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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HP COMMUNICATIONS, INC.,
Plaintiff,
v.
COUNTY OF SAN DIEGO, BOARD OF
SUPERVISORS OF COUNTY OF SAN
DIEGO, and DOES 1-20,
Defendants.
Case No.: 23-cv-00844-JO-BLM
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT [DKT. 38] AND
DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT [DKT.
37]
Plaintiff HP Communications, Inc. challenged a San Diego County ordinance
requiring private employers to pay traffic control workers a prevailing wage. The parties
filed cross motions for summary judgment addressing whether this ordinance is preempted
by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., because it
interferes with the collective bargaining process between private employers and the traffic
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control workers they hire. Dkt. 37 (“HP’s MSJ”); Dkt. 38 (Defs.’ MSJ”).1 For the reasons
below, the Court grants summary judgment in favor of Defendants.
I. BACKGROUND
HP is a non-union company that installs telephone lines on roads maintained by San
Diego County. 	HP’s MSJ, Ex. 1 & Dkt. 39, Ex. F (“Olomi Dep.”) 25:22–25, 98:8–10;
HP’s MSJ, Ex. 36 (“Olomi Decl.”) ¶¶ 2–3. 	It primarily does contract work for
telecommunications corporations like AT&T, Verizon, and San Diego Gas & Electric
(“SDG&E”). 	See Olomi Dep. 25:22–25; Olomi Decl. ¶¶ 2–5. 	When working on its
projects, HP sometimes utilizes traffic control workers or “flagmen” to redirect the flow of
traffic, either drawing from its own employees or outsourcing to traffic control companies.
See Olomi Dep. 46:1–47:17, 51:18–22. As a non-union contractor, HP does not have any
ongoing collective bargaining agreements with local unions, nor has it ever negotiated a
collective bargaining agreement. 	Id. 98:10–12, 99:6–8. On two occasions, it has entered
Project Labor Agreements (“PLAs”) to allow it to work on projects for companies that
require unionized labor. 	Id. 129:7–18, 132:7–9. 	When performing work on projects
governed by a PLA, HP’s employees temporarily become members of the local union that
negotiated the PLA, and HP pays them the wages specified by the PLA. 	Id. 130:8–17,
139:16–140:14; Dkt. 41-2 (“Olomi Opp. Decl.”) ¶ 3. 	HP was not involved in negotiating
either PLA it entered; the terms of those PLAs were negotiated by the company requiring
work and a local union, and HP stepped in to provide labor under the already-negotiated
conditions. Olomi Dep. 131:17–132:6, 137:22–138:6.
In February 2023, the San Diego County Board of Supervisors adopted Ordinance
No. 10828 (“the Ordinance”), which set a minimum wage for traffic control workers
performing work on private construction projects on County-maintained roads. San Diego
1 	After the parties filed their respective motions for summary judgment, the Court also granted the
State Building and Construction Trades Council of California leave to file an amicus brief in support of
Defendants’ motion for summary judgment. Dkt. 42.
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County Code of Regulatory Ordinances § 74.301 (added by Ordinance No. 10828 (N.S.),
Feb. 8, 2023). By requiring that traffic control workers be paid “a wage equivalent to the
Prevailing Wage otherwise owed to persons engaged on a public works or maintenance
project for the same or substantially similar work,” id. § 2(b), the Ordinance effectively
increased wages for this sector of workers. 	See HP’s MSJ, Ex. 4 (“Abney Dep.”) 16:23–
17:10, 19:15–23, 20:2–6, 25:1–26:7; HP’s MSJ, Ex. 5 (“Sanchez Dep.”) 17:19–18:5,
35:10–36:4; HP’s MSJ, Ex. 6 & Dkt. 39, Ex. N (“Friedman Dep.”) 23:17–25; HP’s MSJ,
Ex. 7 & Dkt. 39, Ex. H (“Andrews Dep.”) 27:6–22, 40:15–41:17; and HP’s MSJ, Ex. 8
(“Requilman Dep.”) 16:14–21, 22:7–23:6 (testifying that the Ordinance has increased
wages). The Ordinance’s declared purpose is to “address the unique safety risks confronted
by users of County maintained roads subject to traffic control by ensuring that . . . traffic
control workers are paid a minimum wage equivalent to the prevailing wage . . . [because]
[l]ow wages and difficult working conditions can present a significant risk of harm to users
of public streets that can be avoided by ensuring the most qualified workers are retained to
provide traffic control work.” Ordinance § 1.
