Opinion
Previously published at 1 Cal.App.4th 517, 7 Cal.App.4th 1530
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 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 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, 733, 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, 110, 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, representing the Council, characterizes the trial court's initial ruling as merely "procedural" and disagrees that the dismissal of the prior appeal and the consequent finality of the trial court's decision should bar this appeal, because "the prior dismissal should have no effect of any kind on the pending appeal, either at law or as a matter of equity." The Attorney General cites in support of this assertion only the case of Guy F. Atkinson Co. v. State of California (1971) 17 Cal.App.3d 1065, 95 Cal.Rptr. 543. A reading of the cited case discloses that the Third District dismissed as premature a purported appeal which violated the final judgment rule; the court also vacated the trial court's void judgment, and noted that the time consumed by appellate proceedings should not count for the purpose of a dismissal for delay in prosecution under then Code of Civil Procedure section 583. (Id. at p. 1068, 95 Cal.Rptr. 543.) The precise relevance of the cited case seems elusive. The trial court's determination here at the conclusion of the proceedings on the first writ of mandate--that the Council's decision was not supported by substantial evidence--was certainly not void or in excess of the trial court's jurisdiction. In fact, it was a valid appealable order, and was duly appealed.
However, the Attorney General goes on to say: "With regard to the appeal of the Existing Programs which was ultimately dismissed for failure to prosecute it, under The existing programs also contend the dismissal of the prior appeal should have no preclusive effect. They suggest that the trial court's initial ruling may have only remanded the matter to the Council for a statement of reasons, as required by Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515, 113 Cal.Rptr. 836, 522 P.2d 12. They clearly mischaracterize as mere "superfluous dicta" the trial court's explicit holding that the Council's decision was not supported by substantial evidence in the record.
Further, they seem to suggest that the prior appeal had become moot when the Council, on remand from the trial court, took further action on the matter which generated two more writ applications: "It made absolutely no sense at that juncture for [the existing programs] to expend the time and resources to brief the propriety of the superior court's decision in the first writ proceeding, which had already been executed, when a third writ was pending which all concerned understood would resolve the legal issues in this proceeding once and for all."
The Chief disagrees with the Council on the merits of the controversy, but also urges us to hear the appeal: "The question as to what standards govern [the Council] review of the Chief's proposed approvals, what authority [the Council] has, etc. are frequent and thorny and call for disposition. A procedural dismissal on res judicata/collateral estoppel will simply move the already-briefed issues to the next case."
Amicus curiae, California Apprenticeship Coordinators Association (which uses the acronym C.A.C.A.) likewise urges us to reach the merits and contends that a contrary ruling would be "inequitable" because "the [Council] and the amicus curiae C.A.C.A. would be penalized by the dismissal of this appeal, because they did not participate in the first appeal [brought by the existing programs] and did not have a chance to put their arguments on the appellate record."
3. Contrary Considerations
We note these arguments in favor of reaching the merits seemingly prove too much; they would appear to allow a party which chose not to appeal an adverse final ruling a second chance to do so at some later date. Moreover, the new programs urge that the present appeal is barred: "Here, the prior judgment which determined that the [Council's] decision ... was not based upon substantial evidence has now become final because of [the Council's] failure to appeal therefrom, and because of the dismissal of the [existing programs'] appeal. Therefore, those parties are now precluded from relitigating this issue, under the doctrine of collateral estoppel...."
The new programs have by far the stronger argument. Here, the trial court ruled on the case and all parties apparently were willing, at least in the short term, to live with its ruling and base their future conduct upon that ruling. The Council did not take an appeal; the existing programs did appeal (thus recognizing the final, appealable nature of the trial court's decision), but they did not file any opening brief and allowed us to dismiss their appeal for lack of prosecution--apparently because subsequent administrative proceedings seemed to be going in their favor. As to both of those parties, and all others, the trial court's decision became final.
We understand the existing programs' argument that they did not want to waste Nor do we think, for similar reasons, that the appellants' apparently pervasive confusion as to the effect of the trial court's decision should weigh very strongly in their favor. It is true they did apparently telephone the trial court at some point to ask for advice as to their next step, and the trial court could not entirely allay their befuddlement; but it was not the trial court's job to give the parties legal advice, beyond stating its rulings.
