much the meaning of the prevailing wage act but whether the prevailing wage act biased terms is preempted as a matter of federal law by the employment time and income security act urge the court to reverse the circuit work because on the critical question of walk presented in this case the answer is that a result does not preempt the prevailing wages fringe benefit provisions when an employer makes contributions to the interests of plan but one that it isn't it is not an approved employee apprenticeship training program approved by the us department of labor's apprenticeship you're in that's with the prevailing wage as specified he's that among the fringe benefits that an employer in a public works project has to pay either for the benefit or cash to the employee as an alternative are pension welfare benefits typically health care and approved by the us department of labor apprenticeship training programs in that all depends upon whether in the area where the work is being done then it is the prevailing compensation and so each of those things is required by the prevailing wage act if that's what the prevailing wages and compensation are in the area where the work is done so the policy is that tax payers pay x the taxpayers are paying extra money out of our pockets for public works projects then there would be if there were no prevailing wage people might disagree with  policy but that's a policy chosen by the representatives voted into office by the taxpayers and the idea is instead of these public sector jobs going to the lowest bidder where we charge the least there is a desire to have the assurance of good compensation for the employees that they believe corresponds to reliable supply of workers and quality construction and so in this case the audit by the department of labor in its attached to the amended complaint that the employer in this case on six different public works projects lined construction and did paid based wages equal to what the prevailing wage wired but did not pay fringe benefits for pensions for health care or for an apprenticeship training program approved by the u s department of labor what the what the complaint alleges and that's taken as  into fringe benefit programs for pensions and health care and apprenticeship training program approved by the department u s department of labor instead deducted money out of the employee's wages and transmitted those payroll deductions to a local union plan that was governed by rissa but was not approved by the u s department of labor and was limited to supposed apprenticeship training in fact neither the union fon local nine for four of the earth nor any other entity in this case was approved by the us department of labor to run an apprenticeship training program for general construction which is still were any pension is going to be for these particular sor argument to the circuit board and they blew to it again here is that it's harder for the employees and the people that are members of this union work traditionally or african americans to find jobs in the union helped them get these jobs with this employer and with our viewers they might not have any work at all and i think that's all well and good that's a good thing i mean we know the history of growth instruction in illinois and many years ago it was essentially impossible for doesn't justify denying the employees themselves the benefits that the prevailing wage act requires this indeed is giving the employer extra money because they're required to meet these prevailing wage act requirements of giving employees a pension and giving them health care benefits and a very small component is supposed to go into apprenticeship training programs to help bring new people into the trade so that they can get the training necessary to then become  construction company i guess they get the training but the statute and there's been no challenge to its validity is a matter of illinois law there's no challenge that it's unconstitutional as a matter of your own oil to require that the training program be approved by the u s department of labor and that ties into the longstanding fitzgerald which has been around for decades and essentially tries to encourage bona fide high quality apprenticeship training programs to help people that might not otherwise get a trade in an occupation to get the training necessary to do so so in this case there's i don't think any genuine dispute that not enough of the entities that the defendant o is his son it looks like but none of them were approved by the u s department of labor for apprenticeship training programs for general constructional eight years and so the training they were getting was not u s department of labor approved in the the result is their noncompliance with the prevailing wages which requires that you get a you know you're entitled to a credit if you make payments to such a program for that component which is like  per hour compared to the university plus dollars an hour wages eight dollars an hour for the pension the you know five dollars an hour for the for the welfare benefits there's a very small increment that goes into these training programs and in this case  case that said we should just reverse our prior precedent in shaw and suggest that there's a broader preemption test here but the court essentially we defined in the common law tradition what they had previously meant and the established new travelers every single federal court case that has addressed preemption a prevailing wage act has said even before dealing him but certainly have to dealing and they've all said there is no preemption of which state prevailing wage acts as they are commonly written because they do not depend upon a recent plan they do not control and arista clan and they do not enforce arista as a stash and that's true for the only prevailing wage eg here we don't require contributions to resupply and we don't depend upon people being or not being part of a risk of clan to get you know into an approved pressure program approved by the us department of labor we're not in forcing apprenticeship requirements are the standard california said that there is no preemption for the very reasons that apply in this case as you know that's the dillingham case and it is so close to being on point it's hard to find any light between that case in this case part of the thinking in travelers in articulated again in the dillingham case is that ricin was not intended generally to wipe our streets traditional police power function to regulate employment we did you know also the nd district's decision that came down after the dillingham case the nicholas case that it was involved a slightly different issue but the court said we can't consider m purpose of the prevailing wage act to the detriment of these employees who are supposed to benefit from the employer he understands yes that just sort of direct the employer gets this much money which is more than you get on a regular non trivially wage a project for the job which includes enough should include enough to compensate for pensions and health care benefits and a modest additional amount to go into apprenticeship training programs and the employer pays the base  mean getting less than a dollar an hour in europe