In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3207

FRANK BROS., INC.,

Plaintiff-Appellant,

v.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

FRANK BUSALACCHI, Secretary, and MARILYN

KUICK, Chief EEO/Labor Compliance,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03 C 0083—Barbara B. Crabb, Chief Judge.

____________

ARGUED FEBRUARY 12, 2004—DECIDED JUNE 3, 2005

____________

Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge. Plaintiff-appellant Frank Bros.,

Inc., (“Frank Bros.”) appeals an order of the district court

dismissing their complaint seeking a declaratory judgment

and injunctive relief against the Wisconsin Department of

Transportation, Frank Busalacchi, Secretary, and Marilyn

Kuick, Chief EEO/Labor Compliance for failure to state

a claim upon which relief could be granted pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. In the
2 No. 03-3207

district court, Frank Bros. unsuccessfully argued that

provisions of the Davis-Bacon Act, 40 U.S.C. §§ 3141-3148,

and the Federal-Aid Highway Act, 23 U.S.C. §§ 101, et seq.,

preempt application of Wisconsin’s prevailing wage law,

Wis. Stat. § 103.50, to truck drivers who perform transportation and delivery work pursuant to joint federal-state

highway contracts. We affirm.

I. BACKGROUND

Frank Bros. is a construction company with its principal

place of business in Janesville, Wisconsin. In 2002,

Frank Bros. entered into two separate contracts with the

Wisconsin Department of Transportation (“WisDOT”) agreeing to act as a subcontractor on road construction projects

in Rock County, Wisconsin. Under these contracts, which

were funded by capital from both federal and state agencies

through the provisions of the Federal-Aid Highway Act

(“FHWA”), 23 U.S.C. §§ 101, et seq., Frank Bros. agreed to

procure and transport various aggregates, e.g., limestone

and other materials, to the construction sites. Frank Bros.

was also responsible for hauling recycled materials away

from the job sites. In accordance with the transportation

obligations created under the contracts, Frank Bros. hired

a number of independent trucking contractors and subcontractors to haul the aggregate materials to and from a commercial quarry owned and operated by Frank Bros.

The two highway construction contracts that Frank Bros.

entered into with the WisDOT required that the company

comply with all state and federal laws applicable to federally

funded highway construction projects. See 23 U.S.C. § 114.

Also, pursuant to federal law, both contracts incorporated

the terms of the Davis-Bacon Act, 40 U.S.C. §§ 3141-3148,

which requires that contractors and subcontractors on federal construction projects pay qualified employees (as defined

below) the prevailing wage rate for their job classification
No. 03-3207 3

as determined by the Secretary of Labor. See 40 U.S.C.

§ 3142(b); 23 U.S.C. § 113; 23 C.F.R. § 633.102. In order to

demonstrate compliance with the terms of the Davis-Bacon

Act, contractors and subcontractors subject to the Act’s prevailing wage provisions, such as Frank Bros., are required

to submit weekly payroll records to the Department of

Labor disclosing the wages paid and hours worked by

covered employees. See 29 C.F.R. § 5.5(a)(3).

Not all persons performing work related to a federally

funded construction project will fall within the scope of the

Davis-Bacon Act’s prevailing wage and reporting requirements. Qualified employees under the Davis-Bacon Act

include, “laborers and mechanics,” 40 U.S.C. § 3142(b), employed on the site of federally assisted building projects

(either by contractors or subcontractors) performing tasks

such as “[a]ltering, remodeling, [and] installation.” 29 C.F.R.

§ 5.2(j)(1)(i). Specifically excluded from the Act are contractors and subcontractors, or employees thereof, engaged in

“the transportation of materials or supplies to or from the

site of the work.” 29 C.F.R. § 5.2(j)(2) (citing Bldg. & Constr.

Trades Dep’t AFL-CIO v. United States Dep’t of Labor Wage

App. Bd., 932 F.2d 985 (D.C. Cir. 1991)). Thus, under the

Davis-Bacon Act, Frank Bros. properly concluded that they

were not required by federal law to pay prevailing wages to

subcontractors or employees of subcontractors working as

truck drivers.

However, in addition to complying with mandatory federal prevailing wage laws, subcontractors on joint federal

and state construction projects are also required to abide by

the laws and regulations of the various states in which they

are performing work. In a number of states, including

Wisconsin, this means adhering to supplemental state

prevailing wage laws, sometimes referred to as the “little

Davis-Bacon Acts.” See generally, A. Thieblot, PREVAILING

WAGE LEGISLATION: THE DAVIS-BACON ACT, STATE “LITTLE

DAVIS-BACON” ACTS, THE WALSH-HEALEY ACT, AND THE
4 No. 03-3207

1 As stipulated in a supplemental contract provision in the highway construction agreement entered into between Frank Bros.

and the WisDOT, “[i]n the event the [prevailing wage rates under

Wis. Stat. § 103.50 and the Davis-Bacon Act] are not identical, the

higher of the two rates will govern.” This makes good sense

considering § 113 of the FHWA states “laborers and mechanics

employed by contractors or subcontractors on [federally funded

highway projects] . . . shall be paid at rates not less than those

prevailing on the same type of work on similar construction in the

immediate locality as determined by the [United States] Secretary

of Labor in accordance with [the Davis-Bacon Act].” 23 U.S.C.

§ 113. Thus, if the Wisconsin DWD were to set a prevailing wage

for workers that was lower than that set by the Secretary of Labor

(continued...)

SERVICE CONTRACT ACT 21-135 (1986). The same year that

the Davis-Bacon Act was enacted by the United States

Congress, the State of Wisconsin followed suit and passed

its own prevailing wage laws, which remain in place today

in substantively the same form as when they were enacted

in 1931. Wis. Stat. §§ 66.0903 (municipal projects), 103.49

(state projects), 103.50 (highway projects). The Wisconsin

statute defines the State’s “prevailing wage rate” as “the

hourly basic rate of pay, plus the hourly contribution for

[fringe benefits] . . . paid directly or indirectly, for a majority of the hours worked in the trade or occupation in the

area.” Wis. Stat. § 103.50(1)(d). The prevailing wage in

Wisconsin for a particular class of workers is determined on

a project-by-project basis by the Wisconsin Department of

Workforce Development (“DWD”), which shall “conduct

investigations and hold public hearings” to assist in defining the job classifications necessary for a given project as

well as the appropriate wage minimums for those jobs.

§ 103.50(3). The prevailing wages determined pursuant to

§ 103.50 by the Wisconsin DWD thus may or may not be

identical to the federal wage rate determined by the United

States Secretary of Labor under the Davis-Bacon Act.1
No. 03-3207 5

1 (...continued)

under the provisions of the Davis-Bacon Act, Wisconsin’s prevailing wage law would clearly be preempted due to the fact that it

would be physically impossible for an employer to comply with

both federal and state law. See California Fed. Savings & Loan

Ass’n v. Guerra, 479 U.S. 272, 281 (1987). However, as we hold

today, this is not the case where a state’s wage rate is set higher

than the federal rate or when additional classes of workers are

covered under state law.

