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ASSOCIATED BUILDERS v. REICH

April 8, 1996

ASSOCIATED BUILDERS & CONTRACTORS, INC., et al., Plaintiffs,
v.
ROBERT REICH, et al., Defendants.



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 Before the Court in the above-captioned case are the parties' cross-motions for summary judgment. The plaintiffs Associated Builders & Contractors, Inc. ("ABC"), Grinnell Fire Protection Systems Corp. ("Grinnell"), and a number of employees of Grinnell have sued the Secretary of Labor and the Director of the Bureau of Apprenticeship and Training ("BAT") at the Department of Labor ("DOL"), challenging policies adopted by the BAT, specifically, BAT Circular 95-06, issued on April 24, 1995, and a July 12, 1995 policy statement by BAT Director Anthony Swoope. The Building and Construction Trades Department, AFL-CIO, has entered an appearance as amicus curiae and has filed a brief in support of the defendants' motion for summary judgment and in opposition to the plaintiffs' motion for summary judgment.

 Based on the pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed below, the Court shall grant the plaintiffs' motion for summary judgment. The defendants' actions constitute legislative, as opposed to interpretative rule making and, thus, required notice and comment prior to promulgation. Therefore, in accordance with the mandate of National Family Planning & Reproductive Health Assoc. v. Sullivan, 298 U.S. App. D.C. 288, 979 F.2d 227 (D.C. Cir. 1992), the Court shall enjoin the defendants from enforcing the new policies encompassed in BAT Circular 95-06 and the June 12, 1995 policy statement until and unless they are adopted in a notice and comment rule making.

 Pursuant to the National Apprenticeship Act, the Secretary of Labor is authorized and directed to

 
formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, *fn1" to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formation of programs of apprenticeship, to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship . . . .

 29 U.S.C. § 50. Accordingly, the Secretary has promulgated implementing regulations covering, inter alia, the registration, cancellation, and deregistration of apprenticeship programs through the BAT. See 29 C.F.R. Part 29.

 In 23 states, apprenticeship programs are registered and monitored through the BAT. In the remaining states and the District of Columbia, the BAT has delegated its authority to register and monitor apprenticeship programs to a recognized State Apprenticeship Agency or Council ("SAC"). St. of Mat'l Facts not in Dispute P 7. To register a program with either the BAT or a SAC ("registration agency"), a sponsor *fn2" may designate an "apprenticeship committee," to administer the program. 29 C.F.R. § 29.2(i). A committee may be "joint," i.e., composed of an equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s). A committee also may be "unilateral" or "non-joint," i.e., a program sponsor in which a bona fide collective bargaining agent is not a participant. 29 C.F.R. § 29.2(i).

 Regardless of who administers an apprenticeship program, it must conform to regulatory standards. 29 C.F.R. § 29.5. And, any modification or change to a registered program first must be submitted to an appropriate registration agency for approval. 29 C.F.R. § 29.3(g).

 Whenever a sponsor seeks the registration of an apprenticeship program in any state, it must first meet the eligibility requirements of 29 C.F.R. § 29.3. The eligibility requirements include a provision regarding a union's right to comment on a program proposed by an employer for registration:

 
(h) Under a program proposed for registration by an employer or employers' association, where the standards, collective bargaining agreement or other instrument, provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program, and such participation is exercised, written acknowledgment of union agreement or no objection to the registration is required. Where no such participation is evidenced and practiced, the employer or employers' association shall simultaneously furnish to the union, if any, which is the collective bargaining agent of the employees to be trained, a copy of its application for registration and of the apprenticeship program. The registration agency shall provide a reasonable time period of not less than 30 days nor more than 60 days for receipt or union comments, if any, before final action on the application for registration and/or approval.

 29 C.F.R. § 29.3(h).

 On April 24, 1995, the BAT issued Circular 95-06, to "provide supplemental guidance regarding registering unilateral apprenticeship programs during labor disputes [as a supplement to] Circular 84-10, December 14, 1983, and 84-10 (Modification), January 16, 1984." BAT Circular 95-06. BAT Circular 95-06 is attached hereto as ...


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