if they were engaged in the private
contractor’s “execution of [a] contract for public work.” (§ 1772.)
The obligation to pay prevailing wages to those employed
on public works arises out of section 1771, which links the
obligation to the kind of work done. Section 1772, in turn,
clarifies that workers employed by contractors or subcontractors
“are deemed to be employed upon public work,” so long as they
are employed by the contractor or subcontractor in “the
execution of any contract for public work.” Section 1774 further
specifies that “[t]he contractor to whom the contract is awarded,
and any subcontractor under him, shall pay not less than the
specified prevailing rates of wages to all workmen employed in
the execution of the contract.” Section 1772 describes a
category of persons entitled to the prevailing wage based on the
work they do, while section 1774 describes who must pay them
the prevailing wage to which they are entitled.
The structure of the prevailing wage law tends to confirm
this understanding. The scheme appears in division 2, part 7,
chapter 1 of the Labor Code. Article 1 of the law, entitled “Scope
and Operation,” defines the extent of prevailing wage coverage.
(§§ 1720–1743.) Article 2, entitled “Wages,” addresses the
wages to be paid to those performing work encompassed by the
law’s defined scope. (§§ 1770–1785.) Section 1772 is found in
article 2.9
9
These article enumerations and headings were included in the
Legislature’s 1930’s codification of the Labor Code. (See Stats.
1937, ch. 90, pp. 241–243.)
9
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
In the case of the prevailing wage law, the subject of each
article is consistent with its heading. Within article 1, sections
1720 to 1720.9 describe the types of labor to which the law
applies.10 In article 2, section 1772 focuses on the types of
workers entitled to receive the prevailing wage when they
perform work defined as “public work.” As we have recently
pointed out, however, the “protections afforded by the prevailing
wage laws only extend to activities that qualify as public work.”
(Kaanaana, supra, 11 Cal.5th at p. 167.) Nothing in the plain
language of section 1772 indicates it was intended to expand the
categories of public work covered by the prevailing wage law.
C. The Evolving Context of Section 1772 and Its
Continuing Vitality
Support for this interpretation is found in the legislative
history of section 1772. As noted, California and the federal
government enacted prevailing wage laws during the Great
Depression, when contractors intent on winning government
contracts were able to exploit the oversupply of labor. (See
Kaanaana, supra, 11 Cal.5th at pp. 165–166.)
The current California scheme traces back to the 1931 Act.
(Stats. 1931, ch. 397, § 1, p. 910.) Section 1 of that uncodified
measure contained two sentences that roughly correspond to
sections 1771 and 1772 in the current version of the prevailing
wage law. Section 1 of the 1931 Act provided, in relevant part:
10
An exception to this principle is found in section 1771 (of art.
2), which extends coverage to “contracts let for maintenance
work.” This exception to the general structure of the prevailing
wage law was added many decades after the scheme was
codified as part of the Labor Code. (Stats. 1974, ch. 1202, § 1, p.
2593.)
10
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
“Not less than the general prevailing rate of per diem wages for
work of 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 California, or
by or on behalf of any county, city and county, city, town, district
or other political subdivision of the said state, engaged in the
construction of public works, exclusive of maintenance work.
Laborers, workmen and mechanics employed by contractors or
subcontractors in the execution of any contract or contracts for
public works with the State of California, or any officer or public
body thereof, [or any political subdivision], shall be deemed to be
employed upon public works.” (Stats. 1931, ch. 397, § 1, p. 910,
italics added.)
The first sentence quoted above extended coverage to
those “employed by or on behalf” of the government in
constructing public works.11 The second sentence “deemed to be
11
It appears the reference to workers “employed by” the state
and its political subdivisions signified direct employees of the
government. While courts in two states have interpreted their
prevailing wage laws to exclude direct governmental employees
despite language applying the law to those employed “by or on
behalf” of the government, they did so only because of specific
constitutional concerns or because the provision was overridden
by a more specific statute excluding governmental employees.
(See Bradley v. Casey (Ill. 1953) 114 N.E.2d 681, 683; State ex
rel. Tucker v. Div. of Labor (W.Va. 2008) 668 S.E.2d 217, 229.)
The 1931 Act contained no provision excluding government
workers from its scope. By contrast, a rudimentary prevailing
wage law enacted in the 1890’s expressly excluded from its wage
protections “persons employed regularly in any of the public
institutions” of the state or its subdivisions. (Stats. 1897, ch. 88,
§ 1, p. 90.) That law was repealed when the 1931 Act took effect.
(See Stats. 1931, ch. 396, § 1, p. 909; Stats. 1931, ch. 397, § 1, p.
11
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
employed upon public works” those who work for contractors or
subcontractors. The latter sentence, which is the predecessor of
section 1772, appeared to clarify that prevailing wage protection
extends not only to those employed directly by the government,
as confirmed in the first sentence, but also to those who were
employed by contractors or subcontractors.12
The statutory construction used in the 1931 Act parallels
prevailing wage legislation in other states that extended the law
to workers “employed by or on behalf” of public entities. Indeed,
the statutory language at issue appears in state prevailing wage
laws adopted before the federal Davis-Bacon Act was enacted.
In an 1891 Kansas law applied to workers “ ‘employed by or on
behalf’ ” of the state or its political subdivisions, the legislation
clarified that “ ‘persons employed by contractors or
subcontractors in the execution of any contract . . . shall be
deemed to be employed by or on behalf of’ ” the state or one of its
political subdivisions for purposes of the law. (Johnson,
Prevailing Wage Legislation in the States (Aug. 1961) 84:8
Monthly Lab. Rev. 839, 840, italics added.) The italicized
provision, which could be found in other state prevailing wage
910.) It is telling that the Legislature chose not to include a
similar exclusion for government workers in the 1931 Act. It
only took such action in 1974. (Stats. 1974, ch. 1202, § 1, p.
2593.)
12
Although the reference in the first sentence to workers
employed “on behalf of” governmental entities might be
construed to extend to work done under contract, the import of
that language could be subject to debate. (See Division of Labor
Stand. v. Friends of Zoo (Mo. 2001) 38 S.W.3d 421, 422–424.)
The second sentence left no doubt that the protections of the law
extended to employees of private contractors engaged in public
works.
12
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
laws, was interpreted by the Arizona Supreme Court to ensure
that those employed by private contractors receive the benefit of
wage guarantees provided to governmental workers by deeming
them to be public employees for purposes of the law. (See State
v. Miser (Ariz. 1937) 72 P.2d 408, 413.)
