statutory scheme, section 1771 is a general-application prevailing wage law not preempted by ERISA. Section 1777.5 authorizes a limited and carefully-regulated exemption to section 1771. This exemption is saved from preemption only by ERISA's savings clause and the federal Fitzgerald Act. Those portions of section 1777.5 not saved by the Fitzgerald Act are preempted. As these cases are presented to the Court, Calhoon's logic is not implicated. To conclude otherwise would mean that, to prevent the state from enforcing its general-application prevailing wage law for state public works, a contractor need only assert enrollment in employer- or employee organization-sponsored program calling itself an "apprenticeship or other training program," regardless of standards, qualifications, or other criteria. This result would vitiate, without any discernable legislative intent or purpose, the state's traditional power to regulate wages and to establish and enforce other labor standards.
Based on the foregoing analysis, the plaintiffs have identified no appliable state statute bearing on their training programs that is preempted by ERISA.
C. Fitzgerald Act Preemption
The plaintiffs' assertion that the Fitzgerald Act preempts California's apprenticeship program approval scheme is without merit. As the Ninth Circuit recently stated in MacDonald, "the contention that the Fitzgerald Act itself preempts state regulation has been foreclosed by our decision in Siuslaw Concrete Constr. Co. v. Washington Dep't of Transp., 784 F.2d 952, 956-58 (9th Cir. 1986)."
The Fitzgerald Act empowers the Secretary of Labor to take a variety of actions in relation to apprentices and apprenticeship programs, including
to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, [and] to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship. . .
29 U.S.C. § 50. The Fitzgerald Act contains no preemption clause. The Fitzgerald Act regulations similarly contemplate an independent role for the states in developing apprenticeship standards. Nothing in those regulations appears to require states to adopt standards, policies and procedures identical to the federal criteria. On the contrary, they appear to give states latitude within the framework of the Fitzgerald Act regulations. 29 C.F.R. section 29.12(b) sets forth "basic" requirements. 29 U.S.C. section 29.12(a)(5) requires states to submit, with their applications for authorization, "a description of policies and operating procedures which depart from or impose requirements in addition to those prescribed in [the federal regulations.]."
In Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713, 85 L. Ed. 2d 714 , 105 S. Ct. 2371 (1985), the United States Supreme Court articulated the standard for inferring congressional intent to preempt state laws
In the absence of express pre-emptive language, Congress' intent to pre-empt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. . . . Pre-emption of a whole field also will be inferred where the field is one in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state law on the same subject."
As the Ninth Circuit observed in Siuslaw Concrete Constr. Co. v. Washington Dep't of Transp., 784 F.2d 952 (9th Cir. 1986), wages and other working conditions of apprentices fall within the scope of the state's traditional police powers, and state statutes are presumed valid absent a clear congressional intent to preempt this area. Id. at 958, citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985).
Here, congressional intent to occupy the field of apprenticeship standards is absent, and the federal interest, far from being dominant, operates as a supplement to the state's traditional police powers over apprentices' wages and working conditions.
Further, in light of the Court's holding that Davis-Bacon Act training programs are not legally equivalent to Fitzgerald Act apprenticeship programs, the plaintiffs' argument regarding Fitzgerald Act preemption would, in any event, be unavailing.
D. NLRA Preemption
Both plaintiffs seek to challenge California's apprenticeship program approval scheme on grounds that California Labor Code section 1777.5 violates -- and is preempted by -- section 8 of the NLRA, 19 U.S.C. § 158, by allegedly requiring contractors wishing to employ apprentices to affiliate with organized labor. They specifically attack the portion of section 1777.5 that states
when the contractor to whom the contract is awarded by the state . . . , in performing any of the work under the contract or subcontract, employs workers in any apprenticeable craft or trade, the contractor and subcontractor shall apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade in the area of the site of the public work for a certificate approving the contractor . . . under the apprenticeship standards for the employment and training of apprentices in the area or industry affected.
The same provision contains consistent references to "joint apprenticeship committees" throughout.
Labor Code section 3075 states that apprenticeship program sponsors may be "joint apprenticeship committee[s], unilateral management or labor committee[s], or . . . individual employer[s]." see also tit. 8 Cal. Code Regs. § 205(g) (same). These provisions find their counterpart in the Fitzgerald Act regulations at 29 C.F.R. section 29.2(i):
Apprenticeship committee shall mean those persons designated by the sponsor to act for it in the administration of the program. A committee may be joint, i.e., it is composed of an equal number of representative of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s) and has been established to conduct, operate, or administer an apprenticeship program and enter into apprenticeship agreements with apprentices. A committee may be unilateral or non-joint and shall mean a program sponsor in which a bona fide collective bargaining agent is not a participant.
