ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 91-05337).
Before: Hutchinson, Alito, and Seitz, Circuit Judge.
This is an appeal from a district court decision holding that Graco Trucking Corporation (Graco) and a Graco officer were required to pay a former employee, Sherman Wheeler, the wages specified by the Federal-Aid Highway Act, 23 U.S.C. § 113(a) (1988), as well as liquidated damages, counsel fees, and expenses. We reverse, but we do not reach the question concerning the interpretation of the Federal-Aid Highway Act that was decided by the district court.
Kiewit Perini was the general contractor for the construction of portions of the Blue Route, a federally financed highway project administered by the Pennsylvania Department of Transportation (PennDOT). The prime contract between Kiewit Perini and PennDOT required that all "mechanics and laborers employed or working upon the site of the work" be paid "at wage rates not less than those contained in the wage determination of the Secretary of Labor" that was attached to the contract. The prime contract further provided that these wage rates had to be paid "regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics." The Secretary of Labor's wage determination attached to the contract provided that Class II heavy and highway truck drivers were to be paid a basic hourly rate of $14.30 plus $3.5225 in fringe benefits.
Graco was a subcontractor on the Blue Route project. Graco and Teamsters Local 312 entered into a collective bargaining agreement. This agreement provided that, "except as modified by the specific provisions" in the agreement, "drivers on heavy and highway and building construction projects" were "to be covered by the rates and benefits" contained in another collective bargaining agreement known as the "Five County Agreement." The Graco-Local 312 collective bargaining agreement also provided, however, that the union, employer, and employees could agree to a lower wage rate on jobs for which the employer would be bidding against competitors not bound by "this Agreement." In addition, the Graco-Local 312 collective bargaining agreement contained mandatory grievance and arbitration procedures.
The Five County Agreement, to which the Graco-Local 312 collective bargaining agreement referred, provided for Class II truck drivers to be paid $14.30 per hour. Like the prime contract, this agreement prohibited an employer from entering into any conflicting bargaining agreement with its employees. The Five County Agreement also contained a provision permitting an employer and union to assent to special wage rates when the employer believed that there would be competition by contractors not bound by the terms of the Five County Agreement. In addition, the Five County Agreement contained mandatory grievance and arbitration procedures.
In 1988, Graco obtained authorization from Local 312 and its members to bid on a contract to transport materials from an off-site supplier, Corson's Quarry, to the Blue Route site at a special wage rate of $11.30 per hour.
Wheeler worked for Graco as a Class II dump truck driver from September 1988 until February 1990. He was paid $14.30 per hour for on-site work and $11.30 per hour for hauling between Corson's Quarry and the Blue Route site. In February 1990, Wheeler was discharged for chronic tardiness. Wheeler submitted a grievance concerning his termination but not his rate of pay.
Wheeler subsequently began this action, asserting federal jurisdiction under the Federal Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (1988), the Fair Labor Standards Act, 29 U.S.C. § 217 (1988), and the general federal question statute, 28 U.S.C. § 1331 (1988). He also requested the court to exercise pendent jurisdiction with respect to his state-law claims. Count One of his complaint claimed that Graco had discharged him in violation of the collective bargaining agreement. Count Two asserted that Graco had not paid him at the rates required by the collective bargaining agreement. Count Three claimed that Local 312 had breached its duty of fair representation by failing to enforce the provisions of the collective bargaining agreement concerning discharge and wages and hours.*fn1 Count Four alleged that Graco had violated the Fair Labor Standards Act by underpaying him for overtime. Count Five claimed that Graco and a Graco officer had violated the Pennsylvania Wage Payment and Collection Law (WPCL), Pa. Stat. Ann. tit. 43, § 260.1 et seq. (1964 & Supp. 1992), by failing to pay him the wages he was due.
Graco moved for summary judgment contending, among other things, that Wheeler had never filed a grievance concerning his wages. The district court denied that motion, and the case was tried before a jury. During trial, however, the district court concluded that Wheeler's wage claim should not be presented to the jury because it presented purely legal questions. The jury was asked to decide two questions: (1) whether Wheeler's termination violated the collective bargaining agreement and (2) whether the union had violated its duty of fair representation. The jury answered both questions in the negative.
After the trial, the district court issued an opinion concerning Wheeler's wage claim. The district court first addressed the applicability of the Davis-Bacon Act, 40 U.S.C. § 276a, which requires certain federal construction contracts to stipulate that laborers and mechanics will be paid not less than the prevailing wages determined by the Secretary of Labor. Citing Weber v. Heat Control Co., 728 F.2d 599 (3d Cir. 1984), the district court stated that no private right of action exists under the Davis-Bacon Act, but the court observed that Wheeler had sought to collect the Davis-Bacon wage rate by arguing (a) that this rate was incorporated into the prime contract and (b) that the Pennsylvania WCPL permitted him to sue to collect the wages due under that contract. The district court recognized that initially Wheeler had relied on the decision in Building & Constr. Trades Dep't v. McLaughlin, 747 F. Supp. 26 (D.D.C. 1990), which held that the Davis-Bacon Act applied to off-site work, but the district court noted that this decision had recently been reversed. See Building & Constr. Trades Dep't v. U.S. Dep't of Labor Wage Appeals Bd., 289 U.S. App. D.C. 369, 932 F.2d 985 (D.C. Cir. 1991). Moreover, the district court expressed agreement with the District of Columbia Circuit's holding in that case that the Davis-Bacon Act does not apply to the transportation of materials or supplies to a work site but is instead limited to work directly on the site of the project. Stating that Wheeler "was not working on-site for the purposes of the Davis-Bacon Act while he transported material from the quarry," the court concluded that Wheeler was not entitled to Davis-Bacon wages for this work. The district court noted that Wheeler had "switched tactics" after the District of Columbia Circuit's decision and had placed his reliance on the Federal-Aid Highway Act instead of the Davis-Bacon Act. The ...