good morning made please the court my name is ken lal and i'm here today to represent state defendants christine baker and julie sue i'm going to be splitting my time with my colleague scott kline laim who represents the supposed who deliver ready mix concrete to public works projects it is part of california's prevailing wage law which is the minimum wage law and some of its purposes is to are to benefit workers through higher wages and through higher wages ensure high quality work on public construction projects minimum labor standards like other social and economic legislation come with a strong presumption of  validity when the suspect when the classification is not suspect and the classification is not suspect here referred in is on the plaintiffs to negate every reasonably conceivable set of facts that could provide a rational basis for the ready mix is a different type of material and its delivery to a public works construction site is different as is the ready mix in the street itself so ready mix is  material used for structures it's in this pencil material for pouring foundations for for building girders columns support walls to hold up structures it's used in record for that yes so that the ready mix drivers drive a specialized mixer truck one cannot help but notice the the trucks with the rotating drums when you're sitting in traffic on the on the freeway and in order to drive that truck you need a special tanker endorsement because the truck you know in your life and a commercial license that the driver holds yes yes because it more easily tips over because of the rotating drum and so there are special skills special license that's required as well as special skills because the ready mix driver has to control the rotations of the drum and also the other side makes a much  about that there's no discretion on the part of the drivers and i don't think that's right the only do is follow the other the the order sheet for the concrete right but the driver still needs to  add the add the water that's that specified and control of the rotation when when they're delivering the ready mix and what their point is that there's no net no exercise of any discretion there is no there there just sort of kind of operators really no different than the delivery drivers who deliver other items to to it construction site i don't believe that's correct because with that driver that delivers say lumber or something all they do is drive and they drive to the job site but with the ready mix driver they need to control the rotation when they're in the cab of the truck during the transit from the batch plant to the to the job site and the mixer trucks are again specialized they cost a lot more and so because they cost a lot more ready mix companies are the ones that usually own the trucks and so that goes to how their ready mix in this tree is set up differently than in other industries because the specialized mixer truck because it's owned by the company the drivers are usually employees whereas for delivers drivers of other materials the the drivers are usually independent contractors because the depends on the counties so depends on which county that the bass clan is located in and so i and were before this legislation the were already mixed drivers getting paid  pretty much on the par with other other types of drivers who brought stuff to constructions like no so it depends on prior to this law the ready mix drivers and drivers of other materials whether they were entitled to the prevailing wage was based on a judicially created test and it depended on whether the driver was an employee of the an on site sub contractor contractor that was performing work on the job or whether they were delivering the material from a dedicated dedicate a plant set of specifically for that project and maybe to one thousand clarifies the law  by by doing away with those distinctions so any time there's a delivery of ready mix to a public works job site prevailing wages are required and so back  to i think this is important and i want to go back to the ready mix industry how it's set up a little differently the ready mix industry already for the most part treats its drivers as employees and so they're already accustomed to paying an hourly wage calculating overtime carrying workers compensation and keeping payroll records where as drivers of other materials in those industries because they're mostly independent contractors they don't have to comply with those requirements now california's prevailing wage law requirements mirror requirements for four employees you have to pay the  s an hourly rate on overtime if they work over a certain number of hours you need to keep certify payroll records and so it was rational for the legislature to to raise wages for ready mix drivers based sound like a very convincing argument i well in the international franchise association which was a case decided by this court the court in that case said it's it's legitimate for a for the state to to raise the minimum wage based on the industries that billet you to comply and in that case the city of seattle  reagan had a phase in schedule and a celebrated phase in schedule for employers with five hundred or more employees based on the fact that they could they had a better ability to comply with that law and so  this case is similar to an international franchise in that the writ legislature could have rationally concluded that the ready mix industry is better positioned to comply with the law whereas if you applied it to other industries it would potentially economically disrupt or those industries and so i think i would have to disagree with you i think it's it's a good argument based on the precedent that we have in the ninth may it please the court scott brown line for the international brotherhood of teamsters i'd like to reserve two minutes of my time for rebuttal also in addition to the district court's error in the siding the merits of the protection issue the district court reverse the district court what's left to the hopeless cases all teed up on a legal issue what's left will if this court reverses the district court and remands for entry of judgment the plaintiffs will seek on bank review on that f or a preemption issue we want to be a party and defend the mendonsa decision if they seek certain the supreme court we want to be a party to defend the court's ruling on the preemption issue so intervention is not moot plus for the future if the district court's reasoning is right that's going to interfere with labor organizations ability to intervene in future cases involving labor standards laws the