No. __________
													In The
Supreme Court of the United States
										October Term, 1995
		Petitioners, v.
					Respondents. ____________________
							Petition For Writ Of Certiorari To The 
United States Court Of Appeals For The 
Ninth Circuit 
JOHN M. REA, Chief Counsel,				H. THOMAS CADELL, JR., 
 (Counsel of Record)							 Chief Counsel,
 Asst. Chief Counsel,						 Counsel,
FRED D. LONSDALE, Sr. Counsel,
State of California								State of California
Department of Industrial						Division 
of Labor
Standards Enforcement
Office of the Director						45 Fremont Street,
 Legal Unit													 Suite 
45 Fremont Street, Suite 450				San 
Francisco, CA  94105
San Francisco, CA		94105						 (Mailing 
 (Mailing Address:									P.O. Box 420603,
P.O. Box 420603,											San Francisco, CA  
San Francisco, CA		94142)					(415) 975-2060
(415) 972-8900
Counsel for State Petitioners			Counsel for State Petitioners
Department of Industrial						Division of Labor 
Relations Division of						Enforcement and County of
Apprenticeship Standards						Sonoma
	Petitioners State of California, encompassing its Department of 
Industrial Relations, Division of Labor Standards Enforcement and Division of 
Apprenticeship Standards and the County of Sonoma respectfully pray that a writ 
of certiorari issue to review the judgment of the United States Court of Appeals 
for the Ninth Circuit, entered in the above action on June 7, 1995.
	The opinion of the United States Court of Appeals for the Ninth Circuit is 
reported at 57 F.3d 712 (9th Cir. 1995) and is reprinted in the appendix to this 
certiorari petition ("App.") at App. 1-22.  The Order of the Court of Appeals 
denying California's Petition for Rehearing and Suggestion for Rehearing En Banc 
is reprinted at App. 53-54.  The opinion of the United States District Court for the 
Northern District of California granting California's Motion for Summary
Judgment is reported at 778 F. Supp. 1522 (N.D. Cal. 1995) and is reprinted at 
App. 23-52.
	The Ninth Circuit issued its decision and judgment herein on June 7, 
1995.  A timely Petition for Rehearing and Suggestion for Rehearing En Banc was 
denied on July 19, 1995.  An Application for Extension of Time to File Petition 
for Writ of Certiorari was filed September 28, 1995 and Justice Sandra Day 
O'Connor extended the time to file to and including November 16, 1995.  This 
Court has jurisdiction under 28 U.S.C. Section 1254(1).
	The relevant statutes are reproduced in the appendix at App. 55-63.  The 
relevant federal statutory provisions are Section 514(a) and (d), 29 U.S.C. 
Sections 1144(a) and 1144(d) of the Employee Retirement Income Security Act of 
1974 ("ERISA"), 29 U.S.C. Section 1001 et seq., and the National Apprenticeship 
("Fitzgerald") Act 29 U.S.C. Section 50.  The relevant California statutory 
provision is California Labor Code Section 1777.5.
	California has a prevailing wage law which sets the minimum wages on a 
trade by trade basis that must be paid to workers on public works projects in the 
state.  This law is modeled after and was passed in the same year as the Davis-
Bacon Act, 29 U.S.C. Section 276a, which sets the minimum wages that must be 
paid on federal public works projects.  O.G. Sansone Co. v. Dept. of Transportation, 
55 Cal. 
App. 3d 434, 448, 127 Cal. Rptr. 799 (1976).  Like the Davis-Bacon Act, the 
California law allows a lower minimum wage for registered apprentices in 
apprenticeship programs approved as meeting the standards of the federal 
Fitzgerald Act.  Under California law, as under the Davis-Bacon Act, the specific 
prevailing wage for apprentices is set at less than that for fully trained workers in 
the trade and varies with the apprentices' level of progress through the multi-year 
apprenticeship program.  Cal. Lab. Code Section 1777.5.
	The County of Sonoma requested bids for the construction of its County 
Male Adult Detention Facility, a public works project for which state, but not 
federal, prevailing wages were required under the California Labor Code.  In early 
1987 Dillingham was awarded the construction project and became the general 
contractor for the detention facility.  Dillingham eventually subcontracted the 
audio security wiring work to Sound Systems Media.
	After it began work on the detention facility in January, 1988, Sound 
 employees changed their collective bargaining representative and Sound Systems 
entered a new employer group.  Sound Systems entered into a collective bargaining 
agreement with the new union in which it agreed to use apprentices to be provided 
by the nascent Joint Apprenticeship and Training Committee (hereinafter "the 
Committee") established by that union and employer group.  That Committee,
 however, had no working apprenticeship training program.
	The Committee sought approval of its proposed standards to set up a new 
program from the California Apprenticeship Council, the agency recognized by the 
federal Bureau of Apprenticeship and Training as the body with authority to 
approve apprenticeship programs in California for federal purposes, including 
the Davis-Bacon Act. 29 C.F.R. Section 29.12.  The program's approval was 
pending when Sound Systems began working on this project for the County of 
	Notwithstanding the fact the Committee's standards had not been 
approved, beginning in June, 1988, Sound Systems began paying certain 
employees, whom it 
would later call "apprentices," what it designated an apprentice wage rate.  This 
was contrary to the California law which restricted the apprentice wage rate on 
public works to registered apprentices in approved training programs.
	It is undisputed that Sound Systems employed no registered apprentices 
and in fact it had no apprentice agreements for these employees in its possession 
during the job.  Payroll records filed with the California Division of Labor 
Standards Enforcement, and sworn to by Sound Systems, listed no employees 
designated as "apprentices."  App. 5-6, 28 n.3.  Moreover, Sound Systems 
volunteered at the trial level that these individuals designated as "apprentices" 
received no training.
