by Donald W. Jones¹

The Missouri Department of Labor vigorously enforces Missouri's Prevailing Wage Law when complaints are filed.² The state, however, is not allowed to sue for back pay; only the workers may sue for underpayments.³ The state may sue for the $10 per day penalties for each violation.⁴ Some of the practical problems and defenses are as follows:

I. What Limitations Period Applies?

Judge Kinder ruled in an unpublished 1995 decision that where the construction project had been fully executed, closed out, performance certified, and the public body had paid the contractor in full, it was too late for the state to seek injunctive relief for alleged prevailing wage law violations.⁵ The appeal was dismissed.⁶ Decisions from other states agree that where the public body no longer holds funds due the contractor, it is too late to sue for violations.⁷ However, the Camdenton decision held that the question of whether the project was covered by the Missouri law was not rendered moot by the project's completion.⁸

Judge Kinder's 1995 decision also ruled that the suit for underpayment of wages was subject to the two-year statute of limitations under § 516.140, RSMo.⁹ That statute, as noted by Judge Duncan in Conwell v. Central Tel. Co., results from the 1945 amendment.¹⁰ Judge Duncan ruled in the 1948 Conwell case that the forerunner of § 516.140, RSMo, would apply if Missouri were to enact a law mandating minimum wages and overtime pay, and that two-year provision was not unconstitutional because it was "not directed solely" at actions under federal law.¹¹

Section 290.300, RSMo, authorizes workers to sue for underpayment of wages, double pay and attorneys fees, and states that "an action brought to recover same shall be deemed to be a suit for wages and any and all judgments entered therein shall have the same force and effect as other judgments for wages." This would seem to be the type of suit referred to in § 516.140, RSMo (which requires an action to be filed within two years for minimum wages, overtime, or liquidated damages). However, a 1993 decision by the Western District of the Missouri Court of Appeals apparently overlooked Conwell, found no case on point, and refused to apply § 516.140, RSMo, to a suit for wages under § 290.300, RSMo, ruling that the two-year limitation under § 516.140, RSMo, applies only to claims under federal law.¹²

That decision appears to be inconsistent with Conwell and other cases.¹³ Judge Duncan's 1948 decision in Conwell found that the forerunner of § 516.140, RSMo, was intended to apply to any back pay claims under any future Missouri minimum wage or overtime law. Section 290.300, RSMo, is such a law. The Western District's finding that § 516.140 is intended to apply only to federal minimum wage and overtime pay suits would appear to raise questions of equal protection similar to those raised in Conwell, which Judge Duncan rejected on grounds that the two-year limitation under what is now § 516.140 applied not only to federal law claims but also to claims under any Missouri law enacted after 1945. See note 11.

A suit for penalties is subject to the two-year statute of limitations under § 516.330, RSMo, which applies where the penalty goes to the state or any county or city.¹⁴ In view of that, § 516.140, RSMo, should be applicable to suits by workers under § 290.300, RSMo.¹⁵

II. Other Questions Regarding Suits on Surety Bonds

The surety bonds guarantee payment and performance, as required by §§ 107.170 and 290.250, RSMo. Suit on the bond must comply with § 522.300, RSMo.¹⁶ The bond may require notice of the claim within a prescribed time, and may also limit the time within which suit may be filed.¹⁷ A local ordinance may limit either of those dates.¹⁸ The claimant instituting suit in the name of the public body for his use and benefit, as required under § 522.300, must be a beneficiary of the bond. A road subcontractor's foreman was not a "laborer" who could sue on a bond.¹⁹ Also, a party who did not directly contract with the contractor who signed the bond as principal may not be entitled to sue on the bond.²⁰

The terms of the bond must be examined to determine the nature of the surety's liability. Where the bond promises to pay the final judgment, the surety cannot be held liable for statutory penalties not contained in that judgment.²¹ But if the penal sum of the bond is not exceeded, the surety may be held liable for unpaid wages and penalties.²² If the surety or principal tenders payment, the obligation to claimant is discharged.²³

III. Claims Regarding Rate Applicable to Apprentices

Under the Missouri Code of State Regulations,²⁴ "apprentices and trainees" who are "registered and participating in apprentice or trainee programs registered with the U. S. Department of Labor, Bureau of Apprenticeship and Training" (BAT), or with the U. S. Department of Transportation (DOT), are exempted from the rates set for journeymen. Instead, they may be paid at the lower apprenticeship rate. Where plaintiff was registered under the BAT apprenticeship program, plaintiff could not sue for journeymen rates on the theory that he was not given the required academic training called for in the apprenticeship program.²⁵

IV. Can Local Government Unit Blacklist Violators?

Unions have sought to persuade school boards and other local government bodies to bar from receiving contracts or subcontracts on their construction projects any contractor who has violated the Prevailing Wage Law or other employment laws. Such resolutions may be challenged on several grounds.

First, a contractor so banned may sue under 42 U.S.C. § 1983, complaining of unconstitutional "deprivation of liberty and property rights.^"26

Second, power to determine that an employer has violated a statute, or even a city ordinance, is vested exclusively in judicial courts.²⁷ Under § 290.330, RSMo, there is a specific debarment provision of state-wide effect providing that the department has power to file with the Secretary of State "a list of the contractors and subcontractors who it finds have been prosecuted and convicted for violations of sections 290.210 to 290.340" and further provides a one year debarment of such contractors "or simulations thereof." The state-wide law requiring prosecution and conviction under § 290.340, RSMo, cannot be changed by the local body's attempt to debar contractors who have never been tried in court and convicted.²⁸ Such local government's attempted debarment, therefore, is preempted by state law.²⁹Such ordinances also are potentially preempted by the National Labor Relations Act.³⁰

Third, such debarment resolution or ordinance would appear to violate the Missouri and U. S. Constitutions.³¹

Because of the continuing threat of such efforts to persuade cities, towns and school boards to debar contractors, it is essential that if a prevailing wage claim is settled, the contractor should insist on a "non-admission" clause stating that the settlement "shall not connote or be evidence that the contractor has violated the law, it being acknowledged that the settlement is made to avoid inconvenience, expense and uncertainties of trial for all parties, it being understood that contractor denies having violated the law."