More importantly though, Wisconsin’s prevailing wage

enactment, unlike the Davis-Bacon Act and the regulations

promulgated thereunder, expressly provides that “[a]ll

laborers, workers, mechanics and truck drivers employed,”

on public works projects shall be paid the prevailing wage

determined by the DWD. Wis. Stat. § 103.50(2m)(a)(2) (emphasis added). Thus, while the federal government does not

provide for a prevailing minimum wage rate for truck

drivers performing work on federally funded state highway

projects, the State of Wisconsin expressly requires that

truck drivers rendering services such as hauling materials

to and from federally funded construction projects in

Wisconsin be paid the state mandated prevailing wage. Like

the Davis-Bacon Act, § 103.50 of the Wisconsin Statutes

must be incorporated into all WisDOT highway construction

contracts, Wis. Stat. § 103.50(6), meaning the contracts

Frank Bros. entered into require compliance with both the

federal and state prevailing wage schemes.

Confronted with this legislative and contractual scenario,

Frank Bros. chose to comply fully with the federal prevailing wage requirements, but did not pay—or require its

subcontractors to pay—the prevailing wage required under

Wisconsin law to truck drivers employed in hauling limestone and other aggregates from the Frank Bros. quarry to

the job sites. Frank Bros. also failed to comply with Wisconsin law by not providing the required (weekly) supporting
6 No. 03-3207

payroll documentation to the WisDOT (such as the wages

paid and number of hours worked by truck drivers employed

either directly or indirectly on the project).

Having learned of this situation, Marilyn Kuick, Chief

of the EEO/Labor Compliance Bureau for the WisDOT,

ordered Frank Bros. to immediately comply with Wisconsin

law. In a letter dated January 15, 2003, Kuick directed the

company to begin paying all truck drivers employed in hauling materials to and from the construction sites Wisconsin’s

prevailing wage rate. The letter further instructed

Frank Bros. to comply with the reporting provisions of

§ 103.50, provide the required weekly payroll information

and, if necessary, pay any back wages to those workers who

might have been paid less than the State’s prevailing wage

while working on the project. Kuick explained the rationale

of her order by stating that the WisDOT would apply the

definition of “covered employees” in Wis. Stat. § 103.50, which

includes truck drivers, instead of the narrower definition

found in regulations implementing federal law.

On February 19, 2003, Frank Bros. filed suit in the

United States District Court for the Western District of

Wisconsin. The company sought a declaratory judgment and

injunctive relief against the WisDOT and other named

defendants pursuant to the Davis-Bacon Act, 40 U.S.C.

§§ 3141-3148, the Federal-Aid Highway Act, 23 U.S.C.

§§ 101 et seq., and the Declaratory Judgment Act, 28 U.S.C.

§§ 2201-2202. In essence, Frank Bros. claimed that Wisconsin’s prevailing wage statute is preempted by federal law and

that WisDOT is thus precluded from requiring that truck

drivers be paid the prevailing wage mandated under Wis.

Stat. § 103.50.

Shortly after the complaint was filed, but before discovery

had commenced, the defendants-appellees moved to dismiss

pursuant to Rule 12(b)(6) claiming that Frank Bros. had

failed to state a claim upon which relief could be granted.
No. 03-3207 7

See FED. R. CIV. P. 12(b)(6). The district court granted

WisDOT’s motion, finding that Frank Bros. had failed to

demonstrate that anything in the Davis-Bacon Act or

related federal legislation precluded the State of Wisconsin

from placing additional wage rate requirements on subcontractors working on joint federal and state highway construction projects. We affirm.

II. DISCUSSION

The district court dismissed the defendants-appellees’

complaint under Rule 12(b)(6) for failure to state a claim

upon which relief could be granted, a question of law which

we review de novo. See Thomas v. Law Firm of Simpson &

Cybak, 392 F.3d 914, 916 (7th Cir. 2004). Dismissal is only

appropriate if the plaintiff cannot possibly establish any set

of facts which would entitle him to the relief requested. See

Hunt-Golliday v. Metro. Water Reclamation Dist., 390 F.3d

1032, 1034 (7th Cir. 2004). For purposes of this appeal we

accept as true all of the well-pleaded allegations in Frank

Bros. complaint and will draw all reasonable inferences in

their favor. See Thomas, 392 F.3d at 916.

A. Federal Preemption Doctrine

The sole issue presented on appeal is whether the federal

prevailing wage scheme, which expressly exempts truck

drivers from its scope of coverage, preempts Wisconsin’s prevailing wage law, which specifically includes truck drivers.

Under the Supremacy Clause of the United States

Constitution, U.S. CONST., art. VI, state law may be preempted by federal legislation either by “express provision,

by implication, or by a conflict between federal and state law.”

N.Y. State Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 654 (1995) (citing Pacific

Gas & Elec. Co. v. State Energy Resources Conservation and
8 No. 03-3207

Dev. Comm’n, 461 U.S. 190, 203-04 (1983)). Although state

legislation may be preempted by federal provisions in a

number of ways, we presume that, in all circumstances,

“Congress does not intend to supplant state law.” Travelers

Ins. Co., 514 U.S. at 654. This is particularly true where a

party claims that federal law bars state action in areas of

traditional state regulation, such as public works. See

Meditronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); see also

California Div. of Labor Standards Enforcement v. Dillingham

Constr., N.A., Inc., 519 U.S. 316, 325 (1997). In such cases

preemption shall not be found absent evidence that it was

Congress’ “clear and manifest purpose [to do so].” Rush

Prudential HMO v. Moran, 536 U.S. 355, 365 (2002); Rice

v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

1. Express Congressional Intent

Although Frank Bros. does not argue that Wisconsin’s

prevailing wage law is expressly preempted by federal law,

“we begin as we do in any exercise of statutory construction

with the text of the provision in question, and move on, as

need be, to the structure and purpose of the Act in which it

occurs.” Travelers Ins. Co., 514 U.S. at 655. There is nothing

in the statutory text of the federal statutes at work here

which would lead us to conclude that it was the intention of

Congress to expressly override either complementary or

inconsistent state laws. The Davis-Bacon Act, 40 U.S.C.

§ 3146, states that the Act is “not [to be construed to]

supersede or impair any authority otherwise granted by

federal law to provide for the establishment of specific wage

rates,” but is silent on the subject of interaction with state

legislation. Likewise, the FAHA “contains no statement

about its effect on either federal or state statutes.” Siuslaw

Concrete Constr. Co. v. Wash. Dep’t of Transp., 784 F.2d

952, 955 n.3 (9th Cir. 1986).
No. 03-3207 9

2 Indeed, as discussed infra, provisions in both the Davis-Bacon

Act and the FHWA suggest that Congress intended a scheme of

complementary state/federal legislation. For example, 23 U.S.C.