	This "apprentice" wage paid by appellant was lower than the journey 
 specified in the prevailing wage determination issued by the Department for this 
public work.  As a result, the Department issued a "Notice to Withhold" directing 
Sonoma County to withhold monies from Dillingham based on Sound Systems' 
failure to pay the prevailing wage in accord with California Labor Code Section 
1771 because an alleged apprentice rate was paid to non apprentices.  The 
contractors filed this action May 1, 1990 in the district court seeking declaratory 
relief and the recovery of monies withheld.
	Cross motions for summary judgment were filed before the district 
The district court rejected appellants' Employee Retirement Income 
Security Act (ERISA) and National Labor Relations Act, 29 U.S.C. Section 
151 (NLRA) preemption arguments, 1 dismissed their motion for summary 
judgment and 
granted defendants' motion, App. 39-40, 48.  The district court held that, because 
California's regulation of apprenticeship programs is part of a cooperative state-
federal effort for the formulation and promotion of apprenticeship programs, it is 
saved from preemption by the federal Fitzgerald Act, 29 U.S.C. Section 50, as 
incorporated in ERISA's Savings Clause, 29 U.S.C. Section 1144(d).
	On June 7, 1995, the Ninth Circuit reversed the district court, holding that 
the restriction of the apprentice prevailing wage to workers were registered 
apprentices was preempted by ERISA.  The Ninth Circuit based its holding on the 
following grounds:  1)  California's application of its prevailing wage law to allow 
payment of the lower apprentice rate only to employees in "approved" programs had 
the effect
and possibly the aim of encouraging participation in state approved ERISA plans 
while discouraging participation in unapproved ERISA plans.  2)  California law 
was not saved from preemption by the ERISA Savings Clause because, while the 
Fitzgerald Act does provide for state approval of apprenticeship programs, it 
does not depend on state law for enforcement, does not mandate apprenticeship 
programs and does not seek to discourage other types of training programs.  In 
the view of the Ninth Circuit the Fitzgerald Act would not be impaired by the 
preemption of this California law.
	On June 21, 1995 California filed a timely Petition for Rehearing and 
Suggestion for Rehearing En Banc asking the court of appeals to consider the 
conflict between its decision and the decision of the Eighth Circuit in Minnesota 
Chapter ABC v. Minnesota, 47 F.3d 975 (8th Cir. 1995).  The petition also asked 
the court to consider the conflict between its decision and the California 
Supreme Court's decision in Southern California ABC v. California 
Apprenticeship Council, 
4 Cal. 4th 422, 14 Cal. Rptr. 491 (1992), which upheld the state approval process 
from an ERISA preemption challenge inso far as that process did not impose 
not found in the federal Fitzgerald Act and which was based in part on the district 
court decision just reversed.  Finally, the court was asked to consider the effect 
of this Court's then very recent decision New York State Conference of Blue Cross 
and Blue Shield Plans, et al. v. Travelers, ___ U.S. ___, 115 S. Ct. 1671 (1995) 
which had not been briefed.  The court denied the Petition for Rehearing and 
Suggestion for Rehearing En Banc on July 19, 1995.

	For over 39 years before ERISA, California had adopted as a precondition 
for a lower apprentice wage on public works the same requirements - state 
approval of 
the apprenticeship program and state registration of apprentices - used by the 
federal government as the precondition for lower apprentice wages on federal 
works.  Like the federal government, California recognized that unless an 
apprenticeship program is actually providing effective training to beginning 
workers, there is no justification for paying those workers less than the legally 
required minimum prevailing wage.  Reduced to its essence, the Ninth Circuit 
held that a state may not, under ERISA, craft its use of its state prevailing 
wage law so that it will be consistent with the federal goal of encouraging 
apprenticeship program standards which meet federal standards.  Dillingham 
results in workers 
being paid a wage rate, which is set lower than the prevailing journey rate, as if 
they were also receiving training meeting federal standards, on a state-funded 
work without any obligation that these workers receive any training.  The same 
wage payment at the apprentice rate by the same contractor on a federally funded 
public work to workers not registered in an apprentice plan approved by the state 
as meeting federal standards would bring civil, and possible criminal, sanctions.
	This petition seeks certiorari on the question of whether ERISA preempts 
California's long standing policy of restricting the prevailing apprentice wage 
rate on state public works to registered apprentices, just as the comparable 
federal DavisBacon prevailing wage rules do for the same apprentices in the same 
trades in the same labor market on federal public works.  Dillingham's conclusion 
that ERISA requires this change in long standing rules governing prevailing wages 
on public works is in error.  First, ERISA's Savings Clause protects this state law 
from preemption as in furtherance of the Fitzgerald Act's articulated purpose.  
Second, ERISA's Preemption Clause does not reach state regulation of apprentices' 
wages because such wage laws concern wages paid by contractors to apprentices 
and do not directly "relate to" apprenticeship plans, only some of which are 
covered by ERISA.
I.	Conflict Exists Within The Circuits On The Breadth Of The Savings Clause 
	There is a direct conflict between the decision of the Ninth Circuit in this 
case and the Eighth Circuit decision in Minnesota Chapter ABC v. Minnesota, 47 F.3d 
(8th Cir. 1995).  That conflict concerns an important question of national significance 
as to whether the Savings Clause of ERISA, 29 U.S.C. Section 1144(d), protects from 
preemption a prevailing wage law that provides tailored wage rates only for
registered apprentices in apprenticeship programs approved as meeting the 
standards of the Fitzgerald Act.  Unless this Court resolves this conflict, contractors, 
apprentices and state and local public agencies in different states with similar state 
statutes2 will face uncertainty and conflicting directives concerning the use of 
apprentices on public works projects.
