Tag Archive for California Supreme Court

Project Underway to Create a Cutting-Edge Model Charter for California Cities to Free Their Municipal Affairs from the State Legislature – YOU Can Help!

For more than a year, I’ve talked and written about developing a model charter that city councils and appointed charter commissions in California’s general law cities can use as a basis to develop their own proposed charters to bring before voters for consideration.

A model charter would also help city councils and appointed charter commissions in 121 California cities to amend and freshen their existing charters. (Note: voters in three more cities – Escondido, Costa Mesa, and Grover Beach – will consider enacting proposed charters in the November 6, 2012 election; there may be 124 charter cities in California at the end of 2012.)

Generally, the dozen cities that brought charters before their voters in the past six years obtained existing charters from other cities and tweaked them a little. City council members and staff have not started from scratch in developing their proposed charters, perhaps to avoid the political and legal risks of trying new concepts, and perhaps in part because developing a constitution from scratch is a time-consuming intellectual exercise better suited to James Madison or modern policy institutes.

Significant and recent developments in proposed city charters in California have been related to explicit provisions concerning the establishment of policies for government-mandated construction wage rates (so-called “prevailing wages”), prohibitions on requiring contractors to sign Project Labor Agreements with unions, and requirements for unions to get permission from city employees to deduct money from their paychecks to use for political purposes. In addition, some charters have contained provisions meant to prevent the kind of corruption among city council members and city staff that occurred in the City of Bell in the late 2000s.

As I wrote in the Auburn Journal newspaper on September 26, 2011, cities in California need to consider asking voters to enact a charter that would be “a searing and unprecedented manifesto in support of fair and open competition, free enterprise, economic growth and job creation.” A charter needs to give a city full control of its municipal affairs, so it can implement “lower taxes, reasonable regulation, fiscal responsibility, limited government, local control and more freedom from corrupt urban legislators.”

Defenders of the status quo prefer California’s advocates of economic and personal freedom to be apologetic, mealy-mouthed, submissive and ineffective. I noted that an ideal charter, with its “defiance of excessive state authority,” would enrage numerous special interest groups.

Of course, aggressive opposition from special interest groups indicates a proposed charter would be effective in expanding local control. Should city councils and city staff regard this opposition as an insurmountable obstacle to achieving meaningful home rule?

My thinking is that even a slightly effective proposed city charter will agitate the unions, the environmental extremists, and any other parties who use the California State Legislature as an agent to impose their utopian visions on communities where a majority of people just want to mind their own business. Opposition from powerful special interest groups will come if the proposed charter is 100% effective or 10% effective in changing things. So why not pursue a goal of claiming 100% of the potential for a city’s governing authority over municipal affairs?

I Need Your Help to Develop the Ultimate Model City Charter for California!

Almost everyone squatting in the state legislature for the duration of their term limit wants to leave a legacy of some sort of accomplishment; that is, something inserted in California law that they can proudly show their grandchildren and cite in speeches to inspire youths to pursue public service. Think about how the California State Legislature enacts a parade of inane laws every year that interferes with or intrudes in municipal affairs.

In Sacramento today, I spoke to a group of free market-oriented policy intellectuals based in California about my plan to collect ideas for provisions in a model charter. I expect to get some great recommendations from them concerning transportation, land use and zoning, air quality, etc. You can help too. Below are resources to help you develop ideas to send me for the model charter:

1. At the end of this post, I cite relevant language from the July 2012 California Supreme Court case State Building and Construction Trades Council of California, AFL-CIO v. City of Vista about the Constitutional right of charter cities to control their own municipal affairs. This citation also includes the four criteria under which an issue is a municipal affair versus an issue of statewide concern. Read the criteria and think about problems in your city that the city council can’t fix or evade under the status quo.