Under the Ordinance, employers must pay traffic control workers total hourly
compensation, comprised of both wages and benefits, equal to the hourly prevailing wage
rate set by California’s Department of Industrial Relations (“DIR”). Dkt. 38-4, Declaration
of Branden Butler (“Butler Decl.”) ¶ 8; see CAL. L AB. CODE §§ 1773, 1773.9; Associated
Builders & Contractors of S. California, Inc. v. Nunn, 356 F.3d 979, 989–90 (9th Cir.
2004), amended, No. 02-56735, 2004 WL 292128 (9th Cir. Feb. 17, 2004) (describing
DIR’s process of calculating prevailing wages).2 Employers may satisfy this prevailing
wage requirement through any combination of base wages and benefits, provided that the
total compensation package equals the prevailing wage rate. Interpipe Contracting, Inc. v.
2 	The Ordinance requires workers be paid “a wage equivalent to the Prevailing Wage,” and defines
“Prevailing Wages” as the wages required to be paid under California’s Prevailing Wage Statute, C AL.
LAB . C ODE § 1720 et seq. See Ordinance §§ 2(a)(ii), (b). Those wages, in turn, are set by DIR through
the process mandated by the Prevailing Wage Statute.
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Becerra, 898 F.3d 879, 884 (9th Cir. 2018) (citing C AL. L AB. CODE § 1773.1); CAL. L AB.
CODE § 1773.8 (parties may opt out of the base cash wage component by collective
bargaining agreement); Butler Decl. ¶ 9 (County interprets the Ordinance to allow parties
to pay more or less than base cash wage component set by DIR, so long as total
compensation provided is at least equal to the total prevailing wage rate).
The Ordinance mandates compliance with this prevailing wage rate for any work
performed on a County-operated road, and gives the Director of the Office of Labor
Standards and Enforcement or any other County official authority to enforce it. Ordinance
§§ 2(c)–(d). 	The County intends to enforce the Ordinance by responding to complaints
that it receives; it does not affirmatively conduct audits of employer payrolls to ensure
compliance and has no plans to do so in the future. Dkt. 39-1, Ex. G (“Butler Dep.”) 26:24–
27:23.3 According to the County’s website describing the Ordinance’s requirements,
remedies for an employer’s failure to pay the required prevailing wage include “citation[s],
civil penalt[ies], [and] injunctive relief (not limited to a stop work order).” HP’s MSJ, Ex.
32.
Since the Ordinance has gone into effect, HP’s costs for traffic control services have
significantly increased. 	The Ordinance requires HP to pay employees two-and-a-half to
three times the rate it previously paid them for traffic control services. Olomi Dep. 46:1–
7. For HP, paying its low-level traffic control employees this increased rate means paying
them more than the foremen supervising them. 	Id. 46:8–25. 	To avoid the undesirable
employee dynamic that this creates, HP now subcontracts out most of the traffic control
work it used to perform in-house. Id. 46:8–47:10. Subcontracting has increased HP’s costs
for traffic control work by 60–130%, making it substantially more expensive for HP to pay
for these services on its work sites. Id. 47:3–10. HP is also concerned that the Ordinance
3 	To date, the County has not received any complaints of noncompliance with the Ordinance. Id.
27:24–28:2.
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will override wage and benefit terms it could negotiate with unions for any future PLAs it
might enter. See Olomi Opp. Decl. ¶ 5.
Other union and non-union employers have also had to increase their total
compensation to comply with the Ordinance, although they arrive at the total prevailing
wage rate in different ways. 	Some employers have increased both wages and benefits,
while others have increased their hourly cash wage but kept their benefits at the same level.
