F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A L L I E D C O N C R

E T E A N D S U P P L

Y C O ., a California corporation; C A L P O R

T L A N D C O M P A

N Y , a California Corporation; G A R Y B A L E R E D I -M I X C O N C R E T E , I N C ., a California corporation; H O L L I D A Y R O C K C O ., I

N C

. , a California corporation; N A T I O N A L R E A D Y M I X E D C O N C R

E T E C O ., a California corporation; R O B E R T S O N ’ S R E A D Y M I X , L T D ., a California limited partnership; S P R A G U E S R O C K A

N D S A N D C O M P A N Y , a California corporation; S U P E R

I O R R E A D Y M I X C O N C R E T E L .P., Plaintiffs-Appellees

,

v.

C H R I S T I N E B A K E R , in her official capacity as the Director of the Department of I

ndustrial Relations of the State of California; J U L I E A. S U , in her official capacity as L a bor Commissioner of the State of California, Division of L abor Standards Enforcement,

Defendants

, No. 16-56546

D.C. No. CV 16-4830 RGKA L L I E D C O N C R E T E A N D S U P P L

Y V

. I B T 2

I N T E R N A T I O N A L B R O T H E R H O O D O F T E A M S T E R S , Intervenor-Defendant-Appellant.

A L L I E D C O N C R

E T E A N D S U P P L

Y C O ., a California corporation; C A L P O R

T L A N D C O M P A

N Y , a California Corporation; G A R Y B A L E R E D I -M I X C O N C R E T E , I N C ., a California corporation; H O L L I D A Y R O C K C O ., I

N C

. , a California corporation; N A T I O N A L R E A D Y M I X E D C O N C R

E T E C O ., a California corporation; R O B E R T S O N ’ S R E A D Y M I X , L T D ., a California limited partnership; S P R A G U E S R O C K A

N D S A N D C O M P A N Y , a California corporation; S U P E R

I O R R E A D Y M I X C O N C R E T E L .P., Plaintiffs-Appellees

,

v.

C H R I S T I N E B A K E R , in her official capacity as the Director of the Department of I

ndustrial Relations of the State of California; J U L I E A. S U , in her official capacity as L a bor Commissioner of the State of California, Division of L abor Standards Enforcement,

D efendants-Appellants. No. 17-55343

D.C. No. CV 16-4830 RGKA L L I E D C O N C R E T E A N D S U P P L

Y V

. I B T 3

A L L I E D C O N C R

E T E A N D S U P P L

Y C O ., a California corporation; C A L P O R

T L A N D C O M P A

N Y , a California Corporation; G A R Y B A L E R E D I -M I X C O N C R E T E , I N C ., a California corporation; H O L L I D A Y R O C K C O ., I

N C

. , a California corporation; N A T I O N A L R E A D Y M I X E D C O N C R

E T E C O ., a California corporation; R O B E R T S O N ’ S R E A D Y M I X , L T D ., a California limited partnership; S P R A G U E S R O C K A

N D S A N D C O M P A N Y , a California corporation; S U P E R

I O R R E A D Y M I X C O N C R E T E L .P., Plaintiffs-Appellants

,

v.

C H R I S T I N E B A K E R , in her official capacity as the Director of the Department of I

ndustrial Relations of the State of California; J U L I E A. S U , in her official capacity as L a bor Commissioner of the State of California, Division of L abor Standards Enforcement,

D efendants-Appellees. No. 17-55503

D.C. No. CV 16-4830 RGK

OPI NI ONA L L I E D C O N C R E T E A N D S U P P L

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Appeals from the United States District Court

for the Central District of California R. Gary Klausner, District J udg e, Presiding

Arg ued and Submitted March 7, 2018 Pasadena, California

F iled September 20, 2018

B e fore: A. W a llace Tashima, Richard A. Paez

, and J acqueline H. Ng

uy en, Circuit J u d g es.

Opinion by

J u dg e Tashima

SUMMARY *

Labor Law

The panel affirmed in part and reversed in part the district court’s judg ment and remanded in an action broug h t by a g roup of r eady

- mix concrete suppliers, ch a l l e n g ing California L abor Code § 1720.9, w hich a mended California’s prevailing
wag e laws to include delivery drivers of ready -mix concrete.

The district c ourt denied a motion of the I nternational B rotherhood o f Teamsters (“I B T”) to intervene on the side o f the State to defend the law, and it g r anted the State’s motion
to dismiss plaintiffs’ c l a i m that § 1720.9 was preempted b y the F ederal Aviation Administration Authoriz ation Act. The

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A L L I E D C O N C R E T E A N D S U P P L

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district court g ranted summary judg ment in favor of plaintiffs

o n t h e ir claim that § 1720.9 violated the E qual Protecti o n Clause o f the F ourteenth Amendment, ruling that, under t he rational basis test, there were no leg ally relevant differences between ready -mix drivers and othe r delivery drivers; therefore, the State did not h ave any leg itimate justification for sing ling out the ready -mix suppliers.

Reversing the d istrict court’s g rant of summary judg ment in favor of plaintiffs on their equal protection claim, the panel concluded that t he district court wrong ly disreg arded a s irrelevant certain differences between ready -mix d rivers a nd other d rivers that the leg islature could have relied on in

ex tending the prevailing wag e law. T he panel ex plained that the California Supreme Court has stated that prevailing w ag e laws further g oals such as: (1) g enerally protecting employ e es on public w orks projects, (2) benefitting the public throug h the superior e f

ficiency of well-paid e m p loy ees, a nd (3) permitting union contractors to co mpete with nonunion
contractors. The panel held that the leg i s l a ture could have rationally concluded that ex tending t h e prevailing wag e law
to ready -mix d

rivers ahead of other drive r s w o u ld f urther these respective g oals because r ead y

- m ix drivers: (1) a re

m o r e integ rated into the construction process than oth e r materials drivers and should be paid a ccordi n gl y ; (2) a re

more skilled than other drivers and provide a material that is

more important to public works p rojects than other materials such that pay ing the prevailin g w ag e will attract superior drivers and improve public works; and (3) are more likely to be unioniz e d and, therefore, vulnerable to underbidding

. Reversing the district court’s denial of I B T ’ s motion to intervene, the panel held that the un i o n had a sig nificantly protectable interest at stake in the c ase. The panel concludedA L L I E D C O N C R E T E A N D S U P P L

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that I B T ’s appeal w as not moot in lig ht of the reversal on the equal protection claim.

