Idaho Building & Construction Trades Council, AFL-CIO v. Inland Pacific Chapter of Associated Builders & Contractors, Inc.

*954 OPINION

Idaho has banned “job targeting” or “market recovery” programs. Construction unions have developed such programs to increase their members’ access to work and stem the long-term decline in the percentage of construction workers represented by unions. Under such programs, a union collects funds from workers it represents and then uses those funds to subsidize bids by union contractors, allowing the contractors to lower their labor costs and so more effectively compete with nonunion contractors. The plaintiffs, two Idaho unions, brought suit to enjoin the statute as preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. The district court preliminarily enjoined Idaho’s statute and then granted summary judgment to the unions.

It is well settled that most of the conduct prohibited by Idaho’s statute is protected by the NLRA. As to the balance of the prohibited conduct — namely, the use of job targeting funds derived in part from wages earned on federal projects governed by the Davis-Bacon Act, 40 U.S.C. § 3141 et seq. — Idaho’s proposed enforcement of federal rules governing wages on federal projects, including criminal penalties more onerous…

concurring:

As the main opinion explains, the “Fairness in Contracting Act,” Idaho Code § 44-2012 , is not saved from NLRA preemption by the line of precedent holding that collection of Davis-Bacon wages for job targeting programs violates the Davis-Bacon Act. See Int’l Bhd. of Elec. Workers, Local 357, AFL-CIO v. Brock, 68 F.3d 1194, 1201-03 (9th Cir.1995); In re Building & Constr. Trades Unions Job Targeting Programs, Case No. 90-02, 1991 WL 494718 (Wage App. Bd. June 13, 1991) (“Building Trades ”), aff'd sub nom. Building & Const. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1277 (D.C.Cir.1994). I write separately to observe that these cases, and in particular our decision in Brock , were, in my view, wrongly decided.

First, I see no basis to conclude that any aspect of job targeting programs amounts to a violation of federal law. The Davis-Bacon Act requires contractors on covered projects to pay to workers “the full amounts accrued at time of payment,” computed at rates not less than the advertised rates. Those rates must be not less than prevailing wages, “without subsequent deduction or rebate on any account.” 40 U.S.C. § 3142 (c) (emphasis added). A rebate is “[a]…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IDAHO BUILDING AND No. 11-35985

CONSTRUCTION TRADES COUNCIL,

AFL-CIO; SOUTHWEST IDAHO D.C. No. BUILDINGS AND CONSTRUCTION 1:11-cv-00253-

TRADES COUNCIL, AFL-CIO, BLW

Plaintiffs-Appellees,

v.

INLAND PACIFIC CHAPTER OF

ASSOCIATED BUILDERS AND

CONTRACTORS, INC.,

Applicant-in-Intervention– Appellant,

v.

LAWRENCE G. WASDEN, in his official capacity as Attorney General of the State of Idaho; TIM MASON, in his official capacity as Administrator of the Division of Public Works, Defendants-Appellees. 2 IDAHO BLD. & CONSTR. TRADES COUNCIL V.

INLAND PAC. CHAPTER OF ASSOC’D BUILDERS &

CONTRACTORS

IDAHO BUILDING AND No. 12-35051

CONSTRUCTION TRADES COUNCIL,

AFL-CIO; SOUTHWEST IDAHO D.C. No. BUILDINGS AND CONSTRUCTION 1:11-cv-00253-

TRADES COUNCIL, AFL-CIO, BLW

Plaintiffs-Appellees,

v. OPINION

LAWRENCE G. WASDEN, in his official capacity as Attorney General of the State of Idaho; TIM MASON, in his official capacity as…