Amicus Curiae Brief — Lennes v. Boise Cascade Corp.

RS; s _ No. 91-707

> %&

3

& Pring In THE

= S Supreme Court of the United States

OCTOBER TERM, 1991

JOHN B. LENNES, JR., COMMISSIONER OF THE

DEPARTMENT OF LABOR AND INDUSTRY,

STATE OF MINNESOTA,

and

MINNESOTA MECHANICAL CONTRACTORS

ASSOCIATION, INC.,

rs Petitioners,

BOISE CASCADE CORPORATION, et al.,

= Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF AMICUS CURIAE

MECHANICAL CONTRACTORS ASSOCIATION OF

AMERICA IN SUPPORT OF PETITIONERS

JAMES M. KEFAUVER

SHULMAN, ROGERS, GANDAL,

Porpy & EcCKER, P.A.

11921 Rockville Pike

Suite 300

Rockville, MD 20852

(301) 230-5260

Counsel for Amicus Curiae

Mechanical Contractors

November 27, 1991 Association of America

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

2

IN THE

Supreme Cont of the United States

OCTOBER TERM, 1991

No. 91-707

JOHN B. LENNES, JR., COMMISSIONER OF THE

DEPARTMENT OF LABOR AND INDUSTRY,

STATE OF MINNESOTA,

and

MINNESOTA MECHANICAL CONTRACTORS

ASSOCIATION, INC.,

: Petitioners,

BoIsE CASCADE CORPORATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

OF MECHANICAL CONTRACTORS ASSOCIATION OF

AMERICA IN SUPPORT OF PETITIONERS

INTRODUCTION

The Mechanical Contractors Association of America

(“MCAA”) seeks leave to file a Brief Amicus Curiae in

support of the Petition for a Writ of Certiorari in this

proceeding.

MCAA has sought consent to file its brief from the

parties in this case. The Petitioners, John B. Lennes,

Jr., Commissioner of the Department of Labor and In-

dustry, State of Minnesota, and the Minnesota Mechanical

Contractors Association, Ine. have given their consent.

The Respondents, Boise Cascade Corporation, BE&K Con-

struction Company, Charles L. Lee, Releo Unisystems

Corporation, Forrest Dahmes, Mid-States Mechanical

Services, Inc., and Kristine Southard have not given

consent.

MCAA supports the position of the Petitioners in this

proceeding and asks that the Court grant certiorari and

reverse the decision of the Eighth Circuit.

MCAA’S INTEREST AS AMICUS

MCAA is a membership association comprised of more

than 1,300 mechanical contracting firms operating

throughout the United States. Its activities include pro-

viding top-level training programs for inexperienced

workers, in order to assure safety in the construction

industry. MCAA is also a joint sponsor, with labor or-

ganizations, of apprenticeship programs throughout the

country. Its intensive programs combine classroom train-

ing with on-the-job training.

MCAA has long been active in promoting job site

safety. Many years prior to the enactment of the Oc-

cupational Safety and Health Act (OSHA), 29 U.S.C.

$ 651 et seg., MCAA established a safety committee which

now provides its contractor members with current in-

formation on safety programs and regulations and on

other programs to promote job-site safety.

Many construction-related businesses in this country

are not affiliated with MCAA and do not follow its rigor-

ous safety standards. The actions of some contractors in

ignoring or minimizing work place safety have lead to

the enactment of federal and state regulations imposing

minimum safety requirements for the workplace. These

safety regulations are essential to prevent disastrous

accidents that occur all too frequently.”

The Minnesota regulation involved in this case, which

established job-site ratios between unlicensed and licensed

high pressure pipefitters, is an example of such safety

measures. The regulation seeks to maintain a sufficient

number of trained and licensed pipefitters at job sites for

adequate supervision and safety. Without such a require-

ment, employers would be free to use untrained, unli-

censed, and unsupervised employees to perform extremely

hazardous high pressure pipefitting work. Congress cer-

tainly did not contemplate that the preemption provision

of the Empleyee Income Retirement and Security Act

(ERISA), 29 U.S.C. § 1114, would erode the ability of

Minnesota or other states to enact measures directed to

workplace safety.

MCAA seeks to file a Brief Amicus Curiae in this

matter because it believes that the decision of the Eighth

Circuit would have a significant adverse effect on work-

place safety. As a joint sponsor and participant in

apprenticeship programs throughout the country, MCAA

is in a position to furnish the Court material information

about the effect of the Minnesota regulation on appren-

ticeship programs and job-site safety.

* A contemporary illustration of the high degree of hazard created

by industrial accidents occurred in Hamlet, North Carolina, in Sep-

tember, 1991. A fire at a chicken processing plant took the lives of

25 people and injured more than 40 others, as well as caused sub-

stantial property damage.

