68 F3d 342 Associated Builders and Contractors Inc v. Curry T & Walther Electric Company

68 F.3d 342

130 Lab.Cas. P 58,001, 2 Wage & Hour Cas.2d
(BNA) 1606,
95 Cal. Daily Op. Serv. 8088,
95 Daily Journal D.A.R. 13,915,
Pens. Plan Guide P 23916P

ASSOCIATED BUILDERS AND CONTRACTORS, INC., Golden Gate
Chapter; Golden Gate Chapter Associated Builders and
Contractors Training Trust Fund; Golden Gate Chapter of
Associated Builders and Contractors Bat Training Program,
Plaintiffs-Appellants,
v.
James CURRY and Ronald T. Rinaldi, in their official
capacities as Labor Commissioner of the State of California,
and Director of Industrial Relations for the State of
California, Defendants-Appellees,
and
Operating Engineers Joint Apprenticeship Committee;
Carpenters 46 Northern California Counties Joint
Apprenticeship and Training Committee; Northern California
Cement Masons Joint Apprenticeship and Training Committee;
California & Vicinity Field Iron Workers Joint
Apprenticeship Committee, Intervenors-Appellees.
WALTHER ELECTRIC COMPANY; Walther Electric Company Training
Committee, Plaintiffs-Appellants,
v.
James CURRY and Ronald T. Rinaldi, in their official
capacities as Labor Commissioner of the State of California,
and Director of Industrial Relations for the State of
California, Defendants-Appellees,
and
Operating Engineers Joint Apprenticeship Committee;
Carpenters 46 Northern California Counties Joint
Apprenticeship and Training Committee; Northern California
Cement Masons Joint Apprenticeship and Training Committee;
California & Vicinity Field Iron Workers Joint
Apprenticeship Committee, Intervenors-Appellees.

Nos. 92-16308, 92-16276.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Sept. 14, 1995.
Decided Oct. 16, 1995.

Mark R. Thierman, John W. Prager, Jr., and George P. Parisotto, Thierman Law Firm, San Francisco, California, for plaintiffs-appellants.

H. Thomas Cadell, Jr., Chief Counsel, Division of Labor Standards Enforcement, Department of Industrial Relations, San Francisco, California, for defendant-appellee James Curry.

John M. Rea, Chief Counsel, and James D. Fisher, Department of Industrial Relations, San Francisco, California, for defendant-appellee Ronald T. Rinaldi.

Victor Van Bourg, Blythe Mickelson, Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, California, and Lawrence H. Kay, Stanton, Kay & Weston, Sacramento, California, for the intervenors-appellees.

Appeals from the United States District Court for the Northern District of California.

Before: BEEZER and THOMPSON, Circuit Judges, and EZRA, District Judge.*

EZRA, District Judge:

Appellants administer trainee programs approved by the Department of Labor's Bureau of Apprenticeship Training for Davis-Bacon Act public works projects. They sought and were denied approval for California public works projects by the California Apprenticeship Council. The district court held that the operation of California's prevailing wage statute, California Labor Code Sec. 1720 et seq., to allow the payment of lower apprentice wages to only California approved programs did not violate the preemption clause of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Sec. 1144(a). Associated Builders and Contractors v. Curry, 797 F.Supp. 1528 (N.D.Cal.1992). Appellants appeal the district court's grant of summary judgment.

After the district court's decision, we held in Dillingham Constr. N.A., Inc. v. County of Sonoma that ERISA preempts the enforcement of California's prevailing wage law against apprenticeship programs that have not received state approval. 57 F.3d 712, 719 (9th Cir.1995). Dillingham prevents the application of California's prevailing wage law to discriminate between programs on the basis of state approval. Id.

For this reason, we VACATE the decision of the district court and REMAND for consideration in light of Dillingham, as well as the Supreme Court's recent decision in New York Conf. of Blue Cross v. Travelers Ins. Co., --- U.S. ----, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). While Appellees argued that this case became moot when the subject programs received approval from California, Appellants disputed that all programs had received approval. The district court should therefore also consider whether any change in circumstances has rendered the matter moot.

The district court may also wish to reconsider whether the appellants' trainee programs are the functional equivalent of apprenticeship programs, an issue we do not reach in this opinion.

VACATED and REMANDED.


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*

Honorable David Alan Ezra, United States District Judge for the District of Hawaii, sitting by designation