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BARBWIRE
by
ANDREW BARBANO
We
don't need no stinking wages!
Special Internet Edition
3-4-2006
Updated
7-5-2006
In any region, the benchmark for the worth of anyone's labor is set by the wages earned by the skilled trades. For every 10 percent increase in unionization in an area, the average wage rises by about five percent. A threat to the basic wage of the skilled trades endangers the wage base of the entire community. (See "What Do Unions Do" by Medoff and Freeman, Harvard University Press, 1987.) The Nevada Supreme Court this week tried to bang another in a long series of dents in the state's prevailing wage law.
Fortunately for construction laborers, the court's longstanding reputation for ineptitude seems to abide in its current septomedusic incarnation.
Research the issue
Search this site for "prevailing wage"
(More than 20 citations)Carson-Tahoe hits the financial skids
BARBWIRE 6-18-2006
The blackrobes have rendered a decision which is hopelessly self-contradictory and thus invalid at worst or unintentionally supportive of labor's position at best.
And all the court's horses and all the clerk's men have apparently been so close to the mixed-metaphor forest that they can't see all the trees which will be needlessly killed to print this cockamamie conflation.
As Justice Clarence Thomas might put it, the decision is Kafkaesque.The court not only needs better lawyers, it needs a good editor and proof-reader.
I submit that the following self-cancelling passage from the majority opinion undercuts the entire ruling:
We note that NRS (Nevada Revised Statutes) 244A.763(5) could have easily been written to require prevailing wages on all projects funded by economic development bonds if the Legislature so intended. The Legislature could have explicitly stated that a project under NRS 244A.763(5) is subject to payment of prevailing wages. [(Case footnote) 14] The Legislature also could have directed that all projects under NRS 244A.763(5) be considered a public work or be treated as a public work under NRS 338.010 through NRS 338.090. The Legislature did not do so, instead it explicitly required that NRS 338.010 through NRS 338.090 be applied to all projects funded by economic development bonds. [[Emphasis added.]] If, as noted in the latter sentence, NRS 338 (the Prevailing Wage Law) applies "to all projects funded by economic development bonds," then the unions have won their case.
As my high school debate professor Father Diamond once instructed, "when the other side agrees with your position, you've won."
Further using the court's Scalia-based logic of strictly looking at the words rather than the intent and discussion which went into passing legislation, I take the majority at their word when they write "When 'the words of the statute have a definite and ordinary meaning, this court will not look beyond the plain language of the statute, unless it is clear that this meaning was not intended.'[(Case footnote) 3]"
The court's plain language unambiguously states the court's opinion that the prevailing wage law must be applied to "all projects funded by economic development bonds."Case closed? Do they ever read what they've written? Who's in charge here?
Labor now faces an important decision: Let this stand and use it in the future to require prevailing wages on such projects, or try to get it enforced against Carson-Tahoe Hospital. If they opt for the latter, Carson-Tahoe will try to get a clarification from the stupefyingly obtuse Supremes, which is not a great idea because it will afford them the opportunity to correct themselves. This distinction without a difference may well be massaged to labor's benefit in future cases.
The doofus decision also brings a bit of good news and some unintentional irony when the court states "For example, a private project constructed to a public agency’s specifications as part of an arrangement for the project’s eventual purchase by the public agency would be a public work."
I wish that portion of the ruling had been available about 10 years ago when the University of Nevada-Reno used an end run around the prevailing wage law to build the rickety high-rise expansion to the east grandstands at Mackey Stadium. A private, non-union builder built them on the cheap and then the funder (might have been one of UNR's myriad quasi-public foundations or a private group) turned over the grandstands to the U.The same shuck was employed last year to build a new state office building in Carson City. Construction and leaseback is also often used as a way for the state to get around the law.
A group of municipalities had a prevailing wage law repeal drafted during the 2005 Nevada legislative session. It didn't get anywhere, but this court decision could embolden them to try again. And don't forget that Gov. Dudley Do-Right, endorsed by organized labor for re-election in 2002, vetoed SB 274 which would have clarified the whole Carson-Tahoe Hospital mess and made litigation unnecessary.
Gov. Kenny Guinn's appointees to the labor commissioner's chair have done their best to hurt the prevailing wage law. In my 2002 Labor Day column, I wrote:
"This guy (then-labor commissioner Terry Johnson) is so dumb he actually thinks he's helping the working man. In the Aug. 8, 2002, Las Vegas Sun, Johnson expended a thousand words about his and Gov. Guinn's defense of the average worker.