Abney Dep. 20:2–6 (non-union employer West Coast Traffic Control, LLC increased
wages and benefits to comply with the Ordinance); Friedman Dep. 23:17–25, 29:19–30:5
(union employer ACME Safety and Supply Corp. pays employees more in hourly wages
and fringe benefits when the Ordinance applies); Requilman Dep. 16:15–22, 22:7–23:6
(non-union employer North County Traffic Control, Inc. pays employees higher hourly
wages when the Ordinance applies, which increases wage-based fringe benefits, but has
not changed the amount or type of fringe benefits offered); Andrews Dep. 32:23–33:20
(when the prevailing wage rate includes categories of fringe benefits not required by the
union’s collective bargaining agreement nor offered by Pro Traffic Services, Inc., Pro
Traffic pays the worker additional money wages to cover the difference); Sanchez Dep.
17:14–18:5, 35:11–1 (union employer Co’s Traffic Control, Inc. pays normal fringe
benefits and additional money wages).
Finally, while the Ordinance 	has 	caused 	the wages in 	collective bargaining
agreements to go up, there is no evidence in the record that it has interfered with the
bargaining process itself.4 Instead, HP argues that these requirements impede the collective
bargaining process by imposing such detailed wage and benefit requirements that parties
have no room to negotiate labor terms. See HP’s MSJ at 25.
4 	HP points to SDG&E’s Letters of Understanding with IBEW Local Union 465 as an example of
the Ordinance interfering with the collective bargaining process, but these letters show only that SDG&E
agreed to pay IBEW Local Union 465-affiliated workers more to comply with the Ordinance, and IBEW
Local Union 465 agreed to accept these negotiated rates. See HP’s MSJ at 24. HP’s briefing points the
Court to no other record evidence regarding any impact on the collective bargaining process, as opposed
to the resulting increased wages.
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On May 5, 2023, HP filed a complaint against the County of San Diego and the San
Diego County Board of Supervisors, alleging that the Ordinance was preempted by the
NLRA. 	Dkt. 1. 	The complaint asserted a single federal preemption claim and sought
declaratory and injunctive relief deeming the Ordinance void and enjoining County from
enforcing it. Id. After the close of discovery, the parties filed cross-motions for summary
judgment on HP’s NLRA preemption claim. 	HP’s MSJ; Defs.’ MSJ. 	In its motion, HP
also raised a state preemption theory for the first time. 	See HP’s MSJ at 11–16. 	At the
September 11, 2025 hearing on the parties’ cross-motions for summary judgment, the
Court ordered supplemental briefing on this newly-raised state preemption theory. 	See
Dkts. 55 (HP’s Supp. State Preemption Brief), 57 (Defs.’ Supp. State Preemption Brief).
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil
Procedure if the moving party demonstrates that there is no genuine issue of material fact
and that they are entitled to judgment as a matter of law. 	Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). 	A fact is material when, under the governing substantive law, it
could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute as to a material
fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the
nonmoving party. Anderson, 477 U.S. at 248–50.
A party seeking summary judgment always bears the initial burden of establishing
the absence of a genuine issue of material fact. 	Celotex, 477 U.S. at 322. 	The moving
party can satisfy this burden in two ways: (1) by presenting evidence that negates an
essential element of the nonmoving party’s case; or (2) by demonstrating that the
nonmoving party failed to establish an essential element of the nonmoving party’s case on
which the nonmoving party bears the burden of proof at trial. 	Id. at 322–23. 	The court
must view all inferences drawn from the underlying facts in the light most favorable to the
nonmoving party. 	Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). 	“Credibility determinations, the weighing of the evidence, and the drawing of
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legitimate inferences from the facts are jury functions, not those of a judge, [when she] is
ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.
III. REQUEST FOR JUDICIAL NOTICE
HP 	requests 	that 	the 	Court 	take 	judicial 	notice 	of 	various 	prevailing 	wage
determinations made by DIR, excerpts of the County of San Diego’s Salary Schedule, and
San Diego County’s Office of Labor Standards & Enforcement FAQ Page. 	Dkt. 37-3.
