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AGO 1990 No. 17 - December 17, 1990
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

APPRENTICESHIPS ‑- STATE APPRENTICESHIP COUNCIL ‑- DEPARTMENT OF LABOR AND INDUSTRIES

1.   The State Apprenticeship Council has broad authority to approve apprenticeship agreements that are in the best interest of the apprentice and conform to statutory standards.  The Council may disapprove apprenticeship agreements that are not in the best interest of the apprentice and do not conform to statutory standards.  However, if the Council disapproves an apprenticeship agreement, it should articulate the grounds for disapproval.

2.   There are a number of factors to be considered in determining whether federal regulatory standards regarding apprenticeship agreements preempt state standards.

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                                                               December 17, 1990

The Honorable James E. West
State Senator, 6th District
Post Office Box 279
Spokane, Washington 99220-0792

                                                                                                               Cite as:  AGO 1990 No. 017

Dear Senator West:

            By letter previously acknowledged, you have requested our opinion on several questions relating to the State Apprenticeship Council.  We paraphrase your questions:

1.          If the State Apprenticeship Council determines that there is no need for a specific apprenticeship agreement, may the Council disapprove the agreement on that basis?
2.          If an employee organization has not submitted names of individuals to sit on a local joint apprenticeship committee, may the State Apprenticeship Council disapprove an apprenticeship agreement on that basis?
3.          May the State Apprenticeship Council disapprove an apprenticeship agreement based on wage scale?

             [[Orig. Op. Page 2]]

4.          If state and federal regulatory standards conflict regarding apprenticeship agreements, which standards prevail?

            The answer to the first three questions is yes.  The answer to the fourth question is set forth in our analysis.

                                                                     ANALYSIS

            At the outset, we note that each of your first three questions asks whether the State Apprenticeship Council (Council) has the authority to disapprove an apprenticeship agreement on a specific stated ground.  Our answers to each question assume that in a given case, the Council articulates the specific ground in question for disapproving an agreement.  Our comments about the Council's authority to disapprove an agreement are not intended to encourage the Council to disapprove agreements without stating the reasons for its decision.  Nor should the reasons be stated in vague or general terms.

            In this regard, note our discussion in AGO 1989 No. 12 of the Council's responsibilities.  It is always the best policy for administrative agencies to make decisions for clearly stated reasons and which demonstrate consistency between decisions.  Such agency decision-making maximizes public confidence in the agency and its decision-making process and provides maximum predictability for those who must govern their behavior according to agency actions.  With this caveat in mind, we turn to your questions.

Question 1:

            If the State Apprenticeship Council determines that there is no need for a specific apprenticeship agreement, may the Council disapprove the agreement on that basis?

            The State Apprenticeship Council is created pursuant to chapter 49.04 RCW.1/

            RCW 49.04.010 provides that the Council shall:

             [[Orig. Op. Page 3]]

            (1) Establish standards for apprenticeship agreements in conformity with the provisions of this chapter; (2) issue such rules and regulations as may be necessary to carry out the intent and purposes of this chapter, including a procedure to resolve an impasse should a tie vote of the council occur; and (3) perform such other duties as are hereinafter imposed.

            In addition, RCW 49.04.030 assigns duties to the supervisor of apprenticeship who is appointed by the Director of Labor and Industries subject to confirmation by the Council.  RCW 49.04.030 provides that the supervisor shall (1) encourage and promote the making of apprenticeship agreements2/ conforming to the standards established by or in accordance with chapter 49.04 RCW and in harmony with United States Department of Labor policies and (2) when authorized by the Council, register such apprenticeship agreements that are in the best interests of the apprentice and conform to the standards established by and in accordance with chapter 49.04 RCW.  RCW 49.04.050 establishes standards for apprenticeship agreements.  Agreements must address these standards including the trade to be taught, hours, wage scale and probation period.  RCW 49.04.050.  RCW 49.04.050 does not discuss or require a statement regarding the need for a specific apprenticeship agreement.

            Your first question is based on the assumption that there is no need for a specific apprenticeship agreement.  We take this to mean that the Council has determined that apprenticeship is not appropriate at all in a particular trade or that present apprenticeship programs are adequate to meet the training needs in a particular trade.

