237 517 v. 1991 237 237 517 1530 517 1530 Southern California Chapter of Associated Builders and Contractors, Inc Joint Apprenticeship Committee v. California Apprenticeship Council Riverside and San Bernardino Electrical Joint Apprenticeship and Training Committees, A049486

Citation2 Cal.Rptr.2d 237,7 Cal.App.4th 1530,1 Cal.App.4th 517
Decision Date03 December 1991
Docket NumberNo. A049486,A049486
CourtCalifornia Court of Appeals
PartiesPage 237 2 Cal.Rptr.2d 237 Previously published at 1 Cal.App.4th 517, 7 Cal.App.4th 1530 1 Cal.App.4th 517, 7 Cal.App.4th 1530 SOUTHERN CALIFORNIA CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC. JOINT APPRENTICESHIP COMMITTEE, Plaintiff/Respondent, v. CALIFORNIA APPRENTICESHIP COUNCIL, Defendant/Appellant. Department of Industrial Relations, Division of Apprenticeship Standards, Defendant/Respondent. RIVERSIDE AND SAN BERNARDINO ELECTRICAL JOINT APPRENTICESHIP AND TRAINING COMMITTEES et al., Real Party in Interest/Appellant. Court of Appeal, First District, Division 2, California

John K. Van De Kamp, Daniel E. Lungren, Attys. Gen., Edmond B. Mamer, Supervising Deputy Atty. Gen., Jack T. Kerry, Deputy Atty. Gen., Atty. Gen. Office, Los Angeles, for California Apprenticeship Council.

Ronald W. Novotny, Hill, Farrer & Burrill, Los Angeles, for Riverside and San Bernardino Elec. Joint Apprenticeship and Training Committees et al.

Lawrence H. Kay, William L. Porter, Kirk M. Prindle, Stanton, Kay & Watson, Sacramento, for Cal. Apprenticeship Coordinators Ass'n.

Peter D. Nussbaum, Daniel T. Purtell, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, for Apprenticeship and Journeyman Training Trust Fund of Southern Cal. Plumbing and Piping Industry.

Mark R. Thierman, John W. Prager, Jr., Margaret Wilson, Thierman, Cook, Brown & Prager, San Francisco, for Southern Cal. Chapter of Associated Builders and Contractors, Inc. Joint Apprenticeship Committee.

John M. Rea, David Allen Kizer, South San Francisco, for Dept. of Indus. Relations, Div. of Apprenticeship Standards.

PETERSON, Associate Justice.

The trial court granted three successive writs of mandate overturning decisions by the California Apprenticeship Council (Council), which was in turn reviewing a decision by the Chief of the Division of Apprenticeship Standards of the California Department of Industrial Relations (Chief). The Chief had granted permission to non-union contractors to operate new apprenticeship programs for electricians, in certain areas where there were also existing apprenticeship programs affiliated with unions.

In this challenge to the trial court's granting of the third writ of mandate, we will first address certain difficult procedural problems with this appeal. Second, we will agree that the Council had the statutory authority to review the Chief's decision under the relevant state law. Third, we will examine recent authorities which strongly support the contention that the Council's authority in this instance was preempted by federal law, the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.). Finally, we will agree with the trial court's ultimate conclusion that there was no substantial evidence indicating the new apprenticeship programs would harm the interests of apprentices or society at large by creating ruinous competition. Rather, wider availability of apprenticeship benefits would serve the purposes of the state statute: addressing the need for such programs by potential apprentices and society as a whole. We will, therefore, affirm.

I. FACTS AND PROCEDURAL HISTORY

The procedural history of this case is complex; we summarize it as follows.

A. The Parties

The Riverside and San Bernardino Electrical Joint Apprenticeship and Training Committees, and the Orange County Electrical Joint Apprenticeship and Training Committee are appellants herein; they operate apprenticeship programs for union-affiliated electricians, which programs have been in existence for some time. For simplicity, these appellants may be referred to as the "existing programs."

The Southern California Chapter of Associated Builders and Contractors, Inc. Joint Apprenticeship Committee, respondent herein, sought to obtain state approval to establish in three counties certain new non-union apprenticeship programs; we refer to them as the "new programs."

The Chief granted the new programs permission to operate. The Chief found that the proposed new programs met all relevant requirements for apprenticeship programs, and congratulated them for their "interest and help in further developing apprenticeship training opportunities."