The states of California and Minnesota have regulated apprenticeship since 
1852 and 1939, respectively.  Under the current Secretary of Labor regulations 
promulgated in 1977 and through the present, both states have been approved by the 
Bureau of Apprenticeship and Training of the Department of Labor ("BAT") as State 
Apprenticeship Council ("SAC") states.3  State Apprenticeship Council states are, 
under BAT regulations, authorized to approve apprenticeship programs for "federal 
purposes," to register apprentices, and to work to encourage inclusion of federal 
minimum standards in programs under the Fitzgerald Act, 29 U.S.C. Section 50, and 
its regulations, 29 C.F.R. Section 29.1 et seq.  "Federal purposes" include determining 
whether a worker may be paid at an apprentice rate on federal public works.  29 
C.F.R. Section 5.5(a)(4).  Those regulations restrict approval of training programs to 
those that are extensive, sophisticated and formal enough to be "apprenticeship."
The prevailing wage laws of California and Minnesota provide that all 
contractors on public works pay their workers the prescribed minimum wage 
deemed prevailing at the journey (fully trained) level in the location and for the 
trade or craft in which the work is performed.  These laws parallel the federal 
DavisBacon law, which similarly sets the craft specific minimum wages paid on 
federal public works projects.  One of the purposes of such prevailing wage laws is 
to assure that on public works projects that are awarded to the lowest bidder the 
contractors will not compete by reducing the wages and quality of labor on the 
Universities Research Ass'n, Inc. v. Contu, 450 U.S. 754 (1981); Lusardi Const. Co. v. 
Aubry, 1 Cal. 4th 976, 4 Cal. Rptr. 2d 837 (1992).
	The prevailing wage laws of both California and Minnesota provide as well 
that workers who are registered as apprentices and are receiving training in 
apprenticeship programs registered with the respective state in accord with 
federal law may be paid a specially tailored apprentice wage.  This apprentice 
specific rate parallels the exception to the federal Davis-Bacon Act's requirement 
of journey level wages likewise limited to apprentices registered in state4 
approved apprenticeship programs.  The apprentice specific rate lowers the 
prevailing wage to a percentage of the journey level rate which is appropriate to 
the apprentice's training level.  The apprentice rate is denied for workers receiving 
training, even informal apprenticeship, when the training program will not commit 
to the state to 
deliver the training at the level set by the federal standards, or to the apprentice by 
registering him or her as such in a program.  Both commitments were lacking in 
	In Minnesota ABC, the Eighth Circuit held that the apprentice  specific rate 
in the Minnesota prevailing wage law, allowing contractors to pay apprentices in
approved programs at less than the prevailing wage, was "saved" from 
preemption under ERISA, 29 U.S.C Section 1144(d), because preemption of 
that law would impair the Fitzgerald Act.  The Fitzgerald Act provides that:
[t]he Secretary of Labor is authorized and directed to formulate and promote 
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 
Section 514(d) of ERISA, 29 U.S.C. Section 1144(d) provides that "[n]othing in this 
subchapter shall be construed to alter, amend, modify, invalidate, impair or 
supersede any of the laws of the United States...or any rule or regulation issued 
under such law."
	The Eighth Circuit reasoned that preemption of Minnesota's regulation, 
MINN. R. 5200.1070 (1993 and Supp. I 1994) would "impair" the cooperative state 
jurisdiction over apprenticeship programs envisioned by the Act.  One purpose 
the Act is to promote and encourage apprenticeship, and labor standards in 
apprenticeship, in cooperation with the states.  Consistent with this purpose, 
the federal Bureau of Apprenticeship and Training has promulgated federal 
apprenticeship regulations under the Act to provide national standards for 
apprentice agreements and program approval.  As the Eighth Circuit recognized 
in Minnesota ABC, the purpose of the Act and regulations would be impaired if 
a state were not permitted to set an appropriate wage to be paid by 
contractors employing apprentices on state funded public works.
	Such an apprentice specific wage rate may in fact be essential for 
contractors to be able to use apprentices economically on public works because 
apprentices lack the training to be as productive as journey level workers whose wage 
they would
otherwise receive.  The failure to recognize the costs to contractors who voluntarily 
assume training responsibilities at the higher, and more costly, level of apprenticeship 
meeting the federal standards will, in the public construction sector, where lowest 
bidder rules universally apply, result in contractors avoiding the commitment to 
multi-year apprenticeship meeting the federal standard, fearing 
that any added costs will cost them work because they will be at a disadvantage in 
bidding on public works.
	The Ninth Circuit in Dillingham, unlike the Eighth Circuit, took an 
extraordinarily narrow view of both the Fitzgerald Act and the Savings Clause of 
ERISA, holding that the preemption of California Labor Code Section 1777.5's 
restriction of an apprentice specific wage to registered apprentices on state-
sponsored publicworks, as applied, would not impair the operation of the Fitzgerald 
Act.  The Ninth Circuit reasoned that because the Act, unlike Title VII, does not 
preserve non-conflicting state laws and "does not contemplate enforcement 
mechanisms," preemption of California Labor Code Section 1777.5 does not impair 
this federal law.  
