JIM MATTOX 

Attorney General 

Supreme C~NI Building 

P. 0. BOX 12548 

Austin. TX. 7871% 2548 

512/475-2501 

Telex 9101874-1367 

Telecopier 512l475.0286 

714 Jackson, Suite 700 

Dallas. TX. 752024506 

21~7428~44 

4824 Alberta Ave., Suite 160 

El Paso. TX. 798042793 

915453334B4 

- 

91 Texas, Suite 700 

,“ston. TX. 77002-3111 

713l2255eaS 

808 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

5081747-5238 

4309 N. Tenth, Suite B 

f&Allen, TX. 78501-1885 

512l582-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

5121225-4191 

An Equal OpportunItyI 

AffIrmaWe Action Employer 

The Attorne,y General of Texas 

March 31, 1986 

Honorable George I'ierce Opinion No. .x+463 

Chairman 

Committee on Urbar. Affairs Re: Whether an ordinance 

Texas House of Rel'resentatives city of San Antonio, which 

of the 

requires 

P. 0. Box 2910 apprentices and/or trainees in city 

Austin, Texas 7E769 projects to be enrolled in a program registered with the United 

States Department of Labor, is violative of state right-to-work laws 

Dear Representatix,e Pierce: 

You ask whet'xr a'San Antonio ordinance, which requires apprentices on city proiects to be enrolled in-an apprentice program registered with the lJmi.ted States Department of Labor, violates Texas' 

"right-to-work" 1~s. See V.T.C.S. art. 5207a. Section 2 of article 

5207a. commonly known ashe "right-to-work" law, provides that "[nlo 

person shall be clenied employment on account of membership or nonmembership in a lebor union." You state that 

tslince apprentice programs now in operation in 

Bexar Ccunty are operated by unions, and are open 

only to union members, workers seem to be precluded from participation in these programs unless 

they become union members. 

As will be shown :Ln the discussion to follow, however, the registered 

apprentice programa required under the San Antonio ordinance are not 

limited to union Trograms. 

The ordinance in question provides, in part, as follows: 

p. 2120 
Eonorable George Pierce - Page 2 (JM-463) 

employment as an a-Fprentice in such an apprenticeship 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 apprentice. The all&able ratio of apprentices to 

joutaeymen in any craft classification shall not 

be greater thar. the ratio permitted to the 

contractor/subcont.ractor as to his entire work 

force under the registered program. . . . The 

wage rate paid ay'prentices shall 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 determination 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 federallyapproved 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!xlch authorize federal financial assistance 

for a variety of state and l.ocal projects. 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,rnment projects 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.e program, i.e., from observing and working 

under a variety of qualif:lad journeymen in the work classification. 

See id. -- The ratio also assures that the overall quality of the public 

project will not suffer bec,ause of a lack of qualified journeymen. In 

re Repp 8 Mundt, Inc., at 9 (n. 3). Moreover, because certain wax 

performed by apprentices arty be 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,des Department, 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.al bodies 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?age 4 (JM-463) 

Not less than tlur general prevailing rate of per 

dieai wages for \ra#rk 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 Texas, or 

by or on behalf of any county, city and county, 

city, town, dist:rict or other political subdivision 

of the State, enlbaged in the construction of public 

works. . . . 

Thus, the Texas Legislature has not only authorized but required the 

payment of prevailing wage83 on 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 

Conunission of 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, 

im4); cf. 

463 N.E.2d 124, 129 (Ill. 

Attorney Genecal Opinion R-911 (1976). Its adoution. 

however, x certai&y not prohibited. See, -e.g.; Ritchie P&ing; 

Inc.. V. 

1982). 

Kansas DepartmerE of Transportation, 654 P.2d 440 (Kan. 

In Ritchie Paving, the Kansas Department of Transportation 

adopted the federal wage rz.tes for 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 prjcvailing wage 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~:ause the decision to use the federal scale 

was that of the state tcsnsportation department, not the 'federal 

department of labor. 654 I'.2d at 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) 

.- 

r‘ 

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 ,prevalling wage 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:s because 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 

cannot be reviewed. 

tal body 

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):Iecto review by the courts. A decision 

on the meaning of prevaili:lS wage 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 refrrlining from 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 frown participat%m In the -apprentice programs in violation 

of article 5207a, the stattr’s right-to-work lav. This explanation of 

the purpose and operation, of apprentice programs, however, damonstrates 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 maxirlcm hour 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 

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