Th e p anel affirmed the district court’s dismissal o f plaintiffs’ c l aim of F AAAA preemption because the prevailing w ag e law was not related to prices, route s , a nd

s e rvices within the meaning of the F AAAA’s preemptio n clause.

COUNSEL

Ken L au (argu e d), A ssistant Chief Counsel; Christopher J ag ard, Chief Counsel; Office of the D ir e ctor—L eg al Unit, Department of I ndustrial Relations

, Oakland, California; J ohn J

. K orbol a

nd Mi Kim, Counsel, Office o f the Director—L eg al Unit, Department of I ndus t r ial Relations, L os Ang eles, California; for Defendants-Appe l l ants/CrossAppellees.

Mich a el G. Yoder ( arg ued) and Christopher S. W hittaker, O’Melveny & My ers L L P, Newport B each, California; Anton Metlitsky

, O’Melveny & My e r s L L P, New York, New Y ork; for Plaintiffs-Appellees/Cross-Appellants.

Scott A. K

ronland (arg

ued), Stacey M. L ey

ton, and Eric P. B rown, Altshuler B erz o n L L P, San F rancisco, California, for I ntervenor-Defendant-Appellant/Amicus Curiae.

K e r ry Shapiro, J on W ilner, and Matthew J

. Sanders, J effe r M a n gels B u tler & Mitchell L L P, San F rancisco, California, for Amicus Curiae California C o nstruction and I ndustrial Materials Association.A L L I E D C O N C R E T E A N D S U P P L

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OP INION

TASHI MA, Circuit J udg e:

California’s g e n eral prevailing wa ge l aws ensure that workers employ ed on publ ic w orks projects are p aid a minimum w ag e. I n 2015, California amended the prevailing
wag e laws to include delivery d rivers of ready -mix concrete. Cal. L ab. Code § 1720.9.

A g roup of ready -mix concrete suppliers (coll e c tively

, “Plaintiffs”) challeng ed § 1720.9, alleg ing that it violated the Equal Protection Clause of the F ourteenth Amendment to the United States Constitution (“equal protection c l a im”) and that the F e deral Aviation Admini stration Authoriz ation Act o f 1994 (“F AAAA”) preempted the state law. The I nternational B rotherhood o f Teamsters ( “I B T”) moved to intervene on the side of the State to defend the law.

The district court denied I B T’s motion to inter v e n e and
g ranted the State’s motion to d ismiss Plaintiffs’ F A AAA preemption cla i m

. However, the district court g ranted Plaintiffs’ summary judg ment motion o n the equal protection claim, concluding that § 1720.9 did not pass muster under the rational basis test. Th e c o urt reasoned that there were no leg ally relevant differences b et w e e n r eady -mix drivers a nd

o t h er delivery drivers; therefore, the State did not have a n y leg itimate justification for sin gling out the ready -mix suppliers.

W e conclude that the district c ourt w rong ly disreg arded

as irrelevant certain differences b e tween ready -mix drivers

a nd other drivers that the leg islature could have relied on i n

ex tending the prevailing wag e law. W e thus reverse theA L L I E D C O N C R E T E A N D S U P P L

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district court’s g rant of sum mary judg ment in favor o f Plaintiffs and o rder the court to enter judg ment on b e h a lf o f Defendants. L ikewise, we hold t h at I B T had a sig nificantly
pr o t e c t able interest at stake in the case and we reverse the district court’s denial of I B T’s motion for leave to intervene. O n t h e F AAAA preemption question, we affirm the district court’s dismissal of Plaintiffs’ claim.

B A C K G R O U N D

1. P revailing Wage Law s a nd Calif ornia Labor Code § 1720.9

California’s prevailing w a g e l a w e s t a b l i s h e s t he minimum
wag e that w orkers employ ed on “public w orks” must r eceive. See Cal. L ab. Code §§ 1720, 17 7 1

. “Public works” is
g enerally defined as construction or r elated work, done under contract, and paid for in any part out of public funds. Id

. § 1720(a)(1). The California Supreme Court has described the purpose of the g eneral prevailing wag e law:

The overall purpose o f the prevailing wag e law

. . . is to benefit and p rotect employ ees on public works projects. This g eneral objective subsumes within it a number of specific g oals:
to protect employ ees f

rom substandard wag e s that mig ht be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to compete with nonunion contractors; to benefi t the public throug h the superior efficiency of well-paid employ ees; and to c ompensate nonpublic e mploy ees with hig he r w ag es for the absence of job securityA L L I E D C O N C R E T E A N D S U P P L

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a n d e mploy

ment b e n efits enjoy ed by public employ ees.

Lusardi Constr. Co. v. Aubry

, 8 24 P.2d 643, 649 (Cal. 1992).

The California Director of I ndustrial Relations (the “Director”) publishes the prevailing wag e rates and enforces the law by collecting pay

roll (and other related) r ecords from employ e rs. Cal. L ab. Code §§ 1771.4, 1776. F urther, when there is a question about the applicability of the preva i l i ng wag e law, the D irector determines “whether a specific project

or ty pe of work is a public work.” Id. at § 1773.5(b); see also i d

. § 1773(c) (establishing a dministrative appeal process). W h en there is a dispute, courts m a y a l s o review w hether a worker is entitled to prevailing wag es. See, e.g. , W illiams v

. SnSands Corp.
, 67 Cal. Rptr. 3d 606 ( Ct. App. 2007); O.G. Sansone Co. v. Dep’t of Transp.
, 127 Cal. Rptr. 799 (Ct. App. 1976). Courts and the Director both a sk w hether the worker’s task was “functionally r elated to the p rocess of construction,”

an d “an integ rated aspect of the ‘flow’ process o f construction.” O.G. Sansone
, 127 Cal. Rptr. at 804; see also A& A Ready Mix Concrete
, Public Works Case No

. 9 9

- 037 (Dep’t of I

ndus. Relations Apr. 10, 2000).