In Iowa, a charter city's ordinance requiring prevailing wages to be paid at Davis-Bacon rates was found to be preempted by ERISA and by the state's competitive bidding statutes.³²

A California ordinance that required contractors to pay prevailing wages on private construction projects was ruled invalid as preempted by the NLRA.³³

In Kansas, the local government was allowed to enforce its specifications requiring the contractor to pay the federal prevailing wage rate, which was higher than the Kansas prevailing rate (the federal rate included fringe benefits and the state rate did not).³⁴

V. Does a Sole Proprietor, Stockholder, or Partner Have to be Paid the Prevailing Hourly Rate?

In the construction industry, there are many small companies where the owner is a sole proprietor and bids for public and private jobs. Partnerships sometimes have the partners working on the jobs as craftsmen. Owners may be members of a limited liability company, or major shareholders, officers, and directors of a small corporation. The question arises frequently as to whether these persons (who are owners of the business) are required to keep time records and be paid the prevailing rate.

Workers who are self-employed are not employees under the Fair Labor Standards Act.³⁵ Missouri case law under other statutes or circumstances have agreed that one who is the owner or manager of the business cannot be considered to be an employee.³⁶ Therefore, where the person performing the work on the public construction job is a sole proprietor, partner or a major shareholder with a major ownership part in the business,³⁷ that person should not be an employee who is required to be paid the prevailing rate. However, there is no guarantee that the Missouri Department of Labor would agree with the authorities cited.

VI. Can the Missouri Law or an Action to Enforce it be Preempted by ERISA, NLRA or Davis-Bacon?

If a Missouri Prevailing Wage Law claim is preempted by federal law, this may prevent the general contractor from being sued for delinquencies of a subcontractor. For example, the recent decision by the Washington Court of Appeals in Ironworkers District Council of the Pacific Northwest v. Woodland Park Zoo Planning and Development³⁸ reiterates that a fringe benefit fund's collection suit must be based on a written contract signed by defendant and is governed by ERISA.³⁹ Therefore, it may be argued that benefit fund trustees have no basis for a lawsuit against the general contractor or his surety under § 290.300, RSMo, for deficiencies of a subcontractor. See cases cited at note 20. Although the union could sue for wages due the employees represented by it, the union or the employees who have a collective bargaining agreement with the subcontractor will be required to use the grievance procedure to establish their claim against the subcontractor. Some cases discussed below would find preemption under ERISA or the NLRA, or (on federal projects) by Davis-Bacon.

A. Preemption by ERISA

The Employee Retirement Income Security Act of 1974 (ERISA), is the most sweeping federal preemption statute enacted by Congress.⁴⁰ In §514(a) of the act, Congress declared the ERISA statute shall "supersede [any and all] State laws 'insofar as they may now or hereafter relate to any employee benefit plan'" described in §1003(a) of this title, and not exempt under §1003(b) of this title.⁴¹

In Dillingham Construction, the California Prevailing Wage Law was found not preempted by ERISA because the approved apprenticeship programs were not required to be ERISA-funded plans.⁴² It would appear from the wording of § 290.210, RSMo, that since the amount paid for apprenticeship training or other fringe benefits must be paid to a trustee or third party, the opposite result may obtain under the Missouri statutes, for the reasons given by the Ninth Circuit in Dillingham.

Section 290.210, RSMo, seems to require an ERISA plan:

(5) "Prevailing hourly rate of wages" means the wages paid generally, in the locality . . . [for similar work] including the basic hourly rate of pay and the amount of the rate of contributions irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan or program, and the amount of the rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to workmen and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program which was communicated in writing to the workmen affected, for medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, for unemployment benefits, life insurance, disability and sickness insurance, accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs, or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal or state law to provide any of the benefits; provided, that the obligation of a contractor or subcontractor to make payment in accordance with the prevailing wage determination. . . . may be discharged by the making of payments in cash, by the making of irrevocable contributions to trustees or third persons as provided herein, by the assumption of an enforceable commitment to bear the costs of a plan or program as provided herein, or any combination thereof, where the aggregate of such payments, contributions and costs is not less than the rate of pay plus the other amounts as provided herein.

Only an employer with an ERISA plan can avoid employment taxes on the fringe benefit amounts. If the employer pays the full wage and fringe benefit amount as wages subject to employment taxes, his costs are substantially higher.

Dillingham recognized that if the state law regulates the structure of a benefit plan by prohibiting discrimination against employees by reason of their pregnancy or mandating certain benefits or their administration, it would result in ERISA preemption and invalidate the law.⁴³

Where the employer is sued for damages for failure to enroll an employee in an ERISA plan, that claim must be pursued solely as an ERISA claim,⁴⁴ which is also true of a claim that the employer is an agent of an insurance company.⁴⁵ ERISA preempts and completely displaces any state law cause of action in such cases.⁴⁶

Where the remedy seeks to enhance or enforce rights under an ERISA plan, the state law claim is preempted by ERISA.⁴⁷ The ERISA statute, however, does not supplant or impliedly repeal any federal statutes or regulations.⁴⁸

Cases where ERISA preemption was found in situations somewhat analogous to prevailing wage enforcement actions include: mechanics' lien enforcement suit as assignee of real estate developer who had assigned lien to union negotiated security fund;⁴⁹ and a union action to foreclose on a public works construction project lien against general contractor's bond and retainage trust fund to collect subcontractor's unpaid benefit contributions.⁵⁰ Courts have reached inconsistent and changing conclusions on whether to find preemption of state court actions (based on the state statutes), against the surety of the general contractor, for ERISA benefits or contributions due from subcontractors.⁵¹

B. Preemption by NLRA

The court in Chamber of Commerce of U.S. v. Bragdon⁵² ruled that a county ordinance requiring employers to pay prevailing wages on private industrial construction projects costing $500,000 or more was preempted by the National Labor Relations Act (NLRA) as an undue governmental interference with the collective bargaining process. This is the preemption addressed in Machinists v. Wisconsin Employment Relations Comm'n, regarding conduct that Congress intended to be controlled by the free play of economic forces. Bragdon quotes Machinists' as stating the Supreme Court had made clear that state attempts to influence the substantive terms of collective bargaining agreements "are as inconsistent with the federal regulatory scheme as are such attempts by the NLRB: Since the federal law operates here, in an area where its authority is paramount, to leave the parties free, the inconsistent application of state law is necessarily outside the power of the State.^"53

Bragdon stated that the Supreme Court has "clearly held that state legislation, which interferes with the economic forces that labor or management can employ in reaching agreements, is pre-empted by the NLRA because of its interference with the bargaining process."⁵⁴

Bragdon states that the objective of allowing the bargaining process "to be controlled by the free-play of economic forces" would be frustrated by the imposition of substantive requirements, or by interference with the use of economic weapons.⁵⁵

The California Code did not directly establish the wage rate in a particular locality, but used rates determined by the Department of Labor Relations under formulas using the averages of the wages and benefits for each craft pursuant to the collective bargaining agreements applicable in each labor market. "Thus, the prevailing wage determined by the Director is not a fixed statutory or regulatory minimum wage, but one derived from the combined collective bargaining of third parties in a particular locality." ⁵⁶ The court ruled that since the determination could require the employer to change the ratio of benefits to hourly wages that it had agreed to with its employees, this was clear interference with the choices and procedures mandated by the NLRA.⁵⁷

The Prevailing Wage Law has been described as an example of "an interest group deal in public-interest clothing."⁵⁸ One may argue that to allow this type of regulation as to minimum wages on public projects is equally an interference with the bargaining process, as if the law were to set maximum wage rates. There would be little doubt that a state law purporting to set a maximum wage rate (beyond which negotiators of a collective bargaining agreement could not go) would interfere with the bargaining process. It could be argued that the minimum wage determination is no less an interference.