§ 114(a) provides that “labor in each State shall be performed . . .

in accordance with the laws of that State and applicable Federal

law.” In addition, we pause to note that prior to the passage of the

Davis-Bacon Act in 1931 seven states had some form of prevailing

wage legislation on the books. Armand J. Thieblot, Jr., Prevailing

Wage Laws of the States, 4 Gov. Union Rev. 1, 5 (Fall 1983). The

Supreme Court has made clear that Congress’ silence regarding

the preemption of preexisting state laws may aid the court in

concluding that Congress did not intend to preempt those state

laws. See Dillingham, 519 U.S. at 329-31; Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 616

(1997).

When interpreting the text of a statutory provision for

preemptive intent we assume that the ordinary meaning of

the language used by Congress accurately reflects the

legislative purpose. See Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 383 (1992). Congress’ failure to expressly

state, one way or the other, whether the Davis-Bacon Act

and/or the FHWA are meant to preempt state law, prevents

us from holding that Wisconsin’s prevailing wage law has

been expressly preempted, a determination that is only

possible where Congress has expressed a clear intent to

override state law.2

 See, e.g., Louisiana Pub. Serv. Comm’n

v. Fed. Communications Comm’n., 476 U.S. 355, 368 (1986);

Time Warner Cable v. Doyle, 66 F.3d 867, 875 (7th Cir.

1995). Nevertheless, state law may also be supplanted

when, absent an express statement of legislative intent,

“Congress’ command is . . . implicitly contained in [an Act’s]

structure and purpose.” Fidelity Fed. Savings & Loan Ass’n

v. de la Cuesta, 458 U.S. 141, 152-53 (1982) (quoting Jones

v. Rath Packing Co., 430 U.S. 519, 525 (1971)).
10 No. 03-3207

2. Implicit Preemption

Frank Bros.’ first claim on appeal is that congressional

legislation, in the form of the Davis-Bacon Act, as incorporated by the FHWA, is so pervasive that it leaves no room

for the State of Wisconsin to impose its own prevailing wage

scheme. Thus, Frank Bros. concludes that the State of

Wisconsin is precluded from enforcing its prevailing wage

legislation and accordingly may not require Frank Bros. to

pay a state prevailing wage to truck drivers in the company’s (and its subcontractor’s) employ. The appellants base

this claim primarily on the following allegations: (a) that

“Congress specifically addressed how wages should be set

on federally funded highway contracts in 23 U.S.C. § 113 by

stating that wages shall be paid “in accordance with . . . the

Davis-Bacon Act”; and (b) that “there is a lack of any other

specific statutory reference that permits or authorizes a

state to impose its prevailing wage scheme on federally

funded highway contracts.” Appellant’s Brief at 24. We

disagree.

In this country, it is a long-standing principle of law that,

in the absence of explicit language signaling preemptive

intent, the manifest purpose of Congress to preclude the

application of State law may also be evinced by either a

“scheme of federal regulation . . . so pervasive to make

reasonable the inference that Congress left no room for the

States to supplement it,” or the passage of an Act that

“touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude

enforcement of state laws on the same subject.” Rice, 331

U.S. at 230.

As noted above, the establishment of prevailing wage

rates and labor standards for indigenous workers is an area

of traditional state regulation. See Dillingham, 519 U.S. at

330; Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21

(1987). Therefore, it is Frank Bros.’ burden to establish, in
No. 03-3207 11

3 It should be noted, however, that over the years the DavisBacon Act has been amended many times and, as a result, contains many nuances that the bill passed in 1931 did not. See generally Lisa Morowitz, Government Contracts, Social Legislation,

and Prevailing Woes: Enforcing the Davis Bacon Act, 9 IN.PUB. INT.

29, 32 (1989).

4 As Representative Bacon stated, the Davis-Bacon Act was intended to discourage “certain itinerant, irresponsible contractors,

with itinerant, cheap, bootleg labor . . . [from] ‘picking’ off a contract here and a contract there,” and to “simply give local labor

and the local contractor a fair opportunity to participate in this

building program.” 74 Cong. Rec. 6510 (1931).

the context of field preemption, that it was the clear

“manifest purpose of Congress” to preclude the states, and

specifically Wisconsin, from enacting their own prevailing

wage legislation. Rice, 331 U.S. at 230. However, both the

text of the federal statutes involved and the legislative

history of the Davis Bacon-Act and the FHWA, as well as

regulations promulgated pursuant to those laws, demonstrate that this is not the case.

The statutory language of both the Davis-Bacon Act and

the FAHA both suggest that Congress intended federal law

to be complementary to, rather than preclusive of, state

law. The Davis-Bacon Act was initally enacted in 1931 during the Hoover administration and mandates that a “prevailing wage” determined by the Secretary of Labor be paid

to those employees who perform various qualified tasks for

contractors on federal public works projects.3 See 40 U.S.C.

§ 3142.4

 And we note that some of the most striking and

convincing evidence of congressional intent can be found in

the text of the Davis-Bacon Act itself.

If Congress had intended to supplant more stringent state

legislation it is unlikely that they would have characterized

the federal prevailing wage as the “minimum wages to be

paid various classes of laborers and mechanics.” 40 U.S.C.
12 No. 03-3207

§ 3142(a) (emphasis added). The use of the word minimum

in the statute, in and of itself, is strong evidence of a

congressional intention to have the statute read as complementary to state legislation. There is no doubt that congressional lawmakers were aware of their inherent authority to

legislatively preempt state authority in the field by making

the federal wage rate mandatory and preclusive of state (or

employer) supplementation, however, the text of the statute

itself establishes that they chose not to do so. See

Hillsborough v. Automated Medical Labs, Inc., 471 U.S.

707, 718 (1985). Instead, when crafting the Davis-Bacon

Act, Congress chose the word “minimum” to benefit workers

(for whom the legislation was passed) and allowed for the

payment of higher wages if the states, the market or individual employers concluded that supplemental wages were in

order.

Indeed, the broader federal law requiring that all workers,

regardless of job classification, be paid a “minimum wage”

has long been an area of the law which is governed by a

complementary web of federal and state legislation, and

there is no reason to believe that Congress did not envision

that the same system would operate with respect to the

Davis-Bacon Act as well. See, e.g., 29 U.S.C. §§ 201-209

(entitled the “Fair Labor Standards Act”). This conclusion

is consistent with the fact that, like the Davis-Bacon Act,

the federal minimum wage was part of comprehensive

legislation aimed at mitigating the financial damage done

to the working class in the United States during the

Great Depression. See generally William P. Quigley, ‘A Fair

Day’s Pay For a Fair Day’s Work’: Time to Raise and Index

the Minimum Wage, 27 St. Mary’s L.J. 513, 515-29 (1996).

The only substantive difference between the federal minimum wage law and the Davis-Bacon Act in this context is

that Congress saw fit to include an express non-preemption

clause in the Fair Labor Standards Act. See 29 U.S.C.

§ 218(a) (“No provision of this chapter or of any order
No. 03-3207 13

5 In terms of the FHWA, a number of courts have held that because participation in the FHWA is at the states’ option, it cannot

be said that Congress intended to preempt the field and preclude

supplementary state decision making. Siuslaw Concrete Constr.