Some early state prevailing wage laws, like the 1931 Act,
employed a slightly different formulation, clarifying that those
“ ‘employed by contractors or subcontractors in the execution of
any contract . . . for public works . . . shall be deemed to be
employed upon public works.’ ” (Logan City v. Industrial
Commission of Utah (Utah 1934) 38 P.2d 769, 770, italics
added.) Whether the “deeming” conferred by different statutes
was extended to government employment status, as in Kansas,
or to the status of employment on a contract for public work, the
apparent purpose was the same. Either formulation was
designed to ensure that daily wage workers employed by private
contractors on public works would receive the prevailing wage.
The language that is now incorporated in section 1772 has
no counterpart in the federal Davis-Bacon Act. (See 40 U.S.C.
§§ 3141–3148.) That is not surprising. The Davis-Bacon Act by
its plain terms has never extended to governmental
employees.13 There was no need to clarify that workers
13
As originally enacted, the Davis-Bacon Act required that
“every contract” for certain public work include a provision
specifying that the wages paid “by the contractor or
subcontractor on the public buildings covered by the contract”
shall be at least the prevailing rate. (Pub. L. No. 798 (Mar. 3,
1931) 46 Stat. 1494.) The federal statutory scheme thus only
extended to contract work. (See also Pub. L. No. 402, § 2 (Aug.
30, 1935) 49 Stat. 1011, 1012.) The Davis-Bacon Act continues
to apply exclusively to work performed by contractors or
subcontractors. (See 40 U.S.C. § 3141(a) & (c).)
13
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
employed by private contractors received the benefits of the
federal law because they were its only intended beneficiaries.
But that was not the case in California, at least at the time of
the 1931 Act. While California’s prevailing wage law is said to
share the purposes of the federal Davis-Bacon Act (City of Long
Beach v. Department of Industrial Relations, supra, 34 Cal.4th
at p. 954), the statutory language adopted in the 1931 Act bears
a closer relation to state prevailing wage laws from that period.
When the prevailing wage law was codified in 1937,
section 1 of the 1931 Act was split into two new sections, 1771
and 1772. (Stats. 1937, ch. 90, p. 243.) Section 1771 provided:
“Not less than the general prevailing rate of per diem wages for
work of a similar character in the locality in which the public
work is performed, and not less than the general prevailing rate
of per diem wages for legal holiday and overtime work shall be
paid to all workmen employed on public works, exclusive of
maintenance work.” (Ibid.) Section 1772 provided: “Workmen
employed by contractors or subcontractors in the execution of
any contract for public work are deemed to be employed upon
public work.” (Ibid.)
Again, the original function of section 1772 appears to
have been simply to ensure that those employed by a contractor
or subcontractor were given the same protection as others,
including those employed by the government itself. Prevailing
wages were due “all workmen employed on public works”
(former § 1771, added by Stats 1937, ch. 90, p. 243), with
workmen employed by contractors or subcontractors “deemed to
be employed upon public work” for the purposes of the statutory
obligation to pay prevailing wages (former § 1772, added by
Stats 1937, ch. 90, p. 243).
14
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
The 1937 codification of the prevailing wage law notably
omitted the reference to those employed “by or on behalf” of the
state or its political subdivisions. (Compare former § 1771,
added by Stats. 1937, ch. 90, p. 243, with Stats. 1931, ch. 397,
§ 1, p. 910.) But there is little reason to believe the omission
reflected a legislative intent to exclude governmental workers
from the scope of the prevailing wage law.14 Section 1771 as
adopted in 1937 applied to all “workmen employed on public
works,” with no exclusion for direct governmental employees.
(Former § 1771, added by Stats. 1937, ch. 90, p. 243.) The
explicit exclusion of prevailing wage entitlement for government
workers was not adopted by the Legislature for nearly 40 years.
(Stats. 1974, ch. 1202, § 1, p. 2593.)
Because section 1772 has not been substantively amended
since it became part of the Labor Code in 1937,15 its essential
function as to contract work should be no different than when it
was originally enacted: If public work is performed in the
execution of a contract, the fact a laborer is doing that work as
an employee of a contractor or subcontractor does not eliminate
entitlement to prevailing wages.
14
The California Code Commission prepared a Proposed Labor
Code in 1936 that recommended the codification of various labor
statutes into a single Labor Code. Notably, the Proposed Labor
Code contained no comment or annotation associated with
proposed section 1771 that would indicate an intent to change
the meaning or scope of the provision in the 1931 Act from which
that statute was derived. (Cal. Code Com. Office, Proposed
Labor Code (1936) p. 88.)
15
The sole amendment to the text enacted in 1937 was to replace
“[w]orkmen” with “[w]orkers.” (Stats. 1992, ch. 1342, § 7,
p. 6602.)
15
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
The principal counterargument to this original
understanding of section 1772 is that, at least as of today, the
statute might be considered surplusage. Decades after section
1772 was enacted, the companion statute, section 1771, was
amended to directly specify that its protections extend only to
work done under outside contract: “This section is applicable
only to work performed under contract, and is not applicable to
work carried out by a public agency with its own forces.” (Stats.
1974, ch. 1202, § 1, p. 2593.) Because section 1771 is now
expressly limited to contract work, there is no longer any need
to clarify that those employed by contractors or subcontractors
are also entitled to prevailing wage protection.
Even if section 1772 might be considered surplusage now,
that was not the case when it was first enacted. There is
considerable historical support for this interpretation in
addition to the legislative history. In the years after the
codification of the Labor Code, the Attorney General on several
occasions confirmed the understanding that, as originally
enacted, section 1771 applied to a government’s own employees.
In 1944, the Attorney General was asked to opine about a public
works project that had originally been put out to bid but that
was to be completed with day laborers hired by and under the
supervision of the county. The Attorney General concluded that,
under section 1771, the county was obligated to pay prevailing
wages for construction work performed by the day laborers hired
directly by the county. (3 Ops.Cal.Atty.Gen 399, 401 (1944).)
Sixteen years later, the Attorney General again concluded
that prevailing wage requirements applied to government
employees. (35 Ops.Cal.Atty.Gen. 1 (1960).) Specifically, the
Attorney General opined that prevailing wage requirements
applied to employees of a flood control district while
16
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
constructing things like channels and dams. In addition, the
prevailing wage law applied to county employees that
constructed storm-water conduits, highway bridges, and
buildings. (Ibid.) The Attorney General noted that former
section 1720, subdivision (a) (now 1720(a)(1)), which applies to
contract work, was not implicated. However, the work was
covered under former subdivisions (b) and (c) of section 1720,
which applied to work done for certain special districts and to
street, sewer, or other improvement work done under the
direction and supervision of the state or one of its political
subdivisions.16 (35 Ops.Cal.Atty.Gen., at p. 2.)