Other cases where federal preemption was found involved a statute requiring private contractors to retain their predecessor's employees without creating an exception for supervisors,⁵⁹ a statute requiring a successor to honor its predecessor's collective bargaining agreement,⁶⁰ a statute debarring repeat violators of the NLRA from doing business with the state,⁶¹ and a statute whose enforcement was conditioned on its not being in conflict with a collective bargaining agreement.⁶²

Lawsuits for violation of collective bargaining agreements must be brought under federal law and may be brought either in state or federal courts.⁶³ Any lawsuit that requires reference to a collective bargaining agreement to determine the merits of the claim is preempted by 29 U.S.C. § 185.⁶⁴ Grievance and arbitration procedures generally must be exhausted prior to filing an action in court.⁶⁵ Congress has expressly approved grievance and arbitration as the method for settling disputes.⁶⁶ However, the fringe benefit trustees do not have to follow those procedures.⁶⁷ A lawsuit sidestepping use of the mandatory grievance procedure must be dismissed.⁶⁸

Cases where NLRA preemption requires dismissal include: a fraud claim by an employee who claimed she was required to accept an assignment she could not perform;⁶⁹ a claim for wages requiring interpretation of the collective bargaining agreement provision for a raise "effective the first payroll period following ratification" of the agreement;⁷⁰ an action under a state wage payment law to recover back wages that were the subject of an arbitration award under the bargaining agreement;⁷¹ a claim for vacation benefits where the statute sued upon mandated earned vacation benefits accrued under a labor agreement to be paid when the employee left employment,⁷² a claim based on a state wage payment law that included officers and shareholders and was preempted by the NLRA definition of "employer;"⁷³ a claim against a union regarding overtime equalization rights;⁷⁴ and a claim that the employer's drug testing program had a disproportionate impact on black employees where the bargaining agreement prohibited discrimination based on race and that claim was "'inextricably intertwined' with interpretation of the . . . labor contract."⁷⁵

The union and employees must use the grievance and arbitration procedure for any claim against the employer for unpaid benefits.⁷⁶ However, an action to foreclose on a state law mechanics' lien for failure to make pension contributions was found not preempted.⁷⁷ Also, where the bargaining agreement provided for workers to give up a part of their wages to enable the contractors to bid on jobs, state law claims based on the prevailing wage and anti-kickback laws were not preempted.⁷⁸ Actions under state wage payment laws have been found preempted.⁷⁹

C. Davis-Bacon Preemption

Majstrovic v. Maric Piping⁸⁰ ruled that prevailing wage claims by public work steam fitters for breach of contract and willful failure to pay wages were preempted by the Davis-Bacon Act where the contracts were fully funded by the federal government.⁸¹ The Davis-Bacon Act was ruled to supplant the Indiana Prevailing Wage Act on federally-assisted construction projects.⁸²

VII. Conclusion

This article has addressed only a few of the problems and potential defenses to claims under the Missouri Prevailing Wage Law. Other issues, such as how wage determinations are made and challenged, have not been addressed, and should be the focus of other articles. As predicted earlier, litigation under this law has increased exponentially in recent years.⁸³ It is hoped that this article will assist Missouri attorneys to serve the best interests of clients and the general public.

Footnotes

¹ Donald W. Jones earned his J.D. from the University of Missouri at Columbia. He is a member of the Labor Law and Antitrust Sections of the ABA, the Labor Law, Education Law and Alternative Dispute Resolution Committees of The Missouri Bar, and is managing partner of Hulston, Jones, Marsh & Shaffer in Springfield.

² Sections 290.210 to 290.340, RSMo, were enacted in 1957. The federal forerunner, the Davis-Bacon Act, 40 U.S.C. § 276a, was enacted during the Great Depression in 1931. See Armand J. Thieblot, Jr., Prevailing Wage Lesiglation: The Davis-Bacon Act and State "Little Davis-Bacon" Acts, U. of Pa. Wharton Industrial Research Unit (1986). Serious questions have been raised as to the purpose and justification for this legislation. See Comptroller General Elmer B. Staats, Report to Congress: The Davis-Bacon Act Should Be Repealed (U.S. Govt. Printing Office, April 27, 1979); David Bernstein, The Shameful, Wasteful History of New York's Prevailing Wage Law, 7 Geo. Mason U. Civ. Rts. L.J. 1 (1997). For earlier articles on Missouri's Prevailing Wage Law, see Orval E. Jones, A Primer on Prevailing Wage Law in Missouri, 51 J. Mo. Bar 346 (1995); John P. Maupin & W. Dudley McCarter, Public Works Projects, 52 J. Mo. Bar 94, 98-99 (1996). A copy of the law, regulations, and helpful memorandum summarizing court cases may be obtained from the Missouri Department of Labor by calling 800-475-2130, or by Internet at http://www.dolir.state.mo.us/ls/index.htm.

Since most investigations follow complaints by unions that want to prevent open shop contractors from competing with union contractors for public construction contracts, the law is enforced almost exclusively against open shop employers. Unions are required to exhaust the grievance procedure of the collective bargaining agreements before pursuing an underpayment by union contractors. Furthermore, a claim by the union or employees that their union contractor employer failed to pay the wage rate set in the union contract is one as to which federal law, under 29 U.S.C. § 185, preempts the state law. Wisconsin Dept. of Industry v. Gould, 475 U.S. 282 (1986); Associated Builders and Contractors v. MacDonald, 731 F. Supp. 966 (D. Nev. 1990), aff'd in part, vacated in part on other grounds, 949 F. 2d 270 (9th Cir. 1991).