O n October 10, 2 015, Governor Edmund G

. B rown, J r. , sig ned AB 219, which amended California’s p revailing w ag e law by adding L abor Code §1720.9. I t p rovides that “ public works” include “the hauling a n d d e l i v ery of ready

- mix ed

c o n crete to c arry out a public w orks contract” reg ardless o f who employ s the driver or whether the driver is delivering from a dedicated batch plant. Cal. L ab. Code § 1 7 2 0 .9. The r e f o r e, all ready

- mix drivers delivering to public works
must be paid prevailing wag e s. B efore adopting the final bill,
t h e California L eg islature considered a version o f AB 2 1 9A L L I E D C O N C R E T E A N D S U P P L

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that wo u l d h ave required pay ment of p revailing wag es to asphalt d eli v ery drivers as well, but ultimately limited the

ex p ansion to ready -mix concrete drivers.

Ready -mix c oncrete is defin e d as “concrete that is manufactured in a factory o r a batching plant, according to a set recipe, a

nd then delivered in a liquefied s t a te by mix er truck f or immediate incorporation into a p r oject.” Id. § 1720.9(b). I ts ing redients are prepared and m i x e d at a concrete plant. Production o f concrete is time-sensitive because concrete beg ins to s e t q u i ckly after water is added. Ready -mix is d elivered i n s pecializ ed trucks with a rotating tank. I d . Drivers of ready

- mix trucks control the amount of

w a t e r a dded to the rotating tank and the speed at w hich t h e tank spins, meaning that they can a l t e r the nature of the
concrete. 1 B y contrast, even thoug h asphalt delivery may also b e time-sensitive, drivers transport asphalt in d u mp truc k s , rather than mix ing trucks, and drivers cannot alter the asphalt

once it is in the truck. F or certain projects, such as p aving roads, a sphalt a

nd ready -mix are interchang eable, for others, such as building walls and o ther structu r al supports, the materials are not substitutes.

2. P rocedural Background

On J une 30, 2016, Plaintiffs f iled a c omplaint ag ainst the Director and the L a

b or Co m m i s s ioner of the State o f California (collectively

, the “State”). 2 T h e Complaint alleg ed

1 T h e read y

- m ix d riv ers d o n o t alw ay s h av e d iscretio n to d ecid e h o w

m u ch w ater to ad d , b u t m

u st f ollo w in stru ctio n s f

ro m en g i n eers.

2 P lain tif f s also su ed Go v ern o r Bro w n , b u t later d ism issed t

h e case as to h im

.A L L I E D C O N C R E T E A N D S U P P L

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that § 1720.9 violat e s the Equal Protection Clause of the C o nstitution, o r alternatively

, is preempted by the F AAA A
, and soug ht injunctive and declaratory r elief. B efore the State answered the complaint, I BT m oved for leave to intervene, either as of rig h t or permissively

. See F ed. R. Civ. P. 24(a) & (b). On Aug u st 22, 2016, P l a i n t iffs soug ht a preliminary injunction on th e i r equal protection claim. B efore the court ruled on Plaintiffs’ motion for injunctive relief, the State moved to dismiss under F ederal R u le of Civil Procedure 12(b)(6).

Subsequently

, in September, the district court denied I B T’s motion to intervene, reaso n i ng that: (1) the union could not in t er v ene by rig ht b ecause it did not have a sig nificant l y protectable interest in the case; and (2) that the union could not permissively intervene because it would

cause a delay and the State could p r otect any in t er e sts I B T
may h ave. I B T appealed the denial of its motion to intervene.

On O ctober 18, 2016, the district court g ranted Plaintiffs’ motion for a preliminary injunction o n the equal protection claim, finding that § 1720.9 was not likely to survive rational basis review. 3 I n December, the district court g ranted the S t ate’s motion to dismiss Allied Concrete’s F AAAA clai m , but denied the motion as to the equal protection claim. Allied Concrete appealed the dismissal of its F AAAA claim.

Thereafter, Plaintiffs moved f o r summary judg ment a

nd requested that the temporary injunction be made permanent. The district c ourt, holding that § 1720.9 violated t he E q ual Pro t ection Clause, permanently enjoined the statute’s

3 T h e S tate ap p ealed th e p relim in ary i n j u n ctio n , b u t th e su

bseq u en t

en try o f th e p erm an en t

in j u n ctio n m o o t ed th at ap p eal.A L L I E D C O N C R E T E A N D S U P P L

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application and enforcement. F irst, the district court defined the classifi c ation in § 1 7 20.9 as treating “ready

- mix ed
concrete drivers differently th a n other materials d rivers.” And, althoug h the district court credited the State’s evidence

as to the differences bet we e n ready -mix drivers and drivers of other materials, it c oncluded – without ex planation – that those differences were immaterial because “all that matters for inclusion in the [ p revailing wag e law] i s whether or not drivers are hauling a

nd delivering construction materials to p u b lic works sites.” Thus, the district court concluded t h at “in all respects relevant to the [ p revailing wag e law]

, ready

mix ed concrete drivers and other materials drivers a r e similarly situate d

. ” Recog niz ing that the State’s interests
may be leg itimate, the district court nevertheless struck down the statute because the classification was “arbitrary ” and not rationally related to any of the interests. The State appealed.

S T A N D A R

D O F R E V I E W

W e review de novo g r ants of summary judg ment a nd dismissals. First Resort, Inc. v. He r r era , 860 F .3d 1263, 1271 (9th Cir. 2017), cert. denied

, 138 S. Ct. 2709 (2018); A h Quin v. Cty. of Kauai Dep’t of Transp.
, 73 3 F. 3 d 2 67, 270 (9th Cir. 2013).

