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Independent Training and Apprenticeship Program, A California v. California Department of Industrial

October 28, 2011

INDEPENDENT TRAINING AND APPRENTICESHIP PROGRAM, A CALIFORNIA CORPORATION, BRANDIN MOYER, AND HAROLD E. NUTTER, INC., A CALIFORNIA CORPORATION, PLAINTIFFS,
v.
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, AN AGENCY OF THE STATE OF CALIFORNIA, BY AND THROUGH CHRISTINE BAKER, IN HER OFFICIAL CAPACITY AS ACTING DIRECTOR OF THE CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF APPRENTICESHIP STANDARDS, BY AND THROUGH GLEN FORMAN, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF, DIVISION OF LABOR STANDARDS ENFORCEMENT, BY AND THROUGH JULIE SU, IN HER OFFICIAL CAPACITY AS LABOR COMMISSIONER, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

Zachary Smith (State Bar No. 78241) Charles L. Post (State Bar No. 160443) Wendy M. Thomas (State Bar No. 268695) weintraub genshlea chediak a law corporation 400 Capitol Mall, 11th Floor 4 Sacramento, CA 9581 (916) 558-6000 -- Main (916) 446-1611 -- Facsimile Attorneys for Plaintiffs

STIPULATION AND [PROPOSED] ORDER FOR ENTRY OF FINAL JUDGMENT

Complaint Filed - April 18, 2011

WHEREAS, plaintiffs Independent Training and Apprenticeship Program, a California Corporation, Brandin Moyer, and Harold E. Nutter, Inc., a California Corporation (collectively, "Plaintiffs") filed their complaint in this action on April 18, 2011 and Defendants California Department of Industrial Relations, by and through Christine Baker, in her official capacity as 1 Acting Director of the California Industrial Relations ("CDIR"), Division of Apprenticeship 2 Standards, by and through Glen Forman, in his official capacity as Acting Chief, Division of 3 Apprenticeship Standards ("DAS"), and Division of Labor Standards Enforcement, by and 4 through Julie Su, in her official capacity as Labor Commissioner ("DLSE") (collectively, 5 "Defendants") have appeared in this action through their respective attorneys. 6 WHEREAS, Plaintiffs complaint sought: 1) a declaration that Defendants‟ enforcement of 7 California Labor Code section 3075(b) in combination with California‟s prevailing wage law, 8 California Labor Code section 1775.5 (to the extent that Defendants purport to require public 9 works contractors to pay journeyman‟s prevailing wage rates to apprentices participating in apprenticeship programs certified by the U.S. Department of Labor but not approved or certified by DAS) is unauthorized, invalid, unlawful and unenforceable as such actions violate the Fitzgerald Act, the Civil Rights Act, and/or the U.S. Constitution; and 2) a preliminary injunction enjoining Defendants and their agents, employees, attorneys, representatives as well as all those persons acting in active concert or participation with them:

(a) From refusing to recognize and comply with the United State Department of Labor Administrative Review Board‟s "Final Decision and Order" of January 31, 2007 and the U.S. Department of Labor‟s March 2, 2007 public notice, pursuant to 29 CFR 29.13(d), that "[T]he CDIR and the CAC no longer have authority to register or oversee apprenticeship programs for "Federal purposes‟;" (72 F.R. 9590)

(b) From enforcing California Code of Regulations Section 16001 with respect to projects involving "any Federal financial or other assistance, benefit, privilege, contribution, allowance, exemption, preference or right pertaining to apprenticeship;"

(c) From enforcing California Labor Code Section 1777.5 with respect to apprentices from federally approved apprenticeship training programs working on public works projects with a Federal purpose;

(d) From refusing to enforce 29 CFR Part 29 with respect to what constitutes a "Federal purpose;"

(e) From refusing to acknowledge that Plaintiff I-TAP is an approved 1 apprenticeship program for all public works projects with a "Federal purpose" in California;

(f) From refusing to allow contractors to pay Plaintiff I-TAP‟s apprentices at apprentice prevailing wage rates rather than journeyman prevailing wage rates on public works projects in California with any Federal purpose;
(g) From refusing to allow Plaintiff I-TAP to receive fringe training contributions as an approved program on such projects. Further, Plaintiffs sought an order by preliminary Injunction:
(a)Directing Defendants to recognize Brandin Moyer and all other similarly situated electrical tradesmen enrolled in federally certified apprenticeship programs as "apprentices" entitled to all of the "assistance, benefits, privileges, contributions, allowances, exemptions, preferences and/or rights pertaining to apprenticeship" (29 C.F.R. § 29.2) on public works project in California that are accorded to "apprentices" in apprenticeship programs certified by DAS pursuant to the provisions of the California Labor Code;

(b) Directing Defendants to rescind the Civil Wage and Penalty Assessment issued in Case No. 40-26553/254 as against Plaintiff Harold E. Nutter, Inc.; and

(c) Directing Defendants to refrain from purporting to enforce any penalties, assessments or sanctions against Plaintiff Harold E. Nutter, Inc. or any other contractor on the grounds that apprentices participating in I-TAP‟s apprenticeship training program or any other federally certified program do not qualify for payment of apprentice prevailing wage rates pursuant to California Labor Code §1777.5.

WHEREAS, Plaintiffs filed a motion for preliminary injunction and Defendants opposed the motion;

WHEREAS, following the submission of briefs and evidence by the parties and oral argument on July 18, 2011, the Honorable Garland E. Burrell, Jr. of the United States District Court, issued an order denying Plaintiffs‟ motion for preliminary injunction;

WHEREAS, the issue at trial of whether Defendants‟ actions, policies and conduct pursuant to California Labor Code sections 3075(b), and other California prevailing wage laws including California Labor Code section 1775.5 are unauthorized, invalid, unlawful and 1 unenforceable as such actions violate the Fitzgerald Act, the Civil Rights Act and/or the U.S. 2 Constitution is identical to the issue set ...


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