2. Here are links to a few of the city charters recently enacted by voters or to be considered by voters in the November 6, 2012 election. These are the current examples of charters now being circulated among California local officials:

City of Oceanside

City of Vista

City of Costa Mesa

City of Escondido

City of Grover Beach

3. Here is a link to my 94-page report (third edition) published by the California Construction Compliance Group about the status of policies concerning government-mandated construction wage rates (so-called “prevailing wages”) in California’s 121 charter cities. It’s the first and only comprehensive report ever written about this right of charter cities:

Are Charter Cities Taking Advantage of State-Mandated Construction Wage Rate (“Prevailing Wage”) Exemptions? – 3rd Edition – Summer 2012

4. The League of California Cities (which is NOT part of this project) has excellent information about charter cities and home rule: Resources on Charter Cities from the League of California Cities.

5. To send me your ideas for charter provisions, call me or go here on this web site and use the form to contact me in writing. Thank you for your ideas to advance economic and personal freedom!

California’s Home Rule Doctrine

(Excerpts from pages 6 and 7 of the City of Vista California Supreme Court Decision on charter cities and prevailing wages – citations removed and language simplified – see the decision itself for more technical guidance.)

Charter cities are specifically authorized by our state Constitution to govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs.

Article XI, section 5, subdivision (a) of the California Constitution provides: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.”

The roots of this provision trace back more than 100 years. It was originally enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs. The provision represents an affirmative constitutional grant to charter cities of all powers appropriate for a municipality to possess and includes the important corollary that so far as municipal affairs are concerned, charter cities are supreme and beyond the reach of legislative enactment.

We set forth an analytical framework for resolving whether or not a matter falls within the home rule authority of charter cities.

  1. Does the city ordinance at issue regulate an activity that can be characterized as a municipal affair?
  2. Does the case present an actual conflict between local and state law?
  3. Does the state law address a matter of statewide concern?
  4. Is the law reasonably related to resolution of that concern and narrowly tailored to avoid unnecessary interference in local governance? If the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution (and not unduly broad in its sweep), then the conflicting charter city measure ceases to be a municipal affair and the Legislature is not prohibited by Article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.”
Note: in the City of Vista case, the court ruled that “no statewide concern has been presented justifying the state’s regulation of the wages that charter cities require their contractors to pay to workers hired to construct locally funded public works. In light of our conclusion that there is no statewide concern here, we need not determine whether the state’s prevailing wage law is “reasonably related to . . . resolution” of that concern and is “narrowly tailored” to avoid unnecessary interference in local governance. The court didn’t need to consider #4 in the analytical framework listed above because the answer to #3 was NO.

U.S. Chamber of Commerce Publishes Guide on “Sabotage, Stalking & Stealth Exemptions: Special State Laws for Labor Unions” – California Is Featured

I was pleased to see that the U.S. Chamber of Commerce released a report on August 10, 2012 through its “Workforce Freedom Initiative” on a fairly obscure topic that is usually left to the National Right to Work Committee and its research wing, the National Institute for Labor Relations Research: special exemptions from prosecution for union officials when their actions normally regarded as crimes are committed in the context of “lawful labor union activity” protected by the National Labor Relations Act (NLRA) or state labor relations laws (such as California’s Agricultural Labor Relations Act).

“Sabotage, Stalking & Stealth Exemptions: Special State Laws for Labor Unions” concludes that “The most glaring examples of union favoritism under state laws tend to occur in criminal statutes and allow individuals who engage in truly objectionable behavior to avoid prosecution solely because they are participating in some form of labor activity.”

As you might guess, much of this report focuses on California laws, in particular laws that compromise private property rights when union officials are trespassing on private property on union business. It cites several examples:

  • criminal trespass and trespassing laws in California Penal Code Section 602 that do not apply to “persons engaged in lawful labor union activities”
  • rules in California Penal Code Section 640 against willfully blocking the free movement of another person in a public transportation system facility or vehicle except when related to “collective bargaining, labor relations, or labor disputes”
  • criminal laws in California Penal Code Section 420.1 against preventing, hindering, or obstructing someone from entering, leaving, or passing through land, except when the perpetrator is engaged in “lawful labor union activities”
  • laws in California Penal Code Section 552.1 criminalizing trespassing on or loitering at industrial facilities, except when people are lawfully “engaging in any organizational effort on behalf of any labor union, agent, or member thereof, or of any employee group, or any member thereof, employed or formerly employed in any place of business or manufacturing establishment described in this article, or for the purpose of carrying on the lawful activities of labor unions, or members thereof” or acting for the “purpose of investigation of the safety of working conditions on posted property by a representative of a labor union or other employee group who has upon his person written evidence of due authorization by his labor union or employee group to make such investigation.”