The existing programs, which also operated in those three counties, contended they would be adversely affected by competition from the new programs, and appealed the Chief's decision to the Council. The Council reversed the Chief, because the Council felt the existing programs might be hurt by having to face competition from the new programs.

B. The First Writ Proceeding and Appeal

In December 1988, the new programs sought a first writ of mandate in the superior court, directing the Council to vacate its reversal of the Chief. In April 1989, the superior court granted the first petition for a writ of mandate, ruling that the Council did not have before it substantial evidence of any danger posed by competition: "Thus, because the record fails to contain substantial evidence supporting the [Council's] decision, a writ of mandate must be issued to set aside that decision."

The existing programs then appealed to this court, in appeal No. A046283. However, that appeal was dismissed by us under rule 17(a), California Rules of Court, for failure to prosecute--after no opening brief was filed. This litigation was then pursued solely before the Council, which conducted further proceedings in light of the superior court's opinion.

C. Subsequent Proceedings

In June 1989, the Council ruled again--this time for the new programs--without taking any additional evidence. The existing programs then sought a writ of mandate from the superior court, contending the Council had misinterpreted the court's instructions. In October 1989, the superior court agreed with the existing programs and remanded the matter yet again to the Council, directing it to prepare a written report stating the basis of its most recent decision in favor of the new programs.

In January 1990, the Council issued a written decision, which returned to its original position and ruled against the new programs.

In February 1990, the new programs sought a third writ of mandate from the superior court. In March 1990, the superior court granted the petition for the third writ of mandate, reversing the Council yet again and ruling in favor of the new programs; the superior court repeated its prior conclusion that the Council's decision against the new programs was "not supported by substantial evidence." The existing programs and the Council timely appealed.

II. DISCUSSION

Unfortunately, the convoluted procedural history of this case and the confusing plethora of parties, agencies, entities, and actions involved is complemented by a number of difficult legal issues which lack direct precedent. We summarize our rulings as follows.

First, while the dismissal of the prior appeal in this case could normally result in the dismissal of the present appeal, we will exercise our discretion to reach the merits in light of the importance of the questions raised.

Second, deciding an issue of first impression, we will agree with the Council that it had statutory authority under relevant state law to conduct administrative review of the decision of the Chief.

Third, we will follow recent state and federal precedents which strongly suggest the Council's decision is preempted by ERISA.

Finally, we will agree with the trial court there was no substantial evidence that two new apprenticeship programs would cause ruinous competition detrimental to the welfare of apprentices in the existing programs. To the contrary, the provision of new programs would allow more persons to receive the benefits of apprenticeship, and would foster the overall societal goals of the state's apprenticeship laws. We will, therefore, affirm the superior court's ruling.

A. The Prior Dismissed Appeal
1. The Problem

We face at the outset, however, a knotty procedural problem as to whether the present appeal is actually properly before us on the merits. The trial court initially ruled the Council's decision was not supported by substantial evidence. An appeal to this court was duly filed; subsequently that appeal was dismissed for lack of prosecution, and administrative and court proceedings continued in light of the superior court's decision.

A year later, at the conclusion of further proceedings, this appeal was filed--asserting once more that the trial court had erred in concluding the Council's essentially identical conclusion (no new evidence having been presented) was likewise not supported by substantial evidence. Under these circumstances, it is hard to see how the issues survived the dismissal of the first appeal, or could be resurrected by merely filing another appeal.

The trial court's initial decision on this point would seem to bar subsequent relitigation of the same issue, under principles of res judicata or collateral estoppel. "It is settled that the doctrine of res judicata applies to judgments on the merits in proceedings in mandamus." (Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control (1961),55 Cal.2d 728, 13 Cal.Rptr. 104, 361 P.2d 712.) "The determination in the first mandate proceeding ... therefore bars any further inquiry into [the issue previously litigated]." (Ibid.) "As the effect of the order of dismissal [of the prior appeal] herein was affirmance of the judgment, no second appeal from the same judgment can be maintained." (Linn v. Weinraub (1948),85 Cal.App.2d 109, 193 P.2d 21; see also Code Civ.Proc., § 913 ["The dismissal of an appeal shall be with prejudice to the right to file another appeal within the time permitted, unless the dismissal is expressly made without prejudice to another appeal."].)

We, therefore, invited the parties to file supplemental briefs directed to this issue.

2. Arguments in Favor of Reaching the Merits

The Attorney General,...

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