Relieving parties of the effect of collateral estoppel because they were confused as to their possible remedies would likewise vitiate the important interest in the finality of judicial decisions. We must reject such an argument. Appellants have tied themselves into this Gordian knot, and in most instances we would decline to cut through it and release them.
4. Public Importance
Nevertheless, due to the importance of the questions presented in a particular case we may properly deem it advisable to reach the merits of an appeal, even though the appeal is otherwise subject to dismissal. (See DiGiorgio Fruit Corp. v. Dept. of Employment (1961) 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487 [An administrative agency had fully executed the terms of a writ of mandate issued by the superior court regarding referrals during a strike in one harvest season, but the appeal was not dismissed because the dispute would likely recur; the "public interest" and "the orderly administration of justice compel[ ] a determination now...."]; People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290 [Division One of this district proceeded to the merits of an appeal even though the appeal was brought from a trial court judgment which was concededly void for procedural reasons: "It is now established law that where, as in the cases at bench, issues on appeal affect the general public interest and the future rights of the parties, and there is a reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved. [Citations.]"]; cf. also Mattz v. Superior Court (1988) 46 Cal.3d 355, 360-361, 250 Cal.Rptr. 278, 758 P.2d 606 [Appellants had abandoned their request for a writ of mandate, and their proceeding had been dismissed; but the Court of Appeal (Division Five of this district) properly reinstated the proceeding, which raised an important issue concerning the salmon run on the Klamath River.]; Lemat Corp. v. Barry (1969) 275 Cal.App.2d 671, 673, fn. 2, 80 Cal.Rptr. 240 [This Court (Division Two) proceeded to the merits of an appeal regarding Rick Barry's contract with the Warriors, even though the relevant basketball season was over, because "the issues here raised are of sufficient public interest and, therefore, not moot [citation]."].)
Because of the public interest this matter involves, we will review the merits of this appeal. The dispute of the parties will likely recur, and its determination now is warranted in the interests of the orderly administration of justice. "Our discretion to do so under analogous circumstances is well settled. [Citations.] We turn to the merits of [appellants'] claims." (Dix v. Superior Court (1991) 53 Cal.3d 442, 454, 279 Cal.Rptr. 834, 807 P.2d 1063.)
B. The Council's Authority to Review the Chief's Decision
The new programs contend that the Council lacked statutory authority to conduct an administrative review which resulted in the reversal of the decision of the In order to explain the issues involved, we must examine the statutory scheme in some detail. California law, in accord with applicable federal law, seeks to promote and foster apprenticeship programs, as a means of training a more highly skilled workforce. The legislative scheme, established in major part by the Shelley-Maloney Apprentice Labor Standards Act of 1939 (LAB.CODE, § 3070 et seq.) and subsequent amendment thereto, is based upon the premise that the wider availability of such programs redounds to the benefit of employees, employers, and society as a whole. Section 3075.1 provides: "It is the public policy of this state to encourage the utilization of apprenticeship as a form of on-the-job training...."
Unless otherwise indicated, all subsequent statutory references are to the Labor Code.
Pursuant to this legislative mandate, the Chief is given authority to approve new apprenticeship programs in which persons may be trained on the job for a skilled vocation. (§ 3075.) Significantly, the applicable legislation directs that the Chief shall consider, in deciding whether to approve a proposed new apprenticeship program, the existing need for apprenticeship training in a given area; and the legislation does not direct the Chief to consider the interests of other programs already in place. "Programs may be approved by the chief in any trade in the state or in a city or trade area, whenever the apprentice training need[ ] justifies...." (Ibid.)
The same legislative scheme sets up the Council and prescribes its membership (§ 3070), gives the Council the power to "establish ... apprenticeship standards" (§ 3071), and authorizes it to exercise an appellate jurisdiction over decisions of the Chief in matters concerning the administration of apprenticeship programs (§§ 3081-3084).