            Pursuant to RCW 49.04.010 and RCW 49.04.030, the Council appears to have broad authority to approve apprenticeship agreements that are in the best interests of apprentices and conform to statutory standards.  Given such broad authority, we believe that the need for a specific apprenticeship agreement may be considered by the Council.  If the Council concludes that  [[Orig. Op. Page 4]] there is no need for an apprenticeship agreement, the Council may refuse to approve the agreement on this basis.  Therefore, we answer your first question in the affirmative.

Question 2:

            If an employee organization has not submitted names of individuals to sit on a local joint apprenticeship committee, may the State Apprenticeship Council disapprove an apprenticeship agreement on that basis?

            Pursuant to RCW 49.04.040, local and state joint apprenticeship committees, subject to Council review, devise standards for apprenticeship agreements and assist in implementing and administering apprenticeship agreements.3/

            RCW 49.04.040 provides:

            Local and state joint apprenticeship committees may be approved, in any trade or group of trades, in cities or trade areas, by the apprenticeship council, whenever the apprentice training needs of such trade or group of trades justifies such establishment.  Such local or state joint apprenticeship committees shall be composed of an equal number of employer and employee representatives chosen from names submitted by the respective local or state employer and employee organizations in such trade or group of trades.  In a trade or group of trades in which there is no bona fide employer or employee organization, the joint committee shall be composed of persons known to represent the interests of employer and of employees respectively, or a state joint apprenticeship committee may be approved as, or the council may act itself as the joint committee in such trade or group of trades.  Subject to the review of the council and in accordance with the standards established by this chapter and by the council, such committees shall devise standards for  [[Orig. Op. Page 5]] apprenticeship agreements and give such aid as may be necessary in their operation in their respective trades and localities.

            RCW 49.04.040 does not address the situation where employer and employee organizations exist but such organizations have not submitted names to sit on the local committee.4/

            However, we believe that the Council may, but is not required to, disapprove an agreement because either employer or employee organizations have not submitted names for the local committee.  It may disapprove an agreement on this basis if it concludes that the agreement will not be in the best interest of the apprentice.

            It is a well established rule of statutory construction that statutory language must be read in context with the entire statute and construed consistent with the general purpose of the statute.  Burlington Northern, Inc. v. Johnston, 89 Wn.2d 321, 326, 572 P.2d 1085 (1977).  When construing a statute, a court must read the statute in its entirety and not piecemeal.  State v. Parker, 97 Wn.2d 737, 741, 649 P.2d 637 (1982).

            RCW 49.04.040 does not appear to require the Council to establish local committees in all cases.  The discretionary language of RCW 49.04.040 ("committees may be approved . . . whenever the apprentice training needs of such trade or group of trades justifies such establishment"), indicates the Council has broad latitude in determining whether to establish a local committee.  Nor does any provision of chapter 49.04 RCW require the Council to establish a local committee prior to or concurrent with approving an agreement.  In addition, chapter 49.04 RCW does  [[Orig. Op. Page 6]] not require that local committees administer apprenticeship agreements.  See RCW 49.04.050.  Thus, we cannot say that a local committee is required or that the absence of certain members from a local committee compels the Council to disapprove apprenticeship agreements.

            On the other hand, under RCW 49.04.030, the supervisor of apprenticeship may, when authorized by the Council, register apprenticeship agreements that are in the best interests of apprentices and comply with the relevant standards.  Thus, the Council may consider factors it determines bear on the "best interests of the apprentice."  Under the discretion provided in RCW 49.04.030 and RCW 49.04.040, the Council may determine that it is not in the best interests of apprentices involved for the Council to approve an agreement because employer or employee organizations has not submitted names for the local committee.  Therefore, we conclude that given the broad authority provided the Council, it may, but is not required to, disapprove an agreement because employer and employee organizations have not submitted names for a local committee.

            Again, by noting that the Council has broad authority to develop and articulate reasons for acting on particular apprenticeship agreements, we do not suggest that making decisions based upon the extent of organized labor or management involvement in a local oversight committee is the only or best policy choice available to the Council.  Indeed, we share the concern you have expressed in your opinion request that the composition of the oversight committee could be only distantly related to the stated legislative purpose of promoting apprenticeship as a training opportunity.  See e.g., RCW 49.04.030(1).

            Thus, our opinion should not be read to empower the Council to disapprove an agreement solely based on the composition of the local committee, without considering the best interests of the apprentice and the relevant standards set out in RCW 49.04.050 and the regulations of the Council.

Question 3:

            May the State Apprenticeship Council disapprove an apprenticeship agreement based on wage scale?

