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 EqualOpportunItyI AffIrmaWe Action Employer 

# The Attorne,y General of Texas

March 31, 1986

Honorable George I'ierce OpinionNo. .x+463 Chairman Committee onUrbar. Affairs Re: Whether an ordinance Texas House of Rel'resentatives city of San Antonio,which of the requires P. 0. Box 2910 apprenticesand/or trainees in city Austin,Texas 7E769 projects to be enrolled in a program registered with the United StatesDepartment of Labor, isviolativeof state right-to-worklaws

Dear Representatix,e Pierce:

You ask whet'xr a'San Antonio ordinance,which requires apprentices on city proiects tobe enrolled in-an apprenticeprogram 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. commonlyknown ashe "right-to-work" law,provides that "[nlo person shall be cleniedemployment on account of membership or nonmembership in a leborunion." 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 fromparticipation in theseprogramsunless theybecome unionmembers.

As will be shown :Lnthe discussion to follow,however, the registered apprenticeprograma required under the San Antonio ordinance are not limited to union Trograms.

The ordinance in questionprovides, inpart, as follows:

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employmentas an a-Fprentice in such an apprenticeship program; wht;is not individually registered in the program, tit who has been certifiedby the Bureau of Appren~lceship & Training or a State Apprenticeship A@ncy (where appropriate) to be eligible forprobationaryemploymentas 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.ractoras to his entire work force under the registered program.
. . . The wage rate paid ay'prentices shallbe not less than the specified ra1:ela 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. (Emphasisadded).

General Conditionsof SanAntonio Ordinance 515.a.No. 60110 (Jan. 17, 1985).

The underscored language in the portion of the ordinancewhich is quoted above tracks the 1anSuage in **the** federal regulations governing apprenticeprograms. See 29 C.P.R. 55.5(a)(4)(1) (1985).Consequently,
an explanation of thErig:Ln, operation, and purpose of federallyapprovedapprenticeprograns forpublicworks projectswill illuminate the reasons for the adoption of the requirement in question and must precede our response toyour specificquestion.
Registered apprenticeprograms 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 Georgiaxzlding and Construction Trades Councils Goldschmidt,621 F.2d 697 (5thCir. 1980). The regulationscoordinate the administration and enftxcement of the labor standards provisions of numerous federal acts w!xlchauthorize federal financial assistance for a variety of state and l.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;3the employees of government contractors from substandard wages a,nd ensures that local workers are not precluded fromwork on gove,rnment projectsby the importationof cheap labor from distant sources. TennesseeRoadbuildersAssn.v. Marshall, 446 F.Supp. 399, 401 (MD.Yean. 1977); SeeUnited Statesv. Binghamton -

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Construction Company, Inc., 347 U.S. 171 (1954); North Georgia Building and Construction 'Fades Councilv. Goldschmidt, 621 F.2d 697 (5thCir. 1980).
Approved apprentice programs involve the payment, under certain conditions,ofwages which sre less than the prevailingwage andwhich
are stated as a percentage of the prevailing journeymanwage. 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!e29 U.S.C. 1150, 50a (1982). The idea --- behind apprentice prograna is that the apprentice will receive training in return for h:Lswork 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 contemplatedby t1.e program, i.e., from observingandworking under a variety of qualif:ladjourneymen in the work classification. See id. -- The ratio also assures that the overall quality of the public projectwill not sufferbec,auseof a lack of qualified journeymen. In re Repp 8 Mundt, Inc., at 9 (n. 3). Moreover, because certain wax performed by apprentices arty be inherentlydangerous, incompetenceor 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 thework of‘journeym&. Ia. at'6; see also BuildingA ConstructionTrs,des Department,AFL-CIO,v. Donovan, 553 F. Supp. 352, 355 (D.D.C. 19827 (undercuttingthe 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 OrdinanceNo. 60110, 512, 3. -
The San Antonio ordinance was enacted "[iln accordance with article 5159a.u General C:onditionsof San Antonio Ordinance No. 60110, $2. Section 1 of article 5159aprovides, in part:

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. Honorable George Pierce - l?age4 (JM-463)

Not less than **tlur** general prevailing rate of per dieai wages for \ra#rk

of a similar character in the locality inwhich thework is performed

. . . shall be paid to all laborers, workmen and mechanics employedby or on behalf of the State of Texas, or by or on behalf of any county, city and county, city, town, dist:rict or otherpolitical subdivision of the State, enlbagedin the constructionof public works.