If the law is enforced only as to non-union employers, this may show the law is invalid, not only for denial of equal protection in violation of the Fourteenth Amendment to the U.S. Constitution, but this could also cause the Missouri law to be preempted by the NLRA. Livadas v. Bradshaw, 512 U.S. 107 (1994); St. Thomas - St. John Hotel v. Gov't of U.S. Virgin Islands, 218 F.3d 232 (3d Cir. 2000); Firestone v. Southern Cal. Gas Co., 219 F.3d 1063 (9th Cir. 2000).

³ State v. SKC Elec., 936 S.W.2d 802 (Mo. banc 1997). See also cases cited at note 8. However, as ruled in Majstrovic v. Maric Piping, 655 N.Y.S.2d 285 (N.Y. Sup. Ct. 1977), where the project is fully funded by the federal government, claims under state law are preempted by the Davis-Bacon Act, under which workers are generally ruled to be without standing to sue. Weber v. Heat Control Co., 728 F.2d 599, 600 (3d Cir. 1984). Cf. Stampco Constr. Co. v. Guffey, 572 N.E.2d 510 (Ind. App. 1991) (holding that while Davis-Bacon supplants state prevailing wage law, employees could sue under the federal statute in state court).

⁴ Section 290.250, RSMo (2000), provides, in part, "The contractor shall forfeit as a penalty to the state, county, city and county, city, town, district or other political subdivision on whose behalf the contract is made or awarded ten dollars for each workman employed, for each calendar day, or portion thereof, such workman is paid less than the said stipulated rates for any work done under said contract, by him or by any subcontractor under him, and the said public body awarding the contract shall cause to be inserted in the contract a stipulation to this effect." Section 290.240.1, RSMo, specifically authorizes the Department of Labor to "institute actions for penalties." State v. SKC Elec., 936 S.W.2d 802 (Mo. banc 1997).

Where the public body determines that it would be unfair to impose a penalty, the public body should be allowed to adopt a resolution waiving the collection or assessment of the penalty. That should be true, for example, where there was a good faith error on the contractor's part as to the proper classification of the worker during a part or all of his day's work, i.e., where he tied rebar for two hours that day and should have been paid the higher iron worker rate for those two hours. The court has discretion whether to assess the penalty. Matter of C.E.L. Lumber, Inc. v. Roberts, 109 A.D.2d 1002 (N.Y. App. Div. 1985).

Reversing an earlier policy followed for years in Missouri, the Department of Labor will likely tell each public body that they cannot waive the assessment of the penalty, even in situations as described above. However, when the public body has adopted such resolution, we have learned of no case pursued for penalties by the department thereafter.

⁵ State v. Ron Woods Mech., Inc. et al, Cole County Cir. Ct. No. CV 193-1662CC (August 24, 1995) (an order which was ultra vires since an earlier dismissal order was invalid, as ruled in case cited at note 6).

⁶ State Labor v. Ron Woods Mech., Inc., 926 S.W.2d 537 (Mo. App. W.D. 1996) (appeal dismissed because earlier order of dismissal had become final and circuit court had no jurisdiction to set aside that earlier dismissal more than 30 days after its entry).

⁷ Quayle v. Tri-Con Construction of North Jersey, 685 A.2d 988 (N.J. 1996), ruled that the action on the surety bond must be brought within one year from date of acceptance of the project, at completion of punch list. Majstrovic v. Maric Piping, 655 N.Y.S.2d 285 (N.Y. Sup. Ct. 1997), ruled there is one year to sue on the bond, from date of last alleged payment, and that even if the longer two-year limitations stated in the bond itself were applicable, still the action was barred.

⁸ State ex inf. Webster v. Camdenton, 779 S.W.2d 312 (Mo. App. S.D. 1989), ruled that while completion of the project did not preclude the department from suing to declare the project subject to the prevailing wage law, only the workers could sue for back wages. Accord: Gibbs Constr. Co. v. Department of Labor, 540 So.2d 268 (La. 1989); Grauerholtz v. Labor & Indus. Comm'n, 726 P.2d 351 (N.M. 1986).

⁹ Section 516.140, RSMo 2000. See notes 5 and 6.

¹⁰ Conwell v. Central Mo. Tel. Co., 76 F. Supp. 398 (W.D. Mo. 1948), aff'd, 170 F.2d 641 (8th Cir. 1948).

¹¹ Judge Duncan ruled in Conwell that the 1945 amendment to add what is now part of § 516.140, RSMo (2000) (requiring any action by an employee for payment of minimum wages or overtime compensation or liquidated damages to be brought within two years) was not unconstitutional. Plaintiff claimed that the 1945 amendment was a denial of equal protection, like the Iowa statute that purported to create a six-month statute of limitation for any claim brought on a federal law with no limitations period. See Republic Pictures Corp. v. Kappler, 151 F.2d 543 (8th Cir. 1945), aff'd. without opinion, 327 U.S. 757 (1946) (citing cases only). In upholding the constitutionality of what is now § 516.140, RSMo, Judge Duncan noted that Missouri's first statute of limitations appeared in the 1807 territorial laws of Missouri and in the 1825 Revised Statutes. Judge Duncan acknowledged that Missouri then had no minimum wage or overtime pay statutes, but stated that did not render the 1945 amendment unconstitutional because the amendment "would be applicable if Missouri did have such laws or if in the future Missouri should enact any law to which it would apply."

Based on the reasoning in Republic Pictures Corp. v. Kappler, it would appear that to hold § 516.140, RSMo, inapplicable to minimum wage and overtime pay claims under § 290.300, RSMo, but to acknowledge that § 516.140, RSMo, applies to federal claims, would result in equal protection violations under the Fourteenth Amendment of the U.S. Constitution.

¹² Section 516.140, RSMo 2000. Section 290.300, RSMo 2000. City of Kansas City v. Integon Indem. Corp., 857 S.W.2d 233 (Mo. App. W.D. 1993). A memorandum of the Missouri Dept. of Labor, "Missouri Prevailing Wage Law— Some Basic Facts" (August 1999), states at p. 6 that the limitation for the "private right of action is not clear," that Jennings v. Integon held that "516.140, RSMo does not apply," and at 857 S.W.2d n.6, "refused to determine what limitation period" applies. As the memo states, the court at 857 S.W.2d at 235 stated in dictum that the 10-year limitations under § 516.110, RSMo 2000, applies to the action on the bond. However, liability on the bond should not be actionable for a longer time than that within which the action could be filed against the principal. 38A C.J.S. Guaranty, §§ 61, 83 (1996). As stated at Id. § 83, the "guarantor is discharged by operation of law" from further liability by any act or event that extinguishes liability of the principal.

