Associated Builders Contractors v. Curry

Full title: ASSOCIATED BUILDERS AND CONTRACTORS, INC., GOLDEN GATE CHAPTER; GOLDEN…

Court: United States Court of Appeals, Ninth Circuit

Date published: Oct 16, 1995

68 F.3d 342 (9th Cir. 1995)

Opinion

No. 92-16308, 92-16276.

Argued and Submitted September 14, 1995 — San Francisco, California

Decided October 16, 1995.

Mark R. Thierman, John W. Prager, Jr., George P. Parisotto, Thierman Law Firm, San Francisco, California, for the plaintiffs-appellants.

H. Thomas Cadell, Jr., Chief Counsel, Division of Labor Standards Enforcement, Department of Industrial Relations, San Francisco, California, for defendant-appellee James Curry.

John M. Rea, Chief Counsel, James D. Fisher, Department of Industrial Relations, San Francisco, California, for defendant-appellee Ronald T. Rinaldi.

Victor Van Bourg, Blythe Mickelson, Van Bourg, Weinberg, Roger Rosenfeld, Oakland, California, Lawrence H. Kay, Stanton, Kay Weston, Sacramento, California, for the intervenors-appellees.

Appeals from the United States District Court for the Northern District of California. Fern M. Smith, District Judge, Presiding

D.C. No. CV-90-3597-FMS

Before: ROBERT R. BEEZER and DAVID R. THOMPSON, Circuit Judges, and DAVID ALAN EZRA, District Judge.^_

_ Honorable David Alan Erza, United States District Judge for the District of Hawaii, sitting by designation.

EZRA, District Judge:Page 343

Appellants administer trainee programs approved by the Department of Labor's Bureau of Apprenticeship Training for Davis-Bacon Act public works projects. They sought and were denied approval for California public works projects by the California Apprenticeship Council. The district court held that the operation of California's prevailing wage statute, California Labor Code § 1720 et seq., to allow the payment of lower apprentice wages to only California approved programs did not violate the preemption clause of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1144(a). Associated Builders and Contractors v. Curry, 797 F. Supp. 1528 (N.D. Cal. 1992).

[1] After the district court's decision, we held in Dillingham Constr. N.A., Inc. v. County of Sonoma that ERISA preempts the enforcement of California's prevailing wage law against apprenticeship programs that have not received state approval. 57 F.3d 712, 719 (9th Cir. 1995). Dillingham prevents the application of California's prevailing wage law to discriminate between programs on the basis of state approval. Id.

[2] For this reason, we VACATE the decision of the district court and REMAND for consideration in light of Dillingham, as well as the Supreme Court's recent decision in New York Conf. of Blue Cross v. Travelers Ins. Co., ___ U.S. ___, 115 S.Ct. 1671 (1995). While Appellees argued that this case became moot when the subject programs received approval from California, Appellants disputed that all programs had received approval. The district court should therefore also consider whether any change in circumstances has rendered the matter moot.

The district court may also wish to reconsider whether the appellants' trainee programs are the functional equivalent of apprenticeship programs, an issue we do not reach in this opinion.

VACATED and REMANDED.