. . . Thus, the Texas Legislature has not only authorizedbut required the payment of prevailingwage83on state and localpublicworks projects.

State and localprevailingwage ordinanceshave 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,124A.2d 783 (Md. 1956); see also Conunission

of Labor and In&tries v. WorcesterHousing Authority, 393 N.E.2d 944 (Mass. App. Ct: 1979); In re Sellers, 215 N.Y.S.2d 385 (N.Y. App. Div. - 1961). 'TheSupremacy Clause of the United States Constitution does not require a state or city to adopt the federal prevailingwage schemeon wholly locally-fundedpublicworks 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 federalwage rz.tesfor awholly state-fundedproject. 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 stateprjcvailing wage statutewas 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 adoptionof the federal standardwas not an invalid delegation of authoritybe~:ausethe decision to use the federal scale
was that of the state tcsnsportation department, not the 'federal departmentof 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 compliancewith federal. standardsthat is necessary to.the receipt of federal financial assistancebut parallels the federal purpose on

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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’sadoption of the federal standards for apprentice programs on 100% locally-funded projects is inconsistentwith the state ,prevalling wage statute.

Moreover, the courts in Rennels, Culllpher, and v Commission ind1

.catedthat s city’sdeterminationofptnrailingwage 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 determiningprevailingwage 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 thewell-establishedprinciple 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’spowers under article 5159a are arguably legal questions and therefore sti):Iect o 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 refrrliningfrom issuing an opinion on a matter which is before the courts, Because we find **that** the San Antonio ordinance In question is consistent with article 5159a. however, we need not address the issue of whether the city has broader powers under article 5159a.

You indicate that th#:apprentice programs now in operation in Buar County are operated by unions and are open only to union members. Consequently, you suggest that non-union workers are precluded frown

participat%m In the-apprenticeprograms in violation of article 5207a, the stattr’s right-to-work lav. This explanationof the purpose and operation,of apprentice programs, however, damonstrates that the programs are designed to benefit all workers, not just unionworkers.

Nowhere do the San Antonio ordinance or the federal regulations upon which the ordinance :Lebased preclude non-union employers from operating an apprentice program in accordance with the standards of theWired StatesDepartmers of Labor. To decide that theseprograms, which are designrd to protect workers under the prevailingwage law. violate the state’s right-to-work laws would be akin to saying that all minimum wage and maxirlcmhour laws and minimum safety standards violate the law. See V.T.C.,S. art. 5159d (minimumwage); art. 5165.1 (maximumhours); aTt8. 5173-5175 and 5179-5180 (protectionof health and safety); art. 5181.1 (child labor); art. 5182-5182-1 (protection

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of workmen on buildings); art. 5182a (occupational safety). The prevailingwage statute,article 5159a, and the right-to-work statute, article 5207a, are part of the same statutory schemeprotecting labor in this state. The fact that those statuteshave 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 doesnot violate the state's right-to-worklaws.

SUMMARY

An ordinaace of the city of San Antonio, euacted pursuant to' the prevailing wage law, article 5159a,V.'P.C~.S., that requiresapprentices
or trainees on 100% locally-funded public works projects to be cmolled in au apprentice program which meets the federal labor specificationsdoes not violate the state'sright-to-work law, article 5207a.V.T.C.S.

JIM MATTOX Attorney General of Texas

JACK EIGRTCWRR FirstAssistantAttorney Gemral

MARY KELLER ExecutiveAssistantAttorney General

ROBERT GRAY SpecialAssistantAttorney General

RICR GILPIN Chairman,Opinion Committee
Preparedby JenniferRiggs AssistantAttorney General

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