the last case on calendar for argument is inner pipe contracting and associated builders and contractors of california cooperation committee verses have your the sarah cases one seven dash five five t four eight and one seven dash five five two six three age before we start the clock we i think you all asked for unlimited time and we said no but we did expand the time and so let me let me just make sure we've got this so i got four lawyers here and i have i think that for some reason i believe that and and i'm going to tell the one that seated at the table because i the first one that runs up to the podium sometimes just keeps talking and talking and then i see the person seated that the table thinking are they taking out my ten minutes i've been in situation and this is so what i will tell you is you get your ten minutes all right if we haven't have more questions of you i'm not giving you more time but any time a court has questions we're here to answer all of our questions so if we take you over and don't worry if you keep talking and i'm going to i'm going to say sit down ok now just in terms of the people that are seated for the appellant i see two people i see i think is that right and you're each going to take ten minutes ok and you don't have rebuttal right ok so it's just ten minutes in the same think i was his go on first i have you to have you two all right so if you're going couple of comments regarding our client in a pipe which is a woman on plumbing and piping contractor based in san diego that is open shop has been a nonunion contractor that's worked on state prevailing group of five a one c six corporation that was created to represent the interests of open shop contractors throughout california as a result of the prior law before as benign fifty fo yr pipe was able to take credit for its contributions to a b c which handled advocacy work and opposed project labor agreements primarily be for public agencies they contract public works including schools and other projects throughout the state of california so you're not making a first amendment claim and they are though right and it's correctness i mean it is and you also there's also affidavit filed saying that if you win you're still while you're still would give them the money it's to give them standing to give is that right i do not recall that redress ability didn't you that you would you know continue to make the contributions to down oh yes otherwise they wouldn't have standing yes absolutely we we we would like you may think i was making that out for you haven't we look for a return to the pre s b nine fifty four rules which provided an equitable allocation of reach the church rights to inner pipe and other contractors as well as labor organizations that support project whenever want whatever and terms that she says can you cite any authority were a court held that a state labor standard impermissibly infringe protected labor speech under the an l r a because it tonight an employer a funding mechanism for it speech you have any case well the closest case is is of course chamber of commerce versus brown which i know you're with and which imposed use restrictions on state funds that were provided to employers throughout california by front exactly the same as your case no it's not but it does have an a very similar effect because the the supreme court determined in the brown case that the there was an indefinite in excuse me indirect impact on employers speech that related to the restrictions that were imposed by a v eight hundred eighty nine and that tipped the balance of collective bargaining agreement and labor relations in violation of the machinist's preemption requirements and were preempted by federal law and but th expressed concern that a v eight hundred ninety nine severe enforcement mechanism actively put employers to a chorus of choice either to accept state funding or forgo speaking on labor issues or declined state that not that affects funding like this in fact our position is that this particular restriction on employer credits is unique in prevailing wage lot throughout the country this is the only law that restricts the ability of an employer to obtain prevailing wage credits because of it's a union affiliation so if do you employers have a protected right under the an l  initial response i'd like to make to that question is that the department of industrial relations christine baker a party here determined that the payments and this this is in opinion letters from two thousand and twelve and two thousand and fifteen directed to our office that the employer's payments made and taken credit for buy in or piped to a b c did not constitute wages did not reduce the wage package available to him employees because under the california prevailing wage design you have employee benefit in wage matters and employee employer payments and this is deemed always not only in california but also under the federal davis bacon act and other states that have similar little davis bacon statutes these payments are deemed not to be wages well let me ask you this no i do not believe that's right because the those in prior to that time there were allowances for payments for example two programs that were labor management cooperation committees created a under the labor management cooperation act of one thousand nine hundred seventy eight that have been the recipient of prevailing wage contributions by contractors for decades that what you do you could do it prior to two thousand and four yes now be in two thousand and four this organization was created in two thousand and four it had no predecessor we don't know what you could give me for two thousand and four well but the law did allow for the contributions to labor management cooperation committees prior to that time so if but if we agree with you that s b nine fifty four is discriminatory don't equal protection principles require us to lemon at the i a f wage credit altogether rather than impose a wage credit regime for all employers that california was not required to provide in the first place if if that was done and if those credits were denied for everybody we would not have a problem with that statu if that if the deduction was taken