I’ve been told by management-oriented labor law attorneys that the “lawful labor union activities” in the California Penal Code are often raised by unions as a justification to trespass, but these exemptions generally pertain to union officials who have a valid claim to observe working conditions and monitor an employer’s compliance with a collective bargaining agreement (or a Project Labor Agreement).

Here is some additional information to flesh out some of the California examples in this guide:

Restraining Orders and Preliminary and Permanent Injunctions

The report dedicates a few paragraphs to the Ralphs Grocery v. United Food & Commercial Workers Union cases now to be considered at the California Supreme Court. These cases deal with two union privileges in state law that the U.S. Chamber of Commerce report does not specifically cite. Here’s a bit more detail:

On July 19, 2010, the California Third Appellate Court issued a decision invalidating the so-called Moscone Act, signed into law by Governor Jerry Brown in 1975, that limited the ability of state courts to issue any restraining order or preliminary or permanent injunction to stop a variety of actions related to labor disputes. (The Moscone Act is California Code of Civil Procedure Section 527.3.) This decision on a rather obscure topic actually generated an article in a major California newspaper: the July 20, 2010 San Francisco Chronicle: Pro-Union Law Struck Down by Appeals Court.

To summarize very crudely in layman’s terms, the court determined that the owner of private property with some degree of public access (such as a grocery store) can get an injunction from a state court to stop peaceful speech activity (such as picketing and handing out flyers) on that private property even when it is related to a labor dispute.

The appeals court also declared a second labor law to be invalid: California Labor Code Section 1138.1, which was part of Assembly Bill 1268, signed into law by Governor Gray Davis in 1999. This bill declared that unions and union officials and members were not responsible for unlawful acts committed by union members during labor disputes unless there was “clear proof of actual participation in, or actual authorization of those acts.” It also established very high standards for a court to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute.

The most informed and aggressive opponent of AB 1268 was my former employer, Associated Builders and Contractors (ABC) of California. It was one of ABC of California’s “Dirty Dozen Most Unwanted Bills of 1999” during the first year of the Gray Davis administration.

ABC of California asserted that AB 1268 would encourage violence during labor disputes. A contractor who was then a member of ABC testified against the bill in a committee hearing along with attorney Brad Newman (now with the Paul Hastings, LLP law firm in Palo Alto), who also submitted a 17-page brief during the April 21, 1999 hearing to the bill’s author, State Senator Shelia Kuehl, pointing out the bill was unconstitutional. He also submitted a follow-up brief on the amended version of the bill. (Mr. Newman was vindicated after eleven years!)  ABC of California also had its members send faxes to Governor Davis asking him to veto the bill. I spoke on a Modesto conservative radio talk show about the bill. The Contra Costa Times published an August 29, 1999 editorial opposed to it. Davis signed it anyway.

The California Fifth Appellate Court issued a similar decision striking down the Moscone Act and AB 1268 on January 27, 2011.

The United Food and Commercial Workers Union (UFCW) appealed both court decisions to the California Supreme Court. See information about the appeal of the Third Appeals Court decision to the California Supreme Court here and information about the appeal of the Fifth Appeals Court decision to the California Supreme Court here.

Warning to Employers: Unions Assert Special Rights to Trespass in California

I’ve been told by management-oriented labor law attorneys that California employers can best protect themselves against trespassing issues by treating union trespassers in the same way as other trespassers. They tell me that if an employer treats visitors, solicitors, lunch trucks, and tool trucks differently than union “visitors,” that inconsistency can be exploited by union lawyers.