they're getting it's like twenty dollars an hour none of which is going up early for the benefit of these employees in the traditional sense required by the prevailing wage a good chance thank you so much  and in that as you just carve pointed out was the make you case that was that was it i was the only case in the context and so what is that before them in terms of illinois law was that case now some greater context regarding the legal question that here but you are right it would be a fool's errand on my part to suggest that dillingham does not apply in that travelers does not apply and so i will not do that i will say however that those cases are distinguished distinguishable some of your facts and i think in particular gillingham the distinction i think in terms of an understanding of this case is critical  you dealt with an employer who contrary to what the prevailing wage act in california required paid apprenticeship wages to its employees as part of an apprenticeship program that was not department of labor blessed this case is different the employees why it's employees in this case were not paid an apprenticeship wage indeed the whole notion apprenticeship is irrelevant in this case because we were not we're not here dealing with an apprenticeship program we're dealing with a training program a training benefit to be precise strip all of the pretense aside the employees in this case will were paid in terms of wages more than what the prevailing wage act required secondly with respect to benefits they were paid more and what statute you need also to pay for each of those categories we contain that is an interpretation of the act that frankly is not borne out by the act itself the act no we require is that the department of well it hasn't been done this is true however we contend that that interpretation is not consonant with what the act plainly said is right and what the authority of the department later labor has  case it does not let me point out a couple things st palin has made the point that these employees were deprived of pension contributions health and welfare contribution signed this so harvey i'll try and answer your question in this way and i'm not trying to tap dance around on what we have in the way of record evidence in this case sure and that's an interesting question the prevailing wage act is silent on whether that is a thing or not i will say that the u s constitution since we're talking about that in some respects certainly the contract cla because st of all this was not an employer plan this was a union plan and the employer while i'm in this instance was obligated to contribute as the collective bargaining agreement prescribe if the act is construed consistent with what the appellant is earth and what your question presumes then yes mind would have been required to contribute for a pension it would have been required to make contributions for health and welfare purpose is among other things to discover cheap labor coming in from other sources but let me emphasize we are not talking about cheap labor we pay them more why and pay its employees more than what the prevailing wage act and if you more than what the prevailing wage act requires they are not receiving that they are not receiving contributions in all of the itemized categories reflected in the prevailing wage at that point we  conceivably you could bill for continuing education much as we as lawyers go through continuing legal education presumably you could do that you are eligible to do have indeed i believe the record reflects flagger training  brief they refer to the travellers criteria for analysis under research preemption they argued that illinois prevailing wage act violated those criteria because they said the prevailing we jag mandates there is no plausible basis to conclude that any of those things is true under the trailers test and certainly in light of dillingham they brought the case to the circuit court's attention they made those arguments we submit that those arguments are persuasive and that the controlling authority requires that the circuit boards preemption ruling be reversed just as a matter of a recent preemption law opposing counsel did make a number of alternative arguments which i think are  somewhat of a strained effort to try and salvage a win below where the law in the facts do not support it and they have argued repeatedly that lion used money out of its own qualifiers to pay no one came out of the alliance pockets the attachment to the complaint that specifically referred to in the complaint says that there were thirty three percent of the gross wages that were deducted from the employee's paychecks that went into this union plan  there is absolutely not a shred of affirmative evidence much less swarm evidence much less dispositive one contradicted sworn evidence in light of the various a very quick verified and sworn doctrines of the case this show that a single of lions coffers in addition to the base wages is paid to these employees in fact the evidence shows just the opposite that it paid in their wages and took a practically of their back and send it to the union fun that is certainly not a basis to credit of things you can't contract out of this is one of the prevailing wage act is one that you can't contract out by agreeing with the union where we really have no real choice it's a hobson's choice you get the job you sign up with the union the universe you to a employee apprenticeship training program approved by the u s in the labor so you know they st went to say we put any money of our own money or the employees money kind of doesn't matter into this local union fund it if it's not us department of labor approves an apprenticeship program doesn't matter it wipes out all fringe benefit requirements not just the you know zero dollars fifty cents on the dollar but the extra fifteen dollars that is supposed to go to pensions and welfare and then these sort of backpedal and said well no it should be given credit you know at least for the apprenticeship training component and our answer is it shouldn't be given credit for that component because it's not a u s department of labor approved apprenticeship training for it and as to the suppose a fallback argument that they're challenging the validity of the department's interpretation that each of these categories has to be separately satisfied that i don't see i don't remember any were in the record below where that was then you can just sort of ignore the lanes that you're in as advocates below arguing whether permissible for that type of motion and saying well we want to we just treat it as a you know as a as a motion for summary judgment where the respondent on the two thousand six hundred and nineteen motion is thinking all right i'm dealing with affirmative manner that assumes the accuracy of my allegations and the blue of my legal theory aside and focuses only on this defense so the if there were any other arguments to be made below this should be on a full record where everybody has notice an opportunity to present the long facts relevant i'd like to i'd like you would give the impression that i have no sense of indignation in this case i think there is some by the part of the labor in their advocates that