W e consider de novo whether a motion t o i n tervene o f rig ht s h o uld have b e e n g ranted, Canatella v. California

, 404 F .3d 1106, 1112 (9th Cir. 20 0 5), and, if necessary , review for abuse of discretion a denia l of permissive intervention, id. at 1117.A L L I E D C O N C R E T E A N D S U P P L

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D I S C U S S I O N

1. Equal P rotection

The parties ag ree that the r at i o n al basis test a pplies. Therefore, § 1720.9 “cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some leg itimate g overnmen tal purpose.” Heller v

. Doe
, 50 9 U.S. 312, 320 (1993). Non-suspect classifications are

constitutionally valid if there is a plausib l e policy reason f

or the class ification, the leg islative facts on which the classification is apparently based rationally may have been

con s i d ered to be true by the g overnmental decisionmaker, a

nd the relationship of the classification to its g oal is not so attenuated a s to render the distinction arbitrary or irrational.

Armour v. City of Indianapolis

, 566 U.S. 673, 681 (2012) (i n t er n al quotation marks omitted); see also Johnson v

. Rancho Santiago Cmty. Coll. Dist.
, 623 F .3d 1011, 1031 (9th Cir. 2010) (“[ A] state action need n ot actu a l ly further a leg itimate interest; it is enoug h that the go v e r n i ng body

‘ c ould have rationally decided that’ the action would f urther that interest.” (quoting Minnes o t a v

. Clover Leaf Creamery Co.
, 449 U.S. 456, 466 (1981))). “F urther, because the classification is p resumed constitutional, the burden is on the [ party ] attackin g the leg islative arrang ement to neg ative every conceivable basis which mig ht support it.” Armour
, 5 66 U.S.
at 681 ( internal quotation m a r ks omitted); see also Clover Leaf Creamery Co.
, 4 49 U. S. at 464 (“[ P] arties challeng ing leg islation under the Equal Protection Clause

. . . cannotA L L I E D C O N C R E T E A N D S U P P L

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prevail so long a s i t is e vident from all the considerations presented to [the leg islature]

, and those of which we may take j u d i cial notice, that the q uestion is at least debatabl e

. ” (second alteration in orig inal ) (internal quotation marks a nd citations omitted)); Vance v

. Br a dley

, 440 U.S. 93, 111 (1979) (“[ T] hose challeng ing the leg islative judg men t must

c onvince the court that the leg islative facts on wh i c h t h e classification is apparently based could not reaso nably be conceived to be true by

the g overnmental decisionmaker.”).

W e disag ree with the district co u rt’s conclusion that the differences betwee n ready -mix drivers and other delivery drivers is immaterial for the purposes of the prevailing w ag e law. As mentioned above, the California Supreme Court has stated that prevailing w age laws further g oals such a s: (1) g enerally protecting employ ees on public w orks projects, (2) ben ef itting the public throug h the superior e fficiency o f well-paid employ ees, and (3) permitting union contractors to compete with n onunion contractors. See Lusardi

, 824 P.2d at 649. T he leg islature could have ratio nally concluded that

ex tending the prevailing w ag e law to ready -mix drivers ahead of other d rivers would further these r espective g oals because

rea dy -mix drivers: (1) a re more integ rated into the construction process than other materials drivers and should be paid a ccordingl y ; ( 2) are more skilled than other drivers and provide a material that is more important to public works
p r o j ects than other materials such that p ay ing the prevaili n g wag e will attract superior d rivers a nd improve public works; and (3) are more likely to b e unioniz ed and, therefore, vulnerable to underbidding

. 4 Plaint i ffs have not met their

4 Each o f th ese j u stif

icatio n s is alo n e s u f

f icien t to s u rv iv e th e ratio n al b asis test. T h e State an d IB T p resen t u s w i t h s e v eral oth er p o ten tialA L L I E D C O N C R E T E A N D S U P P L

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hig h burden of convi n c ing us that these leg islative facts “could not reasonably be conceiv e d to be true by the
g overnmental deci s i o n maker.” Bradley

, 440 U.S. at 111. Th e l egi slative facts are a t least debatable and the classification rationally r elated to fu r t h ering the purposes o f the prevailing wag e law; as such, the statute surviv e s the rational basis test. 5 S

e e F C C v

. Beach Commc’ns, Inc.
, 508 U.S. 307, 320 (1993).

A. Benef it Em ployees on P ublic Works P r ojects

F irst, “[ t] h e over a l l purpose of the prevailing wag e law

. . . is to benefit and protect e mploy ees on public works projects.” Lusar d i
, 824 P.2d at 6 49. I n ex tending the prevailing wag e la w to benefit ready -mix drivers, the leg islature c ould have r ationally decided that the delivery o f ready -m i x t o a public work is part of the “flow o f construction” and should be compensated as such. Not only would this protect the ready -mix drivers, but if the leg islature b elieved that the ready -mix drivers w ere actually more integ rated in construction, the pay m e n t of prevailing wag e s

j u stif i catio n s, b u t w e n eed n o t reach t h o s e an d o f

f er n o o p in i o n o n w

h eth er th ey w o u ld sav e th e ch allen g ed statu t e.

5 Un derg ird in g ou r an aly sis i s t h e id ea th at th e leg i slatu

re is p erm i tted
to act in crem en tally in d ealin g w ith p erceiv ed p ro b lem s

. S ee City o f New Orlea n s v. Du kes , 4 2 7 U.S. 2 97
, 3 0 3 (1 9 76 ) (p er cu riam ) (“ L eg islatu res

m ay im p lem en t t h eir p ro g ram st e p b y step in su ch eco n o m ic areas,

a d o p tin g reg u latio n s th at o n ly p artially am elio rate a p erceiv ed ev i l a n d d ef errin g co m

p lete elim in atio n o f th e ev il to f u t u re reg u latio n s.” (citatio n s

o m itted )); see also Ry. Exp ress Ag e n c y v

. N e w Yo rk

, 3 36 U.S. 10 6
, 1 1 0 (1 9 4 9) (“ It is n o req u irem en t o f eq u al pro tectio n th at all ev ils o f th e sam e g en u s b e erad icat e d o r n o ne at all.” (citin g Cen t. L u mb er C o

. v. S o uth Da ko ta , 2 2 6 U.S. 1 57 , 1 60 (1 9 1 2 ))).A L L I E D C O N C R E T E A N D S U P P L

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c ould increase efficiency in p ublic works p rojects b y attracting hig her-skilled workers.