In addition, “An employer clearly acts at his own peril if he effects a citizen’s arrest of a union visitor on private property in California.” This was the advice given in 2001 by a California management-oriented labor law attorney in the wake of the June 13, 2001 Ninth Circuit U.S. Court of Appeals decision in Radcliffe v. Rainbow Construction Company.

Indeed, union representatives who visit job sites sometimes come armed with letters from their union attorneys claiming that this court decision and other state laws allow union officials and “non-employee union organizers” to enter private property for the purpose of engaging in labor compliance and other “lawful labor union activity.” I have a collection of such letters.

There seems to be demand from California employers for a guide concerning union trespassing, including information on union access to workers to pressure them to sign of union authorization cards. In the meantime, if your company is having problems with union officials and union organizers trespassing on your property or job site, you should consult with a management-oriented labor law attorney before you take any action.

Additional Coverage of This Guide:

States Exempt Labor Unions from Stalking, Trespassing Laws – August 10, 2012 – The Foundry: Conservative Policy News Blog of The Heritage Foundation

Prediction: An Explosion of California Cities Freeing Themselves from Costly State-Mandated Construction Wage Rate Laws

California Supreme Court Issues Decision Upholding Local Control, Fiscal Responsibility, and Taxpayer Savings against Union Political Power

This morning, the California Supreme Court issued a decision in State Building and Construction Trades Council of California, AFL-CIO v. City of Vista that allows California’s charter cities to establish their own policies concerning government-mandated construction wage rates on taxpayer-funded public and private construction projects.

I predict that numerous charter cities in California will establish their own policies concerning government-mandated construction wage rates, and numerous cities that do not have charters will now seek voter approval for charters.

This is a badly-needed victory for supporters of local control, fiscal responsibility, and saving money for taxpayers. The timing could not be better. Finally, after five years with this case winding through the courts, fiscally responsible local governments have a clear and easy option to free themselves from a few of the intrusive union-backed laws of the California State Legislature.

How Does the State Determine Construction Wage Rates?

State-mandated construction wage rates often do not reflect the actual prevailing wage rates for a construction trade in a market region. This is one reason why many of California’s 121 charter cities (including the latest, El Cajon) establish their own policies concerning government-mandated wage rates for purely municipal construction projects.

Under the laws and regulations of the State of California, the state does NOT determine wage rates by surveying contractors or workers or by looking at statistics from the California Economic Development Department. Instead, state bureaucrats collect union collective bargaining agreements, parse through them to identify every required employer payment (even payments that are NOT employee compensation – called “Other”), and add up all the payments and declare the total as the “prevailing wage.” Some of these collective bargaining agreements cover half of California or all of California!

Sample Construction Wage Rates

The state sets the wage package for a bulldozer driver in Sacramento (Group 4, Area 1) at a straight time total rate of $62.00 per hour$37.15 + $24.12 in fringe benefits + $0.73 for “Other.”

The state sets the wage package for a basic carpenter in Sacramento (Area 3) at a straight time total rate of $56.60 per hour$31.62 + $22.69 in fringe benefits + $2.29 for “Other.”

The state sets the wage package for someone holding a stop/slow sign at a road site in Sacramento (Group 3, Area 2) at a straight time total rate of $42.93 per hour$25.89 + $16.91 in fringe benefits + $0.13 for “Other.”

Unions and Democrats in Legislature Have Blocked Attempts to Reform Prevailing Wage

Democrats and union lobbyists have blocked reasonable legislative efforts to reform how the State of California defines a “public works” project and how the State of California calculates its construction wage rates. In January, the Assembly Labor and Employment Committee voted down two comprehensive bills introduced by Assemblywoman Shannon Grove (Assembly Bill 987 and Assembly Bill 988) that would have made government-mandated wage rates more accurate and limited the definition of “public works” to actual government projects (ending prevailing wage mandates on private construction projects that get any sort of government assistance). The legislature even rejected a tiny bill (Assembly Bill 1958) to raise the project cost threshold for state-mandated government wage rates from $1000 to $2000 (to match the federal level) and index it to inflation!