App. at 17.  In so holding, the Ninth Circuit adopted and quoted from the Tenth 
Circuit opinion in National Elevator Industry, Inc. v. Calhoon, 957 F.2d 1555 
(10th Cir. 1992), which stated that "[The Fitzgerald Act] merely seeks to 
facilitate development of apprenticeship programs - it does not mandate 
apprenticeship programs or seek to discourage other training programs."  Id. at 
	The Ninth Circuit erred by construing the Savings Clause of ERISA too 
narrowly.  The Ninth Circuit said, in essence, that because the Fitzgerald Act 
not mandate contractors to participate in apprenticeship, and does not order states to 
foster apprenticeship it is not the kind of "law of the United States ... or any rule or 
regulation" to be saved.  This holding is premised on a top down view of federalism 
which presumes that cooperative partnerships between the states and the federal 
government are not worth saving.  The Ninth Circuit restricts the state laws which 
can be saved to those which either are themselves coerced by the federal 
government, or which offer to deputize the state in a joint venture to coerce 
private sector.  Such a restrictive interpretation of the Savings Clause puts at risk the 
general run of laws in broad areas of benefits and health touched by ERISA, where 
cooperative federalism is increasingly the federal goal and where congressional 
reforms and block grants should allow the private sector and the state to 
 enter into partnerships.5
	There is nothing in the ERISA Savings Clause that suggests that only 
certain kinds of federal statutory schemes are to be saved.  Section 1144(d) says 
that ERISA "shall not be construed to alter, amend, modify, invalidate, impair, or 
supersede any laws of the United States..." (emphasis added).  Although the leading 
case protecting a state law under this section dealt with a law that was coercive, 
Shaw v. Delta Air 
Lines, 463 U.S. 63, 100-106 (1983), in neither that opinion nor in the text of ERISA 
is there a proviso restricting this clause to coercive laws.  The federal government 
cannot effectively encourage states to promote apprenticeship standards, meeting 
federal basic standards, if ERISA is read as preempting states when they voluntarily 
adopt those standards as their definition of "apprentice" on state public works.
	Aside from misreading ERISA's federal law Savings Clause, the Ninth 
Circuit narrowly and selectively read the congressional intent set out expressly in 
the text of the Fitzgerald Act.  While the Ninth Circuit recognized that Congress 
noted and approved of a cooperative state-federal venture in the Fitzgerald Act, it 
missed an expression of intent equally worth saving:  The promotion and the 
furtherance of labor standards necessary to safeguard the welfare of apprentices 
and the extension of "the application of such standards by encouraging the inclusion 
thereof in contracts of apprenticeship."  The Ninth Circuit's narrow reading of the 
congressional mandate does not square with the fact that "contracts of 
apprenticeship" are, by the Secretary of Labor's own definition,6 multi-year 
educational endeavors, encompassing the apprentices' work on private, state-
funded and federally funded work in a trade or craft, and not a transient 
arrangement entered into for one federal public works job, and then discarded.  It 
is paradoxical that the only role Dillingham saves for the state under the Act is to 
extend labor standards on federal projects by reviewing and approving programs 
for BAT, and registering those programs' apprentices for BAT, so that federal 
works can preserve apprentices' labor standards on federal jobs, in precisely the 
ways that the state may not on its own.  Indeed, many states may no longer choose 
to volunteer for such a job, and instead may wash their hands of any so limited a 
role in promoting apprenticeship.
	The Ninth Circuit's holding sets in motion a labor market distortion 
ruinous to the congressional goals of the Fitzgerald Act.  The Ninth Circuit's rule 
creates an economic disincentive for contractors to enter into apprenticeship 
agreements that meet the federal standards for training.  If any worker can be paid 
the lower apprentice wage on public works just because the worker is ensconced in 
a generic unapproved program which is less costly because it has no objective 
training standards, is thrown together for a single contract, lacks outside 
schooling or safety training, and allows an unlimited number of apprentices to 
work regardless of whether journey level workers are present to provide on-the-
job training - but is covered by ERISA7 - then contractors have an economic 
incentive to move to such cheaper programs and away from federally approved 
apprenticeship.  By restricting the apprentice wage to apprentices in programs 
approved as meeting the federal standards for apprenticeship, the federal goal of 
minimum apprenticeship standards 
is protected.
	States will also pull back from apprenticeship because they will be 
concerned that the lack of any objective standards for who can be paid an 
apprentice wage rate will undercut the prevailing wage law completely.  Cf. 
Building and Const. Trades v. Donovan, 712 F.2d 611, 625 (D.C. Cir. 1983) (prevailing 
wage laws can be subverted by arbitrary classifications).  Restricting the reduced 
apprenticeship wage to registered apprentices in approved plans is needed to 
protect the regulation of the journeylevel prevailing wage for the same reasons 
that the Davis-Bacon regulations restrict 
the availability of apprentice wages on federal public works to registered 
apprentices in plans approved by the state.  The real (non ERISA related) problem is 
that if the state allows anyone to be called an "apprentice" at the contractor's 
option, then there is no longer a prevailing wage which can be enforced at the 
journey level.  Ethical contractors will lose bids to those willing to style all 
workers "apprentices" and pay the lowest wage, getting around the prevailing wage 
law.  The most logical way out 
of the dilemma is to restrict the apprentice-specific wage to those to whom the 
nation-wide definition, in the Secretary of Labor's regulations, applies - 
apprentices registered in programs which meet the federal standards, and have the 
approval to show it.  Contractors must be able to bid on public works without 
concern that a competitor will have an unfair advantage in the bid process by using 
phony apprentices.
	The Ninth Circuit also creates another disincentive for states to promote 
apprenticeship.  Although apprentices registered in state approved programs are, by 
definition, less skilled than the journey level workers, they are at least overseen by 
journey level workers on the state job and participate in ongoing classroom 
instruction, 29 C.F.R. Section 29.5(b)(9).  This is not true for "apprentices" in ad hoc 
informal programs.  If the apprentice wage is not restricted to registered apprentices 
in programs with some minimum guarantee of standards, the states have lost an 
important guarantee of adequate quality of craft8 work on public works projects.  For 
the state to encourage apprenticeship and allow less skilled workers on public works 
projects, the state must be convinced that the apprentices are workers whom the 
contractor has a self-interest in teaching to work up to high standards because the 
contractor must live with the consequences of his teaching beyond this one job 
which happens to be public works.
