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Kern, Inyo & Mono Counties Plumbing, Pipefitters & Refrigeration/Air Conditioning Mechanic Joint Apprenticeship and Training Committee v. California Apprenticeship Council

California Court of Appeals, First District, Third Division

October 29, 2013

KERN, INYO & MONO COUNTIES PLUMBING, PIPEFITTER & REFRIGERATION/AIR CONDITIONING MECHANIC JOINT APPRENTICESHIP AND TRAINING COMMITTEE, Plaintiff and Respondent,
v.
CALIFORNIA APPRENTICESHIP COUNCIL, Defendant and Respondent PLUMBING, HEATING AND COOLING CONTRACTORS OF THE GREATER SACRAMENTO AREA PLUMBERS UNILATERAL APPRENTICESHIP COMMITTEE, Real Party in Interest and Appellant.

Trial Court: San Francisco County Superior Court No. CPF-11-510995. Hon. Harold E. Kahn, Judge.

Counsel for Real Party in Interest and Appellant: Carrie E. Bushman, and Grant R. Zehnder of Cook Brown.

Counsel for Plaintiff and Respondent: Jeffrey L. Cutler and Elizabeth Rosenfeld of Wohlner Kaplon Phillips Young & Cutler.

Counsel for Defendant and Respondent: Karen Wing Yiu Office of the Attorney General.

POLLAK, J.

Appellant and real party in interest Plumbing, Heating and Cooling Contractors of the Greater Sacramento Area Plumbers Unilateral Apprenticeship Committee (the Applicant Committee) provides a plumbing apprenticeship training program in 46 northern California counties. In 2007, the Applicant Committee sought and received approval from the Division of Apprenticeship Standards (DAS) to expand its apprenticeship program into Kern County. Respondent Kern, Inyo & Mono Counties Plumbing, Pipefitters & Refrigeration/Air Conditioning Mechanic Joint Apprenticeship and Training Committee (the Existing Committee), which already conducts a plumbing apprenticeship training program in Kern County, opposed the expansion and appealed the approval to the California Apprenticeship Council (Council). After the Council denied the appeal, the Existing Committee initiated the present writ proceedings, successfully obtaining a writ of mandate in the trial court overturning the Council’s decision.

On appeal, the Applicant Committee argues that the trial court erred in interpreting Labor Code[1] section 3075, subdivision (b)(3), which authorizes approval of a new apprenticeship program if “[e]xisting apprenticeship programs approved under this chapter that serve the same trade and geographic area have been identified by the California Apprenticeship Council as deficient in meeting their obligations under this chapter.” We agree with the Applicant Committee that the trial court incorrectly concluded that an existing program must have been identified as deficient during an audit conducted pursuant to section 3073.1 before section 3075, subdivision (b)(3) authorizes approval of a new apprenticeship program. Although no interpretation of section 3075 can be perfectly squared with all of its terms, we conclude that under the construction most consistent with the language and apparent purpose of section 3075, subdivision (b)(3), the Council has authority to identify deficiencies in an existing committee’s program during the process of reviewing an application for approval of a new apprenticeship and training program. Because substantial evidence supports the Council’s finding that the Existing Committee’s program was deficient based on its substandard graduation rates, its decision denying the Existing Committee’s appeal from approval of the new program should not have been overturned. Accordingly, we shall reverse the order granting the writ of mandate.

Background

A. Legal Background

California regulates programs for the training of apprentices in the construction trades under the Shelley–Maloney Apprenticeship Labor Standards Act of 1939 (Act). (§ 3070 et seq.; Southern California Cement Masons Joint Apprenticeship Committee v. California Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1535 (Southern California Cement Masons JAC).)[2] “Oversight of apprenticeship programs is vested in the Division of Apprenticeship Standards (DAS), one of five divisions within the Department of Industrial Relations (Department). [Citation.] The Council is a public body consisting largely of DAS officials and industry and trade union representatives appointed by the Governor. The Council's purpose is to ‘aid[ ] the Director [of Industrial Relations] in formulating policies for the effective administration’ of the laws governing apprenticeship, including through the formulation of regulations establishing standards for apprentice working conditions and assuring equal opportunities in apprenticeship programs. [Citations.] [¶] The Act encourages construction industry trade unions and employers to create programs to train and regulate the employment of apprentices. [Citations.] Such an apprenticeship program can apply for official approval by the DAS. [Citation.] Although DAS approval is not required for the operation of a program, ‘strong financial incentives’ and other advantages are available to approved programs.” (Southern California Cement Masons JAC, supra, 213 Cal.App.4th at pp. 1535-1536, fns. omitted.)