I intend to aggressively encourage cities to take advantage of their local charter authority and free themselves from the costly burdens of the state legislature. I am also developing an aggressive model charter that gives cities authority to exempt themselves from numerous oppressive state laws.

California Supreme Court Ruling on Monday, July 2 at 10:00 a.m. – Right of California Charter Cities to Set Their Own Policies Concerning Government-Mandated Construction Wage Rates (Prevailing Wage)

The California Supreme Court will issue its ruling on Monday, July 2 at 10:00 a.m. in a five-year old case that is critical to issues of local government authority and the ability of construction unions to use the state government to set and mandate wage rates (“prevailing wages”) for construction workers on public works projects. The case is State Building and Construction Trades Council v. City of Vista.

If you want electronic notification from the California Supreme Court on Monday when it publishes the decision, go to this web site and fill out the form.

There are 121 charter cities in California, including the latest approved by voters on June 5 (City of El Cajon). Many of them set their own policies concerning government-mandated construction wage rates on municipal construction projects. (Most of those cities exempt their local projects from state-mandated construction wage rate laws.) See the only authoritive guide to the prevailing wage status of charter cities here:

http://abc-ccc.org/documents/CharterCityReportFINAL.pdf

(Note: the guide does not include El Cajon as the latest charter city, and Irvine repealed its exemption in April 2011 on a 3-2 vote of the city council.)

Want more information about this case and the practical implications of this case on California cities? My most recent articles on California’s state-mandated construction wage rate laws (prevailing wage laws) are found here:

Your Authoritative Background Guide to the Upcoming California Supreme Court Decision on Charter Cities and Prevailing Wage Laws (State Building and Construction Trades Council v. City of Vista)

Wildfires: Construction Unions Put Self-Interest above Public Interest in Court Case Against City of Vista’s Right as a Charter City to Set Its Own Prevailing Wage Policies

Escondido City Council Votes 4-1 to Approve Proposed Charter for Voters to Consider on November Ballot

Costa Mesa City Council Gets Email from the Center of the Great Quest to Free California’s Fiscally Responsible Local Governments from Centralized State Government Excesses and Mandates

Who Defeated the City of Auburn’s Proposed Charter, and How Was It Done? (Answer: Three Union Entities, by Spending $56.40 Per NO Vote)

Exclusive: Local Government Election Results in California Highly Relevant to Labor Issues

On June 5, 2012, Voters in City of Auburn Will Consider Proposed Charter with Local Control Over Government-Mandated Construction Wage Rates

Letter in San Diego Union-Tribune Reveals Insider Perspective on How Union Official Sabotaged City of Santee’s Local Charter Authority

Wildfires: Construction Unions Put Self-Interest above Public Interest in Court Case Against City of Vista’s Right as a Charter City to Set Its Own Prevailing Wage Policies

The California Supreme Court is about to issue a ruling in State Building and Construction Trades Council v. City of Vista, in which construction unions are suing the City of Vista to force it to comply with state laws that require contractors on public works projects to pay state-mandated wage rates (“prevailing wages”) to construction trade workers. (See my June 25 post about this case here.)

These laws are so important to unions that their attorney in this case told a state appeals court panel in San Diego County that it was more important to follow these laws than to build needed fire stations. Awkwardly for the lawyer, San Diego County had been the location of devastating fires one year earlier.

Many charter cities have traditionally asserted their right to exempt purely municipal construction from these costly state laws. They want to avoid state construction wage mandates because the state makes no effort to determine an accurate “prevailing wage.” Instead, the California Department of Industrial Relations calculates government-mandated wage rates by obtaining union collective bargaining agreements, adding up the employer payments in those agreements (including payments that are not employee compensation), and setting the total as the alleged “prevailing wage.”