Where the bond is required by statute, it is not the longer period applicable to contracts that applies, but the period provided by the bond itself or the statute. Koppers Co. v. Continental Cas. Co., 337 F.2d 499 (8th Cir. 1964); Missouri-Illinois Tractor & Equip. Co. v. D & L Constr. Co., 337 F.2d 507 (8th Cir. 1964); Reorg. Sch. Dist. v. Compton Constr., 483 S.W.2d 674 (Mo. App. E.D. 1972); § 516.300, RSMo 2000 (general statutes of limitations do not apply if a statute has its own shorter limitations).

The 10-year limitations period of § 516.110, RSMo 2000, does not apply unless the bond is an obligation to pay money. That means a written promise to pay money that does not require extrinsic evidence to determine the amount. Superintendent of Ins. v. Livestock Market Ins. Agency, Inc., 709 S.W.2d 897 (Mo. App. W.D. 1986); McIntyre v. Kansas City, 237 Mo. App. 1178, 171 S.W.2d 805 (1943).

¹³ The two-year limitation under § 516.140, RSMo 2000, was applied to an overtime pay claim by public employees under state law. Perkins v. Schicker, 641 S.W.2d 432, 434 (Mo. App. E.D. 1982). As stated at note 15, Missouri's limitation under § 516.140 is similar to the two-year limitations under 29 U.S.C. § 255 (the Portal-to-Portal Act), which applies both to FLSA and Davis-Bacon claims. See Forry v. Dept. Natural Resources, 889 S.W.2d 838, 842-43 (Mo. App. W.D. 1994); Cope, et al. v. Freyn Engineering Co., 8 F.R.D. 620 (W.D. Pa. 1949) (quoting the predecessor of current 29 U.S.C. § 255); 6 Employment Coordinator ¶¶ C-29, 701-706 (West 2002).

¹⁴ Section 516.330, RSMo 2000. Div. of Labor Standards v. Walton Constr. Co., 984 S.W.2d 152 (Mo. App. W.D. 1998).

¹⁵ Section 516.140, RSMo 2000. Section 290.300, RSMo 2000. Section 516.400, RSMo 2000, provides that if the penalty or forfeiture goes in whole or in part to the party aggrieved, such party must commence the action within three years after the commission of the offense. That statute has been applied to "treble damage" actions under § 4 of the Clayton Act, 15 U.S.C.A. § 15 (West Supp. 2002). Powell v. St. Louis Dairy Co., 276 F.2d 464 (8th Cir. 1960).

Reading §§ 516.140 and 516.400, RSMo, together, they are similar to 29 U.S.C. § 255, which requires FLSA, Davis-Bacon and other similar claims to be sued upon within two years except where the violation is willful, in which case the liquidated damages claim becomes available and a three-year limitation applies. Cf. Broadus v. O.K. Indus., 226 F.3d 937 (8th Cir. 2000).

¹⁶ Section 522.300, RSMo 2000. Employees of a subcontractor may sue the general contractor and his surety for double back pay and attorneys fees. Board v. Eurostyle, Inc., 998 S.W.2d 810 (Mo. App. S.D. 1999). For discussion of suits on surety bonds, see II Mo. Civil Actions, §§ 21.1 et seq. (MoBar 2d Ed. 1993, 1997); Mo. Construction Law §§10.1 et seq. (MoBar 1994, 1996).

¹⁷ Reorganized Sch. Dist. v. Compton Constr., 483 S.W.2d 674 (Mo. App. E.D. 1972); Frank Powell Lumber v. Federated Ins. Co., 817 S.W.2d 648 (Mo. App. S.D. 1991); City of Kansas City v. St. Paul Fire & Marine Ins. Co., 639 S.W.2d 903 (Mo. App. W.D. 1982).

¹⁸ City of St. Louis ex rel. Atlas Plumbing Supply Co. v. Aetna Casualty and Surety Co., 444 S.W.2d 513 (Mo. App. E.D. 1969).

¹⁹ Section 522.300, RSMo 2000. Missouri State Highway Comm'n v. Coopers Constr. Co., 268 S.W. 736 (Mo. App. S.D. 1926).

²⁰ Kansas City N.O. Nelson Co. v. Mid-Western Constr. Co., 782 S.W.2d 672 (Mo. App. W.D. 1989); Ceco Corp. v. Plaza Point, Inc., 573 S.W.2d 92 (Mo. App. W.D. 1978).

The prime contractor and its surety are not liable for punitive double damages, attorney fees, and costs for subcontractor's failure to pay prevailing wages. Strong v. C.I.R., Inc., 515 N.W.2d 719 (1994); Dean v. Seco Elec. Co., 35 Ohio St. 3d 203, 519 N.E.2d 837 (1988).

²¹ Coates v. U.S.Fid. & Guar. Co., 525 S.W.2d 654 (Mo. App. E.D. 1975).

²² City of Kansas City v. Integon Indem. Corp., 857 S.W.2d 233 (Mo. App. W.D. 1993); Board v. Eurostyle, Inc., 998 S.W.2d 810 (Mo. App. S.D. 1999).

²³ Restatement of Security, §116 (1941). A release to the principal also generally releases the surety. Restatement of Security, §112 (1941).

²⁴ Mo. Code Regs. Ann. tit. 8, § 30-3.030 (2002).

²⁵ Martin v. Pro Systems, Inc., Barton County, Mo.Cir.Ct. No. 00CV-672063 (2000). No appeal was filed. The court relied on the definitions under federal regulations, 29 C.F.R. § 5.2(n)(1), (2) (2002), which state:

(1) Apprentice means (i) a person employed and individually registered in a bona fide apprenticeship program registered with the U.S. Dept. of Labor...[Bureau of Apprenticeship and Training [BAT]]..., or (ii) a person in the first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by [BAT]...to be eligible for probationary employment as an apprentice;

(2) Trainee means a person registered and receiving on-the-job training in a construction occupation under a program which has been approved in advance by the U.S. Dept. of Labor, Employment and Training Administration, as meeting its standards for on-the-job training programs and which has been so certified by that Administration.

²⁶ Berlanti v. Bodman, 780 F.2d 296, 299[1] (3d Cir. 1985) ("We hold. . . that Berlanti [subcontractor] had a property interest in not being arbitrarily debarred; this interest entitled him to some procedural protection under the 'due process' clause"). Other property interest cases include: Key West Harbor Dev. Corp. v. City of Key West, 738 F. Supp. 1390, 1393-1394[3] (S.D. Fla. 1990); Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964); Old Dominion Dairy v. Secretary of Defense, 631 F.2d 953, 962-66 (D.C. Cir. 1980).