Consistent with the Attorney General’s 1960 opinion, a
1961 survey of prevailing wage laws in the 50 states reported
that California’s prevailing wage law applied to specified
governmental employees: those working on “irrigation,
reclamation, street, and sewer projects.” (Johnson, Prevailing
Wage Legislation in the States, supra, 84:8 Monthly Lab. Rev. at
p. 842, fn. 17.) California was identified as one of 14 states that,
at the time, extended prevailing wage protection to government
workers. (Ibid.) For at least three decades following its
enactment, section 1771 could have been understood as covering
certain governmental workers while section 1772 served the
purpose of clarifying that employees of private contractors were
likewise protected.
This court took a contrary view of section 1771’s coverage
in Bishop, supra, 1 Cal.3d 56. Interpreting that provision in
light of sections 1720 and 1724, the court concluded “that section
1771 is by its own terms applicable only to work performed
16
Former subdivisions (b) and (c) of section 1720 now appear, in
substance, in subdivision (a)(2) and (3) of that same statute.
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Opinion of the Court by Corrigan, J.
under contract, and is not applicable to work carried out by a
public agency with its own forces.” (Bishop, at p. 64.) Thereafter
the Legislature codified this holding when it amended section
1771 in 1974. (O.G. Sansone Co. v. Department of
Transportation (1976) 55 Cal.App.3d 434, 459 (Sansone).)
Bishop was a closely contested 4–3 decision. The majority
focused on provisions in the prevailing wage law emphasizing
the law’s application to contracted work, noting that “the entire
tenor [of the law] discloses a legislative purpose to deal only with
contracted public work, and not with work done by a
municipality by force account.” (Bishop, supra, 1 Cal.3d at p.
64.) It is true that the bidding process and the intricacies of
private contracts can require specificity and provisions not
involved when governmental entities use their own workers.
The court also emphasized that the Legislature had not
amended the prevailing wage law since a 1959 Court of Appeal
decision concluded the “ ‘prevailing wage and competitive
bidding statutes have no application to work undertaken by
force account or day labor.’ ” (Id. at pp. 64–65, citing Beckwith
v. County of Stanislaus (1959) 175 Cal.App.2d 40, 48.) But the
statement in the 1959 decision was dicta and unsupported by
any analysis or citation to legal authority. (Beckwith, at p. 48.)
Indeed, the case did not concern the application of the prevailing
wage law or cite a single provision in that scheme. (Bishop, at
p. 72 (dis. opn. of Peters, J.).) Further, the Legislature’s
subsequent inaction, assuming it was even aware of the passing
reference to the prevailing wage law in the 1959 decision, has
no bearing upon the legislative intent at the time section 1771
was enacted decades earlier.
The lengthy dissent in Bishop pointed out, among other
things, that the majority’s interpretation largely ignored other
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Opinion of the Court by Corrigan, J.
subdivisions of section 1720 defining “public works” to include
activities not performed under contract, including work
performed by special governmental districts as well as street
and sewer work. (Bishop, supra, 1 Cal.3d at p. 70 (dis. opn. of
Peters, J.).) The majority also failed to consider the legislative
history of section 1771 and its interplay with section 1772.
The incomplete analysis in Bishop led to an erroneous
interpretation of section 1771, and for that reason Bishop v. City
of San Jose, supra, 1 Cal.3d 56 is overruled to the extent it is
inconsistent with our conclusion that section 1771 as originally
enacted applied to direct governmental employees. Because
Bishop was superseded by statute when section 1771 was
amended to exclude government employees, the overruling of
the Bishop majority’s section 1771 analysis has no practical
effect. Government employees are now expressly excluded from
the scope of the prevailing wage law. (§ 1771.) However, our
rejection of Bishop does confirm that section 1772 as we have
interpreted it served an important purpose at its inception,
when the prevailing wage law extended to those employed
directly by the government. The statute was not surplusage at
the time of its enactment.
Even if Bishop were correctly decided and section 1771 did
not apply to government workers at the time of its enactment,
section 1772 would still have served a valuable purpose, if only
to clarify the application of the law. It could certainly have been
argued that employees of subcontractors engaged in public work
came within the prevailing wage law. But section 1772 removed
any doubt and continues to do so. A contractor cannot avoid the
prevailing wage obligation by parsing out tasks to
subcontractors. Further, section 1772 has been interpreted to
extend prevailing wage entitlement to workers whose services
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Opinion of the Court by Corrigan, J.
are used by a main contractor or subcontractor even when there
is no formal employment relationship. As the Public Works
Manual prepared by the Office of the Labor Commissioner
suggests, section 1772 extends protection to workers “whose
services are ‘utilized’ in furtherance of the business of another,
notwithstanding the technical absence of an employer-employee
relationship, or a person ‘engaged in’ a task for another under
contract, or orders to do it.” (Dep. of Industrial Relations, Div.
of Labor Standards Enforcement, Public Works Manual (May
2018) § 2.2, p. 3.) Thus, section 1772 continues to serve an
important purpose in defining the types of workers entitled to
the law’s protection.
D. Plaintiffs’ Focus on “Execution” and “Deemed”
Plaintiffs’ attempt to expand the scope of the prevailing
wage law beyond the definition of “public works” largely rests on
the meaning of the terms “execution” and “deemed” in section
1772.
Plaintiffs first point to the term “execution” in section
1772, as used in the phrase “in the execution of any contract for
public work.” They claim the term broadly means “carrying out
and completion of all provisions of the contract, regardless [of]
whether that work would constitute a public work[] if it were
viewed independently.” (See Williams, supra, 156 Cal.App.4th
at p. 750.) This interpretation would bring within the scope of
the prevailing wage law any activity required to fulfill a public
works contract, even if the work did not qualify as a defined
“public work.”
This expansive role for the phrase “in the execution of” is
inconsistent with the Legislature’s approach to defining what is
encompassed by that term. When the Legislature has expanded
20
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Opinion of the Court by Corrigan, J.
the reach of the law, it has done so by changing the definitions
of “public works” in article 1. (See generally §§ 1720–1720.9.)
These amendments reflect a deliberate and specific intent to
delineate and parse out what kind of labor constitutes “public
works.” Over the decades the Legislature has revisited and
refined the scope of public works definitions. For example, the
Legislature has taken care to specify that “public works” means
certain hauling of refuse to an outside location, but not if the
refuse consists of recyclable materials that are separated and
sold. (§ 1720.3.) As another example, the hauling and delivery
of ready-mixed concrete to fulfill a public works contract
constitutes a “public work,” but this same provision does not
extend to the hauling and delivery of asphalt. (§ 1720.9, subd.
(a).)
Plaintiff’s proposed interpretation would render these
distinctions meaningless if section 1772 extends the prevailing
wage law to any work required to fulfill a public works contract.
