Metropolitan News-Enterprise


Friday, September 21, 2018


Page 3


Ninth Circuit:

Law Singling Out Cement Mixer Drivers for Protection Is Constitutional


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed a district court decision granting summary judgment to plaintiffs who challenging a new California law designed to protect ready-mix cement truck drivers employed on public projects, holding that the statute passes constitutional muster under the Equal Protection Clause.

The opinion, by Senior Judge A. Wallace Tashima, reverses in part the judgment by Judge R. Gary Klausner of the Central District of California.

Klausner was persuaded by the argument put forth by the plaintiffs, a group of ready-mix concrete suppliers. (Ready-mix concrete is a longer-lasting alternative to asphalt used in many structural construction projects; it is the usual contents of cement mixer trucks, which are designed to keep the substance in its liquid state during transport to a job site.)

The plaintiffs contended that Labor Code §1720.9—which in 2015 added ready-mix concrete truck drivers to the types of workers protected by prevailing wage laws for public works projects—unlawfully singled out those drivers in violation of the Fourteenth Amendment.

Tashima disagreed, accepting the state’s response that the cement mixer drivers are differently situated from other delivery truck drivers.

Because truck drivers are not a suspect class, the parties agreed that rational basis review applied. They differed only in their portrayal of the justifications offered by the state for §1720.9.

Union Representative’s Testimony

During legislative hearings on the bill creating the amendment, an International Brotherhood of Teamsters (“IBT”) representative testified:

“These workers are part of the construction process. That’s what’s different and unique about this from any other material coming to the job site. You’s not dumping a load of lumber or a bag of nails or whatever and leaving. They bring this commodity—which is perishable—and [it] has to be incorporated immediately and the driver participates in the incorporation process with the workers. They are part of it. They move the truck. They operate levers and equipment that moves the concrete and the rate of flow in conjunction with the construction workers. They are integral to the process.”

Tashima credited this explanation as one the “egislature could reasonably have relied upon in determining that such drivers were “more integrated into the flow of construction” than other truckers.

Ensuring Successful Projects

The jurist applied similar reasoning to the plaintiffs’ contention that ready-mix cement drivers are no more important to public works projects than any other driver, and that the state could not rationally single them out in order to support its justification of ensuring that such projects are more successful.

He wrote:

“Ready-mix drivers use specialized trucks, with a rotating mixing drum, whereas asphalt drivers use dump trucks. Ready-mix drivers can change the consistency of their load by adding water to the mixture or altering the speed of rotation of the drum. Further, ready-mix drivers require more training than asphalt drivers and must carry a different driver’s license endorsement than asphalt drivers.”

The opinion also dismisses the idea that the law is “bare economic protectionism” designed to benefit unions, with Tashima noting that “the interest in protecting union workers from underbidding conceivably is about ensuring a certain standard of worker—and avoiding a race to the bottom—rather than granting favors to politically important actors.”

Union’s Appeal

Tashima’s opinion also reverses an order by Klausner denying IBT’s request to intervene in the action, from which the would-be interveners appealed. He determined that the appeal was not moot in light of the reversal of summary judgment, because the plaintiffs might appeal yesterday’s ruling to en banc review by the Ninth Circuit, or to the Supreme Court; he also ruled that IBT has a “significantly protectable interest” in the matter.

The opinion affirms Klausner’s dismissal of a claim by plaintiffs that §1720.9 is preempted by the Federal Aviation Administration Authorization Act.

The case is Allied Concrete and Supply Company v. Baker, No. 16-56546.


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