away in other words for union program contributions and nonunion program contributions we were at peace with that that does not set up  so quickly and very much where you answer the question so that's it's time flies when you're having fun right ok so he has three minutes left and then we'll start your clock you've got you've got ten it please the court honestly bought in for appellant a p c i'd like to try to reserve two minutes for a bottle the point of s b nine fifty four is to eliminate prevailing wage contributions to organizations with an open shop viewpoint which the government does not approve of the law does that by little by limiting prevailing wage contributions to organizations selected by a union in the collective bargaining agreement a b c adequately alleged that s b nine fifty fo acts as a proxy for viewpoint discrimination and it was likely much a best case if you have any case standing for the proposition that organizations like a b c have a right to receive money for expressive activity versus infringing on the right to spend money in some way they certainly have a right to perceive it to be on the same terms as other organizations in their ability to collect funds so this would be equivalent to the cases like in the line of reilly where the solicitors want to be able are limited in their able to be paid in order to speak and there's also cases have to do with campaign finance where the politicians themselves braman climbing the first amendment so are you trying to claim third parties standing for their first amendment rights now we think our first amendment rights are being violated ourselves because we're being limited in our ability to raise funds for our speech based on our viewpoint and that's a claim u nder the riley line of cases campaign finance cases and also even the subsidy cases where you know there are cases that you cite involving solicitation but this particular law doesn't restrict your ability to solicit funds and anyway  may impact you or you may reduce the contribution that's the byproduct of it but it doesn't directly hinge on your expressive activity that's right judgment but we believe that the ability to collect funds to fund your speech is protected by the first amendment but even if this court doesn't think that free speech is an issue we still brought in equal protection claim and we argue that the law treats our organization differently based on its view point and so we would still have stated a claim under the fourteenth amendment and we should be entitled to discovery to prove that claim if the court does not determine that we were likely to prevail at the merits at this time now i guess i'm hearing you say though i think that you didn't come up with a free case that  case where the supreme court has held that there are as exists for free standing right under the first amendment to a mass funds to support ones now we do cite cases like that but i believe that quote is directly from a campaign finance finance that we have relied more heavily on on the riley line of cases and also the subsea lines of cases which i think say exactly the same thing i am a name sure sure the campaign finance cases are the mccutcheon case in the mcconnell case  there are few others that are cited in our brief riley city of schomberg those are the solicitation cases in the subsidy lines of cases are the reagan cases and reagan itself which which defendants are the part of the opposing counsel relies on most heavily said randall consider the candidates ability to amass funds as part of a test to determine whether a campaign finance law limiting one's contributions was lawful but it seems to me that it might be distinct from your claim that have a standalone first amendment right to collect funds from others we believe that we have a right to be on equal terms with other organizations in our ability to collect funding for our speech but again if this court disagrees that first the first amendment is not directly implicated we still provide an equal protection claim and that would a military any of those concerns so we have argued here that that the c b a x is a proxy for viewpoint in the supreme court has has affirmed that even neutral criteria can act as a proxy for viewpoints so in the cases relied on most heavily by the government the state upheld those distinctions only because it found explicitly in those cases that there was no discrimination either in its effect or in the intent and so here we've argued that there was both and based on those claims we should have been able to move to discovery in order to prove those claims there's plenty of discovery that we could have collected that would have proved that this is based on our viewpoint that c b s do not insure consent they only ensure that organizations like ours which advocate in ways that labor unions do not like will not receive contributions or will not receive prevailing wage contributions at all so does every open shop organization contribute to you know but under the prior version of the law they were able to we  a prevailing wage that's right and that's unequal treatment because clothes organizations of the same type as ours that have a different viewpoint are eligible for prevailing wage contributions they will receive them well we will not discriminated against in our ability to fund our speech which is protected by the first amendment the ability to fund one speech is protected by the first amendment i want to get to judge when this question tell me a case that there's a first amendment right or any other right to receive another person's phones you have under the cases that i've already cited the campaign finance a solicitation cases and the subsidy cases you have a right to be on equal footing you've got a right to ask don't you you've got a right to ask somebody for money that's what riley didn't know riley said that that the burdens on the ability to fund solicitation themselves affect free speech rights so in riley the solicitors there was a limitation on the mount that they could be paid well if so i'm just trying to think hypothetically if we were to agree with you there is some concern right now in the philanthropic communities that by doubling the standard