Defendants do not oppose HP’s request for judicial notice. Courts may take judicial notice
of matters that are not subject to reasonable dispute, including government documents
available from reliable sources on the internet, such as websites run by governmental
agencies. Fed. R. Evid. 201; Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th
Cir. 2010) (appropriate to take judicial notice of information on local government website
because it was “made publicly available by government entities” and “neither party
dispute[d] the authenticity of the web sites or the accuracy of the information displayed
therein”); Gerritsen v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015)
(“the court can take judicial notice of ‘[p]ublic records and government documents
available from reliable sources on the Internet,’ such as websites run by governmental
agencies”) (quoting Fed. R. Evid. 201). Here, all the documents that HP requests the Court
take judicial notice of are official government publications on state and local government
websites, and neither party disputes their accuracy. 	Accordingly, the Court grants HP’s
request and takes judicial notice of the documents identified in HP’s request for judicial
notice. Dkt. 37-3.5
IV. EVIDENTIARY OBJECTIONS
Defendants object to (1) testimony from two traffic control companies about the
safety of their workers on Ordinance and non-Ordinance jobs; (2) County witness Murali
Pasumarthi’s testimony about the DIR prevailing wage rate the County uses; (3) DIR
5 	These documents are attached as HP’s Exhibits 16, 17, 19–21, 24–32, and 37 to Dkt. 37-4
(“McConnell Decl.”).
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Research Data Supervisor Michael Morris’s declaration about two DIR prevailing wage
determinations for San Diego County; and (4) County witness Branden Butler’s testimony
concerning the contents of DIR’s website and its relevance for interpreting the Ordinance.
See Dkt. 43-3. The Court overrules Defendants’ objections to the above testimony as moot
because it did not rely on the objected-to evidence in its ruling.6 See Norse v. City of Santa
Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (“Before ordering summary judgment in a case, a
district court must . . . rule on evidentiary objections that are material to its ruling.”).
V. DISCUSSION
The Court begins by addressing whether HP may raise its new state preemption
argument at this stage in the proceedings. 	While concluding that it may not, the Court
considers, in the alternative, whether HP has raised a triable issue on elements necessary
for this argument—i.e., that HP qualifies as a public utility or that this County wage
ordinance regulates matters of statewide concern. 	Finally, the Court turns to the crux of
the parties’ dispute: whether the Ordinance’s prevailing wage requirement is preempted by
the NLRA because it interferes with the collective bargaining process.
A. State Law Preemption
In its motion for summary judgment, HP argues for the first time that the Ordinance
is preempted because it regulates safety and wages for public utilities—areas where the
State has exclusive regulatory authority. 	HP’s MSJ at 5, 11–16. 	It may not raise this
argument at this late stage because it did not provide Defendants adequate notice of this
theory. 	Courts may only consider a new theory of liability at summary judgment if the
facts pled in the complaint are sufficient to give the defendant fair notice of the claim. Pac.
Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945 F.3d 1076, 1086–87 (9th Cir. 2019). In
its motion for summary judgment, HP asserts that it is a public utility, and as such,
regulation of its wages and safety constitutes impermissible regulation of a public utility.
6 	Based on parties’ stipulation at oral argument, the Court takes judicial notice of DIR’s website as
relevant to understanding how the prevailing wage is calculated.
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HP’s MSJ at 11–16. 	Alternatively, HP argues that because it is a contractor for public
utilities and bound by the same state regulations when performing work for them, any
regulation of HP is “indistinguishable” from regulation of the public utility itself. See id.;
Dkt. 55 at 9–10. 	But none of the facts that would give Defendants notice of these
arguments are pled in the complaint. HP did not plead that it was a public utility, nor did
it allege what aspects of its work would qualify it as one. For example, HP did not allege
that it provides services or goods to the public directly or indirectly. See generally Compl.;
C AL. CONST., Art. XII § III (public utilities include “[p]rivate corporations and persons that
own, operate, control, or manage a line, plant, or system for . . . the transmission of
telephone and telegraph messages”); C AL. PUB. U TIL. CODE 	§ 216(a) (a “telephone
corporation” is a public utility where its “service is performed for, or the commodity is
delivered to, the public or any portion thereof”), § 216(c) (a company that performs a
service for a telephone corporation also qualifies as a public utility if the telephone
corporation in turn provides that service to the public). 	HP also failed to plead facts to
support its alternate argument based on its work as a contractor for public utilities—for
instance, HP did not even allege that the companies it works for are public utilities.