After voters in the City of Vista approved a charter in June 2007, the Vista City Council used the authority of its charter to chose not to require its contractors to abide by state-mandated prevailing wage rates for construction contracts to build the city’s own fire stations. An umbrella group for construction unions, the State Building and Construction Trades Council of California, sued the City of Vista to force it to submit to state prevailing wage laws.

After losing in San Diego County Superior Court, the union organization appealed to a higher court. It was at this San Diego-based appeals court where judges considered the human implications of inflated state-mandated prevailing wages on Vista’s fire station construction.

Here is some of the remarkable dialogue between judges and the unions’ lawyer during the court hearing on November 14, 2008:

Judge (to the Union Lawyer): “How do you balance (your) argument against a municipality that might say ‘prevailing wages, that concept is going to, in effect, prevent us from building the fire station that we need?'”

Union Lawyer: “The same argument could be made about a lot of laws that cost money.  The way I balance it is to say that when the people as a whole deal through the legislature with a problem that does have real extra-municipal dimension, the interests of an individual locality have to yield.”

Another Judge (to the Union Lawyer): “The response that troubles me a little bit: ‘Well, if they can’t afford to build the fire station, and they have fire problems, that’s their tough luck,’ even though they’re using municipal funds. They’re not using state funds; the state isn’t granting its largess to solve the problem. So the charter makes no difference; the city simply is stuck.”

Union Lawyer: “When you say stuck, they have to follow the exact same rules that every other government entity follows in California to construct things…It’s true the city could say ‘we might be able to get lower bids on our project if we don’t include prevailing wage specifications, and we’d like to do that,’ but where the legislature has dealt with an issue that has extra-municipal concerns, the judgment of the entire legislature has to trump, because there are substantial externalities involved.”

Basically, the union lawsuit alleges that “extra-municipal concerns” and “substantial externalities” are more important than building fire stations, and therefore the City of Vista cannot relieve taxpayers from the unnecessary costs of state-mandated prevailing wage laws – even when public safety is at risk.

The appeals court also ruled against the unions, but the unions promptly appealed the case to the California Supreme Court, which is now about to issue a decision on whether or not the City of Vista can adopt its own prevailing wage policies as a fiscal strategy to build the fire stations it needs. Will union interests trump public safety?

Your Authoritative Background Guide to the Upcoming California Supreme Court Decision on Charter Cities and Prevailing Wage Laws (State Building and Construction Trades Council v. City of Vista)

The California Supreme Court may be about to issue its decision in State Building and Construction Trades Council of California, AFL-CIO v. City of Vista. If you want electronic notification from the California Supreme Court when it publishes the decision, go to this web site and fill out the form.

This case will decide whether or not California charter cities (there are 121 of them – with El Cajon becoming the latest on June 5) have the authority to establish their own policies concerning government-mandated construction wage rates (also known as “prevailing wage” rates) on purely municipal projects.

The court is supposed to issue its decision within 90 days after oral arguments, which it heard on April 4, 2012. Scott A. Kronland of the law firm of Altshuler Berzon LLP argued before the court for the State Building & Construction Trades Council of California, along with Douglas J. Woods from the Office of the California Attorney General; James P. Lough of Lounsbery Ferguson Altona & Peak, LLP argued for the City of Vista.

The City of Vista won this case in the lower courts. (Yes, this case has been working its way through the courts for five years.) Here are the decisions:

Article XI of the California Constitution allows cities to operate with their own constitutions (charters) under a concept the League of California Cities sometimes describes as Home Rule. There are currently 121 charter cities in California, and many of them chose to claim authority over setting wage rates for construction on projects that receive city funds but do not receive state or federal funds.

