Proposed intervenor State Building and Construction Trades Council of California has filed a motion to intervene as of right under Federal Rule of Civil Procedure 24(a), and in the alternative for permissive intervention under Rule 24(b). Plaintiffs oppose the motion and proposed intervenor has filed a reply.*fn1 The court heard brief oral argument on July 19, 2012, when Timothy Sandefur and Adam Pomeroy appeared for plaintiffs, and Rachel Zwillinger and Scott Kronland appeared for proposed intervenor. For the reasons set forth below, the motion to intervene as of right is GRANTED.
The Air Conditioning Trade Association is a group of contractors involved in the sheet metal and air conditioning trade, which is engaged in public advocacy. The ACTA Training Trust is a non-profit California corporation that operates apprenticeship programs. On January 18, 2012, the two entities (collectively "ACTA") filed a complaint for declaratory and injunctive relief, seeking a declaration that the "needs test" for the expansion of apprenticeship programs, as defined by California Labor Code section 3075, violates the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment. Complaint, ECF No. 2 ¶¶ 56-74, 86-90. They also seek a declaration that the regulations giving existing apprenticeship programs exclusive authority to object to the opening of new programs discriminates against plaintiffs in favor of existing programs. Id. ¶¶ 75-79; see 8 CAL. CODE REGS. § 212.2. In addition, plaintiffs allege that the statutes and regulations give the Chief of the Division of Apprenticeship Standards (DAS) unbridled discretion to convene a hearing to determine whether a proposed apprenticeship program meets the requirements of the Labor Code. Id. ¶¶ 80-83.
They name as defendants, all in their official capacity, Christine Baker, the Administrator of Apprenticeship for the California Apprenticeship Council; Diane Ravnik, the Chief of the DAS; Donna Bechthold, Jack Buckhorn, Les DenHerder, Julia Dozier, Carl Goff, Richard Harris, Aram Hodess, Kate Leyden, Wayne Lindholm, Pat McGinn, Yvonne de la Pena, Anne Quick, Neil Struthers, Van Ton-Quinlivan and Paul Richard Von Berg, all Commissioners of the California Apprenticeship Program (collectively "Commissioners").*fn2
ACTA alleges that it operates an apprenticeship program, offering both online and in person training in the labor market defined as Mariposa, Merced, Stanislaus and Tuolumne counties, but cannot recruit outside this area because DAS has not found there is a training need in an expanded craft and geographic area. ECF No. 2 ¶¶ 24, 28. ACTA has attempted to expand its labor market in California, but that request was denied under Labor Code section 3075. Id. ¶¶ 30, 37. As part of this process, several union groups filed objections to the application under Title 8 of the California Code of Regulations § 212.2.
Because apprentices may be employed on state-approved projects at special apprenticeship rates only if they are apprenticed under DAS-approved programs, the limitation on ACTA's labor market means its students who live outside its area may not work on state public works projects as a practical matter. In addition, the contractor members of ACTA who work on state public works projects may not pay ACTA apprentices the lower, apprentice wage rates on projects outside of Merced, Mariposa, Stanislaus and Tuolumne counties. Id. ¶¶ 44-46; see CAL. LABOR CODE § 1777.5(c).
On March 21, 2012, the State Building and Construction Trades Council of California, AFL-CIO (SBCTC), filed a motion to intervene as a defendant, arguing that it has met the requirements for intervention as of right or by permission. ECF No. 7. In its proposed answer, it identifies itself as a labor federation composed of approximately 131 local unions, sixteen district labor councils, and twenty two local building trades councils representing approximately 300,000 workers in the building and construction trades. Proposed Answer, ECF No. 9 ¶ 1. SBCTC's affiliates co-sponsor most of the state-approved apprenticeship programs in California and most of the apprentices enrolled in those programs. Id. ¶ 2. In addition, they comment on proposed apprenticeship programs under Title 8 of the California Code of Regulations § 212.2(g). Id. ¶ 3.
On April 9, 2012, the Commissioners filed an answer through their attorney, Jill Bowers, Deputy Attorney General; on the same date defendants Baker and Ravnik filed an answer by their attorney Fred Lonsdale, from the Legal Unit of the Department of Industrial Relations. ECF Nos. 14, 15. They also filed statements of non-opposition to SBCTC's motion to intervene. ECF Nos. 17, 23.
II. Intervention By Right
Rule 24(a) of the Federal Rules of Civil Procedure governs intervention by right; the rule provides in pertinent part:
On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
FED. R. CIV. P. 24(a)(2).
The Ninth Circuit has prescribed a four-part test for district courts to apply in determining whether intervention of right is proper under Rule 24(a): "(1) the application for intervention must be timely; (2) the applicant must have a 'significantly protectable' interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by the existing parties in the lawsuit." Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. ...