Because these facts are wholly absent from the complaint, they cannot have possibly given
“fair notice” to Defendants of the state law preemption argument that HP now raises.7
Even if the Court were to permit this belated argument, HP also fails to raise a triable
issue on several elements of its claim. To prevail on a state preemption theory, the party
claiming preemption must show that the local legislation (1) conflicts with state law by
duplicating, contradicting, or entering an area fully occupied by state law; and (2) regulates
a matter of statewide concern. 	Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th
7 	HP’s belated disclosure of this argument in a confidential settlement discussion that took place
after the close of discovery cannot retroactively cure the deficiency of its pleadings. See HP’s MSJ at 11
n.1; Pac. Coast Fed’n of Fishermen’s Ass’ns, 945 F.3d at 1086–87 (factual allegations must be pled in the
complaint to give fair notice). Because Defendants had no notice of this argument prior to the close of
discovery, they had no opportunity to gather information to rebut it.
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893, 897 (1993); T-Mobile W. LLC v. City & Cnty. of San Francisco, 6 Cal. 5th 1107, 1116
(2019) (“The party claiming preemption has the burden of proof.”).
HP’s first argument, that the Ordinance conflicts with state law by regulating public
utilities, rests on its assertion that it qualifies as a public utility. But HP offers no evidence
to support this assertion. While HP performs work for “telephone corporations” that may
qualify as public utilities, HP offers no evidence to support the proposition that it is itself
a “telephone corporation.” 	See Olomi Decl. ¶¶ 2–5 (“HP’s customers are telephone
corporations”) (emphasis added); C AL. PUB. U TIL. CODE § 216(a) (public utilities include
“telephone corporation[s]” whose “service is performed for, or [whose] commodity is
delivered to, the public or any portion thereof”); Utility Contact System Search, C AL.
PUBLIC U TIL. COMM ’ N, https://apps.cpuc.ca.gov/apex/f?p=102:1::::RP (directory of all
telephone corporations in California maintained by the Public Utilities Commission does
not list HP)8; see generally Dkts. 37, 41, 47, 55 (not pointing to any record evidence that
HP provides services directly to the public).
HP also argues that it qualifies as a telephone corporation under C AL. PUB. U TIL.
CODE § 216(c) because it provides construction services to telephone corporations like
Verizon, T-Mobile, and AT&T. 	See Dkt. 55 at 6–7. 	This argument is flawed. 	Section
216(c) states that a company that performs a service for a telephone corporation also
qualifies as a public utility if the telephone corporation “in turn . . . performs that service
for . . . the public.” (emphasis added). HP provides construction services for its telephone
corporation customers, but those telephone corporations do not in turn provide construction
services to the public, so CAL. PUB. U TIL. CODE § 216(c) does not render it a public utility.9
Nor does HP point to evidence to support its contention that the Ordinance, which
sets wages on roads maintained by San Diego County, regulates a matter of statewide
9 	By HP’s logic, any vendor or contractor that provided goods or services to a telephone corporation
like Verizon—e.g., equipment, supplies, uniforms—would qualify as a public utility.
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concern. See Dkt. 55 at 12–13 (arguing that prevailing wages of public utilities are a matter
of statewide concern but not identifying facts to support claim); contra State Bldg. &
Constr. Trades Council of California v. City of Vista, 54 Cal. 4th 547, 556 (2012) (holding
that “the wage levels of contract workers constructing locally funded public works are a
municipal affair . . . and that these wage levels are not a statewide concern”).10 HP’s failure
to create a triable issue on this required statewide concern element is fatal under both of
its theories—that the Ordinance regulates public utilities directly or that it regulates them
by regulating their agents and contractors. 	See San Diego Gas & Elec. Co. v. City of
Carlsbad, 64 Cal. App. 4th 785, 793 (1998) (“Where local legislation clearly serves local
purposes, and state legislation that appears to be in conflict actually serves different,
statewide purposes, preemption will not be found.”).
