Dillingham Conctruction v. County of Sonoma

Decision Date09 September 1999
Docket NumberNo. 92-15247,92-15247
Citation190 F.3d 1034
Parties(9th Cir. 1999) DILLINGHAM CONSTRUCTION N.A., INC., a California Corporation; MANUEL J. ARCEO, dba SOUND SYSTEMS MEDIA, Plaintiffs-Appellants, v. COUNTY OF SONOMA; DIVISION OF LABOR STANDARDS ENFORCEMENT; DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF APPRENTICESHIP STANDARDS, et al., Defendants-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted]

On Remand from the United States Supreme Court. D.C. No. CV-90-01272-FMS

Before: William C. Canby, Jr. and Melvin Brunetti, Circuit Judges, and Robert E. Jones,1 District Judge.

BRUNETTI, Circuit Judge:

I. BACKGROUND

This case has raised the issue of whether the Employee Retirement Income Security Act ("ERISA") or the National Labor Relations Act ("NLRA") preempts the application of a state prevailing wage law that requires the payment of prevailing wages to employees in apprenticeship programs that have not received state approval but allows the payment of lower apprenticeship wages to employees participating in state approved apprenticeship programs. The district court held that neither ERISA nor the NLRA preempts the apprentice prevailing wage law. See Dillingham Constr. N.A., Inc. v. County of Sonoma, 778 F. Supp. 1522 (N.D. Ca1. 1991). This court reversed the district court, held that ERISA preempted the apprenticeship prevailing wage law, and declined to address the issue of whether the NLRA preempts the apprentice prevailing wage law. See Dillingham Constr. N.A., Inc. v. County of Sonoma, 57 F.3d 712 (9th Cir. 1995). The United States Supreme Court reversed this court's decision, held that ERISA did not preempt the apprentice prevailing wage law, and remanded this case to this court for further proceedings. See California Division of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 117 S. Ct. 832, 136 L.Ed.2d 791 (1997). This court must now determine whether the NLRA preempts the apprentice prevailing wage law. This court has jurisdiction to review the district court's order under 28 U.S.C. S 1291, concludes that the NLRA does not preempt the apprentice prevailing wage, and affirms the district court's order granting the State of California summary judgment.

II. FACTS

The facts of this case are not in dispute and need not be reported yet again because they have been reported on three previous occasions by the district court, this court, and the Supreme Court. See Dillingham Constr. N.A., Inc. , 778 F. Supp. at 1524-26; Dillingham Constr. N.A., Inc. , 57 F.3d at 715-17; California Division of Labor Standards Enforcement, 117 S. Ct. at 835-37.

III. DISCUSSION

A. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Hydrostorage Inc. v. Northern Cal. Boilermakers Local Joint Apprenticeship Comm., 891 F.2d 719, 726 (9th Cir. 1989), cert. denied, 498 U.S. 822 (1990). There are no disputed issues of material fact in this case so the only issue that remains is whether the district court correctly applied the relevant law. Id.

B. NLRA PREEMPTION

The NLRA does not contain a preemption provision, but the NLRA does preempt states from regulating activity that is protected and reserved for the free market or for the jurisdiction of the National Labor Relations Board ("NLRB"). Building & Construction Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 226-27 (1993). To protect activity that is reserved for NLRB jurisdiction, the NLRA preempts state regulations that purport to regulate conduct that is arguably protected by S 7 or arguably prohibited by S 8 of the NLRA. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959). To protect activity that is reserved for the free market, the NLRA preempts state laws and state causes of action that govern conduct which Congress intended to leave unregulated. Lodge 76, Int'l Assoc. of Machinists & Aerospace Workers, v. Wisconsin Employment Relations Comm'n , 427 U.S. 132, 141 (1976). The apprentice prevailing wage law at issue in this case does not fall under either preemption category and is not preempted by the NLRA.

1. State Regulation

We first address a threshold issue. The NLRA preempts the two categories of state regulation mentioned above, but does not preempt actions taken by a state when it is acts as a mere proprietor or market participant. Associated Builders & Contractors, 507 U.S. at 227; Wisconsin Dep't of Indus. v. Gould, Inc, 475 U.S. 282, 289-91. The Supreme Court has "held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor." Associated Builders & Contractors, 507 U.S. at 227; see also Gould, Inc., 475 U.S. at 289-90 ("Congress intended to allow States to interfere with the interrelated federal scheme of law, remedy, and administration under the NLRA as long as they did so through exercises of the spending power.") (quotations and citations omitted). The State of California argues that the apprentice prevailing wage law is immune from NLRA preemption because the apprentice prevailing wage law results from the State functioning as a mere proprietor or market participant rather than as a regulator. The State's argument is without merit.

The State did not merely create apprenticeship standards in its contract with Dillingham nor were the apprenticeship standards in this case created based upon unique needs that the detention facility project presented. The apprentice prevailing wage law applies uniformly to all public works contracts executed in the State of California and is a mechanism through which the State regulates apprenticeship programs and the employment of apprentices on public works projects. As this court has stated previously: "The state's involvement does not end with the awarding of the contract. Section 1777.5 is aimed at regulating contractors who work on public contracts." Hydrostorage, Inc. v. Northern California Boilermakes Local Joint Apprenticeship Comm., 891 F.2d 719, 730 (9th Cir. 1989).

