Winzler & Kelly v. Department of Industrial Relations

• Decision Date: 17 June 1981
• Docket Number: No. 3,I,3
• Citation: 121 Cal.App.3d 120,174 Cal.Rptr. 744
• Court: California Court of Appeals Court of Appeals
• Parties: , 25 Wage & Hour Cas. (BNA) 991 WINZLER & KELLY (and four other cases), * Plaintiffs and Respondents, v. DEPARTMENT OF INDUSTRIAL RELATIONS, et al., Defendants and Appellants, Western Association of Engineers, Operating Engineers Local Unionntervenors and Respondents. Civ. 50341.

Page 744

174 Cal.Rptr. 744

121 Cal.App.3d 120, 25 Wage & Hour Cas. (BNA) 991

WINZLER & KELLY (and four other cases), ^* Plaintiffs and Respondents, v. DEPARTMENT OF INDUSTRIAL RELATIONS, et al., Defendants and Appellants Western Association of Engineers, Operating Engineers Local Union No. 3, Intervenors and Respondents.

Civ. 50341.

Court of Appeal, First District, Division 4, California.

June 17, 1981.

As Modified June 29, 1981.

Christine C. Curtis, Peter H. Weiner, Department of Industrial Relations, San Francisco, for defendants and appellants.

Edgar B. Washburn, David C. Spielberg, Washburn, Kemp & Wagenseil, San Francisco, Larry P. Schapiro, Littler, Mendelson, Fastiff & Tichy, San Francisco, Littler, Mendelson, Fastiff & Tichy, Fresno, Archie G. Parker, Rowland & Parker, Sacramento, Leo H. Scheuring, Sacramento, for plaintiffs and respondents.

Steven M. Bernard, McKeehan, Bernard & Wood, Fremont, for intervenors and respondents Operating Engineers Local Union #3.

CALDECOTT, Presiding Justice.

Defendants Department of Industrial Relations and Donald Vial, the director of the department (appellants) appeal from an adverse judgment rendered in an action brought for writ of mandate and related relief.

THE FACTS

The director of the Department of Industrial Relations (hereafter director or department) Hogan-Schoch protested both the coverage determination and the lack of a hearing and filed a petition for writ of mandate in the Sonoma County Superior Court. On July 13, 1977, at the request of Hogan-Schoch, the department held a hearing on the inclusion of surveyors in the prevailing wage law. This hearing, of course, could not affect the coverage determination of May 26, 1977, because it was held subsequent to its issuance. Nonetheless, on August 5, 1977, the director reaffirmed his initial coverage determination based upon the July 13, 1977 post-hearing.

was asked by an employer group, representing local awarding bodies, whether surveyor classifications were covered under the prevailing wage laws. On May 26, 1977, the director issued a determination that field surveying is performed by the type or classification of worker (certified chief of party, chief of party, rodman/chairman and instrument man) intended to be covered by the Act. (Lab. Code § 1772.) The coverage determination of the director was made in a letter dated the same day, addressed to Paul L. Schoch of Hogan-Schoch & Associates, Inc. (Hogan-Schoch) and signed by Christine Curtis on behalf of the director. The trial court found that, although contained in a letter addressed to a specific firm, the coverage determination of May 26, 1977, had a statewide impact which necessarily applied to all public entities letting contracts for public works and all employers of field survey workers or public work contracts.

On August 12, 1977, the director announced that as a consequence of his prior coverage determination he was making a sweeping "wage rate determination" for surveyors throughout northern California. This wage rate determination in fact involved two separate provisions: first, the director purported to establish an "appropriate labor market area" consisting of all 46 northern California counties; and second, he declared that the wage rate prevailing in that "market area" was the San Francisco Bay area wage scale of Operating Engineers Local Union No. 3's (Local 3) "master" collective bargaining agreements. The court below found that "the August 12, 1977 general determination was separate and distinct from the May 26, 1977 general determination."