CONCLUSION

For the foregoing reasons, MCAA respectfully requests

the Court to grant leave for it to file a Brief Amicus

Curiae in this proceeding.

Respectfully submitted,

JAMES M. KEFAUVER

SHULMAN, ROGERS, GANDAL,

PorDY & ECKER, P.A.

11921 Rockville Pike

Suite 300

Rockville, MD 20852

(301) 230-5200

Counsel for Amicus Curiae

Mechanical Contractors

November 27, 1991 Association of America

TABLE OF CONTENTS

Page

TAREE OF AUTO oieccissvercccesecsecscecsssecieyeceseye ii

SUMMARY OF ARGUMENT ........0000000000. ce. |

BATE RIED oii ooo ccacsnsceencasavists talon ae 3

I. THE INTERESTS AND EXPERIENCE OF

PADRE Te TRI vc covscsiloiressnatee aan eda 3

II. REASONS FOR GRANTING CERTIORARL.. 3

A. Impact On Local Licensing aie 4

B. Intrusion On Federalism —......0000000000......... 6

C. Protecting Safety Measures FEC ands Rea 7

CONCLUSION said Caaler a lioeiah penta Coaag eidanaainiapec eee 8

ii

TABLE OF AUTHORITIES

CASES:

Aetna Life Insurance Co. v. Borges, 869 F.2d 142

(2d Cir.), cert. denied, 110 S. Ct. 57 (1989) ........

Allessi v. Raybestos-Manhattan, Inc., 451 U.S. 504

CG a vexcceees nigga eine

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

CRITI Onis cvsnasccvcosiechenssciaesneceaeteaedatsaneenn eee

Metropolitan Life Insurance Co. v. Massachusetts,

ge he: } ee eed So

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) .

Rebaldo v. Cuomo, 749 F.2d 133 (2d Cir. 1984),

cert. denied, 472 U.S. 1008 (1985) ......000...0000......

STATUTES:

Employee Retirement and Income Security Act

(ees, Be Ua. Bee ec

Fitzgerald Act, 29 U.S.C. § 50, et seq. ......0..00.........

MISCELLANEOUS:

National Safety Council, Accident Facts (1990

IBD ovssccincsemtnicnlinne nee CaaS Aer

Page

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~]

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-707

JOHN B, LENNES, JR., COMMISSIONER OF THE

DEPARTMENT OF LABOR AND INDUSTRY,

STATE OF MINNESOTA,

and

MINNESOTA MECHANICAL CONTRACTORS

ASSOCIATION, INC.,

Petitioners,

V.

BOISE CASCADE CORPORATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICUS CURIAE

MECHANICAL CONTRACTORS ASSOCIATION OF

AMERICA IN SUPPORT OF PETITIONERS

SUMMARY OF ARGUMENT

The -Mechanical Contractors Association of America

(“MCAA”) supports the position of the Petitioners

herein. MCAA respectfully submits this Amicus Brief and

requests that the Court grant certiorari and reverse the

ruling of the Eighth Circuit Court of Appeals.

2

The decision of the Court of Appeals, if allowed to

stand, may severely impede the efforts of the states to

assure safety in construction work. In this particular

case, the court’s decision precludes Minnesota’s require-

ment that a sufficient number of fully trained, expe-

rienced, and licensed workers be present at a job site, and

the decision threatens more broadly to impair state-

imposed safety requirements. MCAA, in furtherance of

its interests in promoting and protecting construction

safety, asks that the Court grant certiorari, re-examine

the decision of the Court of Appeals, and reverse the rul-

ing below.

MCAA is particularly concerned that the decision of

the Court of Appeals will preclude or substantially limit

state regulation of the licensing of persons engaged in

the construction trades, without compensating federal

regulation. The prohibition of this type of safety regu-

lation, and other regulations like it, inevitably will lead to

injury, death, and destruction of property from construc-

tion accidents. In addition, the decision of the Court of

Appeals permits an intrusion on interests traditionally

and prudently left to state regulation, contrary to prin-

ciples of federalism that this Court has established and

despite the absence of any Congressional intent, express or

implied, to preempt state safety regulations.

3

ARGUMENT

I. THE INTERESTS AND EXPERIENCE OF AMICUS

MCAA

The MCAA traces its beginning to 1889, when seventy

heating contractors from thirty-five cities and twenty

states formed the Master Steam and Hot Water Fitters

National Association. The orvanization is now comprised

of more than 1,300 mechanical contracting firms of al!

sizes across the country. Members of MCAA install me-

chanical systems in power plants, hospitals, factories, sky-

scrapers, and public buildings throughout the United

States.