Since 1984, section 3075 has provided: “An apprenticeship program... may be approved by the chief [of the DAS] in any trade in the state or in a city or trade area, whenever the apprentice training needs justify the establishment....” (Stats. 1984, ch. 330, § 3; as amended by Stats. 1999, ch. 903, § 7.) Although, as recently observed by Division One of this court, the Act gives approved programs some protection from competition by other apprenticeship programs (Southern California Cement Masons JAC, supra, 213 Cal.App.4th at pp. 1536-1537), this protection is not as broad as it once was, nor is it as broad as the Existing Committee suggests. Under the Council’s former regulations, the DAS was prohibited from approving a new program that would adversely affect an existing program.[3] In Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council, supra, 4 Cal.4th at pp. 450-453, our Supreme Court held that this regulation was not saved from federal preemption and therefore “the state may not demand that an apprenticeship program satisfy this state requirement in order to obtain Fitzgerald Act approval.” (Id. at p. 453.) This provision therefore was removed from the regulations in 1995 (Register 95, No. 36 (Sept. 6, 1995)) and in 1999 a new subdivision was added to section 3075 to define the circumstances under which apprentice training needs may be deemed to justify the approval of a new apprenticeship program. (Stats. 1999, ch. 903, § 7.) Rather than avoiding adverse effects to existing programs, the focus is placed on the need for an additional program.

Under what is now subdivision (b) of section 3075, “the apprentice training needs in the building and construction trades shall be deemed to justify the approval of a new apprenticeship program only if” one or more of three conditions is satisfied. The three alternatives are: “(1) There is no existing apprenticeship program approved under this chapter serving the same craft or trade and geographic area. [¶] (2) Existing apprenticeship programs approved under this chapter that serve the same craft or trade and geographic area do not have the capacity, or neglect or refuse, to dispatch sufficient apprentices to qualified employers at a public works site who are willing to abide by the applicable apprenticeship standards. [¶] (3) Existing apprenticeship programs approved under this chapter that serve the same trade and geographic area have been identified by the California Apprenticeship Council as deficient in meeting their obligations under this chapter.” (Ibid.)

To obtain approval for a new apprenticeship program, a sponsoring committee must submit written program standards to the Chief of the DAS for approval. (Cal. Code Regs., tit. 8, § 212.2, subd. (a).) As part of the administrative review of the proposed program, the Chief is required serve a copy of the application on each existing program in the apprenticeable occupation in the same geographic area and these programs may submit comments on the application. (Id., subd. (g).) In addition, the Chief may consult with the sponsors of any existing programs that could be affected by approval of the new program. (Ibid.) A decision by the Chief to approve or deny an application to establish a new apprenticeship program may be appealed to the Council by the applicant or any union or existing program that submitted comments to the proposed program. (Id., subd. (k).) Appeals are initially referred to a three-member panel of the Council which provides a recommendation to the full Council. (Id., subd. (l).) Thereafter, the Council may affirm, reverse or modify the decision of the Chief or the recommendation of the panel. (Id., subd. (m).) The decision of the Council is final (id., subd. (m)), subject only to judicial review by writ of mandate.

In the same legislation that added subdivision (b) to section 3075, section 3073.1 was added to the Act, calling for random audits of existing apprenticeship programs. (Stats. 1999, ch. 903, § 5.) Under this provision, an apprenticeship program is subject to random audit performed by the DAS to, among other things, “ensure that the program audited is complying with its standards” and “determine whether apprentices are graduating from the program on schedule or dropping out.” (§ 3073.1, subd. (a).) If deficiencies are recognized in the audit, the DAS must prepare an audit report recommending remedial action to correct the deficiencies and a proposed timeline for doing so. (§ 3073.1, subd. (b); Cal. Code Regs., tit. 8, § 212.3, subd. (h).) The proposed audit report must be submitted to the program for comment and the DAS may reopen the audit in response to any comments. (Cal. Code Regs., tit. 8, § 212.3, subd. (f).) A final audit report, taking into account any comments by the program, must be submitted to the Council and made public. (§ 3073.1, subd. (b); Cal. Code Regs., tit. 8, § 212.3, subd. (f).) At each regular meeting of the Council, “[t]he Chief DAS shall report... the status of ...


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