	A rule like the Ninth Circuit's which commands states to allow apprentice 
wages to those not registered in programs that are approved as meeting federal 
standards, while state approval continues to be required on federal Davis-Bacon 
construction in the same state, runs against Congress's intent in ERISA of 
protecting employers from "conflicting and inconsistent state and local regulation" 
of such plans, to the degree that the apprenticeship programs are covered by ERISA.  
Travelers, at 1677-1678.  Since federal Davis-Bacon rules restrict the wage break 
to registered apprentices in approved programs, a different rule for state projects 
would create the absurd situation that ERISA, in the name of simplicity and 
uniformity, creates one set of rules for a contractor working on a federal 
courthouse or jail and another set of rules when that same contractor goes across 
the street to wire the sound security system in the county jail, as here.
	The Ninth Circuit has taken an unnecessarily narrow view of the ERISA 
Savings Clause which, as discussed above, leads to results which are counter to the 
intent of Congress in passing ERISA and the Fitzgerald Act.  The Eighth Circuit's 
Minnesota ABC contrary view creates no such anomalies.  This Court should grant 
certiorari in order to resolve this direct conflict between the Circuits and, as will be 
discussed below, effectuate the intent of Congress which this Court has recently 
emphasized is the touchstone for understanding the limits of ERISA preemption.
II.	The Ninth Circuit's Conclusion That Congress Invalidated California's 
Longstanding System Of Setting Prevailing Wages For Apprentices On Public 
Projects When It Enacted ERISA Is Based On The "Unhelpful" Approach To 
ERISA Preemption Specifically Disapproved In New York State Conference 
of Blue Cross and Blue Shield et al. v. Travelers, 115 S. Ct. 1671 (1995).
	The Ninth Circuit in this case erred not only in its application of ERISA's 
Savings Clause but also in  disregarding entirely an opinion, New York State 
Conference of Blue Cross and Blue Shield et al. v. Travelers, 115 S. Ct. 1671 
decided two months before Dillingham in which this Court "recognize[d] that our 
prior attempt to construe the phrase 'relate to' does not give ... much help," 115 S.  
Ct. at 1677, and announced a new orientation in determining the reach of ERISA 
	Specifically, the Ninth Circuit's decision concluded that Section 514(a) of 
ERISA, declaring preempted "all state laws insofar as they ... relate to any 
employee benefit plan," is applicable here even though the statute preempted is a 
law of general application which applies without regard to whether the 
apprenticeship program in question is an ERISA-covered plan or not; even though 
the statute 
applies to contractors, not plans; even though assuring effective apprenticeship 
training of young people has long been understood to be a traditional concern of 
state governments; and even though the statute, which governs only contracting 
by state entities, does not effect any employer who does not choose to do 
business with 
the state or its subdivisions.  App. 15.  In ruling that the law "relates to" ERISA plans 
the Ninth Circuit made no attempt to inquire into whether its ruling serves the 
overall purposes of ERISA and of ERISA preemption, nor did the court below 
inquire into whether there was any indication that Congress in 1974 had intended to 
displace states from their traditional role of assuring both adequate training and fair 
labor standards for apprentices working on state-funded projects.
	Just last term, however, in Travelers this Court rejected such "uncritical 
literalism" in applying Section 514(a) of ERISA.  115 S. Ct. at 1677.  First, Travelers 
noted that "[i]f 'relate to' were taken to the furthest reaches of indeterminacy, then for 
all practical purposes preemption would never run its course."  Id.  At the same time, 
Travelers recognized that it is apparent both from statutory terms of limitation and 
"the presumption against preemption," id., that ERISA does not displace states' 
authority to legislate whenever there is some impact on an employee benefit plan. 
Because of "the unhelpful text [of Section 514(a)] and the frustrating difficulty of 
defining its key term," id., Travelers superseded this Court's "prior attempt to construe 
the phrase 'relate to'" with a new mode of analysis based on "looking ... to the 
objectives of the ERISA statute as a guide to the scope of the state law that Congress 
understood would survive."  Id.
Because the Ninth Circuit's text-centered approach to ERISA preemption is in
tension with Travelers, this case presents the opportunity to spell out the 
implications of the objective intent-oriented approach to ERISA preemption beyond 
the narrow health-cost containment context there presented. 
	Like Travelers, this is not a case in which the ERISA preemption question 
can be answered simply on the basis that the state law in question expressly makes 
a "reference to" ERISA plans.  See Travelers, 115 S. Ct. at 1677.  The only 
requirement for taking advantage of the sub-journey level apprentice wage on 
California public works projects is that the apprentice in question be registered 
with the state through a recognized apprenticeship program meeting federally-
specified criteria.  Apprenticeship programs, both as commonly understood, and as 
described in 29 
C.F.R. Section29.3-29.6, do not pay prevailing wages to any workers employed on 
public works. Contractors do.  Thus, laws that set prevailing wages for public 
works projects do not deal with the administrative or financial workings of benefit 
plans at all.  It is true, of course, that providing for a lower apprenticeship wage on 
public works projects only for registered apprentices may have the effect of 
encouraging employers to employ registered apprentices so that they will be able 
to save money. But Travelers makes clear, at the least, that as the form of state 
involvement becomes one not of mandating a preference for one employee benefit 
plan over another, but of creating economic incentives that may affect employer 
preferences, the presumption against preemption becomes stronger.