Co., 784 F.2d at 953.

thereunder shall excuse noncompliance with any Federal or

State law or municipal ordinance establishing a minimum

wage higher than the minimum wage established under

this chapter. . . .”). Nonetheless, the fact that Congress did

not expressly reserve the right of the states to set a minimum prevailing wage for workers taking part in public

works projects does not support the conclusion that the

states do not maintain that right.

Additional guidance as to congressional intention not to

preempt state regulation in the field is provided by the

FHWA, which implements the Davis-Bacon Act in conjunction with all federally funded state highway projects. A

comprehensive analysis of the FHWA demonstrates that

Congress both understood state involvement in setting and

maintaining prevailing wages and sought the states’ cooperation in facilitating the enforcement of the Davis-Bacon

Act. Moreover, there is nothing in the FHWA which suggests that Congress intended the Davis-Bacon Act or the

FHWA to preclude supplemental wage rate legislation by

the states in the form of either a higher prevailing wage or

the payment of a prevailing wage to a broader variety of

workers.5

 For example, the FHWA provides in part that “all

laborers and mechanics employed by contractors or subcontractors . . . shall be paid wages at rates not less than those

prevailing on the same type of work on similar construction

in the immediate locality as determined by the Secretary of

Labor in accordance with . . . [the Davis-Bacon Act].” 23

U.S.C. § 113 (emphasis added).

Frank Bros. attaches great importance to the words “in

accordance with” in the statute and argues that § 113, by its
14 No. 03-3207

6 Frank Bros. argues unpersuasively that the phrase “ . . . and

applicable federal laws” in § 114 is evidence of Congress’ intention

to make state law subordinate to federal law with respect to state

prevailing wage laws. The problem with this reading of the

statute, as discussed infra, is that if Congress intended to control

the field there would be no need to refer to applicable state laws.

Indeed, a fair reading of the statute reveals Congress’ contemplation of state law and intention not to supplant or in anyway

disturb existing state law where there is no “applicable federal

law.” 23 U.S.C. § 114.

very terms, establishes Congress’ intention to preempt

inconsistent state prevailing wage laws where the DavisBacon Act is applicable. However, this argument is misguided for a number of reasons. First, § 113 merely assures

that the mandatory provisions of the Davis-Bacon Act, such

as the payment by contractors of a prevailing minimum

wage to certain covered employees, will be adhered to on

federally funded highway contracts, but does not in any

manner or respect alter, much less limit, the ability of

states to require that contractors abide by supplemental

state prevailing wage regulations. Support is found for this

proposition in another provision in the FHWA which expressly states that “construction work and labor in each

State shall be performed under the direct supervision of the

State transportation department and in accordance with the

laws of that state and applicable federal laws.” 23 U.S.C.

§ 114 (emphasis added).6

 Instead of precluding supplemental state regulation, as Frank Bros. suggests, the language

employed in the FHWA embodies Congress’ intention to

provide legal authority to and encourage cooperation between State and Federal regulators in order that they might

achieve similar results in accomplishing the goals of the

Davis-Bacon Act. Furthermore, § 113 of the FHWA requires

the Secretary of Labor to “consult [as directed by the

regulations] with the highway department of the State in

which a project . . . is to be performed . . . [and] [a]fter giv-
No. 03-3207 15

7 While it is true, as Frank Bros. asserts, that the Secretary of

Labor has the authority to set the Federal prevailing wage without regard to applicable state regulations, this fails to add anything to their cause; for as 23 U.S.C. § 114 states on its face,

contractors are to comply with both the laws of the state in which

they are performing the work as well as applicable federal laws.

8 This conclusion is also bolstered by 23 U.S.C. § 145 which

provides in pertinent part: “(a) Protection of State sovereignty.—

The authorization of the appropriation of Federal funds or their

availability for expenditure under this chapter shall in no way

infringe on the sovereign rights of the States to determine which

projects shall be federally financed. The provisions of this

chapter provide for a federally assisted State program.”

§ 145 (emphasis added).

ing due regard to the information thus obtained, he shall

make a predetermination of the minimum wages to be paid

laborers and mechanics.” 23 U.S.C. § 113(b).7

 Such consultation would be unnecessary and perhaps undesirable if, as

Frank Bros. contends, Congress had intended to exercise

plenary power over prevailing wage determinations.8 See

Dillingham, 519 U.S. at 330. Indeed, in California Division

of Labor Standards Enforcement v. Dillingham, another

Davis-Bacon Act case that dealt with ERISA preemption of

the California prevailing wage scheme, the Supreme Court

cited Congress’ express direction to the Secretary of Labor

to cooperate with state agencies engaged in formulating and

promoting apprenticeship standards as persuasive evidence

that California’s prevailing wage scheme was not preempted by ERISA. See id. (citing 29 U.S.C. § 50).

Moreover, nothing in either the legislative history of

the Davis-Bacon Act or the FHWA supports Frank Bros.’

contention that Congress intended to preempt broader

prevailing minimum wage requirements implemented by

the states. As the Supreme Court acknowledged for the first

time over fifty years ago: “The language of the [Davis-
16 No. 03-3207

9 Those states are: ALASKA STAT. § 36.05.010 (Alaska); ARK. CODE

ANN. §§ 22-9-301, 22-9-303 (Arkansas); CAL. LAB. CODE §§ 1770,

1720.3 (California); CONN. GEN. STAT. § 31-53 (Connecticut); DEL.

CODE ANN. tit. 2, § 2003 (2004) (Delaware); HAW. REV. STAT. ANN.

§ 104-2 (Hawaii); 820 ILL. COMP. STAT. ANN. 130/1, 130/2 (Illinois);

IND. CODE ANN. § 5-16-7-1 (Indiana); KY. REV. STAT. ANN. § 337.010

(Kentucky); ME. REV. STAT. ANN. tit. 26 §§ 1304-1305 (Maine); MD.

CODE ANN., STATE FIN. & PROC. § 17-213 (Maryland); MASS. GEN.

LAWS ch. 149, § 27F (Massachusetts); MINN. STAT. ANN. § 177.41

(Minnesota); MO. ANN. STAT. §§ 290.220, 290.230 (Missouri); MONT.

CODE ANN. §§ 18-2-401, -402 (Montana); NEB. REV. STAT. ANN.

§ 71-6018.02 (Nebraska); NEV.REV.STAT.ANN. §§ 332.390, 338.020

(Nevada); N.J. STAT. ANN. §§ 34:11-56.25, -56.26 (New Jersey); N.M.

(continued...)

Bacon] Act and its legislative history plainly show that it

was not enacted to benefit contractors, but rather to protect

their employees from substandard earnings by fixing a floor

under wages on Government projects.” United States v.