Specifically

, the leg islature could have concluded that the

rea d y

- m i x d

rivers a re more integ rated into the flow o f construction b ecause they bring a perishable commodity to a construction site, and, in certain instances, need to incorporate it i mmediately

. During leg islative hearing s on the bill, an I B T representative testified:

These workers a r e p art of the construction
process. T h at’s what’s different and unique about this f

rom any other material coming to the job site. Y ou can

. . . it’s not dumping a loa d of lumber or a bag o f nails or whatever

a n d l e a v i n g

. T h e y b r i n g t h i s commodity

— whi c h is perishable—and [ it] has to be incorporated immediately and the driver participates in the incorpor a t i o n p r o c ess with t h e workers. They are part of it. They

move the truck. T h ey o perate levers a nd equipment that moves the concrete and the
rate of flow in conjunction with the construction workers. T hey a re integ ral to the
process.

At least some of the leg isl ators were impressed by this perceived difference from other materials. As one leg islator

s t a ted: “I will be supporting the bill today

. I do g et t h e distinction between the product we’re talk i n g a bout a nd delivering in effect, dumping a d e livery of pipes or paint o r steel. This is a different commodity .”A L L I E D C O N C R E T E A N D S U P P L

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The con clusion that ready -mix d rivers are more integ ral
to the public works projects than other drivers because of the

m a t e r ial’s properties and the driver’s tasks is rational on i t s face. Therefore, it i s u p to Plaintiffs to neg ate this justification as inconceivable. Plaintiffs attempt this throug h three arg uments. They

first arg ue that the delivery of ready

mix is not any diff

er e n t than that of o ther materials. F o r

ex a mple, one contractor stated that “[ f] rom [ his] perspective

as a contractor, there is n o meaning ful difference between the delivery of ready -mix ed concrete

. . . and the delivery of any other construction material

. . . . Approx imately 95% of the time, all o f the [ ready -mix ] g oes into a sing le pump that [ his] employ e es than [s i c ] u se to place the concrete.” W hile this
arg ument r a ises a factual dispute w ith the testimony from I B T’s witness, quoted a

bove, it does not sig nificantly weig h
ag ainst the leg islature conceivably c o ncluding that ready -mix drivers are more important to the c onstruction process based

on the properties of the materials, t h e u n i queness of the trucks, and the driver’s responsibilities upon ar r i val. The leg islature, where there is n o suspect class at issue, has wide leeway to consider different, and potentially competing

, facts. See Armour
, 566 U.S. at 685 (“[ T] he Const i t u t i o n does not require the [ g overnment] to draw the perfect line n or even to draw a line superior to some o ther line it mig ht have drawn. I t requires only that th e l i n e actually drawn be a rational line.”).

Nex t, Plaintiffs arg ue that the leg islature could not rationally conclu de that ready -mix d rivers were more integ rate d i n t o the flow of construction than o ther drivers because the Director had p r e v i o u sly found that the drivers

wer e n o t alway s entitled to prevailing wag es under the pre- § 1 7 2 0 .9 test. I n A &

A Ready Mix Concrete
, the D irector concluded that ready -mix drivers delivering the material, butA L L I E D C O N C R E T E A N D S U P P L

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not performing on-site construction w ork, were not part of the flow of construction. Plaintiffs arg ue that this administrative ruling undercuts any factual basis for the leg islature to have de ci d e d otherwise. This arg ument fails for several reasons. F irst and f

oremost, the leg islature is not bound to accept the finding s o f an administrative ag ency

. L eg islatures f requently chang e laws in response to a dministra t i v e (or judicial) decisions with which the y d o not ag r ee. As such, this decision of the ag ency

is of little relevance to our analy sis.

F inally

, Plaintiffs arg u e that ex tending the prevailing
wag e to all r e ady -mix drivers is overbroad bec a u s e n o t all ready -mix d

rivers are sufficiently integ ral t o t he f low o f

c o n s truction. F or ex ample, Plaintiffs contend that not a l l drivers i n c o r

porate the ready -mix

, and that even if they do, this would not necessarily support hig h er wag es for the drive
t ime. A g ain, Plaintiffs q uestion where the leg islature d r e w t h e line. B ut, for the reasons stated above, the leg islature could have rationally c oncluded that ready -mix drivers were more integ ral to public works than other drivers and that the drive time – when the driver controls the rate of rotation a nd the amount of water in the drum – is part of the construction.

B. Ensure Superior P rojects

Second, ano t h er g oal of the prevailing wag e law is to “benefi t the public throug h the superior efficiency of wellpaid employ ees.” Lusardi

, 824 P.2d at 6 49. The State offers that the leg islature may have decided that the u nique aspects of a ready -mix driver’s job, and the nature of r eady -mix as a material f or structural projects such as building s, bridg e s, a nd dams (as opposed to roads), make the quality of rea d y

- m ix drivers more important to public works projects than other drivers. T h i s a

rg ument rests on two premises that PlaintiffsA L L I E D C O N C R E T E A N D S U P P L

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challeng e: (1) t h a t r eady -mix drivers have unique responsibili t i e s that a

re more important to the success of a public works project; a

nd (2) that ready -mix is more often used in “structural” projects.

As to the first premise, there are clear differences b etween ready -mix drivers and other materials drivers relevant to the equal protection analy sis. Ready -mix drivers use specializ ed trucks, with a r otating mix ing drum, w hereas asphalt drivers

us e d u m p trucks. Ready

- mix drivers can chang e the consist e n c y of their load by adding water to the mix ture o r altering the speed of r otation of the drum. F urther, ready -mix d r i v e r s require more training than asphalt drivers a nd must carry a different driver’s license endorsement than a spha lt drivers. I t is conceivable that the leg islature c ould h ave rationally believed these facts, determine d t h at ready -mix drivers need more skills than other drive r s , and concluded that prevailing wag es would attract hig her-quality workers.

Plaintiffs arg ue that there is n o meaning ful di f f erence between the delivery of ready -mix a n d other materials. F o r

ex a mple, some contractors declare that ready -mix and asphalt drivers both merely drop the material where the contractors’ employ e es tell the driver to dump it. Plaintiffs further arg ue that both ready -mix and asphalt h a v e a limited d uration in which t h e y m ust be delivered. F inally

, Plaintiffs arg ue that

even thoug h the r eady -mix driver has the ability to add water to the mix ture, he o r she does not have discretion to do so. I nstead, the drivers simply follow instructions from somebody

else.

