Inland Pacific Chapter of Associated Builders and Contractors v. Dear
| Decision Date | 23 February 1996 |
| Docket Number | Nos. 93-35568,93-35602,s. 93-35568 |
| Citation | 78 F.3d 593 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. INLAND PACIFIC CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, a Non-profit Washington Corporation; Rainbow Electric, Inc., a Washington Corporation; et al., Plaintiffs-Appellees, v. Joseph A. DEAR, Director; Department of Labor and Industries of the State of Washington; the Washington State Apprenticeship and Training Council; State of Washington; Defendants, and Washington State Building and Construction Trades Council; Spokane Area Electrical Joint Apprenticeship and Training Committee; Inland Empire Plumber, Steamfitter, Refrigeration Fitter Joint Apprenticeship Training Committee; Washington State Association of Electrical Workers; Washington State Association of Plumbers and Pipefitters, Intervenors-Appellants. INLAND PACIFIC CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, a Non-profit Washington Corporation; Rainbow Electric, Inc., a Washington Corporation; et al., Plaintiffs-Appellants, v. WASHINGTON STATE BUILDING AND CONSTRUCTION TRADES COUNCIL; Spokane Area Electrical Joint Apprenticeship and Training Committee; Inland Empire Plumber, Steamfitter, Refrigeration Fitter Joint Apprenticeship Training Committee; Washington State Association of Electrical Workers; Washington State Association of Plumbers and Pipefitters, Intervenors-Appellees, and Joseph A. Dear, Director; Department of Labor and Industries of the State of Washington; the Washington State Apprenticeship and Training Council; State of Washington, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeals from the United States District Court, for the Eastern District of Washington, D.C. No. CV-92-00354-JLQ; Justin L. Quackenbush, District Judge, Presiding.
Before: ALARCON, BEEZER and KLEINFELD, Circuit Judges.
Plaintiffs are contractors and an apprenticeship program they operate. They sought injunctive and other relief, because the State of Washington refused to register their apprenticeship program. Intervenors are unions and an apprenticeship program the unions operate, which oppose the relief sought by plaintiffs. Plaintiffs contended that some of the state's apprenticeship program registration requirements were preempted by ERISA. The district court issued a preliminary injunction, granting in part and denying in part the relief sought. Although a "Judgment in a Civil Case" was signed, it does not purport to be a permanent injunction or to grant any permanent relief. The district court then entered an "order to close file" reciting that a preliminary injunction had been granted, and closed the file until we ruled on the appeal. The purpose of this procedure appears to have been to stay proceedings in district court until this appeal determined the merits of the preliminary injunction.
The contractors have appealed the district court determination, to the extent it denied relief they sought. The unions have appealed, to the extent that the district court granted relief to the contractors. The State of Washington has not appealed, but has filed a brief in opposition to the contractors' appeal.
We deferred submission of this case, pending decision in Dillingham Construction Co. v. County of Sonoma, 57 F.3d 712 (9th Cir.1995) petition for cert. filed, 64 U.S.L.W. 3380 (U.S. Nov. 16, 1995) (No. 95-789). That case has now come down, as well as another, controlling on several issues left open in that case. ABC National Line Erection Apprenticeship Training Trust v. Aubry, 68 F.3d 343 (9th Cir.1995). We have now decided another Washington apprenticeship program ERISA preemption case, Inland Empire v. Dear, No. 93-36022 (9th Cir. February 21, 1996), which controls on many of the issues in the case at bar.
The State of Washington argues that the contractors lack standing and ripeness, because they had not applied for state approval since 1986. Standing and ripeness are established in favor of the contractors, pursuant to our decision in Inland Empire.
The contractors argue that the unions lack standing, because they have no direct interest in the state regulations at issue. The practical interest of the unions is that they operate the state approved apprenticeship program, with which the contractors' program would compete. Also, the state regulations protect union labor from bids at below the "prevailing rate" based on apprentice labor from the contractors' program. See Inland Empire.
The contractors point out that a Sixth Circuit case, Associated Builders & Contractors v. Perry, 16 F.3d 688 (6th Cir.1994), dismissed an appeal because the intervenor-appellants lacked independent standing after the state defendant had failed to appeal on its own behalf. But we decided in Didrickson v. U.S. Dep't of Interior, 982 F.2d 1332 (9th Cir.1992), that advocacy groups who favored a regulation could support a regulation on appeal, even though the government agency issuing the regulations did not.
Under Didrickson, the unions have standing. The unions argue that under the challenged regulations, there can be only one apprenticeship program in a geographic area, which is in fact theirs, and the preliminary injunction will allow more programs, and force their workers to compete on public works jobs with apprentices from contractors' programs paid less than the "prevailing wage." This economic interest in avoiding increased competition...
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