Because HP fails to provide evidence of necessary elements of its state preemption
claim, the Court, alternatively, grants summary judgment in favor of Defendants. See Cool
Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982) (“if one party moves for summary
judgment and, at the hearing, it is made to appear from all the records, files, affidavits and
documents presented that there is no genuine dispute respecting a material fact essential to
the proof of movant’s case and that the case cannot be proved if a trial should be held, the
court may sua sponte grant summary judgment to the non-moving party”).
10 	HP also argues that the safety of public utilities is a matter of statewide concern. See Dkt. 55 at
10–12. However, insofar as the Ordinance is a safety measure, HP provides no evidence that it conflicts
with state safety laws. 	Moreover, state law expressly preserves local governments’ power to regulate
safety measures for public utilities. C AL. P UB . UTIL. C ODE § 2902 (“This chapter shall not be construed
to authorize any municipal corporation to surrender to the commission its powers of control to supervise
and regulate the relationship between a public utility and the general public in matters affecting the health,
convenience, and safety of the general public, including matters such as the use and repair of public
streets by any public utility.”) (emphasis added). 	Because there is no evidence of conflict, this
preemption argument fails.
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B. NLRA Preemption
The Court next turns to HP’s argument that the Ordinance is preempted by the
NLRA because it interferes with the collective bargaining process.11
The NLRA is a federal law that “codifies employees’ right to bargain collectively,
seeks to equalize bargaining power between employers and employees, and preempts state
laws that frustrate the accomplishment of these goals.” Interpipe Contracting, 898 F.3d at
887. “While the NLRA contains no express preemption provision, two categories of state
action are implicitly preempted: (1) laws that regulate conduct that is either protected or
prohibited by the NLRA (Garmon preemption), and (2) laws that regulate in an area
Congress intended to leave unregulated or controlled by the free play of economic forces
(Machinists preemption).” Id. (internal quotations omitted).
Machinists preemption “bars states from interfering with the collective bargaining
process.” 	Id. 	It focuses on interference with how parties negotiate (process), rather than
what they negotiate (outcomes). 	Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 20–21
(1987) (“the NLRA is concerned with ensuring an equitable bargaining process, not with
the substantive terms that may emerge from such bargaining”). 	Thus, for a Machinists
preemption analysis, the key question is whether the measure alters the mechanics of
collective bargaining, such as by restricting economic “weapon[s] of self-help” (like strikes
or lockouts) that parties can use to pressure negotiations. 	Am. Hotel & Lodging Ass’n v.
City of Los Angeles, 834 F.3d 958, 963 (9th Cir. 2016); Interpipe Contracting, 898 F.3d at
11 	The County argues that it was acting as a property owner and not as a regulator when it passed this
prevailing wage requirement to ensure the safety of the roads it maintains. See Defs.’ MSJ at 25 (arguing
its “actions were taken in its capacity as the owner of property interests in the land where its roads are
located.”) As such, it invokes the “market participant” exception to argue that NLRA preemption does
not apply. See id.; Airline Serv. Providers Ass’n v. Los Angeles World Airports, 873 F.3d 1074, 1079 (9th
Cir. 2017) (NLRA preemption does not apply to local government actions taken as a market participant).
Because the undisputed evidence shows that the Ordinance contains a civil penalty provision, see HP’s
MSJ, Ex. 32, the Court cannot grant summary judgment for Defendants on the market participant
exception. Airlines for Am. v. City & Cnty. of San Francisco, 78 F.4th 1146, 1152 (9th Cir. 2023) (“civil
penalty provisions alone may amount to the force and effect of law rendering a government entity a
regulator rather than a market participant”).
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888 (“Virtually any labor standard—e.g., wage and hour requirements—will affect the
terms of [collective bargaining], but the pertinent question under Machinists is whether
such a standard interferes with the collective bargaining process.”) (emphasis in original).
