Assoc. General Contractors v. San Diego Unified 5/18/11 CA4/1

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State: California

Court: California Eastern District Court

Docket No: D056530

Case Date: 05/18/2011

Plaintiff: Assoc. General Contractors

Defendant: San Diego Unified 5/18/11 CA4/1

Preview:Filed 5/18/11

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

ASSOCIATED GENERAL CONTRACTORS OF AMERICA, SAN DIEGO CHAPTER, INC., Plaintiff and Appellant, v. SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

D056530

(Super. Ct. No. 37-2009-00095057CU-WM-CTL)

APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Marks, Golia & Finch, Chad T. Wishchuk, Stephen J. Schultz and Mark T. Bennett for Plaintiff and Appellant. Tosdal, Smith, Steiner & Wax, Thomas Tosdal, Fern M. Steiner and Jon Y. Vanderpool for Defendant and Respondent.

By way of Labor Code1 section 3070 et seq., the Legislature has established a non-mandatory system of evaluating and approving building trades apprenticeship training programs. Under that system, the Department of Industrial Relations (the department) has the responsibility for setting minimum apprenticeship training standards and approving individual apprenticeship programs. When a program has been approved by the department, contractors on public works projects may pay trainees in the approved program apprenticeship wages and the programs themselves are entitled to educational subsidies. In San Diego an apprenticeship program sponsored jointly by trade unions and contractors with whom the unions have collective bargaining agreements trains a substantial number of apprentices. In addition to the joint labor-management apprenticeship program, petitioner Associated General Contractors of America, San Diego Chapter, Inc. (AGC), sponsors a separate apprenticeship program which does not involve the participation of building trades unions or contractors who have collective bargaining agreements with the unions. Both apprenticeship programs have been approved by the department. By way of an agreement with local building trades unions, the board of education of the San Diego Unified School District (SDUSD or district) adopted a policy which requires that bidders on certain of its construction projects employ apprentices trained in the joint labor-management apprenticeship program. AGC filed a petition for a writ of

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All further statutory references are to the Labor Code unless otherwise indicated. 2

mandate challenging the agreement and policy. AGC alleged the agreement and policy unlawfully intruded on the department's regulatory power over apprenticeship programs and violated provisions of California's Prevailing Wage Law (PWL), section 1720 et seq. The trial court denied AGC's petition. On appeal from the order denying the petition, we affirm. Our review of the statutes governing apprenticeship programs discloses the regulatory scheme adopted by the Legislature was intended to establish minimum educational and training standards for apprenticeship programs. Importantly, the statutes expressly permit approved apprenticeship programs to provide education and training which exceed the minimum standards required by the department. Because the governing statutes expressly contemplate differences among apprenticeship programs, we reject AGC's contention that the district invaded the department's regulatory power by making an agreement which favors one qualified program over another. Moreover, nothing in the PWL expressly or implicitly prevents public agencies from requiring that apprentices employed on agency construction projects participate in a particular training program.

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FACTUAL AND PROCEDURAL BACKGROUND On November 4, 2008, voters within SDUSD approved Proposition S, a $2.1 billion bond issue which provided funding for a program of repair and renovation of the district's facilities. On January 13, 2009, the district's board of education adopted a resolution which directed the district's staff to negotiate a Project Stabilization Agreement (PSA) with local building trades unions. The PSA would govern Proposition S projects and, among other matters, require participation by bidders and their employees in joint labor-management apprenticeship programs approved by the department. Thereafter the board of education and the local building trades unions entered into a PSA. Under the terms of the PSA, all contractors on Proposition S projects must recognize the building trades unions as the exclusive bargaining representatives of covered employees working on Proposition S projects and must not engage in any lockout. For their part, the unions agreed not to engage in any strike, slowdown, interruption or disruption of any Proposition S project. Of concern here, the PSA also requires that any apprentices used by contractors on Proposition S projects be enrolled in a state approved joint labor-management apprencticeship program.2 At the hearing at which the PSA was adopted, one member of the board stated:

2 The PSA in pertinent part states: "The term 'Apprenticeship Program' as used in this Agreement shall be defined as a joint labor management apprenticeship program certified by the State of California . . . ." The PSA further provides: "Apprentices, if utilized, must be enrolled in a California Apprenticeship Council approved apprenticeship program." 4

"I think the question, you know, that I continue to have after visiting [the nonunion apprenticeship programs] is, what's the commitment on the part of the non-union contractors to the people who are being trained through the apprenticeship programs. And I got to say that that question persists in my mind certainly. 90 percent of the graduates of apprenticeship programs in San Diego County are coming out of the union programs. Nearly a hundred percent of women and people of color who graduate from apprenticeship programs are coming out of the union apprenticeship program. The nonunion contractors frequently state the claim that 85 percent of the industry in San Diego County is non-union. So whether that's true or not, if 15 percent of the industry is producing 90 to a hundred percent of the graduates, that's real commitment. And I've heard suggestions from the non-union contractors that as a result of this project stabilization agreement, they might close down their apprenticeship programs. And, what I would say is, again, I would ask for a commitment from those contractors that if they actually believe in their programs and they control 85 percent of the local industry, which they claim to control, maintain your commitment to your programs, but improve your graduation rates, improve your--your outreach to communities of color and to women. Bring yourself--do the work over time that the labor management apprenticeship programs have committed to, and then we will--you know, we'll see where we are in a few years. But if you've got real commitment to the apprentices, continue that commitment and we'll see where we get in a few years."

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The board member further stated: "[W]e have an opportunity to partner with the best apprenticeship programs in this state to create real career opportunities for the kids who are coming out of our schools." In response to the board of education's adoption of the PSA, AGC filed in the trial court a petition for a writ of mandate. AGC's petition alleged that in requiring that bidders on Proposition S projects use joint labor-management apprenticeship programs, the board of education violated provisions of the Labor Code regulating apprenticeship programs and separate provisions of the PWL. The trial court denied the petition. On appeal from the order denying its petition, AGC once again contends the board of education's January 2009 resolution and later PSA violate various provisions of the Labor Code. I "Review of 'a local entity's legislative determination is through ordinary mandamus under [Code of Civil Procedure] section 1085. "Such review is limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support. [Citation.]" . . . . "With respect to these questions the trial and appellate courts perform essentially the same function, and the conclusions of the trial court are not conclusive on appeal." ' [Citations.] "Further, where the pertinent facts are undisputed and the issue is one of statutory interpretation, the question is one of law and we engage in a de novo review of the trial court's determination." (Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1253.) 6

II As SDUSD points out, agreements such as the PSA have been repeatedly approved by state and federal courts when challenged on a variety of grounds. In rejecting a claim that a PSA which covered expansion and renovation of the San Francisco International Airport violated state and local competitive bidding laws, the court in Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352 (Associated Builders) briefly reviewed the operation of PSA's and the rationale of the federal law which authorizes them: "The PSA involved in the present case exacts from the signatory unions over the expected 10-year life of the project a nostrike pledge, an agreement to arbitrate jurisdictional disputes among crafts, and a promise to continue work on the project despite the expiration of any applicable collective bargaining agreements. In exchange, the Commission agrees to require all contractors to accept the terms of the PSA, to abide by each craft's labor-management grievance procedure in cases of discipline or discharge, and to use the union hiring hall for any new hires needed beyond the employer's own core workforce. Employers are also required to pay union wages and benefits. "The PSA is an example of a type of prehire agreement designed for large and complex construction projects. It is designed to eliminate potential delays resulting from labor strife, to ensure a steady supply of skilled labor on the project, and to provide a contractually binding means of resolving worker grievances. Such agreements, also called project labor agreements, have long been used in large construction projects undertaken by both private concerns and, especially following the decision of the United 7

States Supreme Court in Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc. (1993) 507 U.S. 218 (Boston Harbor), public agencies. Boston Harbor held that the National Labor Relations Act (29 U.S.C.

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