Binghamton Const. Co., 347 U.S. 171, 177 (1954) (emphasis

added). Support for this assertion is pervasive and most

compelling. For example, when Congress enacted the DavisBacon Act in 1931 seven states had already adopted

prevailing wage statutes, many of which had disparate requirements, provided for higher prevailing wage calculations and contained different worker coverage than their

later adopted federal counterpart. See Armand J. Thieblot,

Jr., Prevailing Wage Laws of the States, 4 Gov. Union Rev.

1, 5 (Fall 1983); see also Dillingham, 519 U.S. at 329-31;

Camps Newfound/Owatonna, Inc., 520 U.S. at 616. Also,

there are currently thirty states that have some form of

prevailing wage legislation for public works projects, and

most of those contain categories of covered employees or

prevailing wage rates which differ from the Davis-Bacon

Act, i.e., some states require that a prevailing wage be paid

to one or more classifications of employees that are not

covered under the Davis-Bacon Act.9 See Dillingham, 519
No. 03-3207 17

9 (...continued)

STAT. ANN. § 13-4-11 (New Mexico); N.Y. LAB. LAW § 220 (New

York); OHIO REV. CODE ANN. § 4115.04 (Ohio); OKLA. STAT. ANN.

tit. 40, § 197 (Oklahoma); 62 PA. CONS. STAT. ANN. § 3901 (Pennsylvania); R.I. GEN. LAWS § 37-13-6 (Rhode Island);TENN.CODE ANN.

§ 12-4-402 (Tennessee); TEX. GOV’T CODE ANN. §§ 2258.001,

2258.002 (Texas); WASH. REV. CODE. ANN. § 39.12.020 (Washington); W. VA. CODE ANN. § 21-5A-2 (West Virginia); and WIS. STAT.

§ 103.50 (Wisconsin).

U.S. at 329-31. As stated above, if in fact it was the intent

of Congress to preempt such competing state regulation in

the field, there is no doubt that they were acutely aware of

how to accomplish that goal. See, e.g., Hillsborough, 471 U.S.

at 718. Again, the decision not to do so is evidence of Congress’ primary goal in passing the Davis-Bacon Act in the

first place, which was not to supplant state regulations in

the area, but to insure that, in states with prevailing wage

legislation, “contractors [on public works projects would] not

pay [workers] less than is paid in private industry.” 75

Cong. Rec. 6515 (1931) (statement of Rep. Kopp).

The proposition that Congress, at least implicitly, intended to allow for supplemental and even more aggressive

state regulation, is also supported with compelling evidence

that the federal government is well aware of, and even comfortable with, the fact that some of the “little Davis-Bacon

Acts,” such as Wisconsin’s prevailing wage law, impose

more stringent requirements (i.e, higher prevailing wages

and additional categories of covered employees) on contractors and subcontractors than those mandated by the DavisBacon Act. For example, a great number of states have

prevailing wage legislation in place that mandates that

worker classifications, such as truck drivers—employees

that are not qualified employees under the Davis-Bacon

Act—be paid a state prevailing wage. See supra note 9 and

accompanying text. More importantly, aside from Wiscon-
18 No. 03-3207

sin, at least three other states specifically include truck

drivers as one of the classes of contractor employees that

must be paid the prevailing wage under state law. See, e.g.,

CAL. LAB. CODE § 1720.3 (“public works’ also means the

hauling of refuse from a public works site to an outside

disposal location”); MASS. GEN. LAWS ch. 149, § 27F (“No

agreement of lease, rental, or other arrangement . . . under

which a truck or any automotive or other vehicle or equipment is to be engaged in public works . . . shall be entered

into or given by any public official or public body unless

said agreement, order or requisition contains a stipulation

requiring prescribed rates of wages, as determined by the

commissioner, to be paid said truck drivers”); Superior

Asphalt & Concrete Co. v. Dep’t of Labor & Indus. of Wash.,

112 Wash. App. 291, 298-303 (Wash. Ct. App. 2002) (finding

that most truck drivers are covered under WASH. REV. CODE

§ 39.12.020).

However, even if it were reasonable for Frank Bros. to

suggest that Congress is oblivious of this legislation, the

record suggests that—at the very least—the Federal

Highway Administration is well aware that certain states

have enacted legislation that is supplementary to the DavisBacon Act. In 1985 the Federal Highway Authority proposed a rule which would have allowed the Federal Highway Administrator to decline funding to highway contracts

that are too costly due to “design, materials or labor costs.”

50 Fed. Reg. at 39137-39139, withdrawn at 54 Fed. Reg. at

34529. This rule would have imbued the FHWA with the

discretion to refuse to use federal funds to finance the

excess costs of labor in states, such as Wisconsin, where

either the prevailing wage calculation is greater than that of

the Secretary of Labor or where state legislation requires

the payment to additional classifications of workers (not

covered under the Davis-Bacon Act) such as truck drivers.

The rule was eventually withdrawn, but the text of the

proposed regulation offers valuable insight into the Federal
No. 03-3207 19

10 Frank Bros. incorrectly asserts that “[w]hen Congress has enacted protective labor legislation that intrudes upon the historic

police powers of States, the traditional pattern followed by

Congress has been to specifically assert in the legislation that the

States retain these police powers, if Congress wishes the States to

retain those powers.” Appellant’s Brief at 28. A quick read of the

United States Constitution reveals that “powers not delegated to

the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively. . . .” U.S. CONST.

amend. X. In addition, as mentioned earlier, in spheres of traditional state regulation the courts will presume that Congress did not

intend to supercede state law. See supra pp. 11-12; Rice, 331 U.S.

at 230.

Highway Administration’s interpretation of the interaction

between state laws and the Davis-Bacon Act; for the

proposed rule states that, in the Administration’s opinion

“neither the Davis-Bacon Act nor 23 U.S.C. [§] 113 preempts State law.” Id. Although not binding precedent, the

courts “have long recognized that considerable weight

should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer . . . .”

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984).

The fact that the Federal Highway Administration, the

agency charged with arranging and approving federal highway contracts as well as implementing the Davis-Bacon Act

on those projects, has never challenged these alleged

inconsistencies between federal and state law (and even

stated in the federal record that the Davis-Bacon Act did

not preempt state legislation in the field) certainly weighs

in favor of a conclusion that the field has not been occupied

by federal legislation and regulation.

Essentially the only evidence that Frank Bros. relies upon

in support of their argument for field preemption is Congress’ silence as to the application or existence of state

prevailing wage laws.10 However, silence on the part of

Congress alone is not only insufficient to demonstrate field
20 No. 03-3207

preemption, it actually weighs in favor of holding that it

was the intent of Congress not to occupy the field.

Hillsborough, 471 U.S. at 718 (holding that the courts “can

expect that [Congress and/or agencies] . . . will make their

intentions clear if they intend for their regulations to be exclusive”); Camps Newfound/Owatonna, Inc., 520 U.S. at 616

(holding that “even where Congress has legislated in an area

subject to its authority, our pre-emption jurisprudence

explicitly rejects the notion that mere congressional silence

on a particular issue may be read as preempting state law”).

To illustrate the point further, this is not a situation akin

to the one encountered by the Supreme Court in Guss v.