            As discussed previously, the council has broad authority in reviewing and approving apprenticeship agreements under chapter 49.04 RCW.  The Council is directed to consider whether agreements conform to the standards established by or under  [[Orig. Op. Page 7]] chapter 49.04 RCW.  RCW 49.04.030.  RCW 49.04.050(5) provides that apprenticeship agreements must state a progressively increasing wage scale to be paid the apprentice.  Therefore, we conclude that the Council may consider wage scale in approving apprenticeship agreements and answer your third question in the affirmative.  See Washington State Elec. Contractors Ass'n v. Forrest, No. C83-626VR, Slip op. at 9 (W.D.Wa. Feb. 1, 1990),appeal docketed, No. 90-35302 (9th Cir. April 25, 1990).

Question 4

            If state and federal regulatory standards conflict regarding apprenticeship agreements, which standards prevail?5/

             In posing this question, you seem to be asking whether federal regulatory standards regarding apprenticeship agreements preempt state standards.  The federal statute regarding apprenticeship standards, the National Apprenticeship Act, states:

                        The Secretary of Labor is authorized and directed to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship, and to cooperate with the Office of Education under the Department of Health, Education, and Welfare in accordance with section 17 of Title 20.

29 U.S.C. § 50.

            Pursuant to that Act, federal standards for apprenticeship agreements and apprenticeship program registration have been  [[Orig. Op. Page 8]] promulgated as 29 CFR Part 29 and Part 30.  As described previously, state authority regarding apprenticeships is found at chapter 49.04 RCW.  State regulations implementing that chapter are located in chapter 296-04 WAC.

            Since you have not specified the particular federal or state regulatory standards you are concerned with, we are unable to determine with certainty whether such federal standards preempt state standards.  However, under the Supremacy Clause, U.S. Constitution, Art. VI, cl. 2, federal law may supersede state law in several ways.  See Hillsborough Cy. v. Automated Med. Labs, Inc., 471 U.S. 707, 85 L. Ed. 2d 714, 105 S. Ct. 2371 (1985); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 85 L. Ed. 2d 728, 105 S. Ct. 2380 (1985).

            First, Congress may preempt state law by express preemptive language.  Hillsborough, 471 U.S at 713.  Second, in the absence of express preemptive language, congressional intent to preempt an entire area or field may be found.  Whether the regulation of an entire field has been reserved by the federal government requires ascertaining congressional intent behind the federal scheme.  Id.See also Siuslaw Concrete Constr. Co. v. Washington Dep't of Transp., 784 F.2d 952 (9th Cir. 1986).  Preemption of an entire field may be inferred either where the scheme of federal regulation is sufficiently comprehensive to reasonably infer that Congress left no room for additional state regulation or the field involved in one of a dominant federal interest.  Hillsborough, 471 U.S. at 713.

            Courts are generally reluctant to infer preemption simply from the comprehensiveness of federal provisions.  R.J. Reynolds Tobacco Co. v. Durham Cy., 479 U.S. 130, 140, 93 L. Ed. 2d 449, 107 S. Ct. 499 (1986).  Hillsborough, 471 U.S. at 717.  Courts are even more reluctant to infer preemption from the comprehensiveness of federal regulations than from federal statutes.  Id.  If a federal agency is silent on the question of preemption, courts will not assume that the mere volume and complexity of federal regulations indicated that the agency intended to preempt state law.  Hillsborough, 471 U.S. at 718.

            Third, state law is preempted to the extent it actually conflicts with federal law.  International Paper Co. v. Ouellette, 479 U.S. 481, 491, 93 L. Ed. 2d 883, 107 S. Ct. 805, (1987).  An actual conflict arises when it is physically impossible to comply with both federal and state regulations or when state law stands as an obstacle to accomplishing congressional objectives.  Hillsborough, 471 U.S. at 713.  However, the validity of state law is presumed; courts should not  [[Orig. Op. Page 9]] seek out conflicts between state and federal law where none clearly exist.  Pac. Legal Found. v. State Energy Resources Conserv. & Dev. Comm'n, 659 F.2d 903, 919 (9th Cir. 1981).

            We cannot determine with certainty whether federal standards regarding apprenticeship agreements preempt state standards because you have not specified which standards are of concern.6/

            However, bearing in mind the above principles, we make the following observations.  The National Apprenticeship Act does not expressly indicate state law is preempted.  Nor do the relevant federal regulations state an express intent to preempt state law.

