# Opposition Brief — Keystone Chapter Associated Builders & Contractors, Inc. v. Pennsylvania Secretary of Labor & Industry

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1159%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1032

## Text

: SE eree _ ko
ELLER

——

IN THE eid
SUPREME COURT OF THE UNITED STATES

October Term, 1994

KEYSTONE CHAPTER,
ASSOCIATED BUILDERS AND CONTRACTORS, INC.,
in representation of its members,
Petitioner,
7.
JOHNNY J. BUTLER,
in his official capacity as
Acting Secretary of Labor and Industry
for the Commonwealth of Pennsylvania,
Respondent.

On Writ of Certiorari
To the United States Court of Appeals
For the Third Circuit

BRIEF IN OPPOSITION

ERNEST D. PREATE, OR.
Attorney General of Pennsylvania

By: JOHN G. KNORR, III
Chief Deputy Attorney General
Chief, Litigation Section

SUSAN J. FORNEY
Senior Deputy Attorney General
Counsel of Record

Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120

(717) 783-1471

QUESTION PRESENTED

Whether Pennsylvania’s Prevailing Wage Act
relates to employee benefit plans in more
than a "tenuous, remote and peripheral
manner" and therefore is pre-empted by

ERISA?

LIST OF PARTIES
The parties listed in the petition
for certiorari are accurate except that
respondent Thomas P. Foley, Pennsylvania’s
Secretary of Labor and Industry has been
succeeded in that office by Acting
Secretary Johnny J. Butler, who should be

substituted as respondent. See Sup. Ct.

ms Seeds

TABLE OF CONTENTS

Page

QUESTION PRESENTED................. i
ee | ii
TABLE OF CONTENTS.................. iii
TABLE OF AUTHORITIES............... iv
STATEMENT OF THE CASE.............. 1
REASONS FOR DENYING THE WRIT....... 11
I. THE PETITION DOES NOT PRESENT

AN ISSUE OVER WHICH THE COURTS

OF APPEALS ARE IN CONFLICT.... 11
II. THE ISSUE PRESENTED BY THE

PETITION WILL HAVE NO IMPACT

ON THE LAW OF ERISA

PRE-EMPTION BEYOND THE FACTS

OP TRIS CAMR. . . . . 5 ccc ccucae. 17

III. THE DECISION OF THE COURT OF
APPEALS IS CONSISTENT WITH
PRIOR DECISIONS OF THIS COURT. 19

nS 6 a 4 6-5 6 sp db 4 wo 4 ke kw es os 26

- iii -

TABLE OF AUTHORITIES

Cases: Page

Alessi v. Raybestos-Manhattan,
Ie
O02 GU.8. See 429s) «ooh hes oo 12

District of Columbia v.
Greater Washington Board of Trade,
506 U.S. _, 121 L.Ed.2d 513,
ek ee Ae oo! | hs rs 9,240

Fort Halifax Packing Co. v. Coyne,
S5e Gs Ce 6 004 6% 60 8 8 19,20

General Electric Co. v.
New York State Department of Labor,
B9i F.iaea ae taa Cee. ives) ..«.2k,k0,13
14,17,18

Lycoming County Nursing Home v.
Pennsylvania,

627 A.2d 238,

(ha. Commie. Cl. 1993) ....-.4. 2

Mackey v.

Lanier Collection Agency & Serv.,
S66 U.8. GAS (AO) «ssc cecess 7

Massachusetts v. Morash,
690 G.8. ABT Ciao) «usc ceeces 19,20

National Elevator Industry, Inc.
v. Calhoon,

957 F.2d 1555(10th Cir.1992). 18

Cases: Page

New York State Conference of
Blue Cross and Blue Shield Plans
v. Travelers Insurance Co.,

14 7.36 7Oe (26 Cir.),

cert. granted,
63 U.S.L.W. 3291 (1994)...... 14

Shaw v. Delta Air Lines, Inc.,

463 U.8. 85, 97° (4963) ..«2... 6,9,21

Statutes:

Employee Retirement

Income Security Act, (ERISA)
239 U.8.C. GaGe et U3) 04644 cece es 22
ae GVibeGs BAe) 44-4 eee eee p |

Pa. Stat. Ann., tit. 43, §165-1 1
Pa. Stat. Ann., tit. 43, §165-5 2
Pa. Stat. Ann., tit. 43, $165-7... 2
Pa. Stat. Anmh., tit. 63, 8a65 29 U.S.C. §1003 (b) (3) exempts from
pre-emp-ion:

any employee benefit plan
maintained solely for the
Purpose of complying with
applicable , Gisability
insurance laws.

22

do. It could require employers to choose
between paying the entire wage in cash or
satisfying part of at through
contributions to fringe benefits.

Finally, the Court of Appeals’
decision is also consistent with District
of Columbia v. Greater Washington Bo of

Trade, 506 U.S. , AZ &.8G.26 $13,

113 S.Ct. 580 (1992). That case involved
a statute that required employers’ who
provided health insurance for’ their
employees to provide equivalent coverage
for injured employees who were eligible
for worker’s compensation benefits. The
Court held the law pre-empted by ERISA
because its obligations were premised on
the existence of ERISA-covered plans. Id.
at _—___, 121 L.Ed.2d at 520-21, 113 S.Ct.
at 583-84. Absent such plans, the statute

could not be applied.

23

The Court of Appeals correctly
recognized that such is not the situation
presented by the Prevailing Wage Act:

In the absence of ERISA plans
the Prevailing Wage Act could be
meaningfully applied. The Act
requires the Secretary to
measure prevailing benefit
contributions in a locality for
a given class of worker. The
Secretary would do so even if
all of these were non-ERISA
benefits -- that is benefits
"Payable on a regular basis from
the general assets of the

employer" . . . and that "Create
no need for an ongoing
administrative program for
Processing claims and paying
benefits."

Pet. App. 3la (citations omitted).

The Court also noted the act could be

meaningfully applied if a contractor

Satisfied the benefits component of the

wage by contributing to non-ERISA benefits

or by paying its monetary equivalent. Id.
Thus, the decision of the Court of

Appeals is consistent with prior decisions

24

of this Court concerning ERISA pre-

emption.

25

CONCLUSION
For these reasons, the respondent
asks the Court to deny the writ of

certiorari.
Respectfully submitted,

ERNEST D. PREATE, JR.
Attorney General of Pennsylvania

JOHN G. KNORR, III
Chief Deputy Attorney General
Chief, Litigation Section

SUSAN J. FORNEY
Senior Deputy Attorney General

Office of Attorney General
15th Fl., Strawberry Sq.
Harrisburg, PA 17120
(717) 783-1471

DATE: February 16, 1995

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1159%3A4. Public record. Not legal advice.