Utah Labor Board, which Frank Bros. cites as support for

its argument that the Davis-Bacon Act preempts state

prevailing wage laws. 353 U.S. 1 (1957). In Guss, the

Supreme Court held that, by promulgating the National

Labor Relations Act, Congress granted the National Labor

Relations Board (“NLRB”) plenary power “to prevent any

person from engaging in any unfair labor practice.” Id. at 3-

12. The Court reasoned that under § 10(a) of the National

Labor Relations Act, the only manner in which the states

would have jurisdiction over labor disputes covered under

the Act would be where their power to deal with those disputes was ceded by the NLRB. Id. at 5-12. In other words,

the Court concluded that Congress had intended that the

NLRB would be vested with jurisdiction over all labor

disputes affecting commerce and that this constituted “not

only a general intent to pre-empt the field,” but also implied

exclusiveness on the part of the Board to act at the behest

of Congress on such matters. Id. at 10. Thus, a declination

on the part of the Board to exercise its jurisdiction did not

allow the states to step in when exclusive jurisdiction was

vested in the Board. Id. at 10-12.

Guss is distinguishable, for in this case we are not dealing

with a plenary grant of power by the Congress to the

Secretary of Labor. As we have illustrated, although the
No. 03-3207 21

11 Frank Bros. also claims that the determination of how workers

are to be categorized and/or paid on federally funded highway projects is of such significant interest to Congress that the federal

interest in regulating such matters is so dominant as to preempt

all state laws touching on the same subject. As support for this

argument Frank Bros. cites the amount of money spent by the

(continued...)

Davis-Bacon Act grants the Secretary the power to determine a minimum prevailing wage, nothing in the act even

implies exclusivity. Whereas in Guss the Court needed look

no further than the statute itself to determine that Congress had “meant to reach to the full extent of its power

under the Commerce Clause,” in passing the National

Labor Relations Act. Id. at 3. Congress did not exercise its

power in this manner when enacting the Davis-Bacon Act,

although they certainly had the power to do so. The fact

that Congress did not exercise plenary power when enacting

the Davis-Bacon Act, especially when confronted with

supplementary legislation in the field, demonstrates Congress’ intention that the Davis-Bacon Act coexist with state

regulation rather than preempt it. See Hillsborough, 471

U.S. at 718. In addition, contrary to Frank Bros.’ argument,

Congress had not “left unregulated” any area of labor

disputes affecting commerce under the National Labor

Relations Act. Guss, 353 U.S. at 3. In fact, as we pointed out

earlier, the Supreme Court held in Guss that Congress had

invested the NLRB with exclusive, plenary power over labor

disputes. Id. at 10. The Davis-Bacon Act confers no such

authority to the Secretary of Labor, and thus the states are

free to act as long as their regulations do not otherwise

interfere with congressional intent.

Because we are not satisfied that the Davis-Bacon Act, as

incorporated by the FHWA, evinces the clear and “manifest

purpose of Congress” to implement a scheme of legislation

so pervasive11 that it would, in effect, preempt any state
22 No. 03-3207

11 (...continued)

federal government (billions of dollars each year) on state highway

projects. They therefore argue that the states are precluded from

raising the price of labor on joint federal/state highway projects by

imposing supplementary prevailing wage schemes.

However, this argument is unpersuasive because: “[u]ndoubtedly,

every subject that merits congressional legislation is, by definition,

a subject of national concern. That cannot mean, however, that

every federal statute ousts all related state law.” Hillborough, 471

U.S. at 719. For example, state legislation on the subject of

national security and foreign affairs has been held implicitly preempted because “Congress has legislated in an area of paramount

federal importance.” Mite Corp. v. Dixon, 633 F.2d 486, 493 (7th

Cir. 1980) (citing Pennsylvania v. Nelson, 350 U.S. 497 (1956)

(national security); Hines v. Davidowitz, 312 U.S. 52 (1941)

(foreign affairs)). However, the wage rates for certain employees

of government contractors cannot be considered an area of such

significant national concern that it would be treated along the

lines of either legislation in the realm of national security or

foreign affairs. Indeed, if this were the case, it would follow that

every piece of legislation, from state minimum wage laws to local

highway laws, might conceivably be preempted by federal law

because they, in some way, impact the federal budget, regardless

of whether those laws fall within the traditional sphere of state

regulation. Hillborough, 471 U.S. at 719; see supra pp. 12-13.

12 Even if we were to assume that the legislative scheme of the

Davis-Bacon Act (and the Federal-Aid Highway Act) was comprehensive in its field, comprehensiveness does not always justify

preemption. Hillsborough, 471 U.S. at 717. “In New York Dept. of

Social Services v. Dublino, 413 U.S. 405 (1973), the Supreme

Court stated that ‘[the] subjects of modern social and regulatory

(continued...)

regulation in the field, we conclude that the State of

Wisconsin is free to require compliance with its own

prevailing wage scheme, as long as that legislation is not in

conflict with federal law or prevents the full purposes and

objectives of Congress from being carried out.12
No. 03-3207 23

12 (...continued)

legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the

problem.’ ” Hillsborough, 471 U.S. at 717 (quoting N.Y. Dep’t of

Soc. Servs. v. Dublino, 413 U.S. 405, 415 (1973)). Therefore,

“merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that

States and localities were barred from identifying additional needs

or imposing further requirements in the field.” Hillsborough, 471

U.S. at 717 (citing De Canas v. Bica, 424 U.S. 351 at 359-60

(1976)).

As far as the particular Davis-Bacon Act regulation at question

here pertaining to truck drivers, 29 C.F.R. § 5.2, is concerned, it

would be too broad a sweeping inference to suggest that Congress

intended to preempt an area of traditional state regulation on the

basis of a single administrative regulation promulgated by a

federal agency. See Favel v. American Renovation and Constr. Co.,

59 P.3d 412, 425 (Mont. 2002) (“We conclude, as did the

U.S. Supreme Court in Geier, 529 U.S. 861 at 908-09, 120 S.Ct.

1913, that regulatory preemption will not be implied absent some

declaration of an intent to preempt. Such a declaration being absent here, we find no implied preemption in the Davis-Bacon regulations.”). Although both federal regulations and statutes may

preempt state law, the courts are more reluctant to infer preemption from the text of federal regulations as opposed to statutes.

Hillsborough, 471 U.S. at 717.

As a result of their specialized functions, agencies normally

deal with problems in far more detail than does Congress. To

infer pre-emption whenever an agency deals with a problem

comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be

inconsistent with the federal-state balance embodied in our

Supremacy Clause jurisprudence. See Jones v. Rath Packing

Co., 430 U.S. at 525. . . . Thus, if an agency does not speak to

the question of preemption, we will pause before saying that

(continued...)
24 No. 03-3207

12 (...continued)

the mere volume and complexity of its regulations indicate

that the agency did in fact intend to pre-empt.