There is little reason to believe the Legislature would take great
pains to specify what constitutes “public works” in article 1
while broadening the scope of coverage through section 1772 to
encompass activities not expressly falling within those carefully
crafted definitions. Plaintiffs provide no limiting principle to
their proposed expansion. Nor does the plain language of
section 1772 furnish any limitation on plaintiffs’ proposed
understanding.
A more reasonable interpretation of “in the execution of”
is that it simply clarifies which workers are entitled to the
prevailing wage when employed by contractors. All workers are
not universally so entitled. Laborers receive the benefits of the
law if they are employed to carry out public works. The qualifier
“in the execution of [a] contract for public work” in section 1772
21
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Opinion of the Court by Corrigan, J.
establishes that limitation. The effect of plaintiff’s proposal
runs contrary to legislative intent. The Legislature has taken
great care over decades to precisely categorize, in article 1, just
what kinds of labor constitute public works. Yet plaintiffs’
approach would throw aside that careful drafting by allowing a
different result under an interpretation of an imprecise statute
that has gone largely unchanged for over 90 years. If the
Legislature so intends, it is, of course, empowered to take that
action. We will not divine such an intention on its behalf.
Plaintiffs also focus on the use of the word “deemed.” They
argue that even if work being performed under contract is not
“public work” when considered in isolation, it could still be
“deemed” a public work if the terms of section 1772 are satisfied.
In effect, they would expand the scope of the prevailing wage
law by “deeming” as “public work” an activity the Legislature
has not so designated.
This approach misconceives the role that “deemed” plays
in section 1772. As used in the statute, “deemed” modifies the
types of workers entitled to the prevailing wage, not the types of
labor those workers perform. The statute is not structured to
say that work done “in the execution of any contract for public
work [is] deemed to be . . . public work.” Instead, it is the
workers who are “deemed to be employed upon public work.”
(§ 1772.) Section 1772 focuses on which workers are entitled to
the prevailing wage, not upon the types of work that qualify for
coverage.
Further, interpreting “deemed” in the sense urged by
plaintiffs would assign undue importance to opaque language
that does not otherwise signal an intent to expand the law’s
scope. If the Legislature had intended to expand the scope of
22
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
the prevailing wage law to capture work that does not fit within
the provisions defining “public works,” it is unlikely it would
have used such a subtle approach to achieve that end. “ ‘The
Legislature “does not, one might say, hide elephants in
mouseholes.” ’ ” (Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1171.)
E. Judicial and Administrative Decisions
1. Court of Appeal Cases
While this court has not previously interpreted section
1772, the provision has been the subject of several lower court
opinions. None of these decisions provides a persuasive reason
to depart from the interpretation outlined here. For the reasons
explained below, we disapprove those decisions in whole or in
part.
No California case meaningfully touched upon section
1772 for decades after its enactment. The first case arguably to
do so was Sansone, supra, 55 Cal.App.3d 434, in 1976. There,
the court considered whether truck drivers who delivered
materials used in building roads were entitled to the prevailing
wage. The court quoted sections 1772 and 1774 but otherwise
included no analysis or discussion of those statutes. (Sansone,
at p. 441.) The issue as framed was whether the trucking
companies that employed the drivers were subcontractors
within the meaning of the prevailing wage law. (Ibid.)
Finding no California cases discussing who qualifies as a
subcontractor under the prevailing wage law, the court turned
to the federal Davis-Bacon Act (40 U.S.C. § 3141 et seq.).
(Sansone, supra, 55 Cal.App.3d at p. 442.) Under the federal
scheme, a supplier of standard building materials, referred to as
a “bona fide” materialman or material supplier, is not
23
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
considered a subcontractor. A bona fide material supplier is
therefore exempt from the obligation to pay its employees,
including truck drivers, the prevailing wage. For the Davis-
Bacon Act exemption to apply, the supplier must sell goods to
the general public, the location from which the supplies are
obtained may not be established specifically for the particular
public works project, and the supply location cannot be situated
on the public works site. (Ibid.)
Sansone held the trucking companies qualified as
subcontractors who used their employees to fulfill a public
works contract and, thus, were obligated to pay prevailing
wages. (Sansone, supra, 55 Cal.App.3d at p. 445.) Two key
factors distinguished the companies from those material
suppliers exempt from federal prevailing wage requirements.
First, the roadbuilding materials were obtained from a location
adjacent to the project site and established specifically to serve
that site. (Id. at pp. 443–444.) Second, the trucking companies
were carrying out a term of the prime contract, which required
the prime contractor to furnish the materials. (Ibid.)
In reaching its decision, the Sansone court also looked to
Green v. Jones (Wis. 1964) 128 N.W.2d 551 (Green), a decision of
the Wisconsin Supreme Court interpreting that state’s
prevailing wage law. (Sansone, supra, 55 Cal.App.3d at p. 443.)
The Wisconsin decision contrasted hauling from a commercial
location operating continuously, which would not be covered,
with hauling from a location set up solely to serve the project,
which would be covered. (Id. at p. 444.) But the Wisconsin court
went further, stating that regardless of the source of the
materials, the drivers would be covered if the materials were
immediately utilized on the improvement. (Ibid.) In assessing
coverage, it considered whether “ ‘[t]he drivers’ tasks were
24
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
functionally related to the process of construction’ ” and the
“ ‘delivery of materials was an integrated aspect of the “flow”
process of construction.’ ” (Ibid., citing Green, at p. 563, italics
added.) While Sansone ostensibly focused on whether the
trucking companies were subcontractors rather than material
suppliers, its approach has served to influence California’s
section 1772 jurisprudence. That influence was due in part to
Sansone’s citation to Green and its embrace of the notion that
work integrated into the construction process is covered under
the prevailing wage law. (See Williams, supra, 156 Cal.App.4th
at pp. 752–754; Sheet Metal, supra, 229 Cal.App.4th at pp. 205–
206.)
The next California case to address section 1772 was
Williams, supra, 156 Cal.App.4th 742, which like Sansone
involved truckers hauling materials. In Williams, truckers
removed unused construction materials like excess rock and
sand from construction sites. (Williams, at pp. 746–747.) The
Williams court characterized the legal question as whether the
truckers removing the construction materials were employed
“ ‘in the execution’ ” of the contract under section 1772.
(Williams, at p. 749.) The court concluded the truckers were
not entitled to the prevailing wage under that statute. (Id. at
p. 753.)
Williams began the analysis by focusing on the definition
of “execution” within section 1772, concluding that the term
“plainly means the carrying out and completion of all provisions
of the contract.” (Williams, supra, 156 Cal.App.4th at p. 750.)