Minimum wage and benefit laws generally do not interfere with the collective
bargaining process because they do not alter bargaining mechanics. Metro. Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 755 (1985). 	Even though these laws may change the
substantive outcomes of negotiations by setting a higher floor, “they do not regulate the
mechanics of labor dispute resolution.” 	Am. Hotel & Lodging Ass’n, 834 F.3d at 963;
Interpipe Contracting, 898 F.3d at 888 (“Minimum labor standards will necessarily affect
employer-employee relations by . . . setting the statutory baseline [] for collective
bargaining negotiations . . . But such effects differ in kind from a State’s regulation of the
bargaining process itself.”) (emphasis in original). 	This is true even though these laws
“technically interfere with labor-management relations,” “give[] employees something for
which they might otherwise have had to bargain,” and impact labor and management
unequally. Am. Hotel & Lodging Ass’n, 834 F.3d at 963–64 (citing Metro. Life, 471 U.S.
at 757; Fort Halifax, 482 U.S. at 2–3).
Over thirty years ago, the Ninth Circuit recognized one potential exception to this
rule: a minimum wage and benefit requirement could interfere with the collective
bargaining process by setting substantive labor terms so exhaustive that they leave nothing
to bargain over. 	See Chamber of Com. of U.S. v. Bragdon, 64 F.3d 497, 501 (9th Cir.
1995). 	In Bragdon, the Ninth Circuit struck down a Contra Costa County ordinance
requiring the payment of “prevailing wages,” as defined by California’s Prevailing Wage
Statute, because, among other things, it “affect[ed] not only the total of the wages and
benefits to be paid, but also the division of the total package that is paid in hourly wages
directly to the worker and the amount paid by the employer in health, pension, and welfare
benefits for the worker.” Id. at 502.
However, since then, the Ninth Circuit has upheld numerous prevailing wage
measures, confirming that its holding in Bragdon is a narrow exception to the general rule
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that minimum labor standards do not interfere with the collective bargaining process.
Dillingham Const. N.A., Inc. v. Cnty. of Sonoma, 190 F.3d 1034, 1039-41 (9th Cir. 1999)
(prevailing wage statute “d[id] not affect the collective bargaining process” because it
neither “encourage[d] nor discourage[d] the collective bargaining process”); Nunn, 356
F.3d at 991 (statute requiring the payment of prevailing wages to apprentices on public and
private projects was “not so restrictive as to interfere with the collective-bargaining
process”); 	Interpipe Contracting, 898 F.3d at 891 (confirming that minimum labor
standards that 	are “unrelated 	in 	any 	way 	to 	the 	processes 	of bargaining 	or self-
organization” are not preempted) (alterations and italics in original) (quoting Metro. Life,
471 U.S. at 756).
In sum, the Ninth Circuit recognizes two ways that a law can be preempted for
interfering with the collective bargaining process: (1) if it directly interferes with the
mechanics of bargaining, such as by restricting “weapons of self-help” that parties use to
pressure negotiations, see Am. Hotel & Lodging Ass’n, 834 F.3d at 963; or (2) if it sets
terms that are so restrictive that they prevent collective bargaining from happening, see
Bragdon, 64 F.3d at 504.
Here, HP rests its argument exclusively on the latter ground, but it offers no evidence
that the Ordinance is so restrictive that it prevents collective bargaining.