            Regarding field preemption, it should be noted that the courts have recognized that states have broad authority under their police powers to regulate the employment relationship to protect workers within the state.  De Canas v. Bica, 424 U.S. 351, 356, 47 L. Ed. 2d 43, 96 S. Ct. 933 (1976); Siuslaw Concrete Construction Co., 784 F.2d at 958.  In addition, by the language "to cooperate with state agencies engaged in the formulation and promotion of standards of apprenticeship," the National Apprenticeship Act, 29 U.S.C., § 50, appears to contemplate continued or additional state involvement in the field of apprenticeship standards.

            The federal regulations also appear to anticipate state regulation in that field and possible state departure from federal standards.  29 CFR § 29.12 provides that state  [[Orig. Op. Page 10]] apprenticeship councils may be recognized by the federal agency such that a recognized state council may determine if an apprenticeship program conforms to federal standards.  The items a state council must submit in order to be recognized include first, an acceptable state apprenticeship law and regulations adopted pursuant thereto, and second, description of policies and operating procedures which depart from or impose requirements in addition to those prescribed in this part.  29 CFR § 29.12(a)(1), (5).7/

            See also 29 CFR § 29.10.

            Thus, it appears to us that Congress intended to complement state apprenticeship training programs rather than preempting the field.  Of course, to the extent that state regulatory law regarding apprenticeship agreements actually conflicted with federal law, state law would be preempted.

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

LAURIE SILLERS HALVORSON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/You will note that this opinion refers to apprenticeship agreements rather than apprenticeship programs.  We conclude that it is appropriate to use the term agreement rather than program because chapter 49.04 RCW refers only to agreements.  In addition, chapter 296-04 WAC, which addresses apprenticeship and training, appears to define apprenticeship programs in terms of agreements.  See WAC 296-04-015(7), (9).

2/An apprenticeship agreement is a written agreement (1) between an employer and apprentice, (2) between employer(s) and an organization of employees, or (3) describing apprentice employment conditions in a plant where there is no employee organization.  RCW 49.04.060.

3/It is not unlawful to operate under an apprenticeship agreement that has not been approved by the Council.  See RCW 49.04.070.  However, contractors who employ apprentices from approved programs can pay such apprentices prevailing apprentice wages rather than journeyman wages, on public works projects.  See RCW 39.12.021.

4/RCW 49.04.040 provides that members of the local committee shall be "chosen from names submitted by the respective local or state . . . employee organizations in such trade or group of trades."  The statute goes on to provide that if there is "no bona fide . . . employee organization, the joint committee shall be composed of persons known to represent the interests of . . . employees . . . ."  If employee organizations have not submitted names, we assume it is because there are no employee organizations appropriate for that particular trade.  In that case it would be consistent with the Council's authority to appoint other persons, known to represent the interests of labor, to the local committee.  The mere absence of names to be submitted by employee organizations should not frustrate the purposes of apprenticeship training.

5/We have assumed for purposes of this analysis that "standards" refers to the requirements governing apprenticeship agreements rather than the WAC 296-04-015(13) definition of standard.  (WAC 296-04-015(13) defines standard as a written agreement setting forth a plan containing the terms and conditions for apprentice qualifications, recruitment, selection, employment and training.)

6/Some courts have invalidated the application of state law related to apprenticeship based on preemption.  For example, in Hydrostorage, Inc. v. Northern California Boilermakers Local Joint Apprenticeship Committee, 891 F.2d 719 (9th Cir. 1989), the court invalidated on preemption grounds the application of a section of California's labor code to an apprenticeship program established as part of a collective bargaining agreement.  The court did not address the question whether the California law was preempted in its entirety.  891 F.2d at 732.  InAssociated Builders & Contractors, Inc. v. MacDonald, 731 F. Supp. 966 (D. Nev. 1989),appeal docketed, No. 90-15095 (9th Cir. Jan. 22, 1990), the court struck down a Nevada law that excepted apprenticeship programs, approved by the state, from the state prevailing wage law.  The court struck down the statute because this benefit was granted to state approved apprenticeship programs but was denied to federally approved apprenticeship programs.  731 F. Supp. at 969.

7/Note that 29 CFR § 29.12(b) provides that "generally the basic requirements under the matters covered in paragraph (a) of this section shall be in conformity with applicable requirements as set forth in this part."

 

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