Then, while acknowledging that Sansone concerned who is or is
not a subcontractor under the prevailing wage law, Williams
turned to that case to “inform[] [the] assessment of the intended
reach” of the law to workers employed “ ‘in the execution’ ” of a
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Opinion of the Court by Corrigan, J.
public works contract. (Ibid.) Relying on Sansone and Green,
Williams emphasized a task’s functional relationship to the
process of construction and whether a task was “ ‘an integrated
aspect of the “flow” process of construction.’ ” (Id. at p. 751,
citing Green, supra, 128 N.W.2d at p. 563.) In assessing
coverage, Williams considered whether a task was required to
carry out a term of the public works contract, whether the work
was performed at the project site or a site “integrally connected”
to the project site, and whether work performed off the actual
construction site was necessary to fulfill the contract. (Williams,
at p. 752.)
There was no evidence of a functional relationship
between the actual construction and the subsequent removal of
unused materials. Accordingly, Williams held the removal work
was “unrelated to the performance of the prime public works
contract . . . .” (Williams, supra, 156 Cal.App.4th at p. 753.) It
was “no more an integral part of the process of the public works
project than the delivery of generic materials to the public works
site by a bona fide material supplier.” (Ibid.) According to the
Williams court, “there was no evidence from which a
determination could be made that the off-hauling was ‘an
integrated aspect of the “flow” process’ [citation] of the
project.”17 (Williams, at p. 754.)
17
After Williams the Legislature amended the definition of
“hauling of refuse,” a covered public work under section 1720.3,
to clarify that the term “includes, but is not limited to, hauling
soil, sand, gravel, rocks, concrete, asphalt, excavation materials,
and construction debris.” (§ 1720.3, subd. (b), as amended by
Stats. 2011, ch. 676, § 1.) Consistent with our analysis here, it
did so by amending the relevant section in article 1.
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Opinion of the Court by Corrigan, J.
The only other California case to consider the meaning of
section 1772 is Sheet Metal, 229 Cal.App.4th 192, which
concerned coverage for offsite fabrication. In Sheet Metal, a
community college entered into a public works contract to
upgrade its facilities, including the update of a heating and
cooling system. A firm that made a variety of ductwork and
other sheet metal components at its permanent offsite facility
subcontracted to make, and then install, its components into the
college system. (Id. at p. 196.) The issue was whether the firm’s
workers who made the ductwork offsite were entitled to the
prevailing wage. The court concluded there was no such
entitlement. It reasoned “the work was not done ‘in the
execution’ of the contract within the meaning of section 1772.”
(Id. at p. 214.) It observed that the offsite facility’s location and
existence were wholly unrelated to the particular public works
project. (Ibid.)
Sheet Metal built upon the foundation deduced from
Sansone and Williams, which emphasized that the critical factor
in assessing coverage under section 1772 is “whether it is
integrated into the flow process of construction.” (Sheet Metal,
supra, 229 Cal.App.4th at p. 206.) The decision also relied to a
significant extent on a federal regulation defining the “site of the
work” for purposes of the Davis-Bacon Act to exclude
“ ‘permanent . . . fabrication plants . . . of a contractor or
subcontractor whose location and continuance in operation are
determined wholly without regard to a particular Federal or
federally assisted contract or project.’ ” (Sheet Metal, at p. 210,
citing 29 C.F.R. § 5.2(l)(3) (2014).)
These three cases are the only published California
opinions that have purported to interpret section 1772 since its
enactment. Plaintiffs urge they should be disregarded because
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Opinion of the Court by Corrigan, J.
they apply a standard derived from the federal Davis-Bacon
Act’s limitation on coverage to persons “employed directly on the
site of the work.”18 (40 U.S.C. § 3142(c)(1).) According to
plaintiffs, California’s prevailing wage law includes no such
geographical limitation on coverage. They argue that even if
there was a valid reason for applying principles derived from
federal law to hauling and offsite fabrication, those principles
should not be used more generally to define the scope of section
1772.
It is unnecessary to consider the geographical scope of the
prevailing wage law to assess the validity of the approach taken
in Sansone, Williams, and Sheet Metal.19 Those cases primarily
involved whether a company is a subcontractor within the
meaning of the prevailing wage law. While the factors they
employed may be valid to resolve that narrow question, they are
not necessarily useful to resolve whether an activity is
performed “in the execution” of a public works contract under
section 1772. The reliance on their approach for this different
purpose has led to an interpretation of section 1772 that
expands its application to tasks that might not otherwise qualify
as public works, simply because they have some functional
relationship or integration with public work. That expansion is
not supported by the language or legislative history of section
18
Aside from federal authority, Sansone also relied upon the
Wisconsin Supreme Court decision in Green, supra, 128
N.W.2d 1. (Sansone, supra, 55 Cal.App.3d at pp. 443–444.) Like
the federal Davis-Bacon Act, Wisconsin limited its coverage to
“ ‘work on the site.’ ” (Green, at p. 6.)
19
We express no view concerning whether California’s
prevailing wage law places a geographic limitation on coverage
in relation to the public works site.
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Opinion of the Court by Corrigan, J.
1772. It instead originates from the federal Davis-Bacon Act,
which contains no statutory language analogous to section 1772.
Further, the approach in Sansone, Williams, and Sheet
Metal causes coverage to turn on factors other than an activity’s
definition as a public work. To the extent coverage is premised
upon whether an activity is integrated into the flow process of
construction, the approach ignores the carefully crafted
definitions of public work contained in the prevailing wage law.
Moreover, it is not entirely clear what it means for an activity to
be “integrated” into construction or other defined public work.
To the extent it might be argued the Legislature has
acquiesced in the existing construction of section 1772 by failing
to amend or clarify its provisions, the argument is not
persuasive. “In the area of statutory construction, an
examination of what the Legislature has done (as opposed to
what it has left undone) is generally the more fruitful inquiry.
‘[L]egislative inaction is “ ‘a weak reed upon which to
lean’ ” . . . .’ ” (Harris v. Capital Growth Investors XIV (1991) 52
Cal.3d 1142, 1156; accord, Saint Francis Memorial Hospital v.
State Dept. of Public Health (2020) 9 Cal.5th 710, 723.) Since
Sansone was decided, the Legislature has actively defined and
modified the definitions of “public works.” (See, e.g., Stats. 2000,
ch. 881, § 1, p. 6517; Stats. 2001, ch. 938, § 2, p. 7509; Stats.
2012, ch. 810, § 1; Stats. 2015, ch. 739, § 1.) These actions are
not consistent with an interpretation of section 1772 that would
expand the scope of the prevailing wage law as plaintiffs urge.
The prevailing wage law as written and amended does not
support an interpretation of section 1772 that expands the law’s
scope beyond defined “public works.” To the extent O.G.
Sansone Co. v. Department of Transportation, supra, 55
29
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Opinion of the Court by Corrigan, J.
