Current through Register 2024 Notice Reg. No. 38, September 20, 2024
The Director shall follow those procedures specified in
Sections
1773 and
1777.5 of the
Labor Code and in these regulations when making a prevailing wage
determination.
(a) Collective
Bargaining Agreements or Wage Surveys.
(1)
Filing of collective bargaining agreements.
(A) To enable the Director to ascertain and
consider the applicable wage rates established by collective bargaining
agreements when making prevailing wage determinations, the representatives of
any crafts, classifications, or types of workers needed to execute any public
works contracts shall file with the Department of Industrial Relations fully
executed copies of all their collective bargaining agreements, including any
and all addenda which modify the agreements, within 10 days of their execution
and shall be considered as the basis for a prevailing wage determination
whenever on file 30 days before the call for bids on a project.
(B) Copies of collective bargaining
agreements filed with the Department of Industrial Relations pursuant to
Sections
1773.1 and
1773.8 of the
Labor Code, and Section
16200(a)(1)(A) of
these regulations shall be addressed to: Chief, Division of Labor Statistics
and Research, P.O. Box 420603, San Francisco, CA 94142.
(C) Collective bargaining agreements filed
with the Division of Labor Statistics and Research must be accompanied by a
signed statement which is certified as true and correct to the best of the
knowledge and belief of the person preparing the statement, under penalty of
perjury, and which:
1. certifies that the
agreement filed is fully executed and in effect, unless it is a signed original
agreement or photocopy thereof, or a printed copy of a fully executed agreement
showing the names of the signatory parties, except in the case of a printed
agreement the Director may require certification;
2. names or otherwise identifies all
California counties within the jurisdiction of the local union or unions
signatory to the agreement;
3.
names and provides the address of the signatory employer association or, if
there be no signatory employer association, provides the names and addresses of
all contractors signatory to the agreement, unless such information is
contained in the agreement;
4.
provides the number of workers currently employed under the terms of the
agreement and, if practicable, the number of workers in each county within the
jurisdiction of the signatory local union or unions;
5. provides any other information not
contained in the agreement that the Director may need to give proper
consideration to applicable wage rates established by collective
bargaining.
(D) Copies of
collective bargaining agreements which are not bona fide shall not be deemed
filed. The party filing a contract may be asked to substantiate the assertion
that such collective bargaining agreement is bona fide.
(2) Criteria for using collective bargaining
agreement wage rates as basis of prevailing wage determinations. Before
accepting the collective bargaining agreement wage rate for the applicable
craft and locality, DLSR shall take the following factors into consideration:
(A) The geographical area(s) specified in the
agreement;
(B) The number of
workers covered by the agreement;
(C) If signatory parties to the agreement
have workers in the geographical area(s);
(D) If work has been performed in the
geographical area(s) specified in the agreement in the past 12
months;
(E) The wage rates
determined by the federal government as set forth in Section
16200(b).
(3) Adoption of Collective Bargaining
Agreements.
(A) If the Director determines
pursuant to Section
1773 of the
Labor Code that the rate established by a collective bargaining agreement is
the general prevailing rate of per diem wages for each craft, classification or
type of worker and the Director adopts such rate by referral, the Director will
publish such rate. Only those rates and employer payments specifically
enumerated in the definition of "general prevailing rate of per diem wages" in
Section 16000 shall be included in the rate
adopted.
(B) When such rate is
adopted, and in the case where the collective bargaining agreement contains
definite and predetermined changes during its term which will affect the rate
adopted, the Director shall incorporate such changes in the determination.
NOTE: A statement must be filed with the Director for any
adjustments made to a contract which are not contained in the agreement
currently on file with DLSR.
(C) When such rate is adopted, and in the
case where the collective bargaining agreement contains changes during its term
which will affect the rate adopted, which are not definite or predetermined,
the changes shall not be adopted. The prior determination will remain in effect
until a new determination is issued. Any interested party may request that the
Director make a new determination when contract changes become definite and
determined by filing a statement as set forth in Section
16200(a)(1). The
statement must summarize the amounts and effective dates of any cost-of-living
adjustments, allocations of interim wage increases to wages and employer
payments, and other relevant changes which will affect the rate adopted by the
Director. The statement must be signed by an officer or agent of the bargaining
representative and certified, under penalty of perjury, as true and correct to
the best of his or her knowledge and belief.
(D) When such agreement is adopted as the
basis of the prevailing wage determination, all wage classifications may be
considered.
(E) Holidays. Holidays
specifically named in the collective bargaining agreement or determined by wage
surveys shall be included in the wage determination. Overtime pay may be
required as provided in Section
16200(a)(3)(F) of
these regulations.
(F) Overtime.
Overtime will be paid as indicated in the wage determination.
EXCEPTION 1: If a workweek other than Monday through
Friday is a fixed business practice or is required by the awarding body, no
overtime payment is required for the first eight hours on Saturday or
Sunday.
EXCEPTION 2: If the collective bargaining agreement
provides for Saturday and Sunday work at straight-time, no overtime payment is
required for the first eight hours on Saturday or Sunday.
EXCEPTION 3: If the awarding body determines that work
cannot be performed during normal business hours or work is necessary at off
hours to avoid danger to life or property, no overtime is required for the
first eight hours in any one calendar day, and 40 hours during any one calendar
week.
EXCEPTION 4: No overtime payment is required for less
than 40 hours in a standard work week or for less than eight hours in a
calendar workday unless specified in the collective bargaining agreement used
as the basis for the prevailing wage determination.