Here is a report (published in January 2011) produced by Associated Builders and Contractors – California Cooperation Committee (ABC-CCC) on the status of prevailing wage policies in the state’s charter cities. This report, Are Charter Cities Taking Advantage of Prevailing Wage Exemptions, remains the authoritative guide to prevailing wage policies at California local governments. Note its most recent edition does not include a few of the more recent developments, such as voter approval of a charter in the City of El Cajon on June 5, 2011 and a union-driven rollback of local authority over prevailing wage rates on a 3-2 city council vote in the City of Irvine on April 26, 2011:

http://abc-ccc.org/documents/CharterCityReportFINAL.pdf

For a creative and edgy perspective on the right of charter cities to set their own policies concerning government-mandated construction wage rates, see the amicus brief filed with the California Supreme Court in January 2010 by Robert Fried of Atkinson, Andelson, Loya, Ruud & Romo on behalf of Associated Builders and Contractors of California:

ABC of California amicus brief – State Building and Construction Trades Council v. City of Vista.

Construction unions argue that “prevailing wage” is a matter of statewide concern, and therefore charter cities must abide by the wage requirements set in the California Labor Code by the California legislature and regulated and administered by the California Division of Labor Statistics and Research (DLSR), part of the California Department of Industrial Relations.

Why are existing charter cities interested in setting their own policies for construction wage rates? Except in very rare circumstances, the state sets prevailing wage rates by obtaining the relevant union collective bargaining agreement for a construction trade in the geographic jurisdiction of each local union. The state identifies all of the employer payments in the collective bargaining agreement (including payments unrelated to employee compensation) and adds them up to determine the wage rate. No surveys are conducted and no statistics are gathered.

As a result, state-mandated construction wage rates are often higher than the actual prevailing wage rates in a local market, especially in rural areas. A general rule of thumb: the farther away the location from Department of Industrial Relations headquarters in San Francisco, the greater the disparity between the government-set wage and the actual market wage. State wage rates become particularly absurd when individual collective bargaining agreements apply to a union jurisdiction that covers the entire state or half of the state. San Francisco rates = Alturas rates in Modoc County, and Beverly Hills rates = El Centro rates in Imperial County.

Of course, this allows workers in some trades to travel from the expensive Bay Area to the inexpensive Central Valley for work without having to account for differences in the cost of living. In fact, the opening brief submitted to the California Supreme Court by the State Building and Construction Trades Council of California acknowledges that “construction workers today routinely commute to projects outside the cities in which they happen to live” and “it is not uncommon for today’s construction workers to commute more than 100 miles to work at a job site.” (So much for “local hire.”) This happens because construction trade unions have geographical jurisdictions that often encompass large regions and because they use a “traveler” classification so out-of-area union workers have access to jobs.

It also means that while workers may enjoy a government-fixed higher wage than what the market will bear, the amount of actual cumulative available work is reduced. School districts modernize four schools instead of five schools. Workers chose to work seasonally or are forced to work seasonally because of reduced potential work. There is a price to be paid in economic growth and job creation when the government sets wages, and that price is not limited to the (often forgotten) taxpayers.

Here are key documents submitted to the California Supreme Court in this case:

S173586 – STATE BUILDING & CONSTRUCTION TRADES COUNCIL v. CITY OF VISTA

  1. Appellant’s Petition for Review Filed on June 8, 2009
  2. Respondents’ Answer to Petition for Review Filed on June 26, 2009
  3. Appellant’s Reply to Answer to Petition for Review Filed on July 6, 2009
  4. Appellant’s Opening Brief on the Merits Filed on October 1, 2009
  5. Respondents’ Answer Brief on the Merits Filed on December 2, 2009
  6. Respondents’ Request for Judicial Notice Filed on December 3, 2009
  7. Appellant’s Reply Brief on the Merits Filed on December 22, 2009

Amicus Briefs in Support of City of Vista:

  1. League of California Cities
  2. Associated Builders and Contractors of California

For the response, see State Building Trades Council Reply to ABC of CA and League of CA Cities Briefs

Amicus Briefs in Support of State Building Trades Council:
 
  1. Operating Engineers Southern California LMCC
  2. Construction Employers’ Association
  3. Northern California Basic Crafts Alliance
  4. Six Unionized Construction Trade Associations
  5. California Attorney General

For the response, see City of Vista Reply to Union-Oriented and Attorney General Briefs