MCAA is a joint sponsor of apprenticeship programs

throughout the country. Its rigorous programs combine

intensive classroom preparation with on-the-job training.

MCAA has a safety committee whose mandate is the

‘curtailment of the human and economic toll taken by

construction accidents. The safety committee provides

contractors with up-to-date information on safety pro-

grams and regulations and other instructional materials

to promote job-site safety.

II. REASONS FOR GRANTING CERTIORARI

The job-site ratio involved in this litigation was prop-

erly upheld by the trial court as “an occupational training

requirement enacted to protect public safety,” in the face

of a challenge under the preemption provision of the Em-

ployee Retirement and Income Security Act (ERISA), 29

U.S.C. § 1144. The holding by the Court of Appeals that

ERISA preempts the job-site ratio rule should be reviewed

by this Court for three reasons: (a! it would effectively

disable Minnesota (and other states) in the licensing of

construction-related workers; (b! it would disrupt the

proper balance between federal and state spheres of in-

terest; and (c) it could prevent states from enacting

+

measures to preserve public safety, thereby endangering

workers, the public, and property.

A. Impact on Local Licensing

The states customarily regulate and, in some cases,

restrict persens who perform certain phases of construc-

tion work. These regulations assume many forms. A

number of states (or local units of government) prescribe

minimum experience requirements. Some mandate that

examinations be passed in order to perform the work. A

few, like Minnesota, have established minimum job-site

requirements.

These regulations apply throughout the construction

industry. They affect not only pipefitters (often referred

to as steamfitters), but in various forms, they pertain as

well to electricians, plumbers and other persons involved

in the buildii.g trades. The measures are geared to assur-

ing that persons performing inherently dangerous work

are minimally competent to undertake it and that inex-

perienced workers are properly supervised. Without these

regulations, unqualified and inadequately supervised work-

ers could become engaged in hazardous tasks, endangering

not only themselves, but also co-workers and the public

at large.

The need for continuing comprehensive safety regula-

tion at the local level is quite apparent. In 1989, approxi-

mately 20 percent of accidental fatalities in the private

sector work force (consisting of & industry divisions)

occurred in the construction industry, even though con-

struction covered less than 6 percent of the total work

foree.' In 1988, the highest rate of incidence of occupa-

tional injury in terms of lost workdays, after that of the

mining industry, was experienced in the construction

industry.”

1 National Safety Council, Accident Facts 34 (1990 ed.).

2 Td. at 46-47.

5

The ruling below seriously erodes the ability of Minne-

sota, as well as other states and local units of government,

to regulate safety at construction sites. The argument

advanced by Respondents, and accepted by the Court of

Appeals, is that the imposition of a job-site ratio require-

ment for apprentices interferes with employee training

programs conducted by employers and, therefore, is pre-

empted by ERISA. The intrusion supposedly occurs be-

cause compliance with the 1:1 and 1:3 ratio requirements

adopted by Minnesota would somehow affect, or require

changes in, employers’ apprentice-training programs, each

of which, according to the Court of Appeals, constitutes

an “employee welfare benefit plan” under ERISA.

Under this rationale, the ERISA preemption provision

could be extended to other forms of state regulation. Re-

quirements that apprentices be supervised by licensed per-

sonnel, that they undergo a specified period of training

before being eligible for licensure, or that they pass an

examination as a condition for licensure could be vulner-

able to preemption by reason of the Court of Appeals’

holding below.

In particular, a state or other governmental unit could

be said to have affected an “employee welfare benefit

plan” by prescribing some form of supervision, by man-

dating some period of training, and by requiring passage

of any examination. For example, compelling all appren-

tices to take an examination, as required in Minnesota

and other states, could be said to be even more burden-

some than the job-site ratio rule because the subject mat-

ter of the examination might affect the content of the

courses taught to apprentices in employer-run training

programs, which could be considered employee welfare

benefit plans under the Eighth Circuit’s decision. Fur-

ther, under the reasoning of the Court of Appeals, an

employer may merely establish some form of training

program, whether formal or informal, and the employer

could be immune from all state regulation of apprentices.

6

In short, the ruling below, if upheld, would not merely

prohibit states, like Minnesota and several others, from

requiring job-site supervision of apprentices, but it also

could be applied to proscribe other aspects of the licensing

process. More ominously, the ruling below could portend

the nullification of any efforts by states or other units

of government to prohibit work by unlicensed individuals

on construction projects. Regulations of a state or other

jurisdiction that prohibit unlicensed individuals from per-

forming construction work could collide with the ERISA

preemption provision because such a prohibition may have

much more significant consequences for employee train-

ing programs than the less intrusive impact of a job-site

ratio requirement. Therefore, the ruling of the Court

of Appeals could emasculate all state licensing relating

to the construction trades under the rubric of ERISA

preemption.