(emphasis in original).
The Court finds that neither plaintiff has standing to challenge section 1777.5 on the grounds asserted. To assert standing, a plaintiff must have "personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, that can be fairly traced to the defendant's challenged conduct and which is likely to be redressed by a favorable decision." La Duke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985), modified, 796 F.2d 309 (9th Cir. 1986), citing, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700 , 102 S. Ct. 752 (1982).
The challenged portions of section 1777.5 apply to a procedure entirely separate and distinct from the process of securing CAC approval of a proposed apprenticeship program: the process by which a contractor whose bid on a state public works project has been accepted applies to established apprenticeship committees for approval of its proposed use of apprentices. Labor Code section 3075, cited above, and its parallel regulation clearly authorize the state to approve apprenticeship programs sponsored by "joint apprenticeship committees," by unilateral (management-only or labor-only) committees or by single employers. Hypothetically, a sponsor of an approved non-joint apprenticeship program might have standing to challenge the portions of section 1777.5 at issue if it found that successful bidders were somehow inhibited from employing its apprentices because of the language of section 1777.5.
Here, neither plaintiff has ever had a state-approved non-joint apprenticeship program; therefore, neither plaintiff can assert that it has been injured by the challenged portions of section 1777.5.
ABC, indeed, has never completed the process of applying for state certification. The CAC found Walther Electric's application deficient as a "joint" program on a number of grounds. Nothing in the CAC's decision foreclosed Walther Electric from seeking approval of its program as a unilateral or single-employer program. The CAC's action in no way gives Walther Electric standing to challenge the provisions of section 1777.5 at issue.
E. Fourteenth Amendment Equal Protection
As their final argument, the plaintiffs assert that the equal protection clause of the Fourteenth Amendment prohibits California from enforcing its prevailing wage law against Davis-Bacon Act training programs, while providing an exemption from that law for state-approved apprenticeship programs.
Because the alleged discrimination against federally-approved training programs and/or trainees implicates neither a fundamental right nor a protected class, the Court must uphold the challenged legislative classification so long as it bears a "rational relation to a legitimate state interest." Harris v. McRae, 448 U.S. 297, 65 L. Ed. 2d 784 , 100 S. Ct. 2671 (1980).
The state's interest here is two-fold: first, enforcing its prevailing wage law and limiting exemptions to programs meeting clearly-enforceable requirements; second, insuring the integrity of apprenticeship programs and protecting both apprentices and the public by setting and enforcing standards for such programs for apprentices employed on state public works projects.
As the Court has already noted, Davis-Bacon Act training programs are not equivalent to Fitzgerald Act apprenticeship programs. The Davis-Bacon Act regulations define the two separately and lack, inter alia, standards for approving training programs, minimum training requirements and criteria for selecting trainees, all elements the Fitzgerald Act regulations and the corresponding California regulations contain. By subjecting Davis-Bacon Act training programs to the same approval requirements as state-approved apprenticeship programs, the state is taking reasonable measures to enforce its interests relating to wages and apprenticeship standards.
The equal protection challenge is without merit.
The Court concludes that, based on the record before it, the plaintiffs' challenges to the state's approval requirements for apprenticeship programs and to enforcement of the state's prevailing wage law against Davis-Bacon Act training programs are either meritless or may not be maintained by these plaintiffs.
A training program is not an apprenticeship program. Plaintiffs seek to obtain the benefits of apprenticeship program approval without bearing the burden of developing programs that meet the federal-state Fitzgerald Act standards and complying with the application process for obtaining approval. If plaintiffs wish to reap the benefits of apprenticeship program approval, nothing bars them from seeking and obtaining such approval in the same manner as any other program proponent.
In view of the absence of contested issues of fact, and all legal issues presented on these motions having been resolved in favor of the defendants, the Court finds the defendants entitled to summary judgment in these actions.
DATED: July 14, 1992
FERN M. SMITH
United States District Judge
JUDGMENT - July 15, 1992, Filed
For the reasons stated in the Court's Order Granting Summary Judgment In Favor Of Defendants, entered on this date, judgment shall be entered in favor of the defendants and against the plaintiffs. The Clerk is directed to close the file.
DATED: July 14, 1992
FERN M. SMITH
United States District Judge