A "liberty interest" case, where the contractor was "blacklist[ed]" and thereby deprived of opportunities to engage in public contracting on grounds that stigmatized the contractor, is Fox Fuel, A Div. of Kerosene, Inc. v. Delaware County Sch. Joint Purchasing Bd., 856 F. Supp. 945, 950-951[6] (E.D. Pa. 1994).

As summarized in Skeets v. Johnson, 816 F.2d 1213 (8th Cir. 1987), the Supreme Court has repeatedly held that pre-termination due process hearings are essential, except in extraordinary circumstances, to protect property interests under the "due process" clause, citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); Bd. of Regents v. Roth, 408 U.S. 564, 569-70(1972); Bell v. Burson, 402 U.S. 535, 542 (1971); Boddie v. Connecticut, 401 U.S. 371, 379 (1971).

The Supreme Court has recognized that the "[f]reedom to contract is the essence of freedom from undue [government] restraint[s]." Standard Oil Co. v. United States, 221 U.S. 1 (1911). Contracts are impaired within the meaning of the "due process" clause when a person's right to enforce the contract by legal process is taken away or materially lessened, where the contract is not with the sovereign. Lynch v. United States, 292 U.S. 571 (1934). Even if the government is involved, it would be required to provide a due process hearing before taking away a contractor's right to engage in subcontracting on public projects, as held in Berlanti v. Bodman, 780 F.2d at 302-303. See also MEDCARE HMO v. Bradley, 788 F. Supp. 1460, 1466-67[7] (N.D. Ill. 1992).

²⁷ Yellow Freight Sys., Inc. v. Mayor's Comm'n, 791 S.W. 2d 382, 384 (Mo. banc 1990) (recognizing repeated rulings that a local governmental body, such as a city, has no power by ordinance to create civil liabilities, nor to take rights and obligations from one person and give them to another, and holding that a local government commission "had no power to determine the respondent [employer] had violated an ordinance of the city," as those powers were reserved by the Missouri Constitution and statutes to judicial courts). See also Ochoa v. Hernandez, 230 U.S. 139, 160 (1913) (where the court indicated the principle that the "due process" clause guarantees that one person's property cannot be taken and given to another, was "known to the common law before Magna Charta, [and] was embodied in that Charter,. . . and has been recognized since the Revolution as among the safest foundations of our institutions.")        

²⁸ Section 290.340, RSMo 2000. See State v. Lee Mechanical Contractors, Inc., 938 S.W. 2d 269 (Mo. banc 1997).

²⁹ See citations at notes 26 and 31.

³⁰ Wisconsin Dept. of Industry v. Gould, 475 U.S. 282 (1986); Associated Builders and Contractors v. MacDonald, 731 F. Supp. 966 (D. Nev. 1990), aff'd in part and vacated in other respects, 949 F.2d 270 (9th Cir. 1991). Such local ordinance could potentially interfere with the freedom of collective bargaining and the procedures regulating bargaining rights and responsibilities, and right to be free from such bargaining, as provided under National Labor Relations Act (NLRA), 29 U.S.C. §§ 152 et seq. Chamber of Commerce of U.S. v. Bragdon, 64 F.3d 497 (9th Cir. 1995), affirming, 769 F. Supp. 1537 (N.D. Cal. 1991). See also cases cited at note 59.

³¹ Under Missouri Constitution, Article I, §10, and the U.S. Constitution, Fifth and Fourteenth Amendments, debarment cannot be constitutionally imposed, even at the state level, under § 290.330, RSMo 2000, before one is convicted. Even then, the contractor must be accorded due process of law, and the local government is similarly restricted. See Berlanti v. Bodman and other cases cited at note 25.

³² City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702 (Iowa 1993).

³³ This was undue interference with the collective bargaining process regulated under the NLRA. Chamber of Commerce of U.S. v. Bragdon, 64 F.3d 497 (9th Cir. 1995). See also cases cited at note 59.

³⁴ R.D. Andersen Constr. Co. v. Weltmer, 577 P.2d 1197 (Kan. 1978).

³⁵ Hoy v. Progress Pattern Co., 121 F. Supp. 371 (E.D. Mich. 1953), rev'd. on other grounds, 217 F.2d 701 (6th Cir. 1954). Workers who are directors, stockholders and officers of a small corporation are not "employees," even when they are paid an hourly wage by agreement of the directors and officers. Ibid. Likewise, stockholders, directors and officers of a corporation are not employees under the FLSA merely because the corporation ceases to pay their salaries. Eisert v. Urick Foundry Co., 150 F. Supp. 280 (W.D. Pa. 1957). One who exercises all of the management functions as the representative of the owner of the stock of a corporation and who is given full charge of the business, although no stock is assigned to him, is not an employee of the corporation. Zygowski v. Erie Morning Telegram, Inc., 298 F.2d 639 (3d Cir. 1962), affirming, 190 F. Supp. 210 (W.D. Pa. 1960). These cases are cited at 51B C.J.S. Labor Relations, § 1035 (1968).

³⁶ Kerkemeyer v. Midkiff, 299 S.W.2d 409 (Mo. banc 1957) recognized that under the Supreme Court decisions relating to collective bargaining matters, employer representatives must sit on one side of the table and employee representatives must sit on the other side, and it would be a sham proceeding if the union claimed to represent persons on both sides. Therefore, Mr. Kerkemeyer, who was a barber and self-employed, was entitled to manage his own business and was not an employee. To the same effect, see Golden Valley Memorial v. Mo. State Board, 559 S.W.2d 581, 583[3] (Mo. App. W.D. 1977), holding that § 105.510, RSMo, which "allows employees . . . the right to form and join labor organizations and to present proposals to any public body" employer, does not allow supervisors or managers to be categorized as "employees" for similar reasons to those mentioned in Kerkemeyer. Golden Valley followed cases from other states. Milwaukee v. Wisconsin Employment Relations Comm'n, 168 N.W.2d 809, 812 (Wis. 1969); Connecticut State Bd. of Labor Relations v. Greenwich Taxi Co., 200 A.2d 712, 714 (Conn. 1964). Some courts use an "economic realities" test. Devine v. Stone, Leyton & Gershman, P.C., 100 F.3d 78, 80-81 (8th Cir. 1996) (summary judgment affirmed, holding that shareholders of law firm were not shown to be "employees"); EEOC v. Dowd & Dowd Ltd., 736 F.2d 1177 (7th Cir. 1984) (attorney shareholders in professional corporation were not "employees"); Fountain v. Metcalf, Zima & Co., 925 F.2d 1398 (11th Cir. 1991) (31% shareholder of accounting firm was not "employee"). The Ninth Circuit ruled that physician shareholders of a professional corporation could be counted toward the 15 employee requirement for coverage under the Americans With Disabilities Act, but the Supreme Court granted certiorari. See Wells v. Clackamas Gastroenterology Assocs., 271 F.3d 903 (9th Cir. 2001), cert. granted, October 1, 2002.