Cal.App.3d 434, Williams v. SnSands Corp., supra, 156
Cal.App.4th 742, and Sheet Metal Workers’ Internat. Assn.,
Local 104 v. Duncan, supra, 229 Cal.App.4th 192, suggest to the
contrary or are otherwise inconsistent with this opinion, they
are disapproved.20
In his dissent in Busker v. Wabtec Corp. (Aug. 16, 2021,
S251135) ___ Cal.5th ___ (dis. opn. of Cuéllar, J.) (Busker),
Justice Cuéllar argues that the majority “overturns decades of
legal decisions that had established a persuasive, workable
framework for interpreting and applying” section 1772. 21
(Busker, at ___ [p. 3] (dis. opn. of Cuéllar, J.).) However, it is
precisely because the existing “framework” is so unclear that the
Ninth Circuit asked this court to address the application of
section 1772 in two separate cases. (See ante, at p. 3; Busker, at
___ [p. 26].) The interpretation we adopt turns on careful
consideration of the text of section 1772 and its history, not upon
concerns about whether the current interpretation is difficult to
administer. In any event, the existing framework could hardly
be described as workable.
20
We express no view as to whether Sansone and its progeny
have continued vitality in assessing whether an employer is a
subcontractor (as opposed to bona fide material supplier) within
the meaning of the prevailing wage law.
21
The dissent has chosen to set forth the bulk of its section 1772
analysis and critique of the majority’s approach in a separate
opinion filed in Busker, a decision filed concurrently with this
opinion. (See dis. opn. of Cuéllar, J., post, at p. 2; Busker, supra,
___ Cal.5th at ___ [p. 27, fn. 17].) The reader is directed to
Justice Cuéllar’s dissent in Busker for a more complete
explanation of the dissent’s approach to interpreting section
1772 and its response to the majority’s analysis here. (Busker,
at ___ [pp. 1–24] (dis. opn. of Cuéllar, J.).)
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The difficulty in applying the approach taken in Sansone
and its progeny is exemplified by the three “factors” the dissent
identifies as relevant to assessing “whether labor is done in ‘the
execution of [a] contract for public work’ under section
1772 . . . .” (Dis. opn. of Cuéllar, J., post, at p. 2.) The factors
include “whether the labor is (1) functionally related to the
construction process; (2) integrated into that process; and (3)
done to fulfill the prime contractor’s obligation to complete a
public works aspect of the project.” (Id. at pp. 2–3, fn. omitted.)
These factors are not “longstanding,” as Justice Cuéllar’s Busker
dissent suggests (Busker, supra, ___ Cal.5th at ___ [p. 12] (dis.
opn. of Cuéllar, J.)), but instead are derived from a hodgepodge
of considerations found in Sansone, Williams, and Sheet Metal.
Moreover, despite the emphasis in Justice Cuéllar’s Busker
dissent on the importance of the terms “execution” and “deemed”
in section 1772 (see Busker, at ___ [pp. 3–4] (dis. opn. of Cuéllar,
J.)), the three-part test does not even mention them. Instead,
the test relies on broad and undefined terms not found in the
statute: “functionally related,” “construction process,”
“integrated,” and “public works aspect of the project.” (Id. at ___
[pp. 10–11] (dis. opn. of Cuéllar, J.).)
Justice Cuéllar’s Busker dissent acknowledges that some
“judgment” will be required “to discern whether a particular
type of labor has a functional or integrated relationship with
contracted-for public work.” (Busker, supra, ___ Cal.5th at ___
[p. 14] (dis. opn. of Cuéllar, J.).) However, the shifting
characterization of how section 1772 is to be applied points to
the extreme difficulty in exercising that judgment. At one point,
Justice Cuéllar’s Busker dissent refers to “[w]ork critically
related” to the execution of a public works contract. (Busker, at
___ [p. 2] (dis. opn. of Cuéllar, J.), italics added.) Elsewhere, it
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MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
refers to “labor that is not unduly attenuated from the actual
construction work or other defined public work, and instead
bears a logical connection to the preconstruction, construction,
or postconstruction process.” (Id. at ___ [p. 11] (dis. opn. of
Cuéllar, J.), italics added.) At another point, it describes “tasks
vital to the performance and completion of covered ‘public work’
. . . .” (Id. at ___ [p. 24] (dis. opn. of Cuéllar, J.), italics added.)
Finally, it describes section 1772 as covering “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 . . . .” (Id. at ___ [p. 24] (dis. opn. of Cuéllar,
J.), italics added.) The differing and expansive terms used to
describe the application of section 1772 illustrate the inherent
difficulty in applying the test laid out in the dissent. It is simply
not the case that the majority approach rejects a persuasive or
workable framework for interpreting and applying section 1772.
2. Administrative Decisions
In addition to case law interpreting section 1772,
administrative decisions of the Department of Industrial
Relations (Department) have also applied the statute. Amicus
curiae Division of Labor Standards Enforcement cites several
coverage decisions from the 1980’s and 1990’s interpreting
section 1772 to apply to mobilization. These decisions do not
have a precedential effect. (See Kaanaana, supra, 11 Cal.5th at
p. 179.) Further, the Department has no comparative
advantage over the courts in deciding an issue of pure statutory
interpretation. (Kaanaana, at p. 179; Center for Biological
Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204,
236.) Nevertheless, while “ultimate responsibility for statutory
interpretation rests with the courts, an agency’s interpretation
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Opinion of the Court by Corrigan, J.
‘is “one among several tools available to the court” when judging
the [statute’s] meaning and legal effect.’ ” (Id. at p. 178.)
In his Busker dissent, Justice Cuéllar argues that the
Department’s decisions deserve “serious consideration and offer
further insight into what the statute means.” (Busker, supra,
___ Cal.5th at ___ [p. 7] (dis. opn. of Cuéllar, J.).) He
acknowledges the decisions have “dutifully applied the approach
in Sansone, Williams, and Sheet Metal for effectuating section
1772.” (Busker, at ___ [p. 13] (dis. opn. of Cuéllar, J.).) But that
is precisely why they add nothing to the analysis. An
administrative interpretation that is clearly erroneous, even if
long-standing and consistent, is entitled to no deference. (See
Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012.) Because
the decisions apply the same approach to section 1772 as
Sansone and its progeny, they offer no valid reason to extend
coverage to mobilization under that statute.
F. Application to Mobilization
In light of our interpretation of section 1772, the answer
to the Ninth Circuit’s certified question is simple. That statute
does not expand coverage to labor not otherwise defined as
public work. Unless mobilization qualifies as public work, an
employer has no obligation to pay the prevailing wage to those
who perform it. Section 1772 cannot independently serve as the
basis for concluding that the prevailing wage must be paid for
mobilization.
This conclusion does not rule out the possibility that
prevailing wages must be paid for mobilization work under some
33
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
other theory.22 But that issue is not before us. The Ninth
Circuit’s question is limited to whether mobilization is covered
under section 1772.