	Although the Ninth Circuit apparently assumed that all the state-certified 
apprenticeship programs are ERISA-covered plans, and that the reference in the 
state law to such programs is therefore a reference to ERISA plans, in fact no such 
identity exists.  Rather, as the United States Secretary of Labor previously 
explained to this Court in another case holding a state law preempted by ERISA 
because of ERISA's coverage of "apprenticeship or other training programs," Section 
3(1)(A), 29 U.S.C. Section 1002(1)(A), Department of Labor regulations make clear 
that "neither on-the-job training nor classroom training paid for out of an 
employer's general assets is an ERISA plan."  Lennes v. Boise Cascade Corp., No. 91-
707, Brief for the 
UnitedStates as Amicus Curiae on the Petition for Writ of Certiorari at 9, citing 29 
C.F.R. Section 2510.3-1(b)(3)(iv); 40 Fed. Reg. 24, 643; 29 C.F.R. Section 2510.3-1(b); 29 
C.F.R.Section 2510.3-1(k); ERISA Advisory Opinions Nos. 76-01 and 83-32A; and 
Massachusetts v. Morash, 490 U.S. 107 (1989).10  Consequently, it is "not the case" 
that "any law relating to apprenticeship or training necessarily relates to covered plans 
only."  Id. at 15. Rather, a state law that refers to apprenticeship plans generally 
"affects many programs not subject to ERISA," Id., and therefore cannot be deemed 
preempted as a law that singles out ERISA plans for special treatment.  Compare 
Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 829 (1988).  
	The question, here, as in Travelers, is whether the available legislative 
and historical materials as a whole indicate that the California apprentice 
prevailing wage provisions, typical of the majority of states, are within the "scope 
of state law that Congress understood would survive."  Travelers, 115 S. Ct. at 
1677.  There are at least two reasons, which the Ninth Circuit did not look at here, 
and will not look at in the future under its analytical model for preemption, for 
finding that the law invalidated below is not a statute of the kind Congress 
intended to preempt.
	First, as Travelers recognized, Congress's basic objective in enacting 
ERISA's preemption provision was to eliminate conflicting regulation of pension 
welfare benefit plans, not to supersede the historic powers of the states beyond 
the degree necessary to accomplish that uniformity. 115 S. Ct. at 1680 ("nothing in 
the language of the Act or the context of its passage indicates that Congress chose 
to displace general health care regulation, which historically has been a matter of 
local concern").  
	Nothing in ERISA regulates substantively either wages (prevailing or 
otherwise) or the operative aspects of apprenticeship programs (such as the 
content of the training provided, the number of years apprentices serve, the ratio 
of journeypersons to apprentices, the procedural rules governing discharge from 
apprenticeship programs, etc.).  On the other hand, like health care, both wages and 
the supervision and support of apprenticeship programs have been "historically ... 
matter[s] of local concern," in the sense that state and local involvement in these 
areas was, at the time ERISA was passed, widespread and detailed. 
	In this instance, voiding California's authority to limit the application of 
special apprenticeship wages to registered apprentices not only interferes with 
the state's wage-setting authority on public works projects with respect to 
apprentices, but also eliminates any meaningful ability to establish wages for any 
workers on public works projects. See p. 17, supra, (explaining that under the 
decision below, contractors can successfully evade the prevailing wage laws 
entirely by designating any workers they please as apprentices).
	Like both general wage regulation and the state's own public works, the 
governance of the substantive aspects of apprenticeship, has always been an area 
in which the states have been heavily involved11.  Education generally, has always 
been largely the province of state law, and apprenticeship programs developed 
initially as simply one way among many to provide young people with the 
training to succeed in the adult world of work. The history of apprenticeship 
particularly demonstrates that the states had long regulated both the wages 
and the working and training conditions of apprentices. As we have seen,12 the 
federal Fitzgerald Act, enacted in 1937, was intended to build upon this major 
state role in delineating apprenticeship training and labor standards. 
	Given this historical, statutory, and regulatory background, neither 
Section514(a) nor ERISA's lack of substantive attention to apprenticeship can 
sensibly be understood as evidencing an Congressional intention to preclude 
states from attending to and supporting effective and successful on-the-job 
training of youngpeople13. Rather, the more appropriate conclusion is that 
Congress assumed that ERISA was not disturbing the long-standing 
arrangements for substantive encouragement of basic and adequate 
apprenticeship standards by states, which 
prevailed under the Fitzgerald Act.14  This conclusion is reinforced by the fact 
that during consideration of ERISA and after its passage, those who would be most 
likely to know of Congress's intent in passing ERISA continued to assume that the 
federal state partnership remained a key component of the federal regulation of 
apprenticeship under the congressional mandate found in the Fitzgerald Act, and 
did not assume that the Secretary of Labor's state partners had lost 
	Second, where states wish to have effective prevailing wage laws, 
they have no practical way of avoiding some impact on apprenticeship plans. As 
explained previously, supra, pp. 16-18, the only real choice such states have is 
between discouraging apprenticeship on public works by failing to provide a 
lower-thanjourney person wage rate; permitting employers to pay apprentice 
wage to anyone they please, thereby undermining the prevailing wage system 
entirely; or providing some basis for specifying who may be paid at the lower, 
apprentice wage rate - namely, workers who are receiving actual training on a 
long-term basis.  As noted previously, this same practical situation has 
resulted, on federal public works projects, in provisions regarding 
apprenticeship wages substantially identical to those here at issue. 29 C.F.R. 
Section 5.5(a)(4).  To the extent that the policy of simplicity and uniformity 
behind ERISA preemption informs the debate, that policy suggests that 
preemption should not result in mandating different rules regarding who is an 
apprentice, paid at apprenticeship wage rates, with state public works 
projects on one side and federal or joint federal state ones on the other.  Nor is there 
any basis for supposing that in enacting ERISA Congress intended to preclude the 
states from reaching the practical solutions to public contracting issues permitted to 
the federal government.