³⁷ It is suggested by the author that anyone with less than 20% ownership in a corporation or partnership may not meet the "ownership" test. However, argument could be made for ownership for anyone who has 10% ownership interest or more.        

³⁸ 942 P.2d 1054 (Wash. App. 1997). See also IBEW Local Union 46 v. Trig Elec. Constr. Co, 13 P.3d 622 (2001).

³⁹ Some fringe benefit funds have attempted to collect from the general contractor or its surety fringe benefit amounts due from the subcontractor under its collective bargaining agreement, in amounts that exceed the fringe benefit portion of the prevailing wage determination. ERISA preemption should prevent such claims. Puget Sound Elect. Workers Health and Welfare Trust Fund v. Merit Co., 870 P.2d 960 (1994); Construction & General Laborers' Dist. Council v. James McHugh Constr. Co., 596 N.E.2d 19 (Ill. App. 1992), app. den. 602 N.E.2d 449 (Ill. 1992).

⁴⁰ 29 U.S.C. §§ 1001, et seq.

⁴¹ 65 Fed. Reg. 70246 (Nov. 21, 2000).

⁴² Calif. Div. of Labor Standards Enforcement v. Dillingham Constr. Co., 519 U.S. 316 (1997). Although the court noted that to comply with 29 U.S.C. § 185(c)(6) contributions toward the expenses of an apprenticeship program of which the union has some control is required to be jointly administered by the union and employers and contributions paid only to a trust equally controlled by the union and employers, and therefore is an ERISA plan, not all apprenticeship programs referred to by the California Prevailing Wage Law were required to be partly controlled by the union. An apprenticeship program or benefit plan not funded through a separate fund is not an ERISA plan. Massachusetts v. Morash, 490 U.S. 107 (1989) (vacation benefits paid from the general assets of the employer rather than from a separate fund are not regulated by ERISA). Since the California Prevailing Wage Law allows the lower pay for apprentices who are in a federally approved program, which may or may not be one regulated by ERISA, the state law is not preempted just because some apprenticeship plans may be ERISA plans. See also Willmar Electric Service, Inc. v. Cooke, 212 F.3d 533 (10th Cir. 2000), which states that Dillingham abrogated the preemption ruling in Boise Cascade Corp. v. Peterson, 939 F.2d 632 (8th Cir.1991). See also Minn.Chapter of Associated Builders and Contractors v. Minnesota Dep't Labor and Indus., 47 F.3d 975 (8th Cir. 1995).

⁴³ Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). See also FMC Corp v. Holliday, 498 U.S. 52 (1990); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981); New York State Conference of Blue Cross and Blue Shield Plans v. Travelers' Ins. Co., 514 U.S. 645, 658 (1995).

⁴⁴ Hampers v. W.R. Grace & Co., 202 F.3d 44 (1st Cir. 2000). The ERISA plan there was a supplemental retirement plan. ERISA should be equally preemptive if the company is sued for failing to register an employee in a joint apprenticeship program that is also an ERISA plan.

⁴⁵ Elfstrom v. New York Life Ins. Co., 432 P.2d 731 (Cal. 1967).

⁴⁶ Amos v. Blue Cross-Blue Shield of Ala., 868 F.2d 430 (11th Cir. 1989).

⁴⁷ Easa v. Florists' Transworld Delivery Ass'n, 963 F. Supp. 624 (E.D. Mich. 1997). That is true regardless of whether the claim is for breach of contract, negligence, unfair trade practices, tortious interference, fraud or fraudulent concealment, or otherwise. McMahon v. Digital Equip. Corp, 162 F.3d 28 (1st Cir. 1998); Shea v. Esensten, 107 F.3d 625 (8th Cir. 1997). See also Shea v. Esensten, 208 F.3d 712 (8th Cir. 2000).

⁴⁸ 29 U.S.C. § 1144(d) (2000).

⁴⁹ Ekleco v. Iron Workers Locals 40, 361 and 417, 170 F.3d 353 (2d Cir. 1999) (also ruling the part of lien securing union dues rather than employee benefits was invalid, and portion securing vacation benefits was invalid).

⁵⁰ IBEW Local 46 v. Trig Elec. Constr. Co., 13 P.3d 622 (Wash. 2001), cert. den., 124 S. Ct. 1672 (2001).

⁵¹ Williams v. Ashland Engineering Co., 45 F.3d 588 (1st Cir. 1995) (found ERISA preemption), abrogated by Carpenters Local Union No. 26 v. U.S. Fidelity and Guaranty Co., 215 F.3d 136 (1st Cir. 2000), as recognized in Trustees of the ALA-Lithographic Pension Plan v. Crestwood Printing Corp., 127 F. Supp.2d 475 (S.D.N.Y. 2001); Trustees of Electrical Workers' Health and Welfare Fund v. Marjoe Corp., 988 F.2d 865 (9th Cir. 1992) (found preemption), abrogated by Southern California IBEW-NECA Trust Funds v. Standard Indus. Elec. Co., 247 F.3d 920 (9th Cir. 2001); United Wire, Metal and Machine Health and Welfare Fund v. Morristown Memorial Hosp., 995 F.2d 1179 (3d Cir. 1993) (no preemption). See also Board of Trustees of Operating Engineers Local 825 Fund Service Facilities v. L.B.S. Constr. Co., 691 A.2d 339 (N.J. 1997) (holding ERISA did not preempt action by union trust funds against surety under New Jersey Public Works Bond Act); Trustees for Michigan Laborers' Health Care Fund v. Seaboard Surety Co., 137 F.3d 427 (6th Cir. 1998) (holding Michigan Public Works Act is a statute of general applicability and does not relate to or have connection with an ERISA plan, and that the trustees were not claimants as defined in the act); Carpenters Local Union No. 26 v. U.S. Fidelity and Guaranty Co., 215 F.3d 136 (1st Cir. 2000) (no preemption).

⁵² 64 F.3d 497 (9th Cir. 1995), aff'd. Associated Builders and Contractors v. Baca, 769 F. Supp. 1537 (N.D. Cal. 1991).