Hillsborough, 471 U.S. at 717-18. This court would be reticent to

infer the Department of Labor’s intent to preempt a state prevailing wage law under these circumstances; for it is true that

“[federal agencies] will make their intentions clear if they intend

for their regulations to be exclusive.” Id. at 718.

3. Conflict Preemption

Frank Bros. argues, in the alternative, that by incorporating the Davis-Bacon Act into the FHWA, it was the

intention of Congress to comprehensively regulate the type

of wages paid and the manner in which those wages were

determined. Thus, they argue that, by also setting forth the

wages to be paid and to whom they are to be paid, Wisconsin’s prevailing wage law conflicts with federal law. For the

most part this is simply an extension of their implied

preemption argument and is likewise unpersuasive.

Conflict preemption occurs only in those circumstances

where “compliance with both federal and state regulations

is a[n] . . . impossibility,” or where state law “stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” California Fed.

Savings & Loan Ass’n, 479 U.S. at 281; Crosby, 530 U.S. at

372-73 (citations omitted); La. Pub. Serv., 476 U.S. at 368-

69; de La Cuesta, 458 U.S. at 153; Freightliner Corp. v.

Myrick, 514 U.S. 280, 287 (1995); Time Warner Cable, 66

F.3d at 875.

The appellants initially argue that the application of

Wisconsin’s prevailing wage rate to truck drivers conflicts

with the implementation and intent of the federal scheme.

Specifically, they argue that because delivery drivers on

construction projects are expressly excluded under regulations promulgated pursuant to the Davis-Bacon Act and
No. 03-3207 25

incorporated by the FHWA, Congress intended that truck

drivers are to be paid at “free market rates” when working

for subcontractors on federal highway projects. Appellant’s

Brief at 18. The appellants go on to assert that “the State of

Wisconsin has contradicted this free market philosophy . . . ,

by concluding that they should be paid governmentally set

rates.” Appellant’s Brief at 18-19. We disagree.

In order to determine whether state law constitutes an

obstacle to the accomplishment of the purposes and objectives of Congress we will “consider the relationship between

state and federal laws as they are interpreted and applied,

not merely as they are written,” and “mere differences

between state and federal regulation of the same subject

are not conclusive of preemption . . . the crucial inquiry is

whether [state law] differs from [federal law] in such a way

that achievement of the congressional objective . . . is

frustrated.” Mite Corp., 633 F.2d at 493; California v. ARC

America Corp., 490 U.S. 93, 100-01 (1989); Florida Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143, 83 S.Ct.

1210, 1218, 10 L.Ed.2d 248 (1963); Motor Vehicle Mfrs.

Ass’n of United States v. Abrams, 899 F.2d 1315, 1322

(2d Cir. 1990). In other words, the mere fact that two statutes

differ is not conclusive evidence of preemptive effect. See id.

Thus, in this case, Frank Bros. must allege facts or cite

empirical evidence that would establish that the congressional objective at work behind the enactment of the DavisBacon Act and the FHWA would either be frustrated or

rendered ineffective if Wisconsin mandates that a prevailing wage be paid to truck drivers.

As mentioned above, the Davis-Bacon Act and the regulations promulgated pursuant to that statutory enactment

provide for a detailed web of legislation which, at its heart

was “designed for the benefit of . . . workers.” Universities

Research Ass’n v. Coutu, 450 U.S. 754, 771 (1981) (quoting

Binghamton Const. Co., 347 U.S. at 178). The Supreme Court
26 No. 03-3207

has specifically held that “[t]he language of the act and its

legislative history plainly show that it was not enacted to

benefit contractors, but rather protect their employees . . .

by fixing a floor under wages on Government projects.”

Binghamton, 347 U.S. at 176-77. A conclusion which is also

well supported in the legislative history of the Act. See 75

Cong. Rec. 6515 (1931) (statement of Rep. Kopp) (This bill

“simply insist[s] that Government shall not use its power to

demoralize the rates in places where public buildings are

constructed. Nothing could be fairer. Nothing could be more

just and equitable. This is a policy to which no one can take

exceptions.”).

In addition, subsequent to the Supreme Court’s decision

in Binghamton, the Court has gone on to hold that contractual agreements between employers and employees do not

frustrate the purposes of the Davis-Bacon Act where the

agreed upon compensation is greater than the floor established by the Davis-Bacon Act. See Walsh v. Schlecht, 429

U.S. 401, 411 (1977) (holding “that the objective of the

Davis-Bacon Act is to benefit the contractor’s employees,

and that objective is clearly not “frustrated” when contractual arrangements between employers and their employees

result in higher compensation and benefits than the floor

established by the Act”). And it is well-settled that where a

federal statute provides only a floor, such a statute does

“not stand in the way of a stricter standard that the laws of

some States provide.” Atherton v. Federal Deposit Insurance

Corp., 519 U.S. 213, 227 (1997).

It is most disingenuous for Frank Bros. to argue that

Wisconsin’s decision to pay a prevailing wage to a category

of workers which the federal government has chosen to

exclude “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.”

California Fed. Savings & Loan Ass’n, 479 U.S. at 281. This

is because, looking no further than the text of the Act itself,

it is clear that the purpose of the law is to ensure that
No. 03-3207 27

13 Of course, if the free market price of labor is higher in a given

locality than what either the Secretary of Labor or the WisDOT

determines the prevailing wage to be, contractors may be required

to pay workers more given their individual circumstances. As we

have already discussed, the Davis-Bacon Act was intended to set

a “floor” on labor prices, and we have not been presented with any

evidence suggesting the federal law prohibits either the State of

Wisconsin or the free market from setting the price of labor higher

in a certain locality. If Frank Bros. has a problem with the

economic sense of the state regulation, perhaps that is an issue

that should be taken up with the Wisconsin legislature.

workers engaged in public works projects be paid the same

rate as those employed in private industry in the locality in

which they are employed, whether or not this happens to be

the “market rate” as Frank Bros. characterizes it.13 See 40

U.S.C. § 3142. The Wisconsin statute in question, Wis. Stat.

§ 103.50, has the same intent and effect, except for the fact

that it affects an expanded segment of employees. In order

to follow Frank Bros.’ logic here, we would have to conclude

that it was the objective of Congress to actually harm truck

drivers by excluding them from the purview of the DavisBacon Act, thereby allowing them to be paid wages less

than the prevailing wage in any particular locality. Said

differently, if Frank Bros.’ theory is correct and the “full

purpose and objectives of Congress” would be frustrated if

they are required under Wisconsin law to pay truck drivers

no less than a prevailing wage, they must be arguing that

Congress and the Secretary of Labor intended for truck

drivers to earn—at least in some instances—less than a

prevailing wage when performing work in conjunction with

a federally funded highway project. Such an assertion

makes little sense, either constitutionally or in terms of the

Davis-Bacon Act.