district core reason that the teamsters lacked a significantly protectable interest in the application of the prevailing wage law because their members would be covered by collective bargaining agreement that provide for prevailing wages now that's not only contrary to the holding of mendonsa which involves the same union but as soon as the collective bargaining agreements fall out of the sky when workers join unions you don't have a collective bargaining agreement when the workers are organizing you don't have a collective bargaining agreement when the agreement has expired even when you do have a collective bargaining agreement the statutory right is still valuable because the labor commissioner will enforce the right it makes general contractors liable if the workers are not paid prevailing wages even if the statutory right look there was a district courts basis for not only in the dock the district court said essentially that the teamsters members were going to get the prevailing wage anyway under collective bargaining agreements which would have also been true in mendonsa which involve the same union the same f a a preemption claim the same prevailing wage law and the same existing defendants even if the prevailing wage statute would just suspenders for someone who already had a bell there's still a legally protected interest in protecting your suspenders from being taken away because you may need them and that's all that's necessary for purposes of intervention to have a legally protectable interest we certainly have that in the prevailing wage law you know as i said the prevailing wage law the statutory right is better than just a contractual right the district court also failed to give weight to the fact that one of the main purpose prevailing wage law is to have a level playing field so union represented workers who are able to negotiate collective bargaining agreements that prevailing wages don't lose their jobs when other employers under using low wage workers that's why the prevailing wage law uses area standard wage rates in the first place the district court said that was just speculative but that's in fact one of the main purposes of the prevailing wage law as declared by the california supreme court and was alleged in our answer in support of intervention so it should have been discounted in the district court also reasoned albeit only in the context of a permissive in rvention that our interests would be adequately represented by the state but the state had more than just an abstract interest in defending its law the state is also the customer for purposes of public works projects and the district court found in granting a policeman or injunction against the law that the balance of hardships tipped sharply in favor of a policeman or injunction because the state would actually benefit from saving money on public works projects as such the state because of its interest as a customer was unable to protect our members much more narrow and parochial interests in defending the prevailing wage law we also added as the court has said as one of the tests for intervention and adequacy of representation we would have added a necessary ingredient that was missing from the case which is that the teamsters understood why the labor market for ready mix drivers is different than the labor market for other drivers when the trucking associations came in to seek a pulmonary injunction we were ready with declarations explaining why the ready mix drivers duties are different why the labor market is different the drivers are more skilled they get higher wages they're more likely to be employees they provide a more integral role in the project where is your dump truck drivers there are lower wage workers typically owner operators they're not being paid an hourly wage they're deliveries are not intricately tracked and therefore it would be much more a disruption of the industry if the legislature had chosen to extend the prevailing wage law further at the time the teamsters were there with those declarations the state was not the state also was the same agency that had previously held that the prevailing wage law didn't apply to ready mix drivers and that was pointed out to the district court the legislature essentially flipped the agency's decision when it passed the challenge statute which of course the legislature was  discriminatory it's unfair and it produces into competitive effects it singles out ready mix suppliers of all material suppliers to public works projects and imposes administrative burdens which give other suppliers which are directly competitive these materials aren't indispensable there are alternatives gives those alternatives significant competitive advantages the issue here and i think this is critical and i think the district court got it right the issue isn't simply where the whether there is a rational basis for imposing a prevailing or minimum wage on ready mix drivers the issue is whether the classification the discriminatory classification is justified whether there's a rational basis and two key points here that i think make that it's not just any rational basis the rational basis when you single out a group house to be tied to the purpose of the law and the state and the teamsters but any and all of those reasons sound pretty plausible to me as a policy call for the california legislature but that's not the question and i'll hold off on a second for the teamsters but they did participate they submitted declarations all that evidence was before the district court so there was nothing to just record was deprived of in connection with the underlying proceedings but the point is this sure there's a difference between reading next and prefab concrete  course there but the question is what's the purpose of the law and the purpose of the prevailing wage law is to provide benefits to construction workers and i would cite the court to the the statutory scheme the case is decided under the california prevailing wage law and under the davis bacon act as well as the legislative history available with respect to the davis bacon act show clearly that prevailing wage legislation was designed to benefit the construction worker on public construction projects now why is that important because when you look at these purported justifications they have nothing to do with benefiting a construction worker because the ready mix driver is not an integrated part of the construction process pre  law provided that when any material supplier not just ready mix but any was simply a commercial supplier they weren't covered the reason being that wasn't the purpose of