Nonetheless, the different licensing requirements and the

a b i l ity of ready

- mix drivers to control the cement in their
t r u cks are rational g rounds f or disting uishing between t h e mA L L I E D C O N C R E T E A N D S U P P L

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. I B T 20

a n d o t her d

rivers. F urther, even if ready -mix drivers d o n o t have d iscretion to a d d water to the mix ture, or chang e t h e speed of the r otating d ru m , they still must control these

va ri a b l e s during the drive, which is n ot true for drivers o f ty pical dump trucks. Carefully f ollowing imp o r tant instructions is itself a valuable skill.

As to the second premise, althoug h it is t r u e that many projects c oul d i n t erchang e the materials depending on c ost, there is evidence that ready -mix is used for structural support, such as walls or footing s, more often than other materials. B y contrast, a sphalt cannot be used as a structural material, a nd is most ofte n u s e d for paving

. I t is easy to imag ine a leg islator concluding that a failed structure, such as a dam o r bridg e, is worse than a poorly -paved road. T h e refore, the leg islature could have rationally concluded that ready -mix is

more important to sensitive p ublic works and that the drivers
must be more skilled to ensure the integ rity of the m aterial they deliver.

Ag ain, Plaintiffs cannot neg ate this j u s t i fication. A side from arg u ing that ready -mix d rivers are not any different than other d rivers, Plaintiffs also cont end that concerns about structural projects do n ot survive constitutional scrutiny because n ot all public works are structural projects. B ut this
arg ument cannot carry the day u n d er rational basis review. See Heller

, 509 U .S. at 321 (“[ C ] o u rts are compelled under rational-basis review to accept a leg islature’s g eneraliz ations

even when there is an imperfect fit b e t ween means a nd ends.”).A L L I E D C O N C R E T E A N D S U P P L

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. I B T 21

C. P rotect F rom Underbidding

Third, another purpose o f the prevailing wag e l aw is “to permit union c ontractors to compete with no n u n ion contractors.” Lusardi

, 824 P.2d at 649. The district court, citing Merrifield v. Lockyer

, 547 F .3d 978, 991 n.15 (9th Cir. 2008), however, rejected this arg umen t : “[ L ] eg islation passed for the sole purpose o f protecting union employ ers from non-union c o mpetition will not pass consti t u t ional muster.” A s we further ex plain below, Merrifiel d d o es not support the d istrict court’s conclusion. True, b are economic protectionism is not a valid justification f o r discriminatory treatment, but th e i n terest in protecting union workers from underbidding conceivably is a bout ensuring a certain standard

o f w orker – and avoiding a race to the bottom – rather t h a n g ranting favors to p o litically important a c t ors. See O.G. Sansone
, 1 27 Cal. R p tr. at 813–14 (describing the maintenance of c ompetition between union a n d n on-union workers as one of the purposes of the federal prevailing w ag e law); see also Indep. Roofing Contractors v. Dep’t of I ndus. Relations

, 28 Cal. Rptr. 2 d 550, 557 (Ct. App. 1 994) (recogniz ing the “declared public p o licy of [ California] in favor of collective barg aining ”).

The State arg ues that the leg islature could have rationally concluded that ready -mix drivers were more v ulnerable
to underbidding than othe r d r ivers because a hig her percentag e of r eady -mix drivers are union workers. An I B T representative estimates that 95% of ready -mix drivers in the San F rancisco area are worki n g under collective barg aining
ag r e e m e n t s (“CB As”), w hereas “I B T has only one o r two [ CB As] w ith contractors who are also commercial suppliers covering asphalt delivery in California.” I f unioniz ed ready

mix drivers were underbid by a non-union supplier, 9 5 % o fA L L I E D C O N C R E T E A N D S U P P L

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drivers in San F rancisco would be inelig ible for the job. Therefore, it seems reasonable that the leg islature could have rationally believed that underbidding in the ready -mix market is more harmful and that § 1720.9 would further the interest in preventing underbidding

.

Plaintiffs respond that u nderbidding b y non-union drivers
may be a problem, reg ardless of the material carried, and that the state has not provided a n y evidence that the d i s p arity between union and non-union rates is g reater for r e a d y -mix drivers t han other drivers. These a r g uments miss the mark. J ust because under

b i dding may be an issue for drivers o f other materials d o e s not mean that the leg islature could not have rationally concluded that th e p r o b lem was more acute for ready -mix drivers due to their hig h er unioniz ation rates. Second, the state is not required to produce empirical evidence to support the statute; it is Plaintiff s ’ burden is to neg ate conceivable justifications. S e e Beach Commc’ns
, 508 U.S. at 315 (“[ A ] leg islative c hoice

. . . may be based on rational speculation unsupported by evi dence or empirical data.”).

D. Not Bare Econom ic P rotectionism

Plaintiffs contend that they h a v e refuted a ll of the State’s justifications and that the only ex planation for § 1720.9 is that the legislature wanted to p rotect the suppliers of other materials from c ompetition. P l aintiffs, however, have put forward no evidence that the leg islature eng ag ed in improper favoritism, and the Ninth Circuit cases that Plaintiffs cite a re inapposite.

P l aintiffs rely on M

errifield for the premise t h at “economic protection i s m for the sake of economicA L L I E D C O N C R E T E A N D S U P P L

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protectionism is i r rational with respect to determining if a classification survives rational basis review.” 547 F .3d a t 991 n.15. M errifield

, however, pre sented a unique set of facts disting uishable from those here. I n Merrifield

, a pest-control professional who did n ot u se pesticides challeng ed, o n d ue p r o cess g rounds, the application of California’s overall pesticide licensing scheme t o h im and other non-pesticide

users. Id. at 987. W e rejected the due p r o c e s s c l aim, reasoning that the state had a public safety interest in “requiring p e r s o n s who d o not use pesticides to learn about the risks o f p e s t icides

. . . because persons like [ plaintiff] work in environments where they m a y be ex posed to pesticides that have been applied previously and left on-site.” Id. at 988.