	For the reasons stated above, this Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Ninth Circuit should be granted.
Dated: November 16, 1995, San Francisco, California
JOHN M. REA, Chief Counsel,	H. THOMAS CADELL, JR., 
 (Counsel of Record)	 Chief Counsel,
 Asst. Chief Counsel,	 
FRED D. LONSDALE, Sr. Counsel,
State of California	State of 
Department of Industrial	Division 
of Labor
Standards Enforcement
Office of the Director	45 
Fremont Street,
 Legal Unit	 Suite 
45 Fremont Street, Suite 450	San 
Francisco, CA  94105
San Francisco, CA  94105	 (Mailing 
 (Mailing Address:	P.O. Box 
P.O. Box 420603,	San Francisco, CA  
San Francisco, CA  94142)	(415) 975-2060
(415) 972-8900
Counsel for State Petitioners	Counsel for State 
Department of Industrial	Division of Labor 
Relations Division of	Enforcement and 
County of
Apprenticeship Standards	Sonoma
	1 The district court ruled that since state enforcement of 
minimum apprenticeship standards constitute a valid "minimum 
employment standard" they are not preempted by the NLRA under 
Metropolitan Life Insurance Co. v. 
Massachusetts, 471 U.S. 724 (1985) and Fort Halifax Packing Co., Inc. v. Coyne, 
482 U.S. 1 (1987). The Ninth Circuit did not reach this issue.
	2 Thirty-two states have prevailing wage laws.
	Twenty-eight states with prevailing wage laws restrict their sub-
journey apprentice-specific wage to apprentices in programs registered with or 
approved by the state or BAT.  The rule for four states is unclear.
	Of those twenty-eight states, twenty-two states make this 
distinction by statute, rule or regulation.  Arkansas Dep't of Labor Prevailing 
Wage Regulations Section 3.103 (Rev. 1994); CAL. LAB. CODE Section 1777.5 
(West 1995); CONN. AGENCIES REGS. Section 31-60-8 (1995); Delaware 
Prevailing Wage Regulations, Section III(D)(1), (2) (Amended Sept. 15, 1995); 
HAW. ADMIN. RULES tit. 12, Section 22-6 (Effective July 27, 1981); KY. REV. 
STAT. ANN. Section 337.520(5) (Baldwin 1982); 803 KY. ADMIN. REG. 1:020 
(Effective Oct. 2, 1974); MD. STATE FIN. & PROC. CODE ANN. Section 17-201(b), 
205(b), 208(e) (1988); MINN. R. 5200.1070 (1995); MO. CODE REGS. tit. 8, Section 
30.030; NEV. REV. STAT. Section 338.080(2) (1985); N.J. ADMIN. CODE tit. 12,  
Section 60-7.1, 7.3(c) (1995); New Mexico Rules & Regs. Under the Public Works 
Minimum Wage Act pt. VI, 6.2, 6.4 (Dep't Lab. Sept. 1989); N.Y. LAB. LAW Section 
231(7)(a) (McKinney 1986); OHIO REV. CODE ANN. Section 
4115.05 (Baldwin 1985); OHIO ADMIN. CODE Section 4101:9-4-16 (1995); OKLA. 
STAT. tit. 40, Section 196.1, 196.2(9), 196.6(A) (1991); OR. ADMIN. R. 839-16-060 
(Effective Nov. 10, 1994); 34 PA. CODE Sections 9.103(9), 83.5 (1975 and 1979); 
Rhode Island Rules & Regs. Relating to Prevailing Wages Section 5 (1995); TENN. 
ANN. Section 12-4-401, et seq. (1975); TENN. COMP. R. & REGS. Section 0800-
3-2-.01 (Effective April 26, 1987); WASH. REV. CODE Section 39.12.021 
(1991); WIS. ADMIN. CODE & IND. 92.02 (Oct. 1990); WYO. STAT. Section 27-4-
403(c) (1977 and Supp. 1995).  The remaining six states make this distinction 
by what ERISA's preemption 
clause would characterize as "other state action having the effect of law."  See, e.g., 
Alaska Wage & Hour Admin. Pamphlet No. 600: Laborers' & Mechanics' Minimum 
Rates of Pay (Dep't Labor effective Dec. 1, 1995); Commonwealth of Massachusetts, 
Executive Office of Labor, Division of Apprentice Training, Minimum Wage Rates 
for Apprentices Employed on Public Works Projects (Rev. Nov. 9, 1995); 
Michigan Wage & Hour Division Policy Concerning Disputes Regarding 
Classifications: Act 166, C. 4.08 (Rev. July 1994); Montana Dep't of Labor & 
Industry Prevailing Wage Requirements, Section A (effective July 1, 1994). 
	3 The following twenty-seven states are SAC states: 
	Arizona, California, Connecticut, Delaware, Florida, Hawaii, Kansas, 
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Montana, 
Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oregon, 
Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.  
District of Columbia, Puerto Rico and the Virgin Islands are also SACs.  U.S. Dep't of 
Lab., Employ. & Training Admin.:  Bureau of Apprenticeship & Training, Directory 
(Jan. 1995).
	4 In California, and the other SAC states listed in footnote 3.  Where states 
do not participate under the Fitzgerald Act, the federal BAT does the approvals, under 
the same substantive standards.  29 C.F.R. Section 29.12, App. 84.