The new programs argue that the Council had no power to overturn the Chief's decision to authorize the new programs. They point out that section 3075 directs that the Chief, not the Council, shall approve new programs; they argue that the Council's appellate jurisdiction over the decisions of the Chief is limited by section 3081 to questions concerning "a violation of the terms of an apprenticeship agreement...." Thus, the Council has undoubted appellate jurisdiction over such matters as may arise in the course of administration of apprenticeship agreements pursuant to an established program--for instance, appeals by apprentices who feel they were unjustly disciplined by a program. The new programs contend this jurisdiction under section 3081, however, does not by its terms extend to review of the Chief's decision under section 3075 to approve a new program.
The Council by contrast points out that it is authorized, under section 3071, to establish apprenticeship standards which are binding on new or existing programs; moreover, the administrative appeals procedure in question here has been followed for many years, and has been acquiesced in by the Chief; indeed, the Chief urges us to affirm the Council's appellate jurisdiction over the decisions of the Chief.
We acknowledge the force of the arguments by both sides and the closeness of the question, which is one of first impression. We ultimately determine that the Council and Chief are correct, and the Council's appellate authority did extend to the review of decisions of the Chief to authorize new apprenticeship programs.
In order to resolve the apparent conflict between section 3075, which seemingly only authorizes the Chief to approve new programs, and sections 3070, 3071, and 3081-3084, which give the Council power over apprenticeship standards in general and provide that the Council shall oversee decisions of the Chief, we must analyze as a whole the statutory scheme originally enacted as the Shelley-Maloney Apprentice Labor Standards Act of 1939, and subsequently amended in relevant part in 1976 and 1984. As originally enacted in 1939, it is clear the statutory scheme contemplated that administration and initial decisions in all apprenticeship matters would be performed by an administrator (at that time, the Director of Industrial Relations, who served also as Secretary of the Council). It is also clear that all such decisions were subject to review by the Council. (See Stats.1939, ch. 220, § 2, pp. 1472-1476 [enacting the predecessor statutes to the present sections 3070 to 3089].) This remained true through many years of incidental amendments and a more comprehensive overhaul of these statutes in 1976. (Stats.1976, ch. 301, § 2, pp. 609-610.)
In 1984, however, an amendment to section 3075 inserted the sentence, "Programs may be approved by the chief in any trade in the state or in a city or trade area, whenever the apprentice training need[ ] justifies...." (Stats.1984, ch. 330, § 3, pp. 1596-1597.) Contrary to the new programs' argument that this language conferred unreviewable power upon the Chief to approve new programs, in fact, this amendment provided the standard by which the Chief, and the Council on appeal, should decide the issue: whether the need justifies the establishment of such programs. The new amendment followed the prior administrative review practice to the extent that it specified the Chief as the person who should, as an initial matter, approve such programs; but it certainly did not show any intention to alter that prior practice by making the Chief's actions unreviewable.
When properly read in context, the present section 3075 establishes that it is the need for a program which determines whether it should be approved by the Chief or, ultimately, the Council on review. The Legislature retained the elaborate provisions for administrative appeals to the Council (§ 3082) and judicial review of its final administrative decision: "The decision of the [Council] as to the facts shall be conclusive if supported by the evidence and all orders and decision of the [Council] shall be prima facie lawful and reasonable." (§ 3083.)
Thus, despite the facial reasonableness of the new programs' argument, if based upon examination of one sentence from section 3075 standing alone, the argument is not only inconsistent with the statutory scheme, taken as a whole, it would lead to absurd results. One result would be that the elaborate procedure provided by the Legislature for review of the Chief's decisions would be abrogated as to one particular type of decision, which for some reason would not be governed by the legislative procedure but by some other, unspecified procedure. Another result would be that the Chief's informal, first-line decision, which is not based upon any hearing or the introduction of any evidence in the conventional sense, would somehow have to be reviewed by the courts--apparently under a substantial evidence test--even though there is no record of the proceedings and no evidence was introduced. The appeal proceedings before the Council, by contrast, at least afford a record for the purposes of review.