⁵³ Bragdon, 64 F.3d at 500, quoting Machinists' v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 140 (1976). The issue confronted in Machinists' was a state judgment enforcing a cease and desist order that prevented workers from exerting a concerted peaceful refusal to work overtime as a form of economic pressure in furtherance of their demands. That statute was ruled preempted as an impermissible regulation of workers' economic weapons used to influence the substantive terms of collective bargaining contracts.

Moreover, Bragdon states that Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985), made clear that state laws are supplanted only when otherwise the accomplishment of the purposes of the federal law would be interfered with. If the state law establishes a minimal standard not inconsistent with the general goals of the NLRA, there would be no preemption. Metropolitan Life, 471 U.S. at 756-57. Thus, severance pay requirements imposed by state law are not preempted. Fort Halifax Packing Co. v. Coyne, 481 U.S. 1, 20-22 (1987). Metropolitan Life and Fort Halifax mean that no incompatibility exists between the federal rules designed to restore equality of bargaining power and state or federal legislation that imposes minimal substantive requirements on contract terms negotiated between the parties, "at least so long as the purpose of the state legislation is not incompatible with these general goals of the NLRA." Metropolitan Life, 471 U.S. at 754-55; Bragdon, 64 F.3d at 501.

⁵⁴ Bragdon, 64 F.3d at 501, citing Machinists' at 427 U.S. p. 147; Golden State Transit Corp. v. Los Angeles, 475 U.S. 608 (1986).

⁵⁵ Bragdon, 64 F.3d at 501, citing Barnes v. Stone Container Corp., 942 F.2d 689, 693 (9th Cir. 1991); Bechtel Construction v. United Brotherhood of Carpenters, 812 F.2d 1220 (9th Cir. 1987).

⁵⁶ Bragdon, 64 F.3d at 501.

⁵⁷ Bragdon, 64 F.3d at 501-502.

⁵⁸ Associated Builders and Contractors v. Baca, 769 F. Supp. at 1545, quoting National Solid Wastes Mgmt. Ass'n v. Killian, 918 F.2d 671, 688 (7th Cir. 1990), aff'd. 505 U.S. 88 (1992).

⁵⁹ Washington Serv. Contractors' Coalition v. District of Columbia, 858 F. Supp. 1219 (D.C. Cir. 1994).

⁶⁰ United Steelworkers of America v. St. Gabriel's Hospital, 871 F. Supp. 335 (D. Minn. 1994).

⁶¹ Wisconsin Dep't of Industry, Labor and Human Relations v. Gould, 475 U.S. 282 (1986).

⁶² Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40 (1st Cir. 1997). See also Associated Builders and Contractors v. City of Providence, 108 F. Supp.2d 73 (D.R.I. 2000), which ruled that a city ordinance that gave a developer property tax abatement was preempted by the NLRA because of the unlawful conditions imposed on developer, requiring developer to execute and abide by a Project Labor Agreement (PLA) with AFL-CIO building trades unions prohibiting non-union contractors from working on the project. The court relied on Golden State Transit Corp. v. Los Angeles, 475 U.S. 608 (1986), which ruled that the city's refusal to renew the taxi cab franchise until the company reached agreement with the unions was preempted by the NLRA.

⁶³ William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12 (1974); Smith v. Evening News Ass'n, 371 U.S. 195 (1962).

⁶⁴ Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). This means the lawsuit may be brought in either state or federal court. See note 60.

⁶⁵ Clayton v. International Union, United Automobile, Aerospace & Agricultural Implement Workers, 451 U.S. 679, 686-89 (1981); Republic Steel v. Maddox, 379 U.S. 650, 652-53 (1965); Rainey v. Missouri Utilities Co., 596 F.2d 310 (8th Cir. 1979).

⁶⁶ 29 U.S.C. § 173(d); Republic Steel, 379 U.S. at 652-53; Gateway Coal Co. v. United Mine Workers, 414 U.S. 368 (1974); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).

⁶⁷ Robbins v. Prosser's Moving & Storage Co., 700 F.2d 433 (8th Cir. 1983), aff'd 466 U.S. 364 (1984).

⁶⁸ Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965); Painters Dist. Council No. 2 v. Tiger Stripers, Inc., 582 F. Supp. 860 (E.D. Mo. 1984).

⁶⁹ Bell v. Gas Service Co., 778 F.2d 512 (8th Cir. 1985).

⁷⁰ Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495 (7th Cir. 1996).

⁷¹ Evans v. Einhorn, 855 F.2d 1245 (7th Cir. 1988).

⁷² S.R. Industries Corp. v. Ironworkers' Local 473, 1987 W.L. 17818 (N.D. Ill. 1987).

⁷³ Antol v. Esposto, 100 F.3d 1111 (3d Cir. 1996).

⁷⁴ Welch v. General Motors Corp., 922 F.2d 287 (6th Cir. 1990) (holding the claim against the union was preempted but the claim against the employer was not).

⁷⁵ Bailey v. Beaver Precision Products, Inc., 678 F. Supp. 684 (E.D. Mich. 1988).

⁷⁶ Local 921 of Chicago and Central States Joint Board v. Estate of Schmidt, 684 F. Supp. 601 (W.D. Wis. 1988).        

⁷⁷ Carpenters Southern California Admin. Corp. v. Majestic Housing, 743 F.2d 1341 (9th Cir. 1984).

⁷⁸ Associated Builders and Contractors, Inc. v. Local 302 IBEW, 109 F.3d 1353 (9th Cir. 1997).

⁷⁹ Antol v. Esposto, 100 F.3d 1111 (3d Cir. 1996); Atchley v. Heritage Cable Vision Ass'n, 101 F.3d 495 (7th Cir. 1996), Fardy v. Physicians Health Rehabilitation Services, Inc., 529 N.E. 2d 879, 881 (Ind. App. 1988).

⁸⁰ 655 N.Y.S.2d 285 (N.Y. Sup. Ct. 1997).

⁸¹ The great weight of authority indicates the Davis-Bacon Act does not confer rights directly on employees. Weber v. Heat Control Co., 728 F.2d 599, 600 (3d Cir. 1984), affirming 579 F. Supp. 346 (D.N.J. 1982).

⁸² Stampco Constr. Co. v. Guffey, 572 N.E.2d 510 (Ind. App. 1991) (also holding that the employees could sue under federal statute, contrary to the majority view).

⁸³ See concluding comment of Orval E. Jones, A Primer on Prevailing Wage Law in Missouri, 51 J. Mo. Bar 346 (1995).