deduction the recent tax overhaul will distance and advise individuals from making tax deductible donation to charities this could reduce charities funding and impair their ability to gauge first amendment protected activities such as soliciting contributions under your theory of the case do charities have an actionable claim that the tax law implicates their first amendment rights to collect funds necessary to finance their speech if allege that they were being disproportionately burdened because of their viewpoint i think they would have a first amendment claim even if you don't have a right to collect funds in the first place there are there's certainly a right to be on equal footing and that's the same with the subsidy cases you don't necessarily have a right to a government s valuable player and that's because of our viewpoint as you said right to the government's phones these are the government's phones these are workers paychecks you don't have a right to their picture i agree with that but i think that we if some organizations are given the availability of having these funds contributed to them and then getting a corresponding credit we to have have the same right to that we cannot be denied that same advantage simply because of our viewpoint you  ask them for money no country we can which preventing you from asking them for money the the harm to us the injury is that we are being disadvantaged in our ability to obtain these funds as we allege i mean i think you're arguing your best argument is that s b nine fifty four effectively favors pro union speech over pro opens shop speech and the n r a expressly protect free debate over labor issues is that what you're saying well i think the n r a portion is more more relevant to the preemption claim but yes we do argue that this is this this is we're being disadvantaged based interview point has me alleged we don't get money as a result of c good morning good morning may please the court my name is ken lyle and i'm here today to represent the california director of industrial relations christine baker and the california labor commissioner julie sue i'm going to present argument on the preemption issues to respond to in a pipe and my colleague said goldstein from the california attorney general's office will present argument on the first amendment issues to  respond to a b c well you well what about so i think the last question that i asked is it i guess we call it a b c or that she said that what really went more today and ali issue is it seems like it's easier to have pro union speech as opposed to pro open shop speech here based on this statute so tell me about that sure well it was all funny like to tell everyone what to do on everything and so i mean we look seriously at these things in terms of preemption right well what  we heard a lot about you know from inner pipe about how s b nine fifty four affects employers but what we didn't hear much about is how s b nine fifty four affects workers and that's i think the answer to your question judge callahan this is the minimum labor standard regulation right as being nine fifty four is part of california's prevailing wage law which is a minimum wage law and its purpose is to it's over all purpose is to protect and benefit employees on public works projects and so as a part of the minimum wage law at the prevailing wage law s b nine fifty four protects workers closest and best case was chamber of commerce and s b nine fifty four is a little like a b eighteen eighty nine in that neither law actually regulated what the entity could say yet the supreme court rejected a b eighteen eighty nine as violating the at our age decision protecting labor speech how do you distinguish brown brown basically well i i think nine fifty because what their stand nine fifty i think when a b c is saying this nine fifty four is targeted at them ten to to hurt people like that but you're saying that what are you saying the purpose for nine fifty minimum labor standard just like the those that have been upheld by by this court in in viceroy gold in national broadcasting and most recently in american hotel and lodging association and  i think s b nine fifty four recognizes that workers sometimes collectively bargain and one half does that does that have you know like sometimes at the beginning of life just station it said this is why we're doing it we're doing this to correct such and such how do we know what the you know even though court judge scalia would probably flip in his grave if we were talking about the legislative intent but but you say the legislative intent here is to it's to help all workers right is that how do i know that well i know that it isn't just to target not you know people that want to speak about nine unions well the structure of the law itself right because it it prevents all employers from sending industry advancement funds and take a credit for it unless workers have collectively bargained and chosen to send those send those payments to an industry advancement fund so that the structure of the law itself and i think there is some legislative history there's no preamble that talks about what the intent is but there there is legislative history and i think the district court section seven and section eight c and eight c speech was speech by employers directed towards its own employees for or against unionization right whether whether it be an employer saying the only difference is that the i m f now has to be a part of the collective bargaining process right so that's correct the s b nine fifty four was designed to close that loophole so whether it's labor or whether it's a union friendly can shut out of the process i don't think so because again it's the has no relevance whatsoever that it's workers wages that are that we're dealing with here and the workers can choose to send their money to an industry advancement fund well i'm i think what you're saying is because it's fair labor standards that the cases that it's a minimum wage type thing that that has favored states being able to do that and so there's a lot of ninth circuit precedent and there supreme court precedent that being said i think what judge when saying so then people like a b c can get