Answering questions referred by the Ninth Circuit under rule 8.548 in two separate cases, the Supreme Court today limits the scope of statutes that guarantee a prevailing wage for non-public employees working under contract on “public works.”  Both opinions are authored by Justice Carol Corrigan, and Justices Goodwin Liu and Mariano-Florentino Cuéllar dissent in both.

In Busker v. Wabtec Corp., the court holds that installing on Metrolink locomotives and train cars components of a communications network designed to prevent collisions and other dangerous train movement does not fall within the statutory definition of “public works,” nor does it become a public work because it is integral to another activity that itself is a public work.

In Mendoza v. Fonseca McElroy Grinding, the court says that transporting heavy machinery to and from a roadwork public works site does not require prevailing wages as work done “in the execution of” a public works contract.  Because of the specifically narrow question asked by the Ninth Circuit, the court leaves open the possibility that the transporting can qualify as “public works” under other statutory language.

Justice Cuéllar says in his 24-page Busker dissent, signed by Justice Liu, that the majority in both cases “radically constricts the prevailing wage law’s scope and undoes an established line of decisions all under the rubric of judicial modesty.”  Justice Liu writes a separate dissent in Busker that Justice Cuéllar joins.  Justice Cuéllar also writes a dissent in Mendoza, which Justice Liu signs.

Justice Corrigan wrote the March opinion in Kaanaana v. Barrett Business Services (2021) 11 Cal.5th 158, where the court found a broader statutory definition of “public works” for sanitation and other districts than for other public agencies.

In Mendoza, the court overrules its 4-3 decision in Bishop v. City of San Jose (1969) 1 Cal.3d 56 (a case with two pro tems, one in the majority and one in dissent), and it disapproves a 1976 Second District, Division Three, opinion, a 2007 First District, Division Five, opinion, and a 2014 First District, Division Three, opinion.