This Court should address the potentially pernicious

effect of the ruling below by granting certiorari and

clarifying the scope of the ERISA preemption clause as

it concerns occupational licensing by states and other

units of local government.

B. Intrusion On Federalism

The ruling below also warrants review by this Court

because of its impact on the relationship between the

federal government and the states. Minnesota and other

states have traditionally regulated apprenticeship work

in the construction trades. This Court has been solicitous

of maintaining a proper balance between federal and

state interests in this area, and this concern has been

particularly reflected in its treatment of ERISA pre-

emption claims. The interpretation of the preemption

clause “must be guided by respect for the separate spheres

of governmental authority preserved by our federalist

system.” Alless? v. Raybestos-Manhattan, Inc., 451 U.S.

504, 522 (1981). See also Fort Halifax Packing Co. v.

7

Coyne, 482 U.S. 1, 19 (1987); Aetna Life Insurance Co.

v. Borges, 869 F.2d 142, 144 (2d Cir.), cert. denied, 110

S. Ct. 57 (1989); Ray v. Atlantic Richfield Co., 435 U.S.

151, 157 (1978) (“The historic police powers of the

states were not to be suppressed by federal acts unless

that was the clear and manifest purpose of Congress’’).

The analysis of the Court of Appeals tramples the

principle of federalism and could effectively bar states

from regulating any aspect of the employment of ap-

prentices or unlicensed individuals engaged in construc-

tion work. Congress has not expressly preempted regu-

lation of apprentices through job-site ratio or other

requirements. Therefore, the Minnesota job-site ratio

rule does not conflict with any articulated federal policy.

Because there is “no prospect of conflict with the federal

statute, there is no warrant for disabling [| Minnesota |

from attempting to address uniquely local social and eco-

nomic problems.” Fort Halifax, 482 U.S. at 19. See also

Metropolitan Life Insurance Co. v. Massachusetts, 471

U.S. 724, 740 (1985) (upholding state statute mandat-

ing that minimum health care be provided under insur-

ance policies issued in Massachusetts) .*

C. Protecting Safety Measures

Safety concerns are central to the Minnesota regula-

tion and other regulations similar to it. High pressure

pipefitting is indisputably extremely dangerous work. If

the work is not performed properly, individual workers,

% Rather than conflicting with federal policy, the job-site ratio

rule is consistent with it. Fitzgerald Act, 29 U.S.C. § 50, et seq.,

authorizes the states to adopt and enforce voluntary apprentice-

ship programs, including prescribed job-site ratios. While the Act

contemplates voluntary subscription to ratios, it reflects a federal

policy favorable to the establishment of job-site ratios and the recog-

nition that states should be left free to prescribe precise numerical

ratios. The adoption of such ratios under the auspices of the Fitz-

gerald Act represents an example of cooperative federalism that

should not be thwarted by ERISA pre-emption. Rebaldo v. Cuomo,

749 F.2d 133, 140 (2d Cir, 1984), cert. denied, 472 U.S. 1008 (1985).

&

fellow employees, and the public at large are at risk. As

the Court of Appeals itself recognized, “[h]igh-pressure

pipefitting is a very dangerous activity; most of the work

is not visible when residential or commercial construction

is completed, and poor work can cause explosions.” Boise

Cascade Corp. v. Peterson, 939 F.2d 632, 634 (8th Cir.

1991). In fact, there have been a number of industrial

accidents attributable to high pressure pipefitting through-

out the country in recent years.

The risk that improperly installed equipment could

result in a rupture or explosion jeopardizing life and

property is a real and legitimate state concern. Job-site

ratios, coupled with other regulatory measures, reflect

state efforts to assure that minimally-qualified individuals

perform this dangerous work. For these reasons, the

states and other local units of government rightfully have

an interest in enacting regulatory measures to protect the

public. Such measures should not be cast aside by an

unwarranted finding of preemption under ERISA, absent

an express intent by Congress to preempt this traditional

area of state regulation. The Court of Appeals, simply

stated, has gone too far.

CONCLUSION

For the foregoing reasons, Amicus Curiae Mechanical

Contractors Association of America respectfully requests

that the Writ of Certiorari be granted.

Respectfully submitted,

JAMES M. KEFAUVER

SHULMAN, ROGERS, GANDAL,

PorDy & ECKER, P.A.

11921 Rockville Pike

Suite 300

Rockville, MD 20852

(301) 230-5200

Counsel for Amicus Curiae

Mechanical Contractors

November 27, 1991 Association of America