First, the prevailing wage required by the Ordinance lacks the key feature that the
Bragdon Court found overly restrictive: it does not require a particular allocation between
wages and benefits. 	At the time Bragdon was decided, California’s Prevailing Wage
Statute required not only a total prevailing wage rate (cash plus benefits) but also required
employers to pay a certain base cash component, regardless of how much they paid in
benefits. See Bragdon, 64 F.3d at 500, 502–03. This led the Bragdon court to be concerned
that contractors and employees would “reduce the benefit package and increase the hourly
wages” to meet both the required base cash component and the total wage requirement,
essentially leaving them nothing to bargain over. 	See id. 	However, in 2012, California
amended its Prevailing Wage Statute so that parties may now opt out of the base wage
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component by collective bargaining agreement. 	See CAL. LAB. CODE § 1773.8. 	By
requiring employers to pay a wage “equivalent to the Prevailing Wage” under the current
Prevailing Wage Statute, the Ordinance only requires employers to pay the total prevailing
wage rate set by DIR, but allows employers, unions, and employees the flexibility to
negotiate how to apportion wages and benefits to reach that total. See Ordinance §§ 2(a)(ii)
(requiring employers to pay a wage “equivalent to the Prevailing Wage” set by DIR)
(emphasis added); Butler Decl. ¶¶ 8–9 (County interprets Ordinance to require the total
prevailing wage rate set by DIR and does not interpret Ordinance to require base cash wage
component).
HP argues that the “Right-of-Way Done Right FAQ” page on the County’s website
shows that the Ordinance dictates a specific allocation between of wages and benefits. Dkt.
41 at 23–24; HP’s MSJ, Ex. 32. 	This webpage, however, merely explains what the
Ordinance is and specifies the current prevailing wage rates for traffic control workers:
In the footnotes, the FAQ further breaks down how the prevailing wage rates are calculated
by DIR:
Although DIR shows the components it uses to calculate the prevailing wage rate, it does
not require employers to pay each component to satisfy the prevailing wage rate. 	DIR
abandoned that “line-by-line” approach in 1989, after the Ninth Circuit found that it was
preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”). 	WSB
Elec., Inc. v. Curry, 88 F.3d 788, 791 (9th Cir. 1996) (DIR “no longer consider[s] each
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benefit separately”). 	Under the current approach, DIR sets a total prevailing wage rate,
and an employer may satisfy that rate by “add[ing] the hourly cash wage paid plus the total
amount of employer contributions to benefits plans . . . If this sum falls short of the
prevailing wage, then the employer must make up the difference in cash.” 	Id.; see also
Interpipe, 898 F.3d at 884 (“In satisfying the prevailing wage, employers can either pay all
cash wages or pay a combination of cash wages and benefits . . . employer payments
[toward benefits] are a credit against the obligation to pay the general prevailing wages.”)
(cleaned up). Contrary to HP’s arguments, the FAQ page simply shows how DIR arrived
at the total prevailing wage rate and how it priced the separate components; it does not
require employers to reach the total in the same way.
Second, the undisputed facts also show that the Ordinance has not dictated a specific
allocation between wages and benefits in practice. 	Employers have adopted a variety of
wage and benefit packages to ensure that they are paying total compensation equal to the
prevailing wage rate. Some have increased both wages and benefits. Abney Dep. 20:2–6;
Friedman Dep. 23:17–25, 29:19–30:5. 	Others have increased their base hourly pay rate,
but not their benefits, except insofar as benefits are based on hourly pay rate. See
Requilman Dep. 16:15–22, 22:7–23:6. 	And others have not adjusted benefits at all,
electing to meet the prevailing wage rate through higher cash wages. Andrews Dep. 32:23–
33:20; Sanchez Dep. 17:14–18:5, 35:11–1. No contractors testified that they believed the
Ordinance required specific pay and benefit allocations, or that they believed they had to
offer certain benefits to comply with the Ordinance.
At bottom, HP has offered no evidence that the Ordinance has prevented collective
bargaining through the exhaustiveness of its requirements. Accordingly, HP has failed to
carry its burden of raising a triable issue of fact over whether the Ordinance interferes with
the collective bargaining process, and Defendants are entitled to summary judgment.12
12 	Because HP has not raised a triable issue of fact over whether the Ordinance interferes with the
collective bargaining process, the Court declines to reach Defendants’ argument that HP is barred from
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VI. CONCLUSION AND ORDER
For the reasons stated above, the Court GRANTS Defendants’ motion for summary
judgment [Dkt. 38] in full; and DENIES HP’s motion for summary judgment [Dkt. 37].
IT IS SO ORDERED.
Dated: February 23, 2026
bringing this claim because its injuries do not fall within the zone of interests that the NLRA is designed
to protect.
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