completely shut out maybe we can't run the day that the supreme court could certainly wipe out a lot of the precedent that they have or up to this point and say hey we don't like what states are doing because they're effectively you know they're they're using nessa's their bridges but you're saying the precedents all in your favor right now yes and in fact in the supreme court decided for the facts and metropolitan life which dealt with minimum labor standards regulation and for now the facts actually dealt with  minimum labor standard regulation with an opt out provision for c v s just like this statute has i think we understand your argument and i we've allowed you extra time so i will go to  the attorney general's representative and give him ten minutes i want to thank the court for its time today thank you good morning your honor sir seth goldstein on behalf of california attorney general javier basara the district court correctly dismissed associated builders first amendment claims for three independent recent first s b nine fifty four which prevents employers from reducing employer employees paycheck it regulates conduct not speech second even if the law did regulate speech is both a few points and content neutral and third nothing in s b nine fifty fo places an obstacle on associated builder speech and the government need not subsidize and make it easier for associated builders to speak what you are it's contact and not speech but i look at minneapolis  star tribune versus minneapolis commissioner of revenue and the supreme court struck down a law that taxed ink and paper because it indirectly affected newspapers first amendment rights isn't s b nine fifty four s conduct based restriction that imperfect permissibly impairs a b c s speech your honor this is this is a situation where s b nine fifty four might have an incidental impact on speech but it is not saying it like put them in a tank not even incidental well i think it's incidental in the sense of cases like this court's recent decision in the pick up case in which this court upheld the california law that bans sexual orientation change efforts to minors and that law which of course would affect what a psychiatrist or psychologist could say to the minors was found to be regulating conduct not speech because it was targeted at  a a harmful practice which was the effect that this practice would have a minors i think it's much more similar to that case or the case the our car case which we cited in our brief and which there was a law that banned prostitution and it had an in incidental impact on affecting an adult bookstore and forcing it to close but again the supreme court in that case said that that law was regulating conduct and not speech also  even if this court does find that the laws regulates the speech the laws fall few point and content neutral and it does not discriminate the law based on what the again i think there was a discussion about the legislative history of the church callahan pointed out the some of the legislative history is included in the excerpts of record on pages one forty seven to one fifty eight and it's clear that nothing in the legislative history is as discussing targeting any speech or suppressing any speech instead the entirety of the legislative history is about protection of worker wages through the collective bargaining a process and not allowing the reduction to workers wages unless they've agreed to that reduction people are smart enough not to put something like at work and worse the difficulty doing this to get a b c you know that i wouldn't expect that while congress or the legislature gets a lot of criticism i think they i give them credit that they would not say something like that yes your honor i think my broader point was just that there was nothing in the legislative history of that speech at all that the legislative history was designed it was was entirely about protecting workers wages  admitted in their complaint that they speak about issues related to job targeting programs cooperation between government agencies and private contractors they also speak about you know construction ensures a whole that they wouldn't be able to get the prevailing wage credit for that type of speach you know means that they might have less money to do that type to speech but it's clear that this this this prevailing wage credit is not simply targeted the questions there to allow you to so why isn't as the ninety four over inclusive by preventing individual employees to allow their employers to take it wage directive for industry advancement fund contributions and then also why isn't s b nine fifty four under inclusive by not covering contributions to employed pension plans health insurance plans and the like ok well i will address them in the order presented hopefully the first point  i think the idea is that an individual worker lacks sufficient bargaining power to that that puts them at risk of having these these prevailing wages taken from their contracts without without their say so i didn't do a good job of describing that but essentially there are certain things we don't allow individual employees to opt out of right like an employer is not allowed to ask an individual employee to opt out of the minimum wage for example and the concern is that there's there's too much of a power imbalance between the employer and the employee such that they could co employee to give up various protections with collective bargaining the employees are able to band together and there's a thought that they have more bargaining power of these of the their employer and that's why we allow those employers bargaining power and so that's why in the minimum labor standards cases that mr lao pointed out we allow them to opt out of certain protections like the prevailing wage viceroy gold the amount of hours they had to work in a given  day because there was a bargain for exchange they might have given something up they might be giving up some minimum labor standards but they're also gaining something in return that's the point of collective bargaining agreement turning to the the under inclusive argument and why certain sir why why they why certain things are included in other things or not