Neither the Supreme Court's decision in Associated Builders & Contractors, 507 U.S. 218, nor this court's decision in Associated Builders & Contractors, Inc. v. City of Seward, 966 F.2d 492 (9th Cir. 1992), alters the conclusion that the State's apprentice prevailing wage law is state regulation. In Associated Builders & Contractors, the Supreme Court concluded that the state acted as a market participant when it required successful bidders to abide by a project labor agreement executed by the state and an exclusive bargaining agent. Associated Builders & Contractors, 507 U.S. at 232-33. The Court noted that the state "was attempting to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost . . . [and that] the challenged action . . . was specifically tailored to one particular job." Id. at 232. In City of Seward, this court determined that the state acted as a market participant when it required the winning bidder on a public works project to comply with a work preservation clause contained in the City's contract. City of Seward, 966 F.2d at 496-98. This court noted that the City of Seward "was not driven by regulatory concerns, but by legitimate management concerns that may lead any employer, public or private, to agree to a work preservation clause." Id. at 496.

In contrast to Associated Builders & Contractors and City of Seward and as noted above, the State in this case did not establish the apprentice prevailing wage law specifically for the detention facility project and the State was not motivated by management concerns when it adopted the apprentice prevailing wage law. The State's purpose in enacting and enforcing the apprentice prevailing wage law was to regulate apprenticeship programs and wages paid on public works projects. The apprentice prevailing wage law is state regulation and is subject to NLRA preemption if it falls under one of the two NLRA preemption doctrines.

2. Machinists/Free Market Preemption

Under the Machinists preemption doctrine, the NLRA preempts state laws and state causes of action that regulate activity Congress intended to leave unregulated. Lodge 76, Int'l Assoc. of Machinists & Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 141 (1976); Metropolitan Life Ins., 471 U.S. at 749. The Machinists preemption doctrine does not preempt a state law which "establishes a minimal employment standard not inconsistent with general legislative goals of the NLRA." Metropolitan Life Ins., 471 U.S. at 757; see also Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 19-20 (1987). "Federal labor law in this sense is interstitial, supplementing state law where compatible, and supplanting it only when it prevents the accomplishment of the purposes of the federal act." Metropolitan Life Ins., 471 U.S. at 756 (citing Hines v. Davidowitz, 312 U.S. 52, 67, n.20 (1941)). The apprentice prevailing wage law is not preempted by the Machinists doctrine because federal law contemplates and permits regulation of apprenticeship standards and because the apprentice prevailing wage law establishes nothing more than minimum labor standards.

Congress has not intended to leave the area of apprenticeship standards unregulated because federal law unequivocally permits regulation of apprenticeship standards. See Siuslaw Concrete Constr. v. Washington Dep't of Transp., 784 F.2d 952, 955-58 (9th Cir. 1986). Congress has specifically directed the Secretary of Labor to establish standards that will protect the welfare of apprentices and to cooperate with state agencies that formulate and promote apprenticeship standards. See National Apprenticeship Act, 29 U.S.C. S 50 et seq. Because federal law permits the regulation of apprenticeship standards, Machinists preemption does not apply to the apprentice prevailing wage law.

The...

To continue reading

Request your trial
25 cases
  • Chamber of Commerce of U.S. v. Lockyer, 03-55166.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 20, 2004
    ...not preempt actions taken by a state when it ... acts as a mere proprietor or market participant." Dillingham Constr. N.A., Inc. v. County of Sonoma, 190 F.3d 1034, 1037 (9th Cir.1999) (citing Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R......
  • Wadsworth v. KSL Grant Wailea Resort, Inc.
    • United States
    • U.S. District Court — District of Hawaii
    • December 10, 2010
    ...Moreover, a minimum protection statute may be targeted toward certain workers. In Dillingham Const. N.A., Inc. v. County of Sonoma, Division of Labor Standards, 190 F.3d 1034 (9th Cir.1999) the Ninth Circuit indicated that just because a statute may only be applicable to a particular indust......
  • Metropolitan Milwaukee Ass'n v. Milwaukee County
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • February 11, 2005
    ...labor,5 Chamber of Commerce of the United States v. Lockyer, 364 F.3d 1154, 1163 (9th Cir.2004); Dillingham Constr. N.A., Inc. v. County of Sonoma, 190 F.3d 1034, 1037-38 (9th Cir.1999); Associated Builders & Contractors, Inc. v. City of Seward, 966 F.2d 492, 496 (9th Cir.1992), they have d......
  • 520 South Michigan Ave. Associates v. Shannon
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 15, 2008
    ...at 5, 20, 107 S.Ct. 2211 (plant closing law that applied to layoffs with 100 or more employees not preempted); Dillingham v. Sonoma County, 190 F.3d 1034, 1041 (9th Cir.1999) (minimum standards that applied only to apprentices in skilled construction trades not preempted); Viceroy Gold Corp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT