Appendix — Calhoon v. National Elevator Industry, Inc.

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| GUN 26 1992 |

IN THE SUPREME COURT OF THE UNITED STATES

———

October Term, 1991

DEAN H. CALHOON, as Commissioner of the

Department of Labor for the State of

Oklahoma; and THE DEPARTMENT OF LABOR FOR

THE STATE OF OKLAHOMA,

Petitioners,

¥;

NATIONAL ELEVATOR INDUSTRY, INC.,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

SUSAN BRIMER LOVING

ATTORNEY GENERAL

RABINDRANATH RAMANA*

ASSISTANT ATTORNEY GENERAL

2300 N. Lincoln Blvd., Suite 112

Oklahoma City, OK 73105-4894

(405) 521-3921

Michael M. Sykes, General Counsel

Kayla A. Bower, Assistant Counsel

Oklahoma Department of Labor

June, 1992

* Counsel of Record

No. P

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

DEAN H. CALHOON, as Commissioner of the

Department of Labor for the State of

Oklahoma; and THE DEPARTMENT OF LABOR FOR

THE STATE OF OKLAHOMA,

Petitioners,

Vv.

NATIONAL ELEVATOR INDUSTRY, INC.,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF

CERTIORARI TC THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

SUSAN BRIMER LOVING

ATTORNEY GENERAL

RABINDRANATH RAMANA*

ASSISTANT ATTORNEY GENERAL

2300 N. Lincoln Blvd., Suite 112

Oklahoma City, OK 73105-4894

(405) 521-3921

Michael M. Sykes, General Counsel

Kayla A. Bower, Assistant Counsel

Okiahoma Department of Labor

June, 1992-

* Counsel of Record

EXHIBIT "A"

PUBLIS

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATIONAL ELEVATOR

INDUSTRY INC.,

Plaintiff-Appellant,

Vv. No. 90-6236

DEAN H. CALHOON, as Com-

missioner of the Department

of Labor for the State of

Oklahoma; THE DEPARTMENT

OF LABOR FOR THE STATE OF

OKLAHOMA,

ee ee ee ee ee ee ee ee ee ee ee ee ee ee

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CIV-90-119-W)

Charles 0. Strahley of Crowe & Dunlevy,

Oklahoma City, Oklahoma

(Michael T. McGrath of Putney, Twombly, Hall

& Hirson, New York, New York, with him on

the briefs) for plaintiff-appellant.

Rabindranath Ramana, Assistant Attorney

General of Oklahoma

(Robert H. Henry, Attorney General of

Oklahoma, with him on the brief) Oklahoma

City, Oklahoma, for defendants-appellees.

Before LOGAN, MOORE and ANDERSON, Circuit

Judges.

LOGAN, Circuit Judge.

Plaintiff National Elevator Industry,

Inc. appeals from the dismissal of its

complaint which sought to have a ruling of

the Oklahoma Commissioner of Labor declared

preempted by either the Employee Retirement

Income Security Act (ERISA), 29 U.S.C. §

1001, et. seg., or the National Labor

Relations Act (NLRA), 29 U.S.C. § 151, et.

seq., or both. Plaintiff seeks to overturn

a ruling by defendant Oklahoma Commissioner

of the Department of Labor under Oklahoma's

prevailing wage law that an elevator

constructor helper on state public works

projects must be enrolled in a certified

Bureau of Apprenticeship Training program in

order to receive the rate of pay for

apprentices and trainees rather than the

rate of pay for mechanics. See Declaratory

Ruiing of the Labor Commissioner, Rule 1-89

(Dec. 22, 1989), II R. ex. B; Okla. Stat.

tit. 40, §§ 196.1, 196.2.9, 196.6.A. The

district court dismissed the complaint on

the motion of defendants, Department of

Labor for the State of Oklahoma and its

Commissioner. This court has jurisdiction

over plaintiff's appeal pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 1291.

For many decades, the wages, hours and

working conditions of mechanics and helpers

employed in the elevator industry have been

established by a series of nationwide

collective bargaining agreements. These

agreements provide for "teams"; each team

consists of one mechanic and one helper.

Helpers are workers who have not completed

training under the National Elevator

Industry Education Program (NEIEP) and

passed a mechanics examination. Any helper

may participate in this national training

program in order to qualify as a mechanic,

and many do. NEIEP is funded by employers

based upon hours worked by all mechanics and

helpers.

The wages for mechanics and helpers are

Calculated under the collectively bargained

contract using a specific formula that

utilizes variables from local geographical -

areas to determine the appropriate

prevailing wage for a particular area.

Helpers' wages are set at seventy percent of

mechanics' wages. Despite plaintiff's

collectively bargained agreement determining

wages for helpers, defendants refuse to

recognize the helper category for purposes

of the Oklahoma prevailing wage law.

Therefore, helpers working on State of

Oklahoma public works projects must be paid

at the mechanics' collectively bargained

wage. Helpers on federal or private

projects in Oklahoma continue to be paid at

the helper's wage rate. Defendants, in the

ruling under challenge here, would allow

helpers to receive the lower wage rate for

apprentices and trainees if the helpers'

education program were approved by the

federal Bureau of Apprenticeship Training

(BAT). Plaintiff does not challenge the

validity of the Oklahoma prevailing wage law

itself but does contest defendants'

construction of that law.

Whether defendants' ruling is preempted

by ERISA is a question of law subject to de

novo review. Local Union 598, Plumbers &

Pipefitters Indus. Journeymen & Apprentices

Training Fund v. J.A. Jones Constr. Co., 846

F.2d 1213, 1218 (9th Cir.), aff'd mem., 488

U.S. 881 (1988); see Allis-Chalmers Credit

Corp. v. Tri-State Equip., Inc. (In re Tri-

State Equip., Inc.), 792 F.2d 967, 970 (10th

Cir. 1986) (questions of law are subject to

de novo review).

ERISA contains a sweeping preemption

provision that preempts "any and all State

laws insofar as they may now or hereafter

relate to any employee benefit plan." 29

U.S.C. § 1144(a). In our analysis we are

guided by Congress' clear intent and the

Supreme Court's direction that ERISA

preemption be construed broadly. See, e.g.,

Ingersoll-Rand Co. v. McClendon, 111 S.Ct.

478, 482 (1990) (Congress intended expansive

ERISA preemption); FMC Cor. v. Holliday, 111

S.Ct. 403, 407 (1990) (ERISA “pre-emption

Clause is conspicuous for its breadth.");

see also Straub v. Western Union Tel. Co.,

851 F.2d 1262, 1263 (10th Cir. 1988) (scope

of ERISA preemption is very broad).

Section 1144 (a) contains three

requirements which must be satisfied before

preemption will be found. There must be a

state law, an employee benefit plan, and the

state law must "relate to" the employee

benefit plan. If these three requirements

4 The Second and Ninth Circuits have

found an additional, although not well-

defined, "purpose" requirement arising out

of § 1144(c)(2) which defines "State."

See, e.g., ic Joint A enticeshi

Comm. v. MacDonald, 949 F.2d 270, 274 (9th

Cir. 1991); Martori Bros. Distribs. v.

James-Massengale, 781 F.2d 1349, 1356 (9th

Cir.), modified, 791 F.2d 799 (9th Cir.),

cert. denied, 479 U.S. 1018 (1986); Rebaldo

v. Cuomo, 749 F.2d 133, 137 (2d Cir. 1984),

cert. denied, 472 U.S. 1008 (1985). This

requirement is that the "state law must

‘purport[] to regulate, ... the terms and

conditions of employee benefit plans' to

fall within the preemption provision."

Rebaldo, 749 F.2d at 137. The existence of

a distinct and limiting "purpose"

requirement, however, has been rejected by

the Supreme Court which held that §

1144(c)(2) “expands, rather than restricts"

the reach of ERISA preemption. Ingersoll-

Rand, 111 S.Ct. at 484. "Had Congress

intended to restrict ERISA's pre-emptive

effect to state laws purporting to regulate

are satisfied, then a court must consider

whether any of the preemption exceptions

under §§ 1003(b) or 1144(b), (da) apply.

First, we note that defendants‘

interpretive ruling is clearly "State law"

for purposes of § 1144(a). Section

1144(c)(1) defines "State law" to include

“all laws, decisions, rules, regulations, or

other State action having the effect of law,

of any State." 29 U.S.C. § 1144(c)(1); see

also jd. at (2) (defining term "State" to

include any state agency).

Next, the district court found, and

defendants on appeal agree, that NEIEP is an

employee benefit plan under ERISA. We also

agree that the helpers' training progran,

the NEIEP, is an employee benefit plan under

plan terms and conditions, it surely would

not have done so by placing the restriction

in an adjunct definition section while

using the broad phrase ‘relate to' in the

pre-emption section itself." Id.

ERISA. Section 1002(1) defines “employee

welfare benefit plan" to mean:

any plan, fund, or program which

was heretofore or is hereafter

established or maintained by an

employer or by an employee

organization, or by both, to the

extent that such plan, fund, or

program was established or is

maintained for the purpose of

providing for its participants

or their beneficiaries, through

the purchase of insurance or

otherwise, (A) medical,

surgical, or hospital care or

benefits, or benefits in the

event of sickness, accident,

disability, death or

unemployment, or vacation

benefits, apprenticeship or

other training programs, or day

care centers, scholarship funds,

or prepaid legal services. ..

28 U.S.C. § 1002(1) (emphasis added); see

also id. at (3) ("employee welfare benefit

plan" is an “employee benefit plan"). NEIEP

is a national training program administered

by a board of trustees; it receives regular

contributions from employers and exists for

the exclusive benefit of employees. The

Clear language of the statute indicates that

training programs, as distinct from

apprenticeship programs, qualify as employee

welfare benefit plans. The more

Gifficult issue in this case is whether the

state law "relates to" the employee benefit

plan. The Supreme Court noted in Shaw v.

elta Aji ines ne, 463 U.S. BS £1963),

that "[a} law ‘relates to' an employee

benefit plan, in the normal sense of the

phrase, if it has a connection with -or

reference to such a plan." Id. at 96-97.

Moreover, “relate to" should be read

broadly. id. at 98; see also Straub, 851

F.2d at 1264. Even broad construction,

however, has limits; the Court in Shaw

stated that "[sjome state actions may affect

employee benefit plans in too tenuous,

remote, or peripheral a manner to warrant a

finding that the law ‘relates to' the plan."

Shaw, 463 U.S. at 100 n. 21. In recognition

of this limitation articulated in Shaw, a

number of courts have found state laws of

general application with some limited effect

on ERISA plans do not "relate to" the ERISA

plans under § 1144(a). See, e.g., Aetna

Life Ins. Co. v. Borges, 869 F.2d 142, 146-

47 (2d Cir.) (upholding general escheat law

that affected ERISA benefit plans), cert.

denied, 493 U.S. 811 (1989); Firestone Tire

& Rubber Co. v. Neusser, 810 F.2d 550, 556

(6th Cir. 1987) (upholding general income

tax that included employee contributions to

ERISA plan); Sommers u Stores Co.

it ust _ v. C lgan

Enters., Inc., 793 F.2d 1456, 1470 (5th Cir.

1986) (finding no preemption of state law

breach of fiduciary duty claims), cert.

denied, 479 U.S. 1034 (1987); Rebaldo v.

Cuomo, 749 F.2d 133, 140 (2d Cir. 1984)

(upholding statute regulating hospital rates

that affected ERISA plans' ability to

negotiate special rates), cert. denied, 472

U.S. 1008 (1985).

There is no simple test for determining

when a law "relates to" a plan. Borges, 869

F.2d at 145. The Ninth Circuit in Martiori

Bros. Distributors v. James-Massengale, 781

F.2d 1349 (9th Cir.), cert. denied, 479 U.S.

1018 (1986), recognized four types of laws

that have been held to "relate to" ERISA

plans. They are:

First, laws that regulate the

type of benefits or terms of

ERISA plans. Second, laws that

create reporting, disclosure,

funding, or vesting requirements

for ERISA plans. Third, laws

that provide rules for. the

calculation of the amount of

benefits to be paid under ERISA

plans. Fourth, laws and common-

law rules that provide remedies

for misconduct growing out of

the administration of the ERISA

plan.

Id., at 1356-57 (footnotes omitted); see

also General Elec. Co. v. New York State

Dep't _ of Labor, 891 F.2d 25, 29 (2d Cir.

1989), cert. denied, 110 S.Ct. 2603 (1990).

On the other hand, laws of general

application--not specifically targeting

ERISA plans--that involve traditional areas

of state regulation and do not affect

“relations among the - principal ERISA

entities--the employer, the plan, the plan

fiduciaries, and the beneficiaries"--often

are found not to "relate to" an ERISA plan.

Firestone, 810 F.2d at 555-56 (quoting

Summers, 793 F.2d at 1467).

Defendants, in essence, argue that the

prevailing wage law and the Commissioner's

ruling are laws of general application,

involving wage regulation--an area of

traditional state regulation--that do not

"relate to" the NEIEP. General application

wage laws, although they incidentally may

affect ERISA plans, are well within a

state's traditional police powers and not

prompted by ERISA. See Metropolitan Life

Ins. Co. v. Massachusetts, 471 U.S. 724, 756

(1985) (noting in NLRA context that states

have broad authority to regulate wages and

worker safety); Siuslaw Concrete Constr. Co.

v. Washington, Dep't of Transp., 784 F.2d

972, 958 (9th Cir. 1986) (upholding state

minimum wage law); General Elec., 891 F.2d

at 30 (Pratt, J., dissenting) (noting

"“(rjegulation of labor costs in public works

projects is surely a valid exercise of the

state's traditional regulatory authority").

Plaintiff conceded at oral argument that a

state has the authority to impose a minimum

wage on workers without ERISA preemption.

Our task is to determine whether the

Oklahoma prevailing wage law as interpreted

by defendants' ruling is indeed a law of

general application with only incidental

effect on NEIEP. Both parties cite a host

of ERISA preemption cases in support of

their respective positions. A number of

these cases merit brief discussion. In

Hydrostorage, Inc. Vv. Northern Cal.

Boilermakers Local Joint Apprenticeship

Committee, 891 F.2d 719 (9th Cir. 1989),

cert. denied, 111 S.Ct. 72 (1990), under

authority of a California law, a state

agency order banned aéecontractor from

bidding for public works contracts because,

inter alia, the contractor had not applied

for approval to train apprentices. Id. at

rer The agency sought to require the

contractor to participate in an ERISA plan

and make contributions to an ERISA plan.

Id. at 730. The Ninth Circuit found ERISA

preemption of the order. Id. at 732; see

also Operating Engineers & Participating

oyers e-A entice Apprentice &

Journeyman Affirmative Action Training Fund

v. Weiss - Const., 270 Cal. Rptr. 786,

794 (Cal. Ct. App. 1990) (finding ERISA

preemption of a contract claim in connection

with the same California law at issue in

Hydrostorage), cert. denied, 111 S.Ct. 1337

(1991).

The instant case has strong similarities

to Hydrostorage. Defendants' interpretation

of the prevailing wage law has the effect,

and possibly the ain, of encouraging

participation in a specific type of ERISA

plan (BAT approved apprentice plans) while

discouraging participating in a different

type of ERISA plan (NEIEP). In

Hydrostorage, however, the state mandated

participation in and contribution to an

ERISA benefit plan, while here defendants'

actions encourage but do not mandate changes

and participation in an ERISA plan.

In a second Ninth Circuit case,

Electrical Joint Apprenticeship Comm. _ v.

MacDonald, 949 F.2d 270 (9th Cir. 1991), the

court considered application of Nevada

statutes that allowed apprentice/training

wages to be paid only to workers in state

approved apprenticeship programs. The

plaintiff had a BAT approved ERISA

apprenticeship program but was required to

pay the regular’ prevailing wage to

apprentices because their plan was not

approved by the state. The Ninth Circuit

found this application of the Nevada

prevailing wage statutes to be preempted by

ERISA. Id. at 275. MacDonald resembles the

instant case because both cases involve

states requiring higher wages for workers in

ERISA training programs they do not approve

of while allowing lower wages for workers in

ERISA training programs of which they do

approve.

The Second Circuit, in General Electric

C. v. New York State Department of Labor,

891 F.2d 25 (2d Cir. 1989), cert. denied,

110 S.Ct. 2603 (1990), considered a state

prevailing wage law that required employers

bidding for state public works projects

either to provide prevailing benefits or to

pay the difference in cash to their

employees. The court held that the law

"related to" employee benefit plans. Id. at

29-30. Judge Pratt dissented arguing that

the law "does not interfere with any of the

primary administrative functions of ERISA

plans; it does not affect the structure or

administration of benefits plans; it does

not determine an employee's eligibility for

benefits; nor does it control the type or

level of benefits provided," and therefore,

preemption was not appropriate. Id. at 30

(Pratt, J., dissenting).

The facts and issues in General Electric

are also somewhat like those in the present

case. In General Electric employers were

given a choice similar to that presented to

plaintiff: either change the benefits of

their ERISA plan to meet the state's

specifications or pay workers more money.

There are, however, important differences

between Genera] Electric and the instant

case. In General Electric, under the option

to pay more money, the amount due varied

depending upon the level of ERISA benefits

and therefore was inextricably linked to the

ERISA plan. In the case before us, the

prevailing wage level does not vary and is

not tied to the value of the benefits

provided under NEIEP.

The Eighth Circuit, in Boise Cascade

Vv. et , 939 F.2€ 632 (8th Cir.

1991), petition for cert. filed, No. 91-707

(U.S. Oct. 28, 1991), held that a state

minimum jobsite ratio rule of apprentices to

journeymen was preempted by ERISA even

though worker safety is an area of

traditional state regulation. Id. at 638.

The court held that such a law directly

_—

affected and intended to regulate terms and

conditions of an ERISA plan and therefore

"related to" the plan. Id. Boise Cascade

stands for the proposition that even rules

of general application in an area of

traditional state regulation are preempted

if their effects upon an ERISA plan are

direct and not tenuous.

A recent district court case also merits

discussion. In Associated Builders §&

Contractors, Golden Gate Chapter, Inc. v.

Baca, 769 F. Supp. 1537 (N.D. Cal. 1991),

the court considered a prevailing wage law

that imposed payment of per diem wages upon

employers for certain public and private

works projects. The amount of the per diem

wages was dependent in part upon. the

monetary value of prevailing benefits. Id.

at 1546. The court found ERISA preemption

because the law imposed upon employers the

administrative burden of calculating the

value of benefits provided; anticipated

either cash supplements or increased

benefits; and discouraged ERISA benefits in

amounts above the prevailing amounts because

of a limit on the amount of benefits that

could be subtracted in the per diem wage

calculation. Id. at 1547.

All the above cases dealt with

apprenticeship/training programs or wages or

both, and all found preemption. Although

the facts of the case before us differ in

some specifics from these other cases, the

principles articulated do support preemption

in the present’ case. Although wage

regulation is an area of traditional state

regulation, when wage regulations uniquely

affect ERISA plans and involve the state in

imposing requirements upon such plans,

preemption will be found.

To support their argument that wage

regulation is not within ERISA preemption

due to a wage exception defendants rely upon

29 C.F.R. § 2510.3-1(b), which states that

—————

the payment of wages does not give rise to

an employee welfare benefit plan.? The

reliance on this wage exception is

misplaced. Section 2510.3-1(b) only applies

in determining whether an employee welfare

benefit plan exists. If payment of wages

created an employee welfare benefit plan,

all paid employees would be in an ERISA

2 section 2510.3-1(b) states:

Payroll practices. For

purposes of title I of the Act

and this chapter, the terms

“employee welfare benefit plan"

and “welfare plan" shall not

include--

(1) Payment by an employer of

compensation on account of work

performed by an employee,

including compensation at a rate

in excess of the normal rate of

compensation on account of

performance of duties under

other than ordinary

circumstances, such as--

(i) Overtime pay,

(ii) Shift premiuns,

(iii) Holiday premiums,

(iv) Weekend premiums; ...

29 C.F.R. § 2510.3-1(b).

plan, and ERISA would govern all employment

or labor law--a result Congress did not

intend. Once NEIEP is determined to be an

employee benefit plan, 29 C.F.R. § 2510.3-

1(b) has no further application. Because

NEIEP is undisputedly an ERISA employee

benefit plan, the wage exception is

irrelevant to our preemption analysis.

ssa set Vv. Orash, 490 U.S. 107

(1989), and Fort Halifax Packing Co., Inc.

v. Coyne, 482 U.S. 1 (1987), do not hold

otherwise. These cases merely refuse to

find that payment of various wages from

general funds given rise to an employee

benefit pian. See Morash, 490 U.S. at 120-

21 (vacation pay policy is not an employee

benefit plan); Fort Halifax, 482 U.S. at 12

(statute requiring severance pay does not

create or relate to an employee benefit

plan).

We accept, as a general proposition, the

state's right to regulate wages. But a wage

law that provides an option favoring certain

ERISA plans and benefits (BAT approved

plans) over other ERISA plans and benefits

(NEIEP) is not a law of "general

application" and may be used to effect

change in the administration, structure and

benefits of an ERISA plan. If a state is

permitted to use a prevailing wage scheme to

Single out and for certain ERISA plans over

other ERISA plans, the potential for abuse

is great--a state could avoid ERISA's

preemption provision and covertly disturb or

alter ERISA plans. We believe that

defendants' ruling would discourage non-BAT

approved ERISA training programs’ and

encourage changes to NEIEP, a national

employee benefit program. We hold that

defendants’ ruling applying the _ state's

prevailing wage law does "relate to" an

employee benefit plan because the ruling's

effects on NEIEP are not "tenuous, remote,

or peripheral." See Shaw, 463 U.S. at 100

n. 21.

IIlI

Finally, we consider whether the general

Savings clause in 29 U.S.C. § 1144(d) saves

defendants' ruling from preemption. The

savings clause states: "Nothing in this

subchapter shall be construed to alter,

amend, modify, invalidate, impair, or

supersede any law of the United States . .

- Or any rule or regulation issued under any

such law." 29 U.S.C. § 1144(d). Defendants

argue that preempting their ruling would

"impair" and “supersede” 29 U.S.C. § 50 and

regulations created pursuant to it. See 29

C.F.R. §§ 29.1-.13, 30.1-.19.

The savings clause generally saves

federal law. See 29 U.S.C. § 1144(d) ("any

law of the United States") (emphasis added).

The savings clause may also apply to some

state laws in limited circumstances, but the

Supreme Court has directed that it should

not be applied expansively. Shaw, 463 U.S.

at 104. In Shaw, the Court recognized that

while the savings clause "may operate to

exempt provisions of state laws upon which

federal laws depend for their enforcement,

the combination of Congress' enactment of an

all-inclusive pre-emption provision and its

enumeration of narrow, specific exceptions

to that provision makes us reluctant to

expand [§ 1144(d)]} into a more general

Saving clause." Id. In Shaw, the Court

held that state laws that prohibited conduct

unlawful under Title VII of the Civil Rights

Act of 1964 were saved from preemption

because Titie VII relies upon state laws as

part of its enforcement scheme. Id. at 102.

The Court noted that Title VII has a

provision expressly eserv]

=x -————?.

nonconflicting state laws. i@. at i101.

State laws prohibiting practices lawful

under Title VII, however, are not saved by

the savings clause. Id. at 103.

Section 50 does not depend upon states to

enforce its provisions; in fact, there is

nothing in § 50 for states to enforce.

Section 50 merely seeks to facilitate

3Section 50 provides:

The Secretary of Labor is

authorized and directed 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, to cooperate

with State agencies engaged in

the formulation and promotion of

standards of apprenticeship, and

to cooperate with the Office of

Education under the Department

of Health, Education, and

Welfare in accordance with

section 17 of Title 20.

development of apprenticeship programs--it

does not mandat:: apprenticeship programs or

seek to discourage other training prograns. *

We agree with the Ninth Circuit that "the

regulations relate only to eligibility for

federal registration. Neither they nor the

Act [§ 50] itself contemplate enforcement

mechanisms. .. . ." Hydrostorage, 891 F.2d

at 731 (citing and adopting the district

court's analysis, 685 F. Supp. 718, 722

(N.D. Cal. 1988)); see also MacDonald, 949

F.2d at 274 n. 3 (ERISA "does not permit

independent state regulation" under §50).

Therefore, defendants' ruiing simply cannot

be said to function as an enforcement

mechanism for § 50. We decline to make §

“The federal government does not

discourage the NEIEP with a prohibitive wage

structure as defendants seek to do. The

U.S. Department of Labor recognizes the

helper category and allows the lower wage

rate for helpers on federal public works

projects in Oklahoma. See United States

Dep't of Labor, General Wage Decision No.

OK88-18.

1144(d) into an expansive savings clause; we

hold that the savings clause of § 1144(d)

does not save the defendants' ruling from

ERISA preemption. See Hydrostorage, 891

F.2d at 731-32 (state law encouraging

apprenticeship programs not saved from ERISA

preemption by § 1144(d)); MacDonald, 949

F.2d at 275 (wage law favoring state

apprenticeship programs not saved from ERISA

preemption).

we conclude that ERISA preempts

defendants' ruling that helpers working on

state public works projects must be paid at

the wage rate required for mechanics unless

the helpers are participating in a BAT

approved apprenticeship progran. A state

may not try to discourage certain ERISA

training programs by imposing a higher wage

rate for workers enrolled in them while

allowing a lower wage rate for workers

enrolled in different ERISA training

programs. Because we find ERISA preemption,

we do not address the NLRA preemption issue.

The judgment of the district court is

REVERSED.

EXHIBIT “B"

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

NATIONAL ELEVATOR

INDUSTRY, INC.,

Plaintiff,

vs. No. CIV-90-119-W

DEAN H. CALHOON, as

Commissioner of the

Department of Labor for)

the State of Oklahoma; )

and THE DEPARTMENT )

OF LABOR FOR THE STATE )

OF OKLAHOMA,

)

Defendants. )

ORD

This matter comes before the Court on

Motion of Defendants, Dean H. Calhoon and

the Department of Labor for the State of

Oklahoma to Dismiss Plaintiff's claims. In

this case, Defendants determined by ruling

that elevator constructor helpers working on

state public works projects are to receive

the same minimum wages as elevator

construction mechanics. Plaintiff asserts

that Defendants' ruling is preempted by the

Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1001, et seq. (ERISA), and

the National Labor Relations Act, 29 U.S.C.

§ 151, et seq. (NLRA). Plaintiff also makes

claims that Defendants' ruling is clearly

erroneous and that Defendants unlawfully

solicited communication from persons outside

the Oklahoma Department. of Labor in

violation of Oklahoma law. For the reasons

stated below, the Court grants Defendants'

Motion to Dismiss.

The Plaintiff, National Elevator

INdustry, Inc., (NEIT) is a trade

association that represents employers

engaged in constructing, repairing and

servicing elevators, escalators, dumb

waiters, and moving walkways. Plaintiff

sought a ruling from Defendants which would

deem elevator constructor helpers as

erica: Sapa ein ios nce elaumeaestits

apprentices or trainees for purposes of

establishing the helpers' prevailing wages.

Defendants, Commissioner of Labor and the

Department of Labor for the State of

Oklahoma, ruled that Oklahoma did not

provide a separate and distinct category for

"helpers" for purposes of setting prevailing

wages. Under Oklahoma law, Title 40 0.S. §

196.1 provides that the prevailing rate of

wages applies to "workmen," while Section

196.2.8 defines “workmen” as "laborers,

workmen and mechanics." Section 196.2.9

provides:

""Apprentice’ or 'Trainee' means

a workman in a craft or trade

who is approved for

participation in an

apprenticeship or trainee

program approved by the Bureau

of Apprenticeship and Training

of the United States Department

of Labor([(.]"

Nowhere under Oklahoma law is “helper"

established as a separate category of work.

> ———————————

In fact, Rule 8 of the Commissioner of

Labor's Rules states:

"'"Helper' as a classification of

worker shall not be recognized

by the Oklahoma Department of

Labor." Prevailing Wages on

Public Works, Law and Rules,

Oklahoma Department of Labor,

August, 1989.

Accordingly, Defendants did not deem the

elevator constructor helpers as apprentices

or trainees because the educational program

provided for the elevator constructor

helpers had not been approved by the Bureau

of Apprenticeship and Training of the United

States Department of Labor. Because the

educational program does not incorpcrate the

safeguards afforded federally approved

apprenticeship programs, the Defendants'

ruled that elevator constructor helpers

would receive the higher minimum wage of the

elevator constructor mechanic.

of PREEMPTION ISSUE UNDER ERISA

Plaintiff asserts that because _ its

educational program for elevator constructor

helpers is an employee welfare benefit plan

as defined under ERISA, the Defendants’

ruling is preempted by ERISA.

Plaintiff's educational program, National

-he

— Elevator Industry Educational Program, was

-_ initially established as a trust pursuant to

_— a collective bargaining agreement. This

o—_ training program provides text materials and

ai training aids to elevator constructor

- helpers and has made cash grants for

he classroom rent and instructors' salaries in

— Oklahoma. Plaintiff's educational program

7 has not been approved by the Bureau of

om Apprenticeship and Training of the United

he States Department of Labor.

Plaintiff asserts that its educational

program is an employee benefit plan within

the meaning of ERISA. This Court agrees.

ERISA defines employee welfare benefit

plan as follows:

"(1) The terms ‘employee welfare

benefit plan' and ‘welfare plan' mean

any plan, fund, or program which was

heretofore or is hereafter established

or maintained by an employer or by an

employee organization, or by both, to

the extent that such plan, fund, or

program was established or is

maintained for the purpose of

providing for its participants or

their beneficiaries, through the

purchase of insurance or otherwise,

(A) medical, surgical, or hospital

care or benefits, or benefits in the

event of sickness, accident,

disability, death or unemployment, or

vacation beneiits, apprenticeship or

fe) inj ograms, or day care

centers, scholarship funds, or prepaid

legal services, or (B) any benefit

described in section 186(c) of this

title (other than pensions on

retirement or death, and insurance to

provide such pensions." 29 U.S.C. §

1002 (emphasis added. )

Clearly, by Plaintiff's verified complaint,

it appears that its educational program is

maintained for apprenticeship or other

training within the meaning of ERISA.

Next, Plaintiff invokes ERISA'sS general

preemption provision which states in

pertinent part:

"Except s provided in subsection

(b) of this section, the

provisions of this subchapter

and subchapter III of this

subchapter shall supersede any

and all State laws insofar as -

they may now or hereafter relate

to any employee benefit plan

m 29 U.S.C. § 1144(a).

ERISA provides, however, a savings clause

which states in pertinent part:

"Nothing in this subchapter

shall be construed to alter,

amend, modify, invalidate,

impair, or supersede any law of

the United States. . . or any

rule or regulation issued under

any such law." 29 U.S.C. §

1144(d).

The Court finds that Defendants' ruling

which relies on the regulations regarding

federal apprenticeship approval falls within

ERISA's savings clause.

The Supreme Court of the United States

has provided an analysis by which federal

and state cooperation may invoke ERISA's

Savings clause. In Shaw v. Delta Air Lines,

inc., 463 U.S. 85 (1983), the Supreme Court

held that New York's Human Rights Law was

exempt from ERISA's preemption because it

played a part in the enforcement scheme of

the federal law as contemplated by Title

VII. Thus, a disruption of the enforcement

scheme would modify or impair federal law to

an extent which triggers ERISA's savings

clause.

Although that case focused on

modification or impairing enforcement of a

federal scheme, this Court finds in the

instant case preemption would work to

supersede or supplant a federal scheme. An

employee benefit plan should not preempt

state law which coordinates with federal law

if preemption would supersede or supplant

the federal scheme.

Federal apprentice labor laws contemplate

cooperation with State agencies in promoting

labor standards. Title 29 U.S.C. § 50

provides:

"The Secretary of Labor is

authorized and directed 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, to cooperate

with State agencies engaged in

the formulation and promotion of

standards of apprenticeship, and

to cooperate with the Office of

Education wnder the Department

of Health, Education, and

Welfare in accordance with

section 17 of Title 20. For the

purposes of this chapter the

term ‘State' shall include the

District of Columbia."

(Emphasis added).

The Court observes that under federal

regulations, cooperation with State agencies

is further promoted. 29 C.F.R. § 29.1. The

same federal regulations also incorporate

principles of equal opportunity and

affirmative action procedures in order to

obtain federal approval safeguarding the

welfare of apprentices. 29 C.F.R. § 30.

Accordingly, the federal scheme for the

welfare of apprentices includes the

protection of apprentices through State

agency cooperation.

In the present matter, the Defendants'

ruling indicates particular concern

regarding the time period in which an

apprenticeship or trainee becomes proficient

enough to do the work of a mechanic. The

Defendants' ruling stats in part:

"Of particular interest is that

an elevator constructor helper

may have anywhere from one (1)

day's experience, to twenty (20)

or more years of experience. He

may even become a ‘temporary

mechanic' after one year if

certain educational requirements

are satisfied. There is no

finite time period when his/her

training is needed. In fact, it

appears that one could be a

- career helper/trainee in the

elevator constructor industry

and never achieve the position

of mechanic. There seems to be

no time that one can conclude

that a helper becomes proficient

teammate eee

enough to do the work of a

mechanic."

This concern evinced in Defendants' ruling

reflects the same concern which is

safeguarded under Federal Regulations. See

29 C.F.R. § =29.6(d) which requires a

statement of the duration of a

apprenticeship. Accordingly, Defendants'

ruling appears to hold that the elevator

constructor helper will receive the higher

minimum wage until and unless said workers

are afforded the safeguards of finite

training periods as mandated by federal

regulations.

But more to the _ point, under the

Defendants' ruling, the program will receive

automatic acceptance if it is approved by

the Bureau of Apprenticeship and Training of

the United States Department of Labor as

required by Oklahoma law under 49 0O.S. §

196.2.9. The Defendants state:

"That should the elevator

constructor helper educational

program be accepted by the

Bureau of Apprenticeship

Training, then we will accept

elevator constructor helpers as

a trainee/apprentice under that

program regardless of how the

industry chooses to refer to

them." (emphasis added.)

Clearly, Defendants' ruling is not

grounded on review of substantive state law.

To the contrary, Defendants' ruling

dovetails with federal statutes and

regulation to the extent of unconditional

acceptance upon approval under the federal

scheme.

Accordingly, preemption under these facts

would supersede and supplant federal

regulations regarding apprenticeship

training programs as incorporated by

Oklahoma law.

NATION OR ONS

The National Labor Relations Act (NLRA)

contains no statutory preemption provision,

but courts have construed a preemptive

_ LS LL

effect when preemption would be consistent

with the purposes of NLRA. In Metropolitan

ife nsurance Co. v. Massachusetts, 471

U.S. 724 (1985), the United States Supreme

Court stated that the NLRA would supplant

state law when such law prevented the

accomplishment of the purposes of NLRA. Id.

at 756. The Court further found that the

establishment of minimum labor standards by

a state was a legitimate exercise of the

state's police powers and did not interfere

with the collective bargaining process which

the NLRA seeks to _ protect. The Court

stated:

"Minimum state law standards

affect union and non-union

employees equally, and neither

encourage nor discourage the

collective bargaining processes

that are the subject of the

NLRA. Nor do they have any but

the most indirect effect on the

right of self-organization

established in the Act. Unlike

the NLRA, mandated-benefit laws

are not laws designed ~to

encourage or discourage

employees in the promotion of

their interests collectively;

rather, they are in part

‘designed to give specific

minimum protections to

individual workers and to ensure

that each employee covered by

the Act would receive' mandated

health insurance coverage. . .

- Nor do these laws’ even

inadvertently affect these

interests implicated in the

NLRA. Rather, they are minimum

standards ‘independent of the

collective-bargaining process

[that] devolve on [employees] as

individual workers, not as

members of a collective

organization."

Id. at 755, quoting Barrentine v. Arkansas-

Best Freight System, Inc., 450 U.S. 728,

739, 745 (1981), (emphasis and brackets in

original).

In the instant matter, Defendants' ruling

is a legitimate exercise under Oklahoma's

laws requiring minimum wages on public

works. See Title 40 0O.S. § 196. Such

minimum standards are independent of the

collective bargaining process and

accordingly are not preempted by the NLRA.

ELEVENTH AMENDMENT

Plaintiff also asserts that Defendants

violated Oklahoma state law. In Pennhurst

State School and Hospital v. Halderman, 465

U.S. 89 (1984), the United States Supreme

Court held the Eleventh Amendment barred

injunctive relief against state officials

who allegedly violated state laws. Id. at

ii? . Accordingly, Plaintiff's claims

regarding Defendants' violations of state

law are barred by the Eleventh Amendment.

CONCLUSION

In summary, Defendants' Motion to Dismiss

all Plaintiff's claims is hereby GRANTED.

ENTERED this 31st day of May, 1990.

LEE R. WEST

UNITED STATES

DISTRICT JUDGE

_ ~« -_o e.g de | eee! 4 me » aa " fs =

EXH I B I i “cn

OKLAHOMA STATE DEPARTMENT OF LABOR

IN AND FOR THE STATE OF OKLAHOMA

IN RE: Petition of

National Elevator

Industry, Inc.

For a Declaratory

Ruling

Ruling 1-89

DECLARATORY RULING OF THE

LABOR COMMISSIONER

This case comes on for ruling based on

the request of the National Elevator

Industry, Inc., hereafter referred to as

NEII, for a ruling to recognize elevator

constructor helpers pursuant to the Minimum

Wage on Public Works Law, hereafter referred

to as Prevailing Wage Law. Title 40 O.S.

section 196.4 allows the Commissioner of

Labor to conduct an individual proceeding to

determine the applicability of the

Prevailing Wage Law. As embodied in General

Organizational Rules of the Department of

Labor effective February 14, 1983, a

determination can be made by the

lene

Commissioner, through a Declaratory Ruling.

This ruling will be in conformance with the

above and with the Administrative Procedures

Act, which allows for an agency head to

issue declaratory rulings when requested

pursuant to Title 75 0O.S. subsection 307.

This ruling is appealable to the District

Court.

ISSUE

Whether the Commissioner of Labor can

recognize the elevator constructor helper in

accordance with the Minimum Wages on Public

Works Law cited as Title 40 0O.S. section

196.1, et seq.

DISCUSSION

On it's face, this would apvear to be a

rather simple issue to resolve. The

Prevailing Wage Law in section 196.6

indicates that "the prevailing hourly rate

of wages for this state shall be those filed

in the Federal REgister as determined by the

U.S. Department of Labor, pursuant to the

Federal Davis-Bacon Act and amendments

thereto." : The rates for an elevator

constructor helper and elevator constructor

helper (probationary) are indeed a part of

the Davis-Bacon wage rates as published for

Oklahoma (attachment 1). The practice of

recognition of the elevator constructor

helper by the U.S. Department of Labor is

indeed one of long standing and was in

effect when the 1985 amendments were made to

the state Prevailing Wage Law. I further

recognize that there is a long standing

national practice through the arbitration

agreements (Attachment 2 and 3) that show

that the national practice indeed borders on

historical precedence as recognized by the

original drafters of the Federal Davis-Bacon

Act (see Building & Construction Trades

Department, AFL-CIO v. Donovan, 712 F.2d 611

(1983)). However, even with the above

;

iii eee

facts, there remains a significant hurdle

statutorily for recognition of helpers in

Oklahoma.

One should note, that the development of

the Federal Davis-Bacon Act followed a very

different track than did the individual

state acts. Many states chose not to adopt

Davis-Bacon Standards, while others followed

very closely. Oklahoma has set similar

Davis-Bacon Standards, but have not adopted

those standards in a pattern that is totally

conducive to all of the rules, regulations,

and procedures utilized by the U.S.

Department of Labor. Therefore, the

acknowledgement of the elevator constructor

helper by the U.S. Department of Labor has

little or no bearing on Oklahoma's "Little

Davis-Bacon" Act.

The U.S&. Department of Labor. only

recognizes helpers if it is determined to be

a local practice. According to the U.S.

Department of Labor Field Operations

Handbook, “a helper may not be used as an

informal apprentice or trainee, and it is

not permissible for helpers to use ‘tools of

the trade' in assisting a journeyman."

Oklahoma has taken a similar position in

that we do not recognize helpers and have so

stated in Rule 8 of our Prevailing Wage

Rules. Your detailed description of the

educational program provided to helpers in

the elevator industry and references to

helper education in your Standard Agreement

of July 9, 1987 to July 8, 1992, identifies

the helper nct as a semi-skilled helper, but

as a workman who is a trainee. An elevator

constructor helper has not been presented as

a unique classification of workman, nor as

a classification other than

trainee/apprentice. The issue therefore

becomes one of in what classification is an

elevator constructor helper.

Of particular interest is that an

elevator constructor helper may have

anywhere from one (1) day's experience, to

twenty (20) or more years of experience.

He may even become a trainee/mechanic" after

one year if certain educational requirements

are satisfied. There is no finite time

period when his/her training is ended. In

fact, it appears that one could be a career

helper/trainee in the elevator constructor

industry and never achieve the position of

mechanic. There seems to be no time that

one can conclude that a helper becomes

proficient enough to do the work of a

mechanic. |

A rule of statatutory construction is

that “where the language of a statute is

plain and unambiguous and it's meaning clear

and no occasion exists for application of

rules of construction, the statute will be

accorded the meaning as expressed by the

language therein employed." Cave ings

Public School District J-30, of Adair County

Vv. air, 613 P.2d 1048 (Okla. 1980). The

legislature, in defining the classifications

of workers in their 1985 amendments, clearly

defined workmen as "laborers, workers and

mechanics." If an elevator constructor

helper was indeed a classifiable, unique

category of workman that could be defined,

then one could, with a plain reading of the

statute conclude that they should _. be

accepted if their craft appears in the

federal Davis-Bacon rates. However, such is

not the case. there is no definable

Classification of workman except as a

trainee. The legislature further identifies

an “apprentice or trainee" as "a craft or

trade who is approved for participation in

an apprenticeship or trainee program

approved by the Bureau of Apprenticeship and

Training of the United States Department of

Labor." Since you have clearly identified

an elevator constructor helper as a

trainee/apprentice, then the plain language

of the statute requires these helpers (i.e.

trainee/apprentices) to be in an approved

progran. Once your program is approved,

then section 196.10a gives these helpers

special employment protection.

Lastly, you suggest that the elevator

trade is unique in its operation from other

construction trades. I would agree that

there is validity to this claim, but it is

of your own choosing that you operate in a

different manner. The official position of

the West Oklahoma Building and Construction

Trades Council is that there is no area

practice for helper in Oklahoma.

(Attachment 4). I note that the elevator

constructors union is affiliated with this

association.

CONCLUSIONS

The elevator constructor helper is, for

the purposes of the Oklahoma Minimum Wage

on Public Works Law, a trainee/apprentice

specifically recognized by the

legislature as a class of worker to

receive certain protection through

enrollment in a certified Bureau of

Apprenticeship Training Program.

The Commissioner of Labor does not have

the authority to recognize a

Classification in an arbitrary manner

contra to a legislative mandate. He only

has the authority to identify

Classifications that are not included in

the Federal Davis-Bacon wage rates.

That should the elevator constructor

helper educational program be accepted by

the Bureau of Apprenticeship Training,

then we will accept elevator constructor

helpers as a trainee/apprentice under

that program regardless of how the

industry chooses to refer to then.

It ts therefore the final ruling of the

Commissioner of Labor that the elevator

constructor helper is recognized as a

trainee/apprentice and must be in

conformance of the requirements of Title 40

Section 196.2(9) in order to be recognized

for any for any rate of pay other than that

of elevator constructor. This ruling is

limited to the facts as developed above and

shall not be considered to be applicable to

any other classification except the one so

indicated. I have included a copy of your

brief and those exhibits that are not

attachments to this ruling as a part of the

official record.

It is so ruled on this 22nd day of

December 1989 by the Commissioner of Labor

for the State of Oklahoma.

DEAN H. CALHOON

COMMISSIONER

Certified #P155-656-061

EXHIBIT “D"

Section 3(1) of the Employee Retirement

Income Security Act of 1974, 29 U.S.C.§

1002(1):

Definitions

For the purposes of this

subchapter:

(1) The terms “employee welfare

benefit plan" and “welfare plan"

mean any plan, fund, or program

which was heretofore or is

hereafter established or

maintained by an employer or by

an employee organization, or by

both, to the extent that such

plan, fund, or program was

established or is maintained for

the purpose of providing for its

participants or their

beneficiaries, through the

purchase of insurance or

otherwise, (A) medical,

surgical, or hospital care or

benefits, or benefits in the

event of sickness, accident,

disability, death or

unemployment, or vacation

benefits, apprenticeship or

other training programs, or day

care centers, scholarship funds,

or prepaid legal services, or

(B) any benefit described in

section 186(c) of this title

(other than pensions on

retirement or death, and

insurance to provide such

pensions).

Section 514(a) of the Employee Retirement

Income Security Act of 1974, 29 U.S.C. §

1144 (a)

Supersedure; effective date

Except as provided in

subsection (b) of this section, a

the provisions of this

subchapter and subchapter III of

this chapter shall supersede any

and all State laws insofar as

they may now or hereafter relate

to any employee benefit plan

described in section 1003(a) of

this title and not exempt under

section 1003(b) of this title.

This section shall take effect

on January 1, 1975.

Section 514(d) of the Employee Retirement

Income Security Act of 1974, 29 U.S.C. §

1144 (qd)

Alteration, amendment, modification,

invalidation,impairment, or

supersedure of any law of United

States prohibited

Nothing in this subchapter shall

be construed to alter, amend,

modify, invalidate, impair, or

supersede any law of the United

States (except as provided in

section 1031 and 1137(b) of this

title) or any rule or regulation

issued under any such law.

29 C.F.R. § 2510(b):

(b) Payroll practices. For

purposes of title I of the Act

and this chapter, the terms

"employee welfare benefit plan"

and “welfare plan" shall not

include--

(1) Payment by an employer of

compensation on account of work

performed by an employee,

including compensation at a rate

in excess of the normal rate of

compensation on account of

performance of duties under

other than ordinary

circumstances, such as--

(i) Overtime pay,

(ii) Shift premiums,

(111) Holiday premiums,

(iv) Weekend premiums;

29 U.S.C. § 50 (the Fitzgerald Act):

Promotion of labor standards of

apprenticeship

The Secretary of Labor is

authorized and directed 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, to cooperate

with State agencies engaged in

the formulation and promotion of

standards of apprenticeship, and

to cooperate with the Office of

Education under the Department

of Health, Education, and

Welfare in accordance with

section 17 of Title 20. For the

purposes of this chapter the

term "State" shall include the

District of Columbia.

29 C.F.R. § 29.1 (a) and (b):

(a) The National

Apprenticeship Act of 1937,

section 1 (29 U.S.C. 50),

authorizes and directs’ the

Secretary of Labor "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, to cooperate

with State agencies engaged in

the formulation and promotion of

standards of apprenticeship, and

to cooperate with the Office of

Education under the Department

of Health, Education, and

Welfare ***." Section 2 of the

Act authorizes the Secretary of .

Labor to “publish information

relating to existing and

proposed labor standards of

apprenticeship," and to

"appoint, national advisory

committees ***," (29 U.8.€.

50a).

{b) The purpose of this part

is to set forth labor standards

to safeguard the welfare of

apprentices, and to extend the

application of such standards by

prescribing policies and

procedures concerning the

registration, for certain

Federal purposes, or acceptable

apprenticeship programs with the

U.S. Department of Labor,

Employment and Training

Administration, Bureau of

Apprenticeship and Training.

These labor standards, policies

and procedures cover the

registration, cancellation and

deregistration or apprenticeship

programs and of apprenticeship

agreements; the recognition of

a State agency as the

appropriate agency for

registering local apprenticeship

programs for certain Federal

purposes; and matters relating

thereto.

§ 29 C.F.R. § 29.2(e):

Apprentice shall mean a worker

at least 16 years of age, except

where a higher minimum age

standard is otherwise fixed by

law, who is employed to learn a

skilled trade as defined in §

29.4 under standards of

apprenticeship fulfilling the

requirements of § 29.5.

29 C.F.R. § 29.3:

Eligibility and procedure for

Bureau registration of a

progran.

(a) Eligibility for various

Federal purposes is conditioned

upon a program's conformity with

apprenticeship program standards

published by the Secretary of

Labor in this part. For a

program to be determined by the

Secretary of Labor as being in

conformity with these published

standards the program must be

registered with the Bureau or

registered with and/or approved

by a State Apprenticeship Agency

or Council recognized by the

Bureau. Such determination by

the Secretary is made sie by

such registration.

(b) No apprenticeship program

or agreement shall be eligible

for Bureau registration unless

(1) it is in conformity with the

requirements of this part and

the training is in an

apprenticeable occupation having

the characteristics set forth in

§ 29.4 herein, and (2) it is in

conformity with the requirements

of the Department's regulation

on “Equal Employment Opportunity

in Apprenticeship and Training"

set forth in 29 CFR part 30, as

amended.

paragraph (d) of this section,

apprentices must be individually

registered under a registered

program. Such registration may

be effected:

(1) By filing copies of each

apprenticeship agreement; or

(2) Subject to prior Bureau

approval, by filing a master

copy of such agreement followed

by a listing of the name, and

other required data, of each

individual when apprenticed.

(d) The names of persons in

their first 90 days of

probationary employment as an

apprentice under an

apprenticeship program

registered by the Bureau or a

recognized State Apprenticeship

Agency, if not individually

registered under such progran,

shall be submitted immediately

after employment to the Bureau

or State Apprenticeship Agency

for certification to establish

the apprentice as eligible for

such probationary employment.

(e) The appropriate

registration office must be

promptly notified of the

cancellation, suspension, or

termination of any

apprenticeship agreement, with

cause for same, and of

apprenticeship completions.

(f) Operating apprenticeship

programs when approved by the

Bureau shali be accorded

registration evidenced by a

Certificate of Registration.

Programs approved by recognized

State Apprenticeship Agencies

shall be accorded registration

and/or approval evidenced by a

Similar certificate or other

written indicia. When approved

by the Bureau, national

apprenticeship standards for

policy or guideline use shall be

accorded certification,

evidenced by a Similar

certificate or other written

indicia. When approved by the

Bureau, national apprenticeship

standards for policy or

guideline use shall be accorded

certification, evidenced by a

certificate attesting to the

Bureau's approval.

(g) Any modification(s) or

change (s) to registered or

certified programs shall _ be

promptly submitted to the

registration office and, if

approved, shall be recorded and

acknowledged as an amendment to

such program.

(h) Under a program proposed

for registration by an employer

or employers' association, where

the standards, collective

bargaining agreement or other

instrument, provides for

participation by a union in any

manner in the operation of the

substantive matters of the

apprenticeship program, and such

participation is exercised,

written acknowledgement of union

agreement or no objection to the

registration is required. Where

no such participation is

evidenced and practiced, the

employer or employers'

association shall simultaneously

furnish to the union, if any,

which is the collective

bargaining agent of the

employees to be trained, a copy

of its application for

registration and of the

apprenticeship program. The

registration agency shall

provide a reasonable time period

of not less than 30 days nor

more than 60 days for receipt of

union comments, if any, before

final action on the application

for registration and/or

approval.

(1) Where the employees to be

trained have no- collective

bargaining agent, an

apprenticeship program may be

proposed for registration by an

employer or group of employers.

29 C.R.F. § 29.4:

Criteria for apprenticeable

occupations.

An apprenticeable occupation

is a skilled trade which

possesses all of the following

characteristics:

(a) It is customarily

learned in a_e practical way

through a structured, systematic

program of on-the-job supervised

training.

(b) It is clearly identified

and commonly recognized

throughout an industry.

mechanical or technical skills

and knowledge which require a

minimum of 2,000 hours of on-

the-job work experience.

(d) It requires related

instruction to supplement the

on-the-job training.

29 C.F.R. § 29.53

Standards of Apprenticeship

An apprenticeship program, to

be SBliigibsbise for

registration/approval by a

registration/approval agency,

shall conform to the following

standards:

(a) The program is an

organized, written plan

embodying the terms and

conditions of employment,

training, and supervision of one

or more apprentices in the

apprenticeable occupation, as

defined in this part, and

subscribed to by a sponsor who

has undertaken to carry out the

apprentice training program.

(b) The program standards

contain the equal opportunity

pledge prescribed in 29 CFR

30.3(b) and, when applicable, an

affirmative action plan _ in

accordance with 29 CFR 30.4, a

selection method authorized in

29 CFR 30.5, or Similar

requirements expressed in a

State Plan for Equal Employment

Opportunity in Apprenticeship

adopted pursuant to 29 CFR part

30 and approved by the

Department, and provisions

concerning the following:

(1) The employment and

training of the apprentice in a

skilled trade;

(2) A term of apprenticeship,

not less than 2,00 hours of work

experience, consistent with

training requirements as

established by industry

practice;

(3) An outline of the work

processes in which the

apprentice will receive

supervised work experience and

training on the job, and the

allocation of the approximate

time to be spent in each major

process;

(4) Provision for organized,

related and supplemental

instruction in: technical

subjects related to the trade.

A minimum of 144 hours for each

year of apprenticeship is

recommended. Such instruction

may be given in a classroom

through trade or industrial

courses or by correspondence

courses of equivalent value, or

other forms of self-study

approved by the

registration/approval agency.

(5) A progressively increasing

schedule of wages to be paid the

apprentice consistent with the

skill acquired. The entry wage

shall be not less than the

minimum wage prescribed by the

Fair Labor Standards Act, where

applicable, unless a higher wage

is required by other applicable

Federal law, State law,

respective regulations, or by

collective bargaining agreement;

(6) Periodic review and

evaluation of apprentice's

progress in job performance and

related instruction; and the

maintenance of appropriate

progress records;

(7) The numeric ratio of

apprentices to journeymen

consistent with proper

supervision, training, safety,

and continuity of employment,

and applicable provisions in

collective bargaining

agreements, except where such

ratios are expressly prohibited

by the collective bargaining

agreements. The ratio language

shall be specific and clear as

to application in terms of

jobsite, work force, depart ment

or plant;

(8) A probationary period

reasonable in relation to the

full apprenticeship term, with

full credit given for _ such

period toward completion of

apprenticeship; -

(9) Adequate and safe

equipment and facilities for

training and supervision, and

safety training for apprentices

on the job and in related

instruction;

(10) The minimum qualifications

required by a sponsor for

persons entering the

apprenticeship program, with an

eligible starting age not less

than 16 years;

(11) The placement of an

apprentice under ae written

apprenticeship agreement as

required by the State

apprenticeship law and

regulation, or the Bureau where

no such State law or regulation

exists. The agreement shall

directly, or by reference,

incorporate the standards of the

program as part of the

agreement;

(12) The granting of advanced

standing or credit for

previously acquired experience,

training, or skills for all

applicants equally, with

commensurate wages for any

progression step so granted;

(13) Transfer of employer's

training obligation when the

employer is unable to fulfill

his obligation under the

apprenticeship agreement to

another employer under the same

program with consent of the

apprentice and apprenticeship

committee or program sponsor;

(14) Assurance of qualified

training personnel and adequate

supervision on the job;

(15) Recognition for successful

completion of apprenticeship

evidenced by an _ appropriate

certificate;

(16) Identification of the

registration agency;

(17) Provision for the

registration, cancellation and

deregistration of the program;

and requirement for the prompt

Okla.

submission of any modification

or amendment thereto;

(18) Provision for registration

of apprenticeship agreements,

modifications, and amendments;

notice to the registration

office of persons who have

successfully conpleted

apprenticeship programs; and

notice of cancellations,

suspensions and terminations of

apprenticeship agreements and

causes therefor;

(19) Authority for the

termination of an apprenticeship

agreement during the

probationary period by either

party without stated cause;

(20) A statement that’ the

program will be conducted,

operated and administered in

conformity with applicable

provisions of 29 CFR part 30, as

amended, or a estate EEO in

apprenticeship plan adopted

pursuant to 29 CFR part 30 and

approved by the Department;

(21) Name and address of the

appropriate authority under the

program to receive, process and

make disposition of complaints;

(22) Recording and maintenance

of all records concerning

apprenticeship as may be

required by the Bureau of

recognized State Apprenticeship

Agency and other applicable law.

Stat. tit 40 § 196.1:

Public Policy

It is hereby declared to be the =

policy of the State of Oklahoma

that wage of no less than the

prevailing hourly rate of wages

for work of a similar character

in the locality in which the

work is performed shall be paid

to all workmen employed by or on

behalf oof any public’ body

engaged in public works

exclusive of maintenance work.

Okla. Stat. tit 40 § 196.2(9);

"Apprentice" or "Trainee" means

a workman in a craft or trade

who is approved for

participation in an

apprenticeship or trainee _

program approved by the Bureau

of Apprenticeship and Training

of the United States Department

of Labor;

Okla. Stat. tit 40 § 196.10a:

Employment of Registered Apprentices and

Trainees

Nothing in this act shall

prevent the employment of

registered apprentices or

trainees as defined in Section

196.2 of Title 40 of the

Oklahoma Statutes.

Rule 7 of the Oklahoma Commissioner of

Labor's Minimum Wage on Public Works Rules:

Journeyman's rate of pay will be

paid to all workers employed on

prevailing wage projects except

"Apprentices" or "Trainees"

enrolled and participating in

"Apprentice" or "Trainee"

programs registered with the

U.S. Department of Labor's

Bureau of Apprenticeship and

Training.

Each apprentice or trainee

employed on a contract subject

to the provisions of the

Prevailing Wages on Public Works

Law, must be individually

registered with the U.S.

Department of Labor, Bureau of

Apprenticeship and Training, and

must be paid at the percentage

of the basic hourly rate of

wages on the project prevailing

wage scale specified in the

program for his/her level of

progress. Any such employee

listed on the payroll at a

"Trainee" or "Apprenticeship"

rate of pay, who is not

registered by the Bureau of

Apprenticeship and _ Training,

must be paid the wage rate

issued by the Department of

Labor for the craft or

Classification of work actually

performed. Federally approved

apprenticeship or trainee

standards and indenture

agreements will be presented

upon request.

Rule 8 of the Oklahoma Commissioner of

Labor's Minimum Wage of Public Works Rules:

"Helper" as a classification of

work shall not be recognized by

the Oklahoma Department of

Labor.

29 C.F.R. § 29.12(a):

Recognition of State agencies

The Secretary's recognition of

a State Apprenticeship Agency or

Council (SAC) gives the SAC the

authority to determine whether

an apprenticeship program

conforms with the Secretary's

published standards and the

program is, therefore, eligible

for those Federal purposes which

require such a determination by

the Secretary. Such recognition

of a SAC shall be accorded by

the Secretary upon submission

and approval of the following:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.