the law they in a construction site where they had a dedicated source of ready mix right and the contractors were the cement contractor for some contractors drivers of those trucks ready mix trucks would have been covered by the prevailing wage rate is that the winder stanek correctly because they were integrated into the construction process by being dedicated to that project not not that the material was integral to the process correct and it would be the same with asphalt it would be the same with any other material the same rules apply to all materials that were supplied to public work so if you are a captive that's all you were doing then yes you were part of the concert as soon as the legislature says well we want to expand the coverage of the prevailing minimum wage law and if th grant if they had done that in a way to be consistent with the purpose of the wall because a b two ninety didn't change the purpose of prevailing wage law well so why can't the legislature  they may direct their own you know the armament of those ready mix they're told where to put it just like to get out there they have to direct it they have to make sure it's flowing at the right at the right amount they just don't dump it like you know like an asphalt truck they open the chute in it and it comes up it's really it's really no different in the declarations before the district court make that entirely clear separation from contractors not just from troops from rednecks do they have to add water and did any discussion in terms of how much water that others direction they don't make those determinations themselves and significantly if you think about it when for structural integrity which is a big issue that they raise that this all has to do was structural integrity although the classification makes no attempt to distinguish between structural integrity and roads and highways at all so this is a classification is too narrow and too broad that's lumbers delivered someone has to check alternately before they use it to make sure that it's not affected because it's no different with rednecks somebody has to make that determination before they use it goes into a pump somebody else not a ready mix driver is going to take it out of that pump and make a determination of whether it's proper or not so in terms of structural integrity in terms of work on site that may be integral to the construction process the d i r got it right in alameda corridor or those rules already well but the legislature doesn't have to i mean the legislature could disagree easily disagree with what with what the agency determined that's their prerogative that's we don't like your decision and we're going to we're we're going to change the law we're going to change the statute and you guys are just off the your opinion is off the books by but when they single out a group there has to be a rational basi and it has to be tethered to the purpose of the statute so what was the district court's true rational basis that it relied on the true rational basis so no i think he said you words to the effect of its economic favoritism well that's that's the a fact and i think that's when i suggested we use it as what he seemed to be terribly concerned about because there was an absence of any rational basis otherwise and i think that's how he concluded that and i think that's what courts often concluded i think that in the merrifield case for example a panel of this court struck down a regulation that singled out certain pest control companies and exempted others and one of the problems with that was that the exemption made no sense because those that were exempted were more likely to bump into pesticide than those that were regulated in the courts that principle of non contradiction you can't do that and so this must be economic favoritism because we don't see any other reason i think that's what the district court found here here we have a similar situation in that the purpose is to compensate construction workers if you're simply a material supplier you're not integrated into that process and there's no rational basis for the state to conclude that that's not the case for remix in fact asphalt is more likely to be integrated in to the process of construction and why is that because for ready mix especially in the structural arena there simply putting the ready mix into a pump all that is the asphalt folks are going to be out on the street or highway being directed as to how to gradually dump it into the forms so in that sense they're that that there is sufficient indications to support the legislation or view that ready mix drivers are more into clearly you know integrate it into the flow of construction but so are asphalt drivers but there may be differences in the industry  as councils that may be ready mix drivers already mostly treated as employees can't the legislature choose to proceed incrementally so long as there's some rational basis for that they could say ok well in two thousand and fifteen let's extend the prevailing wage law to ready mix drivers will take another look at asphalt deliverers at some later point in time why isn't that ok this case is very different than international franchise says he ation because there was a zing they didn't completely exclude smaller employers they said we're going to phase it so that you're going to be worked in more slowly in the district court noted that it's a significant distinction here in terms of whether your employees are independent contractors they're all proverb by prevailing wage law you don't get a free pass because you're using independent contractors if they're integrated into the construction work so it makes no difference they say well it's easier to track and i think the district court we very skeptical of that that's the reason here that it's easier to track ready mix than asphalt or nails or lumber precast contra concrete that the fact is that they have to be tracked whether they're independent contractors or employees and as the didn't before the district court show these requirements from prevailing wage are significant burdensome and costly well beyond what the industry was already doing so so that it wasn't just nonunion ready mix companies that were objecting to this because even the union companies even though they may have been tailing paying prevailing wage are now subject to all these various requirements but let me circle back to the nub of the issue in skills you know may be a difference that some would say gee doesn't that require a little more skill for a ready mix driver to haul the ready mix than an asphalt driver with a dump truck of asphalt