Both the coverage determination and the wage rate determination were challenged in several lawsuits filed by petitioners Winzler & Kelly, Hogan-Schoch, Western Association of Engineers and Land Surveyors, McGlasson & Associates, Consulting Engineers Association of California, and Siegfried & Associates (hereafter respondents) in several courts around the state. On motion by the department these lawsuits were ordered coordinated as Judicial Council Coordination Proceeding No. 449 (entitled Surveyor Classification Cases).

The trial judge determined that the issuance of the two general determinations was a quasi-legislative action which should be reviewed under Code of Civil Procedure section 1085. He concluded that the director was required under the Administrative Procedure Act (APA) (Gov.Code § 11370 et seq.) ¹ to hold administrative hearings prior to issuing any of the challenged determinations and that he had failed to do so. Accordingly, he held that the challenged determinations were void and remanded the entire matter to the department for further proceedings consistent with the APA and his order. Judgment was entered accordingly. The appeal at bench has been taken from the judgment.

THE ISSUE

The sole issue presented on appeal is whether the director was required to hold a hearing prior to issuing the determination that the field surveying work was covered by the California prevailing wage law (Lab.Code, § 1720 et seq.).

Before discussing and analyzing the principal issue at bench, as a threshold matter we note that, as the parties themselves concede, there is no constitutional requirement to hold a public hearing in quasi-legislative matters. The parties are also in agreement that prior hearing is not required under the statutes regulating the prevailing wage law either. Consequently, in order to determine the issue here raised (i. e., whether a prior hearing is required before a coverage determination under the California prevailing wage law) we are compelled to resort to the APA, which establishes minimum procedural requirements applicable to quasi-legislative and quasi-judicial actions by state agencies. In doing so we follow the established principles which hold that the different codes blend into each other and constitute a single statute for the purposes of statutory construction and that the legislative intent may be determined not only from an individual code but the whole body of law. (Pesce v. Dept. of Alcoholic Bev. Control (1958) 51 Cal.2d 310, 312, 333 P.2d 15; American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 260, 109 Cal.Rptr. 22.) The rationale behind this rule is the assumption that the Legislature was aware of the existing, related laws and intended to maintain a consistent body of statutes. (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805, 249 P.2d 241; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 93, 8 Cal.Rptr. 56.) It follows that in the instant case we must construe the prevailing wage law together with the APA in order to arrive at the determination of whether the Legislature intended that the department hold a public hearing prior to a coverage determination.

With these introductory observations, we now turn to the statutory scheme outlined in the APA. We start with Chapter 4.5 of the APA (§ 11371 et seq.), which applies to the quasi-legislative actions of state agencies. Section 11420 describes the coverage by providing that: "It is the purpose of this article to establish basic minimum procedural requirements for the adoption, amendment or repeal of administrative regulations. Except as provided in Section 11421, the provisions of this article are applicable to the exercise of any quasi-legislative power conferred by any statute heretofore or hereafter enacted, but nothing in this article repeals or diminishes additional requirements imposed by any such statute. The provisions of this article shall not be superseded or modified by any subsequent legislation except to the extent that such legislation shall do so expressly."

"Regulation" is defined in section 11371, subdivision (b), which sets forth in pertinent part that: " 'Regulation' means every rule, regulation, order, or standard of general application or the amendment, supplement or revision of any such rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it.... "

The exceptions referred to in section 11420 are described in section 11421, subdivision (a), which reads in part that: "The provisions of this article shall not apply to any regulation not required to be filed with the Secretary of State under this chapter, and only this section and Section 11422 of this article shall apply to any regulation prescribing an agency's organization or procedure or to an emergency regulation adopted pursuant to subdivision (b) of this section."

The requirements for filing regulations and exceptions to those requirements are set out in section 11380. It spells out in relevant portion that: "Every state agency shall: (a) Transmit to the department for filing with the Secretary of State and with the Rules Committee of each house of the Legislature a certified copy of every regulation adopted by it except one which: (1) Establishes or fixes rates, prices or tariffs.... (3) Is directed to a...