The plaintiff in Merrifield also challeng ed, on equal protection g rounds, the ex e mptions in the licensing scheme, which ex empted pest-control professi o n als who dealt with b a t s , r accoons, skunks, and squirrels and did not use p e s t icides from the licensing requirement, but did not similarly e x empt professionals who wo r k e d with mice, rats,

or pig eons. Id. at 981–82. A pply in g t he rational basis test,

we struck down these selective ex emptions. Id. at 991. W e reasoned that the clas s i f

ication in the licensing scheme did not survive constitutional muster because it contradicted the
very interest the Sta t e proffered to defeat the d ue process claim

– public hea l t h c o n cerns about ex posure to pesticide. See id. (“W e cannot simultaneous l y u p hold the licensing requirement u n d e r due process based on o ne rationale a nd then uphold [plaintiff’s] ex c lusion from the e x emption based

on a c ompletely contradictory r ationale.”). The rationale was contradictory because those pest-control operators w ho worked with bats, rats, racoons, skunks, and squirrels were

more at risk of being ex p osed to p e sticides even if they didA L L I E D C O N C R E T E A N D S U P P L

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not themselves use pesticides than similarly

- situat e d operators wh o d e a lt with more-common pests like mice o r rats. Id. at 991.

Plaintiffs also rely o n F owler Pac ki n g C o. v. Lanier
, 844 F .3d 809, 816 (9th Ci r

. 2 016). I n F owler Packing

, we concluded, on a motion to dismiss, that plaintiffs had pleaded

an equal protection clai m b e cause the only conceivable

ex p lanation for a portion of the challeng ed leg islation w as the need to win the poli t i c a l support of a p articular labor union. Id

. a t 8 1 6. T he leg islation at issue in Fowler Packing “cre a t e d a ‘ safe harbor’ that g ave employ ers an affirmative defense a g ainst” certain minimum wag e claims. I d

. at 811. However, there were carve outs from the safe harbor that only benefitted the labor union which had o n g oin g suits ag ainst employ e rs. Id. at 815. These carve outs came in the form o f

c ut-off dates that corresponded almost ex actly to the f il i n g dates o f the labor union’s cases ag ainst certain employ ers. Id. Accepting the p laintiffs’ a lleg ations as true, we held that they had alleg ed enoug h to survive a motion to dismiss.

B o th cases are easily disting uishable from the s i t u a tion h e r e. Unlike in Merrifield

, there is no sug g estion t h at classify ing ready -mix drivers as distinct from other drivers actually contradicts the purposes of the p revailing wag e law. Similarly , there is no specific evidence like the cut-off dates in Fowler Packing that clearly sug g ests improper favoritism. Plus, the burden on Plaintiffs here to come forward with evidence that neg ates every conceivable basis for the law i s much hig h er than t h at of the Fowler Packing plaintiffs opposing a motion to dismiss.

F i n a lly

, Plaintiffs emphasiz e the fact that asphalt was dropped from an earlier v ersion of § 1720.9 as a sig n that theA L L I E D C O N C R E T E A N D S U P P L

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law’s only justification is to protec t re a dy -mix suppliers’ competitors. W ithout more, the fact that the leg islature once considered including asphalt in the leg islation is not evidence of improper motive. I n fact

, c o nsidering asphalt, but then removing it after holding hearing s, could just as e asily bolster the conclusion that after reviewing the facts, the leg is l a ture reached an informed judg ment.

B e cause Plaintiff

s h ave not neg ated every conceivable justification for § 1720.9, we conclude that the statute passes the rational basis test and d oes not violate t h e E q ual Protection Clause.

2. Intervention

I n a separate appeal, I B T challeng e s the district court’s denial of its motion for leave to intervene as of rig h t or b y permission. During oral arg ument, we r a i s ed the issue o f

w h e t h e r I B T’s a

ppeal would be moot if we reversed the district court on the equal protection claim. I B T arg ued that its appeal would not be moot because P l a i ntiffs c ould still

move f or rehearing en b anc or petition for a writ of certiorari with the Supreme Court.

W e a re not aware of any decision fr o m our Circuit that addresses w hether a po t e n tial petition for rehearing o r certiorari keeps a case alive for the purposes of appealing a motion to intervene. The ty p ical rule is th a t “ [ a] n appeal is
moot if there ex ists no present contr o v ersy as to which effective r el i e f can be g ranted.” W

. Coast S

eafood Processors Ass’n v. Natural Res. Def. Council, Inc.
, 643 F .3d 701, 704 (9th Cir. 2011) (internal quotation marks omitted);

see also United States v. Ford

, 650 F .2d 1141, 1143 (9th Cir. 1981). On the other hand, where the district court h as enteredA L L I E D C O N C R E T E A N D S U P P L

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judg ment, but a party h as a ppealed so m e a s pect of the c ase,

an appeal of the motion to intervene i s n ot moot. See Canatella

, 404 F .3d at 1109 n.1. W e think that the situation here is more similar to Canatella than W est Coast Seafood o r Ford . I n both W

est Coast Seafood and Ford , the underly ing litig ation had conclude d ; h e r e, as I B T points out, Plaintiffs
may pursue their ca s e by filing a p etition for rehearing o r rehearing en banc here, or by p etitioning the Supreme Court for a writ of certiorari. 6 We therefore hold that I B T’s appeal is not moot in lig ht of our reversal and w ill reach the district court’s decision deny ing intervention. S ee U.S. P o stal Serv. v. Brennan
, 5 79 F .2d 188, 190 n.1 (2d Cir. 1978) (“B ecause application for rehea r i n g h as been f iled and the time to petition for certiorari has n ot e x p i r ed, the case has not reached final judg ment, and the issue of intervention is not moot.” (citation omitted)).

To determine whether a party may inte r vene as of rig ht,

we employ a four-part test: (1) the motion must be timely ; (2) the a pplicant must claim a “ sig nifi c antly protectable interest” in the action; (3) the disposition of the a c t i o n must as a practical matter impair or impede the applicant’s ability
to p rotect that interest; and (4) the applicant’s interest may be inadequately represented b y the ot h e r parties. W ilderness Soc’y v. U

.S. Forest Serv.
, 6 30 F .3d 1173, 1 177 (9th Cir. 2011) (en banc).

