July 22, 2005 / Issue No. 3-05
 
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Professional Development
AGC Midyear Meeting Will Provide Opportunities to Hear From Labor Department Officials and Basic Trade General Presidents
AGC to Offer Several Management Training Programs This Fall
HR Professionals Learn and Network at AGC Forum
Employment Regulations
New Regulation on Consumer Information and Records Disposal Now in Effect
FAR Revised to Adopt DOL Regulations on Site of Work and Union Dues Notices
DHS Issues “Rebranded” I-9 Form
Hiring & Firing
Use of Popular Personality Test Deemed Violation of ADA
Collective Bargaining
Recent Bargaining Results Vary Widely, with National Average Just Slightly Above Last Year’s
Evergreen Clause Remains in Effect Despite Request to “Reopen” Agreement
Taft-Hartley Funds
Contractor Does Not Have to Make Double Benefit Fund Payments Despite Competing Union’s Claim of Territory
Davis-Bacon
Highway Contractor Must Pay Prevailing Wages to Truck Drivers Under State Law Despite Exclusion Under Davis-Bacon

  Highway Contractor Must Pay Prevailing Wages to Truck Drivers Under State Law Despite Exclusion Under Davis-Bacon
The Davis-Bacon Act does not preempt a state prevailing wage law that covers truck drivers on joint federal-state highway contracts, the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has held.

Frank Bros., Inc., (Frank) was hired as a subcontractor on two contracts with the Wisconsin Department of Transportation (WisDOT) that were funded through the Federal-Aid Highway Act (FHWA).  Frank was responsible for procuring and transporting aggregates to the jobsites and for hauling away recycled materials.  Pursuant to its contracts, Frank hired a number of independent trucking contractors and subcontractors to handle the deliveries.  Frank properly determined that the federal Davis-Bacon Act does not require the payment of prevailing wages to contractors or subcontractors, or the employees thereof, engaged in “the transportation of materials or supplies to or from the site of the work.”  However, Wisconsin’s state prevailing wage statute expressly mandates the payment of prevailing wages to all truck drivers on public works projects.  Frank complied with the federal law but not the state law.  When WisDOT discovered this, it ordered Frank to comply with the state law.  Frank then filed a lawsuit to seek a declaratory judgment and injunctive relief, claiming that WisDOT may not require the payment of prevailing wages to truck drivers because the Wisconsin statue is preempted by the federal statute.

The court denied Frank’s claims.  Under the Supremacy Clause of the U.S. Constitution, a state law may be preempted by federal legislation either by express provision, by implication, or by a conflict between federal and state law.  The court found that none of these conditions exist in this case.  The statutory language in both the Davis-Bacon Act and the FHWA suggest that Congress intended federal law to complement, rather than preclude, state law.  Likewise, neither legislative history of those statutes indicates that Congress intended to preempt the implementation of broader prevailing wage requirements by states.  Therefore, states are free to establish their own prevailing wage requirements as long as those requirements do not conflict with federal law.  The Wisconsin statute in question here does not conflict with the Davis-Bacon Act because the Davis-Bacon Act merely sets a “floor” for prevailing wage requirements and does not expressly prohibit the payment of prevailing wages to truck drivers.  It is not “physically impossible” to comply with both the state and federal statutes, the court found.

Frank Bros., Inc. v. Wisc. Dep’t of Transp., Case No. 03-3207 (7th Cir., 6/3/05).

Guidance on Davis-Bacon Act compliance is available to AGC members on the Labor & HR Topical Resources page of AGC’s Web site under “Davis-Bacon Act.” [ return to top ]