5 Examples of laws implicated include the Job Training Partnership Act, 29 
U.S.C. Sections 1501 et seq., the Carl Perkins Vocational and Applied Technology 
Education Act, 20 U.S.C. Sections 2301 et seq., and School to Work Opportunities 
Program, 20 U.S.C. Sections 6101 et seq. which assist the states, working in 
partnership with private industry and others, to create "state plans" to provide 
financial and technical support to encourage the vocational education and training 
of students and workers. State participation is voluntary, like the Fitzgerald Act, 
and the states are free to create their own criteria to determine which programs to 
support.  20 U.S.C. Section 2323, 20 U.S.C. Section 6143(d). 
	6 29 C.F.R. Sections 29.2(e), 29.5, App. 65, 72-75.
	7 Although, in order to be covered by ERISA, a plan need not even be a 
formal written plan, Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1988), a one-
page trust form would allow a contractor to draft a minimally adequate plan to 
bring the temporary "apprenticeship" arrangement under ERISA.  The plan need not 
comply with all of ERISA's requirements.  Id.  Benefit levels for welfare benefits 
be changed at any time.  McGann v. H&H Music Co., 946 F.2d 401 (5th Cir. 1991), cert. 
denied, 113 S. Ct. 482 (1992).  Welfare benefit plans permit employers to be their 
own plan trustees, and no minimum funding is required by ERISA, unlike pension 
	8 Construction work that is unskilled is done by laborers.  Workers who do 
the skilled craft work must be paid the journey level rate for that craft, except for 
apprentices.  It is the opportunity to have the craft work done by the unskilled at the 
modest apprentice rate which will threaten the quality of the work done.
	9 Petitioners specifically brought Travelers to the Ninth Circuit's 
attention in their Petition for Rehearing and Suggestion for Rehearing In Banc.
	10 As that Brief also noted, "[c]ongress included apprenticeship programs ... 
in the definition of 'employee welfare benefit plan' because it was concerned with 
regulating trust funds established in providing training."  Id. at 16.  Here, the state 
law in question has no bearing on the financial aspects of providing apprenticeship 
	11 It is important to note that, as Morash observed, interpreting ERISA to 
federalize an area of traditional state concern - there vacation wages, here wages 
and apprenticeship regulation - is to redirect disputes arising in those areas from 
state to federal dispute-resolution fora.  California currently asserts jurisdiction 
over complaints by its 40,000 to 50,000 apprentices against their apprenticeship 
programs, Cal. Lab. Code Section 3078(h), and accepts their wage complaints against 
employers under general wage dispute statutes. Cal. Lab. Code Section 229.  If all 
aspects of apprenticeship programs, including the wages paid to apprentices, are, as 
opinion below implies, governed solely by federal law, the necessary effect is "vastly 
[to] expand the jurisdiction of the federal courts, providing a federal forum for any 
employee with a vacation grievance."  Morash, 490 U.S. at 118-119.
ON LABOR, 75th Cong., 1st Sess. (1937); HOUSE COMM. ON 
WELFARE OF APPRENTICES, H.R. Rep. No. 945, 75th Cong., 1st Sess. (1937) App. 
107; 81 Cong. Rec. 6631 (1937).  (Discussion between Representative 
Fitzgerald and Reps. Hoffman and Ditter) App. 111; G. ABBOTT, The Child and 
the State, Vol. I (1938).
	13 Rules pertaining to public contracting, like wage and apprenticeship 
rules, are within an area of traditional state concern as to which it is at least 
unlikely the Congress intended widespread preemption.  Cf. Building & Construction 
Council v. Associated Builders & Contractors, 113 S. Ct. 1190 (1993).
	14 Both Electrical Joint Apprenticeship Comm. v. MacDonald, 949 
F.2d 270 (9th Cir. 1991), cert. denied, 505 U.S. 1204, 112 S. Ct. 2991 (1992) 
and Southern 
California ABC v. California Apprenticeship Council, 4 Cal. 4th 422, 14 Cal. Rptr. 491 
(1992) addressed the impairment of the Fitzgerald Act's aim of promotion of 
apprenticeship standards in the context of state approval of apprentice program 
standards. In brief, both decided (So. Cal. ABC  relying, in part, on the district court 
opinion here) that ERISA preemption of state authority to approve would impair 
the Fitzgerald Act, and therefore preemption is prevented by the Savings Clause, 
whereas preemption of state requirements in excess of the Secretary of Labor's 
regulations would not.
	In this case, no party has contended that the state laws applied in 
certifying the program in issue here in any way went beyond the requirements that 
the state 
was required to follow for federal recognition.  Consequently, the issue of 
ERISA preemption's effect on state authority to impose requirements 
exceeding those in the federal regulations is not presented here.
	15 See statements re substantive role of the states by the Secretary of 
Labor, charged with primary responsibility for enforcing both ERISA and the Fitzgerald 
in the Federal Register preceding the current final rule of 29 C.F.R. Section29, 38 Fed. 
Reg. 13,894 (1973) (to be codified at 29 C.F.R. pt. 29) (proposed May 25, 1973); 40 Fed. 
Reg. 11,340 (1975) (to be codified at 29 C.F.R. pt. 29) (proposed Mar. 10, 1975); 42 Fed. 
Reg. 10,138-10,139 (1977) (to be codified at 29 C.F.R. pt. 29), reprinted in App. 93-
106, Oversight Hearings on the National Apprenticeship Training Act, 1983:  Hearings 
before the Subcomm. on Employment Opportunities of the Comm. on Education 
and Labor, H.R., 98th Cong., 1st Sess. (1984); GAO Report, Apprenticeship 
Training Administration, Use and Equal Opportunity (1992); Lyndon B. Johnson 
School of Public Affairs, Coordination of State and Federal Apprenticeship 
Administration, Volume 2, (1980).