While this court may restate the certified question (Cal.
Rules of Court, rule 8.548(f)(5)), we lack the power to reshape
the federal litigation that gave rise to the question in the first
instance. When we decide a question of California law posed by
another court, we are limited to an issue that “could determine
the outcome of a matter pending in the requesting court.” (Cal.
Rules of Court, rule 8.548(a)(1).) The broader issue of whether
plaintiffs are entitled to be paid the prevailing wage under any
conceivable theory is beyond the scope of the pending federal
litigation. The sole issue presented on appeal to the Ninth
Circuit was whether section 1772 afforded coverage for
mobilization. A decision concerning whether mobilization
qualifies as “construction” or other defined “public work” would
not only consider a defense to the partial summary judgment
motion not raised by the plaintiffs, but it would also not address
the narrow legal issue before the Ninth Circuit.
Plaintiffs did raise the issue of whether transportation of
equipment to the work site should be treated as “travel time,”
which, they claim, must be compensated at the prevailing wage.
22
As used in the prevailing wage law, for example, the term
“ ‘construction’ ” includes “preconstruction” and
“postconstruction” phases of construction work. (§ 1720(a)(1); cf.
Priest v Housing Authority of City of Oxnard (1969) 275
Cal.App.2d 751, 756.) In addition, section 1720, subdivision
(a)(3) defines “ ‘public works’ ” to include “[s]treet . . .
improvement work.” We express no view as to whether
mobilization qualifies as construction, street improvement
work, or any other category of “ ‘public works’ ” defined in
section 1720 et seq.
34
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
To the extent their contention is premised upon the application
of section 1772, the argument fails for the reasons articulated
above. If travel time does not fall under a definition of public
work, section 1772 does not independently provide a basis for
coverage. Insofar as there may be some other statutory basis for
compensating travel time at the prevailing rate, that issue is
beyond the scope of the question certified by the Ninth Circuit.
Justice Cuéllar’s dissents here and in Busker argue in
quite forceful terms that a different approach to the
understanding of “public works” is called for. They set out what
our colleagues urge would be a better interpretation of the
statutory language, and they reject the notion that coverage is
limited to defined “public works.” They fail to acknowledge,
however, that this is a legislative function. The Legislature may
of course choose, or decline, to modify the definitions of “public
works” it has chosen over the decades. That is a policy choice to
be considered by the Legislature after input from all interested
parties and the exercise of its own judgment as to how best serve
the sometimes competing goals it seeks to achieve.
In our view, it is not the role of the judiciary to usurp that
legislative prerogative. Reading existing legislative enactments
with care is not “pernicious” or merely an exercise in “judicial
modesty.” (Busker, supra, ___ Cal.5th at ___ [pp. 2, 3] (dis. opn.
of Cuéllar, J.).) Instead, it is an approach, firmly established in
our jurisprudence, that honors the important safeguards served
by the separation of powers. “[C]onstru[ing] the law liberally”
is a different enterprise from rewriting the law to have it read
as we think best. (Busker, at ___ [p. 2] (dis. opn. of Cuéllar, J.).)
We emphasize two points, lest there be any confusion.
First, the prevailing wage law covers what the Legislature says
35
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Opinion of the Court by Corrigan, J.
it covers. Second, our holding is narrow. We merely address the
question posed by the parties and the Ninth Circuit: whether
section 1772, standing alone, expands the scope of the term
“public works” to embrace labor that is not covered by the
definitions enacted as part of section 1720 et seq. Nothing we
say here should be read to condone any attempt to ignore the
protections or obligations of the prevailing wage law.
III. CONCLUSION
We answer the Ninth Circuit’s question as follows.
Section 1772 does not expand the categories of public work that
trigger the obligation to pay at least the prevailing wage under
section 1771. Here there is no contention that mobilization
qualifies as defined “public work.” Under the circumstances,
section 1772 does not provide a basis for requiring plaintiffs to
be paid the prevailing wage for that work.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
36
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
S253574
Dissenting Opinion by Justice Cuéllar
Plaintiffs (Leopoldo Pena Mendoza, Elviz Sanchez, and
Jose Armando Cortes) worked as engineers for a public works
roadway construction project. They operated heavy milling
machines to break up the existing roadbeds so that new roads
could be built. (Maj. opn., ante, at p. 2.) This was
unquestionably “ ‘public works’ ” labor under Labor Code section
1720, subdivision (a)(1),1 as it clearly involved “[c]onstruction,
alteration, demolition, installation, or repair work . . . .”
(§ 1720, subd. (a)(1).) The majority agrees. (Maj. opn., ante, at
p. 6.)
Plaintiffs also had to engage in “mobilization”
work: transporting the milling machinery to and from offsite
storage locations and preparing it for use. (Maj. opn., ante, at p.
2 & fn. 3.) There was little prospect that plaintiffs could
complete the construction work they were hired to do without
mobilizing the machines used to repave the roadways. The
majority nonetheless rejects plaintiffs’ argument that
mobilization labor qualifies for prevailing wage coverage under
section 1772, which provides that “[w]orkers employed by
contractors or subcontractors in the execution of any contract for
public work are deemed to be employed upon public work.”
(§ 1772.) By its account, section 1772 in no way relates to the
1
Further unspecified section references are to the Labor
Code.
1
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Cuéllar, J., dissenting
scope of work covered, and instead simply ensures coverage for
contract workers engaged in defined public works activities.
(See, e.g., maj. opn., ante, at pp. 1–2, 8–10, 14, 21–22.)
That’s a conclusion I cannot embrace. I respectfully
dissent for the same reasons explained more fully in my
separate dissenting opinion in the other prevailing wage case we
also decide today, Busker v. Wabtec Corp. (Aug. 16, 2021,
S251135) __ Cal.5th __ (Busker).
Because of the prevailing wage law’s critical function in
protecting workers employed on public works, we must interpret
the law liberally. (City of Long Beach v. Department of
Industrial Relations (2004) 34 Cal.4th 942, 949–950.) For
several decades, the Courts of Appeal and Department of
Industrial Relations (DIR) have fulfilled their obligation in
construing section 1772 by interpreting it to cover certain work
critically related to the “execution of” (ibid.) a public works
contract. (See, e.g., O.G. Sansone Co. v. Department of
Transportation (1976) 55 Cal.App.3d 434, 443–444 (Sansone);
Williams v. SnSands Corp. (2007) 156 Cal.App.4th 742, 752–
753; Sheet Metal Workers’ Internat. Assn., Local 104 v. Duncan
(2014) 229 Cal.App.4th 192, 205–206, 211–214 (Sheet Metal).)