i think the idea is that pension vacation some of those things that are permissible productions for an to thim the prevailing wage of employees those types of things clearly and directly benefit the worker so  if the employee isn't getting used example of fifteen dollars an hour if the employer is not getting the fifteen dollars an hour in cash but the employee is getting fourteen dollars an hour in cash in a dollar and pension you're still getting a direct benefit and what the industry advancement funds there's clearly an argument that they directly benefit because they they advocate for the interests of the industry as a whole but it's not as clear so we want in that instance the employees to have some say if they think that the industry advancement fund benefits them they could provide so via the collective bargaining process this area minimum labor standards we call it so long as it doesn't one interfere with the process of collective bargaining and two doesn't create coercive speech restrictions for either employers or employed do i understand that's the purpose of nine fifty four as contrasted with brown because didn't the supreme court say in brown that it had the effect of course of for like associated builders from speaking about any topic nothing prevents the employers or the employees from contributing any amount of money to an industry advance and fund like associate bill there's so it doesn't have the speech  were points the references i gave him three minutes yes thank you the references that have been made to collective bargaining agreements are out of context when we're talking about prevailing wage projects one of the  shortcomings of the district court's opinion and one of the points that we believe that the are the pelleas have of failed to comment on adequately is the context of the the comments that they've made about collective bargaining agreements it's easy to think of collective bargaining agreements as democratic results of cooperation between union and labor but that doesn't exist in the industry that a b c c c c works with then the reason that a b c c c c is opposing the project labor agreements is that they are entirely undemocratic they are all only authorized under section eight f of the national labor relations act to adopt project labor agreements in that single industry and they they avoid n l r b elections they have void the designation of a bargaining representative by employees and they can be negotiated by the the agencies that do the collective or the the public works prior to any employees being hired so where does this notion of employee consent come from there is no employee consent to a pre hire project labor agreement there drop down on top by the powers that be the man sets this up and imposes it on them so this idea that lot based upon employee consent misrepresents the actual practical day to day problems that come that companies like inner pipe face there's another issue here that is very important and that is  with regard to the the concept that minimum labor standards cases are restricted with all respect judge in the way that you have mentioned the metropolitan life versus massachusetts case requires that a member minimum labor standard to be lawful has to have equal application to unions and management and that sentiment is repeated verbatim violation of a core value of the national labor relations act takes place and there can be no much greater violation of a core value under the national labor relations act then a violation of free speech in an unlawful decision discriminatory allocation of power and finances between union labor and that's what we have here i'm out of time thank you there were some questions from the panel about whether we have a right to receive employees wages to fund our speech in the fact the matter is that the government has left in place the ability of some organizations to do that even without consent so long as it's negotiated by a union because  bargaining agreements do not ensure unanimous consent because they operate in the context of project labor agreements which are negotiated prior to contractors even bidding they have no relationship to consent and we are put to at a significant disadvantage that does not silence us but it disadvantages us and that is a burden on our first amendment rights in response to the question of what can we not say now that we could before in theory we could say anything but in reality we can't because we have been completely deprived of funding and that was the intended new revenue sources there's no prohibition against that right that's true but i think this point is you the players will make the contribution if they think that a b c s the a b c s of the world provide real value incredibly competitive industry and you can see from the declarations of inner pipe's vice president that they just they can't afford to do it isn't doesn't make sense anymore and the prevailing wage contribution is really a huge incentive to make these contributions and it's the way that industry advancement funds survive as a whole i think there was a question about whether you know there might be some pro union industry advancement groups who don't get funding even under this regime and perhaps in theory  fit between the viewpoints or the people that they're trying to discriminate against and their actual effect so in the case of poll taxes it'll be true that some it was true historically that some black voters were able to vote and some white voters were not able to but everybody still knew what was going on there it was intended to disadvantage a certain group and that's why it was discriminatory to say anything in the legislative history because it's not in the plain language of this that you anything in the legislative history that suggests that the consent it was about concern over the money going without consent to activities that the government doesn't like and the government better than the legislative history their briefs explicitly say that they were concerned about cons submitted i think it's very interesting and difficult and we certainly appreciate i think that all counsel came very well prepared it's always a pleasure to hear well argued case thank you