(G) Wage rates, training contributions and
apprenticeship contributions. Apprenticeship rates shall be determined by the
Director of Industrial Relations using apprentice wage standards set forth in
the collective bargaining agreement and/or approved by the California
Apprenticeship Council. A contractor or subcontractor on a public works
contract must pay training fund contributions or apprenticeship contributions
in one of the following manners:
1. into the
appropriate craft apprenticeship program in the area of the site of the public
work; or
2. (if the trust fund is
unable to accept such contributions) an equivalent amount shall be paid to the
California Apprenticeship Council (CAC) administered by DAS.
3. If neither of the above will accept the
funds, cash pay shall be as provided for in Section
16200(a)(3)(I) of
these regulations.
(H)
Rates for helpers. Rates for helpers will be published when the information
available to the Director indicates that a practice of using such a
subclassification prevails in a particular area, such as contained in a
collective bargaining agreement, and within the parameters of the applicable
collective bargaining agreement. In the absence of such determination, the
helper classification may not be used as a substitute for a journeyman or
apprentice. This section does not exempt the contractor from the 1-5
apprentice-journeyman ratio requirements set forth in Labor Code Section
1777.5.
(I) Credit Available For Actual Payment of
Fringe Benefit Costs up to the Prevailing Amount. The contractor obligated to
pay the full prevailing rate of per diem wages may take credit for amounts up
to the total of all fringe benefit amounts listed as prevailing in the
appropriate wage determination. This credit may be taken only as to amounts
which are actual payments under Employer Payments Section
16000(1)-(3). In
the event the total of Employer Payments by a contractor for the fringe
benefits listed as prevailing is less than the aggregate amount set out as
prevailing in the wage determination, the contractor must pay the difference
directly to the employee. No amount of credit for payments over the aggregate
amount of employer payments shall be taken nor shall any credit decrease the
amount of direct payment of hourly wages of those amounts found to be
prevailing for straight time or overtime wages.
(b) Federal Rates. In reviewing rates
predetermined for federal public works, the Director will consider those rates
published pursuant to the Davis-Bacon Act.
(c) Data collection shall be in accordance
with Labor Code Section
1773.
(d) Wage rate factors.
NOTE: Wage surveys are conducted by DLSR.
(1) The following factors shall be
considered:
(A) Type of work to be
performed;
(B) Classification(s) of
worker(s) needed;
(C) Geographical
area of project;
(D) Nearest labor
market area;
(E) If work has been
performed in the geographical area in the past 12 months.
(F) Mobility of craft, classification, or
type of worker needed for project;
(G) Number of workers in craft or job
classification;
(H) Normal industry
practice in selection of craft and classification of worker;
(I) Size (dollar amount) of
project;
(J) Degree of project's
remoteness from survey area.
(2) Time period used in determining
prevailing wage by survey. The time period reference for establishing the
prevailing wage in the area of determination shall be the 12-month period prior
to the request for a wage determination unless another time period is
necessary. In such cases, the Director shall establish the appropriate time
period.
(e) Other
information. Pursuant to Section
1773 of the
Labor Code, the Director may also obtain and consider other data from
interested parties, and shall give consideration to data submitted by any
interested party, concerning rates actually paid on public or private projects
under construction or recently completed in the locality and in the nearest
labor market area. Such data may be obtained by holding a hearing, instituting
an investigation, or by such other means as the Director determines will best
serve the purposes of the law. Information submitted by interested parties for
the Director's consideration shall include, but not be limited to the following
for each project:
(1) the name, address, job
title, and telephone number of the interested party submitting the information
and the basis for qualification as an interested party under Section
16102;
(2) the basic hourly wage rate, overtime and
holiday pay rates, and employer payments as enumerated in Section
16000 of these regulations for each
classification in question as effective for the last payroll period, or most
recent payroll period, for which payments based on such rates were actually
made;
(3) the number of workers
employed on the project in each classification in question during the payroll
period for which data is submitted;
(4) the location of the project;
(5) the name and address of the contractor or
subcontractor making the payments, and of all other contractors or
subcontractors on the project;
(6)
the type of construction (e.g. residential, commercial building,
etc.);
(7) the approximate cost of
construction;
(8) the beginning
date and completion date, or estimated completion date of the
project;
(9) the source of data
(e.g. "payroll records");
(10) the
method of selection of the projects for which data is submitted, when data is
not submitted for all projects recently completed or in progress in the
locality or in the nearest labor market area.
1. Order
of Repeal of subsection (a)(3)(E) filed 8-24-88 by OAL pursuant to Government
Code section 11340.15 (Register 88, No. 35).
2. Amendment of
subsections (a)(1), (a)(3) and (b) filed 2-20-92; operative 3-23-92 (Register
92, No. 13).
3. Repealer of subsection (a)(3)(B), subsection
relettering, and amendment of newly designated subsections (a)(3)(B),
(a)(3)(D), and (a)(3)(F)(3) filed 12-27-96; operative 1-26-97 (Register 96, No.
52).
4. Amendment of subsection (b) filed 12-27-96; operative
1-26-97 (Register 96, No. 52).
5. Change without regulatory effect
repealing 12-27-96 amendments filed 2-19-99 (Register 99, No. 8). Pursuant to
Sacramento Superior Court Order Issued 6-4-97 in Case 97CS 00471 the amendments
filed 12-27-96 and effective 1-27-97 were invalidated and the prior regulations
were reinstated.
Note: Authority cited: Sections
1773 and
1773.5, Labor
Code. Reference: Sections
1770,
1771,
1773,
1773.1,
1773.5,
1773.8,
1777.5,
1810 and
1815, Labor
Code.
