Big Labor scripts prevailing wage template for mixer truck drivers

Setting aside the vast differences in the value of product they deliver, do concrete mixer truck drivers dispatched to public works projects deserve state-mandated wage supports not accorded to counterparts hauling asphalt?

Along with the issue of government interference in compensation matters between employers and employees, that question begs in legal proceedings surrounding California Assembly Bill 219, which amends state labor code covering prevailing wage recipients. We learned of AB 219 in a December 2015 guest editorial from Kevin Jeffery, chief counsel of Watsonville, Calif.-based ready mixed and aggregate producer Graniterock. In “California surprise: Public works ready-mix delivery subject to prevailing wage,” he cited lawmakers’ failure to address transportation funding shortfalls despite the newly enacted AB 219, which taxed the highway and bridge fund by mandating prevailing wages for mixer truck drivers.

Among the law’s onerous effects, Jeffery noted how ready mixed producers on public works orders would be required to enter into a written subcontract with contractor customers; and, submit certified payroll records to contractors up the chain, including certification by the individual driver within three working days after he or she was paid for the prevailing wage work.

Transportation funding was addressed by the April 2017 passage of California Senate Bill 1, which increased state gas and diesel taxes by 12 cents and 20 cents per gallon. AB 219, on the other hand, remains problematic for a host of reasons, topped by a 2018 labor market significantly tighter than in 2015. International Brotherhood of Teamsters members championed the legislation during a lesser economy more conducive to recruiting mixer truck drivers. Three years on, as ready mixed producers in California and all points east struggle to find qualified applicants, driver wages are bound to rise—regardless of project type.

Eight major and independent Graniterock peer producers challenged AB 219-altered California Labor Code in the U.S. District Court for the Central District of California, Pasadena, arguing violation of a) the Federal Aviation Administration Authorization Act of 1994 (FAAAA), which prohibits states from enacting or enforcing policies related to the price, route or service of motor carriers; and, b) Fourteenth Amendment Equal Protection clauses, owing to the fact that the California Legislature expanded coverage for mixer truck drivers under prevailing wage law but did not do the same for other types of drivers, including those hauling asphalt. The District Court dismissed the FAAAA violation claim but acknowledged Equal Protection argument.

Attorneys for plaintiffs Allied Concrete & Supply, CalPortland Co., Gary Bale Redi-Mix Concrete, Holliday Rock Co., National Ready Mixed Concrete Co., Robertson’s Ready Mix, Spragues Rock & Sand and Superior Ready Mix Concrete took the case to the U.S. Court of Appeals for the Ninth Circuit, Los Angeles. A three-judge panel weighed in with a September 2018 opinion upholding the lower court’s FAAAA view and reversing the decision invalidating AB 219-rooted California Labor Code changes as unconstitutional on equal protection grounds.

The panel claimed that District Court “wrongly disregarded as irrelevant certain differences between ready-mix drivers and other drivers that the legislature could have relied on in extending the prevailing wage law.”

AB 219 proponents, the panel opinion suggests, could rationally conclude that extending prevailing wage law to mixer truck drivers ahead of peers supports California Supreme Court-recognized goals because the former are “more integrated into the construction process than other materials drivers and should be paid accordingly” and “more skilled than other drivers and provide a material that is more important to public works projects than other materials such that paying the prevailing wage will attract superior drivers and improve public works.”

Well stated as the judges’ points on the value mixer truck drivers and their product bring to the public might be, current labor market conditions negate a stunt like AB 219. Ready mixed producers in California and across the industry are prepared to compensate drivers at levels public and private construction markets demand.