These cases provide us with three factors that help determine
whether labor is done in “the execution of [a] contract for public
work” under section 1772: whether the labor is (1) functionally
related to the construction process; (2) integrated into that
2
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Cuéllar, J., dissenting
process; and (3) done to fulfill the prime contractor’s obligation
to complete a public works aspect of the project.2
The majority nonetheless breaks with this established
authority without justification. It glosses over section 1772’s
language deeming workers engaged in the “execution of” a public
works contract — i.e., working to carry out and complete the
construction or other related tasks for the project — to be
employed on “public work.” (§ 1772.) It papers over this
language, and in the process disapproves of long-standing
authority providing a workable framework for applying it, on
the basis of an implausible reading of the section’s exceedingly
spare legislative history. And its interpretation undermines the
prevailing wage law’s purposes; among other things, it
encourages public works employers to segment out labor not
defined as “public works,” but nonetheless constituting labor as
crucial as it is integral to public works projects, so that they can
pay lesser wages.
I add two brief observations to my Busker dissent (Busker,
supra, __ Cal.5th at p. __ [pp. 1–24] (dis. opn. of Cuéllar, J.)),
underscoring how the majority’s interpretation errs as it
specifically relates to mobilization work. First, mobilization
naturally merits prevailing wage coverage based on its critical
relationship with covered public work. The three factors from
the Sansone line of cases reinforce this conclusion. The
mobilization at issue here was functionally related to and
2
Although the Sansone line of cases refers to the
“construction” process (see, e.g., Sansone, supra, 55 Cal.App.3d
at p. 444), its principles would apply to any other type of activity
that qualifies as “public work.” I therefore use “construction”
here as an umbrella term for all the kinds of labor defined by
the statute as public work.
3
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Cuéllar, J., dissenting
integrated into the covered milling work and the project as a
whole because the road construction as contracted for could not
occur unless the machines arrived promptly, worked properly,
and were removed when they served their purpose. Moreover,
plaintiffs had to engage in mobilization to fulfill the prime
contractor’s contractual obligation to build new roads. The
contractor owned the milling machines and elected to store them
offsite. It directed its own employees to prepare and transport
them so those employees could then use the machines as part of
the road construction called for by the contract.
In other words, the mobilization of specialized
construction equipment by the skilled workers who would use
them at the jobsite was sufficiently connected with the execution
of a public construction project to be deemed public work under
section 1772. (Cf. Allied Concrete & Supply Co. v. Baker (9th
Cir. 2018) 904 F.3d 1053, 1061 [explaining how prevailing wage
coverage for ready-mix concrete drivers, as opposed to drivers
supplying standard building materials, makes sense because
the former “are more integrated into the construction process”
and “are more skilled than other drivers and provide a material
that is more important to public works projects than other
materials such that paying the prevailing wage will attract
superior drivers and improve public works”].) Excluding this
labor from coverage under section 1772 despite its critical role
makes no sense.
Also calling into question the majority’s interpretation: It
flies in the face of the DIR’s consistent position covering
mobilization work under section 1772. As the DIR’s Division of
Labor Standards and Enforcement argues in its amicus curiae
brief and illustrates in the past coverage determinations that it
provides in its request for judicial notice, the agency has for
4
MENDOZA v. FONSECA MCELROY GRINDING CO., INC.
Cuéllar, J., dissenting
decades followed Sansone and interpreted the section as
covering mobilization labor based on the labor’s critical
relationship to covered work. Neither defendants (Fonseca
McElroy Grinding Co. Inc. and Granite Rock Company) nor the
majority identify any circumstance where the DIR has
determined that mobilization is not covered.
Because plaintiffs’ mobilization work critically facilitated
the public works roadway construction project, section 1772
entitled them to prevailing wages for this labor. They performed
this labor “in the execution of” the contract for the roadway
project, and section 1772’s language therefore “deemed” them
“to be employed upon public work.” (§ 1772.) But the majority
narrows this statutory language beyond recognition. So with
respect, I dissent.
CUÉLLAR, J.
I Concur:
LIU, J.
5
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Mendoza v. Fonseca McElroy Grinding Co., Inc.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding XX on request by 9th Circuit (Cal. Rules of
Court, rule 8.548)
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S253574
Date Filed: August 16, 2021
__________________________________________________________
Court:
County:
Judge:
__________________________________________________________
Counsel:
Justice At Work Law Group, Tomas E. Margain; Esner, Chang &
Boyer, Stuart B. Esner and Holly N. Boyer for Plaintiffs and
Appellants.
Altshuler Berzon, Eileen Goldsmith and Zoe Palitz for International
Association of Sheet Metal, Air, Rail & Transportation Workers, Sheet
Metal Workers’ Local Union No. 104 as Amicus Curiae on behalf of
Plaintiffs and Appellants.
David Balter, Kristin García, Luong Chau and Lance Grucela for
Department of Industrial Relations, Division of Labor Standards
Enforcement as Amicus Curiae on behalf of Plaintiffs and Appellants.
Simpson, Garrity, Innes & Jacuzzi, Paul V. Simpson and Sarah E.
Lucas for Defendants and Respondents.
Rutan & Tucker, Paul Aherne and Alyssa Roy for Construction
Employers’ Association as Amicus Curiae on behalf of Defendants and
Respondents.
Cook Brown, Dennis B. Cook and Stephen McCutcheon for Modular
Building Institute, Northern Alliance of Engineering Contractors and
Western Electrical Contractors Association, Inc., as Amici Curiae on
behalf of Defendants and Respondents.
Sweeny, Mason, Wilson & Bosomworth and Roger M. Mason for United
Contractors as Amicus Curiae on behalf of Defendants and
Respondents.
Jeffer Mangels Butler & Mitchell, Kerry Shapiro, Matthew D. Hinks
and Martin P. Stratte for California Construction and Industrial
Materials Association as Amicus Curiae on behalf of Defendants and
Respondents.
Ogletree, Deakins, Nash, Smoak & Stewart, Robert R. Roginson and
Ryan H. Crosner for Associated General Contractors of California as
Amicus Curiae on behalf of Defendants and Respondents.
Atkinson, Andelson, Loya, Ruud & Romo, Robert Fried, Thomas A.
Lenz and Elizabeth P. Lind for Associated Builders and Contractors of
California as Amicus Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Stuart B. Esner
Esner, Chang & Boyer
234 East Colorado Boulevard, Suite 975
Pasadena, CA 91101
(626) 535-9860
Tomas E. Margain
Justice At Work Law Group
84 West Santa Clara Street, Suite 790
San Jose, CA 95113
(408) 317-1100
Paul V. Simpson
Simpson, Garrity, Innes & Jacuzzi, P.C.
601 Gateway Boulevard, Suite 950
South San Francisco, CA 94080
(650) 615-4860
Robert R. Roginson
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
(213) 457-5873