Instead, it would be more logical and accurate to conclude

that, responding to judicial precedent holding that Congress
28 No. 03-3207

14 Prior to the decision in Building and Construction Trades

Department, AFL-CIO, it was an open question as to whether

truck drivers employed by government contractors were covered

by the Davis-Bacon Act or not. See Zachry Co. v. United States,

344 F.2d 352, 361 (Ct. Claims 1965). We should note that although

delivery drivers may, at one time, have been covered under the

Davis-Bacon Act, there is no guarantee that Wisconsin’s prevailing wage would have been identical to the federal prevailing

wage. This certainly would not have posed a constitutional problem, for as the Supreme Court has instructed and the history

and text of the Act bear out, the Act merely imposes a minimum

wage for workers, which acts as a floor that the states are free to

augment upward at their discretion. See supra pp. 18-23.

had not intended to include off-site truck drivers as covered

workers when the Davis-Bacon Act was passed, see Building and Constr. Trades Dept., AFL-CIO v. United States

Dept. of Labor Wage Appeals Bd., 932 F.2d 985, 989-92

(D.C. Cir. 1991), the Department of Labor, to avoid further

litigation on the matter, decided to make a rule bringing the

law into conformity with that court decision.14 In any case,

whether or not Congress intended to exclude truck drivers

from the protections of the Davis-Bacon Act, Congress’

goal—to protect local construction employees— may still be

fully realized while Wisconsin chooses to pay truck drivers

a state defined prevailing wage. Were this court to hold that

Wisconsin was precluded from requiring that truck drivers

are paid a minimum wage, we would not be advancing the

goals of Congress in any meaningful way; indeed, we may

even be doing damage to those objectives. See supra pp. 18-

23.

In an effort to bolster their claim that conflict preemption

should prohibit operation of Wisconsin’s prevailing wage

law Frank Bros. cites a Northern District of New York decision, FHM Constructors, Inc. v. Village of Canton Housing

Authority, No. 91-CV-0065, 1993 WL 23587 (N.D.N.Y. 1993),

and a New York Supreme Court decision, Majstrovic v.
No. 03-3207 29

15 The court in Majstrovic also held that the federal DavisBacon Act preempted state prevailing wage rate schedules for

purposes of federally funded housing projects. This case does not

help Frank Bros.’ argument either, because HUD explicitly preempted the state law which set higher prevailing wage rates, while

the FHWA includes no such clause. Majstrovic, 655 N.Y.S.2d at

286.

R. Maria Piping Inc., 655 N.Y.S.2d 285 (N.Y. Sup. Ct. 1997)

for the proposition that the Davis-Bacon Act, as incorporated by the United States Housing Act, 42 U.S.C. § 1437j,

preempts New York’s prevailing wage law. However, FHM

and Majstrovic are distinguishable. The court in FHM was

deciding whether state legislation which set higher wages

than the Davis-Bacon Act was contrary to the purposes and

intent of Congress under the United States Housing Act, not

the Davis-Bacon Act. FHM Constructors, Inc., 1993

WL 23587, at *10. In addition, during the time between the

completion of the construction project in question and the

filing of the complaint the Department of Housing and

Urban Development (“HUD”) had passed a “Final Rule”

which expressly preempted New York’s prevailing wage law.

Id. at *6. Although the court found that the regulation was

inapplicable, it did consider it when arriving at its decision

that New York’s prevailing wage law was preempted by the

Housing Act. Id. Majstrovic was decided on essentially the

same grounds and, for the same reasons explained below, is

likewise inapplicable to this case.15 Majstrovic, 655 N.Y.S.2d

at 287-88.

The FHM and Majstrovic cases do nothing to sway our

opinion that Wis. Stat. § 103.50 does not stand as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress. The Federal Highway

Administration does not have an express preemption rule

like the one adopted by HUD. In addition, in a proposed
30 No. 03-3207

rule the Administration did state that “neither the DavisBacon Act nor 23 U.S.C. [§] 113 preempts State law.” 50

Fed. Reg. at 39137-39139, withdrawn at 54 Fed. Reg.

at 34529. Although the rule never became final, the Administration’s own statement about the construction of an Act

which it administers is afforded considerable weight.

Chevron, U.S.A., Inc., 467 U.S. at 844.

Finally, Frank Bros. claims that it is “physically impossible” to comply with both Wisconsin’s prevailing wage law

and federal law. This argument is a red herring. It is not

“physically impossible” for Frank Bros. to comply with the

Davis-Bacon Act, the FHWA and the Wisconsin statute. As

we have noted earlier, the Davis-Bacon Act merely sets a

“floor” for the prevailing wage to be paid workers on federally funded public works. Also, it is true that according to

regulations promulgated by the Department of Labor, truck

drivers are specifically excluded from coverage under the Act.

However, what Frank Bros. misunderstands is that there is

nothing in the Davis-Bacon Act which specifically or

expressly prohibits paying truck drivers a prevailing wage.

Instead, the regulations merely articulate the idea that “the

transportation of materials or supplies to or from the site of

work by employees of the construction contractor or a

construction contractor is not ‘construction, prosecution,

completion or repair,’ ” within the meaning of the DavisBacon Act. 29 C.F.R. § 5.2.

The same is true for the FHWA. Section 113 of the FHWA

provides that all qualified “laborers and mechanics” working on Federal-aid funded projects are to be paid “not less

than” the prevailing wage as determined by the Secretary

of Labor in accordance with the Davis-Bacon Act. 23 U.S.C.

§ 113. Again, it is true that the Davis-Bacon Act regulation

expressly excludes delivery drivers from the definition of

“laborers and mechanics,” 29 C.F.R. § 5.2, but, 23 U.S.C.

§ 114, makes it clear that all construction work performed
No. 03-3207 31

in each state “shall be performed under the direct supervision of the State transportation department and in accordance with the laws of that State . . . .” 23 U.S.C. § 114.

State law, here Wisconsin law, therefore merely supplements the federal scheme by ensuring that truck drivers are

also paid a prevailing wage determined by the Wisconsin

Department of Workforce Development. See Wis. Stat.

§§ 103.50(2m)(1) and (4).

Wisconsin’s prevailing wage legislative scheme is supplemental in nature and thus there is nothing barring

Frank Bros. from complying with both federal and state law

in this case. Neither federal law nor the regulations under

the Davis-Bacon Act prohibit contractors, like Frank Bros.

from paying a prevailing wage to truck drivers; they are

merely excluded from coverage under the Davis-Bacon Act.

This is an area of traditional state regulation and as such

the State of Wisconsin is free to set whatever wage it likes

for whatever category of worker it considers worthy, as long

as that regulation does not enter into a field occupied by

federal legislation and does not conflict with that legislation. We conclude that federal law does not prohibit Frank

Bros. from paying the State’s prevailing wage to truck

drivers, and thus it is not “physically impossible” for them

to comply with both federal and state law in this instance.

III. CONCLUSION

Because we hold that it was not the clear and manifest

purpose of Congress to preempt supplementary state regulation in the area of prevailing wage rates and because we

find nothing in Wisconsin’s prevailing wage law which conflicts with federal legislation, the decision of the district

court is

AFFIRMED.
32 No. 03-3207

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-3-05