W e h ave previously considered a motion for I B T to intervene on the side of the State to defend Cal ifornia’s prevailing wag e law. See Californians for S a fe &

6 P lain tif f s h av e alread y in d i cated th at th ey in ten d to f ile a p etitio n f

or reh earin g en b an c ch allen g in g th is Circu it’ s FA A A A p reem p tio n p reced en t.A L L I E D C O N C R E T E A N D S U P P L

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Competitive D ump Truc k T r a nsp. v. Mendonca

, 1 52 F .3d 1184, 1189–90 (9th Cir. 1 998). Be c a u s e the facts o f Mendonca are almost id e n t i cal to this case, we follow its reasoning and reverse the district c o urt’s denial of I BT ’s motion to intervene.

I n Mendonca , “public works contractors who provide[ d] transportation-related services on publicl y -funded projects” challeng ed California’s preva i l i n g w a g e laws, arg uing that the F AAAA pr e e m p t e d the state law. Id. at 1185–86. W e affirmed the district court’s g rant of I B T’s m o t i on to intervene, r easoni n g t h at: (1) I B T ’s motion w as timely ; (2) I B T’s members h ad a “‘sig nificant interest’ in r eceiving the prevaili n g wag e for their services as opposed to a substandard wag e”; (3) “I B T’s members’ rig ht to receive the prevailing wag e” would h a v e be en i mpaired had plaintiffs prevailed; a

nd (4) I B T demonstrated that t h e State’s representation of its interests may h a v e been inadequate “because the employ

ment interests of I B T’s members were potentially more narrow and p arochial t h a n t h e interests o f the public at larg e.” Id. at 1189–90.

The dis trict court attempted to disting uish Mendonca b y emphasiz ing that we used the phrase “ receive the prevailing

wa ge ” i n M

endonca. Id. at 1190 (emphasis added). B y emphasiz ing the word “receive,” t he district court assumed that the I B T members in M endonca would not have been p aid the p revailing wag e if the statute were struck down. Here, on the other hand, the district court relied o n the f act that many I B T members already received the prevailing wag e pursuant to CB As – reg ardless o f the prevailing wag e law. I n other words, the district court c oncluded that the I B T members “would merely

lose § 1720.9 as a statutory backstop to their [ CB As] .”A L L I E D C O N C R E T E A N D S U P P L

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Mendonca is not susceptible to the district court’s narrow reading

. Moreover, we are not convinced that the distinction between receiving a prevailing w a ge pursuant to statute a nd

m a i n taining the statutory right to receive a wag e i s a meaning ful on e f

o r p urposes of assessing standing to intervene. F or one, Mendonc a m a k es no mention o f disting uishing I B T m e mbers by whether they actually received the prevailing wag e or not, and there i s n o discussion a

bout whether certain I B T members were already paid the prevailing wag e under CB As. I t is entirely possible that the members at issue in M endonca were subject to CB As. F or a nother, the district court j u s t as easily could have emphasiz ed the w ord “ rig ht” in the statement “[ if plaintiffs] prevailed, it would have c l e a rly impaired I B T’s members’ right to receive t h e p revailing wag e” and come to the opposite conclusion. Id. at 1190. I n any event, w e do not see

a sig nificant d ifference either way , e v e n if the M endonca intervenor s were not subject to CB A s. F or ex ample, receiving a prevailing wag e in the abs e n ce of a CB A mig ht technically be different than r eceiving it pursuant to a contract, b ut for the purposes of a sig n i f icantly protectable interest, we think they are indistin guishable. Even if all o f I B T’s members are sub

j e ct to CB As 7 that pay them the
p r e v ailing wag e, a statutory rig ht to that wag e is sti l l i m p o r tant and not at all speculative. CB As are no t permanent, and r e-neg otiating ab o ut wag es from a statutory floor is certainly a much better barg aining po s i t ion than
st a r t i ng from scratch. Maintaining the statutory floor is a sig nificant, protectable interest for I B T

.

7 IB T alleg es th at th ere are tim es w h en so m e o f its m em

b ers are n o t p ro tected b y

CB A s.A L L I E D C O N C R E T E A N D S U P P L

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. I B T 29

L ikewise, Mendonca g uides us on the other t h r ee elements of intervention by ri gh t

. F irst, there is no dispute that I B T’s motion w as timely

. Nex t, because I B T has an interest in t h e rig ht to a prevailing wag e, the district court invalidating the law c learly impaired that interest. Id. And, finally

, I B T’s interest s are potentially more n arrow than the public’s at larg e, and the State’s representation o f those interests “ may have been inadequate.” Id. (emphasis added).

As such, we see n o reason to depart from Mendonca and therefo r e c o nclude that the district court erred in deny ing I B T’s motion to intervene as a matter of rig ht. 8

3. P reem ption

The d istrict court correctly dismissed Plaintiffs’ F AAAA preemption c laim. The prevailing wag e law “is not ‘related to’ . . . prices, routes, a

nd services within the meaning of the [ F AAAA’s] p r eemption clause.” M endonca

, 152 F .3d at 1189; see also Dilts v. Penske Logistics, LLC
, 769 F .3d 637, 647–48 (9th Cir. 20 1 4 ) ( r eaffirming Mendonca ). Thus, preemption does not apply

.

C O N C L U S I O N

The district court’s summ a r y judg ment in favor o f Plaintiffs’ e qual protection claim, and its denial of I B T’s motion for leave to intervene as o f r i ght are REVERSED. W e AF F IRM the district court’s dismis s al of Plaintiffs’

8 B ecau s e w e u

p h o ld IB T ’ s in terv en t io n as a m atter o f rig h t , w e n eed

n o t reach its altern ativ e m o t io n f o r p erm issiv e in terv en tio n

.A L L I E D C O N C R E T E A N D S U P P L

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F AAAA preemption claim. W e REMAND to the d istrict court to enter judg ment consistent with this opinion.

The State Defendants and I B T shall recover their costs on appeal from Plaintiffs.