Almost as an aside at the very end, he pats himself on the back for doing the guv's bidding: 'Gov. Kenny Guinn reminded me on my first day of work to 'strive to make government better and not bigger' (by) revising antiquated labor laws and regulations.'
Had not northern Nevada construction unions fought Johnson's attempts to change the method of reporting prevailing wage rates, area-standard construction pay would today be no more than a fond memory in some musty union museum.
In any region, the benchmark for the worth of anyone's labor is set by the wages earned by the skilled trades. For every 10 percent increase in unionization in an area, the average wage rises by about five percent. A threat to the basic wage of the skilled trades endangers the wage base of the entire community. (See "What Do Unions Do" by Medoff and Freeman, Harvard University Press, 1987.)
Such is the threat posed by the ongoing assault against wages by the state official in charge of policing that workers are paid fairly.
Johnson has also attempted more insidious maneuvers to bust unions. He recently attempted to enact a regulation to make himself the ultimate arbiter of the scope of work allowed to any skilled craft. In other words, rather than unions of skilled workers and their employers deciding what delineates the difference between a carpenter and a painter/taper, Johnson would have arrogated that power to himself. This would have represented a sea change in the normal business practices of the construction industry and perhaps any other workplace.Johnson's successor, whose name escapes me, is another political lightweight who also views himself as the Business Commissioner and has continued the since-promoted Johnson's crusade to damage worker interests.
All of this is so damnably ironic, given that organized labor abandoned its strongest friend, Sen. Joe Neal, D-North Las Vegas, to endorse Gov. Dudley Do-Right in 2002.
I warned in the above column that the action would come back to bite us in the ass, and it most certainly has. Alas and alack, labor's betrayal by its friends is nothing new.Chief Justice Bob Rose was heavily endorsed by labor for governor in 1978. I was present at meetings when he solicited labor support and endorsed the movement's goals. As I recall, he was also endorsed in his races for supreme court, as were most of the other justices who voted against area standard wages in this case. At least the six who voted to diminish everyone's paycheck can rest easy knowing that the Social Darwinists at the Las Vegas Review-Journal will praise them.
Be well. Raise hell.
Smoking Guns
UPDATE: Carson-Tahoe hits the financial skids
BARBWIRE 6-18-2006THE BARBWIRE WARNED CARSON CITY IN 2001
DAILY SPARKS TRIBUNE 8-5-2001, CARSON CITY NEVADA APPEAL 8-8-2001
Carson-Tahoe Hospital's own attorney admitted in 2003 that the city is still on the hook for the bond liability. This is consistent with my own understanding that (no matter what state law says), in order to sell such public debt, the full faith and credit of the issuing government must stand behind it.
To wit: "Hospital attorney Mike Pavlakis said the bonds were issued as economic development bonds, but the city is constitutionally prohibited from paying them. Hospital revenues, an insurance policy, a letter of credit and a deed of trust on the hospital stand between Carson City and that liability." — Nevada Appeal 11-5-2003
The implication: Carson City remains on the end of that particular chain letter.
I don't know if there's ever been a Nevada default to test the issue. Government bonding is a very arcane and dull area of law — the late former U.S. Atty. Gen. John Mitchell was a noted muni bond lawyer. It figgers.
Justice Bill Maupin's lone dissent
I would affirm the district court in this instance. In my view, the Carson-Tahoe Hospital project is subject to Nevada prevailing wage laws that govern public projects.
NRS 244A.763(5) states that certain provisions within the Nevada public works laws, NRS 338.010 through NRS 338.090, "apply to any contract for new construction . . . [of a "project"] for which tentative approval for financing [under the Nevada County Economic Development Revenue Bond Law] is granted on or after January 1, 1992." The new Carson-Tahoe Hospital is such a project.[1]
The quoted language from NRS 244A.763 does not mean that we must look to NRS Chapter 338 to determine if its provisions apply; rather, it means that the enumerated provisions of NRS Chapter 338 do apply. Thus, the prevailing wage requirements of NRS 338.020 apply to the contract for construction of the Carson-Tahoe Hospital. Accordingly, workers on this project must be paid "prevailing wage."___
[1] See NRS 244A.689(1)(c).
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Copyright © 2003, 2004, 2006, 2015 Andrew Barbano
Andrew Barbano is a 37-year Nevadan and editor of NevadaLabor.com. Barbwire by Barbano has originated in the Daily Sparks (Nev.) Tribune since 1988.
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