or a precast concrete driver with a load of precast concrete here's the nub the prevailing wage law is not about skills it's not intended to regulate skills it's compensation for any construction worker whatever their skill level peers now they may get more if they're more skilled under prevailing wage but it's not about skills skills are covered by other types of laws licensing with respect to structures codes building codes and other such things not prevailing wage and that's the disconnect and i think that's what the district court was bothered by because all of these reasons that kept coming had nothing to do with the central purpose of the statue the skill level has nothing to do with whether someone's working in a construction position on a public works job moreover the duties are different when it comes to the construction aspect and there was ample evidence before the court that wasn't contradicted in terms of what the duties of ready mix driver are and significantly those same duty s were spelled out in alameda porter project in a way entirely consistent with what's before this court most was before the district court and on that basis the d i r which is charged with responsibility concluded as a factual matter that those duties are not integrated into the construction process can i go back to what you said earlier about the teamsters having an opportunity to participate below if we conclude that the motion in the in should have been granted it would make sense to send it back or are you saying that whatever submissions they had were actually presented and considered by the just record the intervention issue is moot if you court reverses the argument of counsel is making is that sense the a pelleas may seek on bach or cert than they should be involved in that process they still have to show you their right to intervene or that it should be granted permissibly and there's no question but that the state can adequately represent the teamsters interests and did vote in the district court in this court and moreover the teamsters have been involved as amicus in this court and have been able to present this court with all of the views it how's on these particulars if it's difficult though to reconcile what the district court did hear an intervention with what we said that there the teamsters members had a significant protectable interest now didn't explain what that was granted but what the district court concluded here is that sense the teamster members are already getting prevailing wage which is not controverted then whatever interest they have is somewhat speculative and doesn't really  and the teamsters interests in upholding this law they're on the same side in the arguments are all the same there are instances where the government has some different issues interest because of the way a lot of structural maybe because of the economics  hind it i mean there are cases that go into that they hear there really is no different then there was no issue of timing here they've they moved to get in the case right away that correct i think the district court they moved right away but i think the concern was this case was on a there was going to delay the proceedings or i think there was a concern that it could certainly dump it up as a legal issue the only thing it was factual was with respect to the plumbing or injunction in the affidavit seem to go to to the harm of but i think that again i think you just record didn't see that there was any particular reason why the teamsters needed to be part of this given that they were already working with the state and were involved and given they didn't have a  time i just want to address the purpose of the of the prevailing wage law which i think council has misstated it's not to benefit only construction workers if you look at the labor code itself it prevailing wage apply to construction alteration demolition installation repair and maintenance work so it's not the case that only construction workers are covered and also to his point about a rational basis being tied to the purpose of the law well the california supreme court in lusardi said that the overall purpose of the prevailing wage law is to benefit and protect workers on public works projects another ready mix is a material used for structures and is perishable it it's rational for and a legitimate governmental interests for the legislature to raise wages  drivers who deliver a material that's used for structures and also perishable they argue that well asphalt is perishable too but only ready mix is used for structures and perishable if you use sort of a venn diagram ready mix is the only one that's used for structures and perishable whereas maybe stealing lumber is is also used for structures it's not perishable and because of this overriding interest it's  paving yeah and the legislature could have rationally concluded that asphalt is only used for paving and i i think i ran out of time i would like to thank the court for its time today thank you your honors the legislators decision to extend the prevailing wage law to the ready mix drivers but not to go further and extend that to more drivers run of the mill monday and every day legislative line drawing that's in essentially every labor standards legislation it just has to not be arbitrary we've offered an army eight rationally conceivable reasons why the legislature might have focused on the ready mix drivers any one of which is sufficient the distinction doesn't have to be related to the purpose of the prevailing wage law as plaintiff's counsel has urged it has to be related to any conceivable legislative purpose surely the dukes for example the decision to grandfather in the food truck operators wasn't related to the surface of banning trucks it served reliance interests here to legislature to fellows and to start with the ready mix drivers because they're more skilled because they get higher wages because they're more integral to the project because they're more likely to be covered by collective bargaining agreements any one of the you know he rational reasons we suggested for starting with ready mixed drivers if it's some future date it wants to extend the law that's up to the legislature so again the district  focusing on what the district court thought was the purpose of the prevailing wage law and how the district court felt the purpose would have been better served by extending the prevailing wage law to all drivers that's not the test for the legislature the legislature just has to not be hard to try ok thank you thank you council for your arguments this morning very interesting case matters