We acknowledge the new programs' suggestion that it is unfair to require them to justify the need for a new program before a Council composed of representatives of existing programs; the new programs imply that these regulated interests have in fact captured the regulatory agency, and are merely manipulating it in order to avoid competition by new entrants. It might indeed be more logical to confine the Council's appellate jurisdiction to matters concerning the ongoing administration of programs, where the Council's expertise would be especially helpful. It might have been better to give the Chief the final administrative say as to the need for the establishment of new programs, where the Chief's expertise in analysis of labor markets would be most helpful. However, we cannot escape the fact that the Legislature has not yet enacted such a logical division of efforts. Further, in light of our discussion of the merits below, we believe these considerations of alleged regulatory capture may be less troubling in the future.
C. Preemption by ERISA
Raising another issue going to the Council's jurisdiction, the new programs ERISA is an unusually complex federal statute, "perhaps ... not a model of legislative drafting," which governs a variety of pension and welfare benefits, and generally prevents the application of state law to the regulation of those benefits. (Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728.) ERISA's preemption provision, section 514 of the Act (29 U.S.C. § 1144) provides that, with certain narrow exceptions not relevant here, "the provisions of this subchapter [i.e., 29 U.S.C. §§ 1001-1145, which are in issue here] ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." ERISA defines "State laws" broadly as "all laws, decisions, rules, regulations, or other State action having the effect of law...." (29 U.S.C. § 1144(c)(1)); it also defines "apprenticeship or other training programs" as employee benefit plans (29 U.S.C. § 1002(1)(A)). Thus, under the plain meaning of the language of the relevant federal statute, the apprenticeship programs in issue here are benefit plans governed by ERISA.
In decisions rendered during the pendency of these proceedings, federal and state courts have found that ERISA preempted similar portions of California's state laws, rules, regulations, and administrative orders concerning apprenticeship, since those state laws "relate to" employee benefit plans and are not saved from preemption by any relevant statutory or regulatory exception.
In Hydrostorage v. Northern Cal. Boilermakers (9th Cir.1989) 891 F.2d 719 (Hydrostorage), the Ninth Circuit found that ERISA preempted a similar attempt by the Council to order an employer to comply with its directives regarding the training of apprentices: "Thus, the [Council's] order undoubtedly 'relates to' an ERISA plan...." (Id. at p. 730.)
This was not the end of the Ninth Circuit's analysis, however. ERISA also contains certain narrow exceptions to its preemption provision, including an exception stating that ERISA does not supersede otherwise applicable provisions of federal law: "Nothing in this subchapter shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States...." (29 U.S.C. § 1144(d).) The appellants in Hydrostorage contended that this exception was relevant, since applying ERISA according to its plain language in preempting state laws relating to apprenticeship would somehow supersede the provisions of the federal Fitzgerald Act, also called the National Apprenticeship Act.
"The Secretary of Labor is authorized and directed to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship, and to cooperate with the Office of Education under the Department of Health, Education, and Welfare in accordance with section 17 of Title 20. [This section (20 U.S.C. § 17), which was repealed in 1966, had provided for a Federal Board for Vocational Education.] For the purposes of this chapter the term 'State' shall include the District of Columbia." (29 U.S.C. § 50.)
The Ninth Circuit rejected any reliance on the general hortatory language of the Fitzgerald Act as setting forth an exception to ERISA preemption for state laws regulating apprenticeship plans, since the Fitzgerald Act directs the federal Secretary of Labor, not the states, to formulate labor standards for apprenticeship:
"The Fitzgerald Act does not articulate a 'goal of encouraging joint state/federal enforcement.' [Quoting Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 102 [103 S.Ct. 2890, 2902, 77 L.Ed.2d 490].] Nor does the Fitzgerald Act contain any clause In Operating Engineers & Participating Employees etc. Fund v. Weiss Bros. Construction Co. (1990) 221 Cal.App.3d 867, 270 Cal.Rptr. 786 (Weiss ), the Third District relied upon Hydrostorage in ruling that ERISA preempted an attempt to enforce California's apprenticeship standards: "[W]e must also conclude, with the Ninth Circuit, that complaints about ERISA's preemptive sweep belong only before Congress." (Id. 221 Cal.App.3d at p. 880, 270 Cal.Rptr. 786.)
More recently, in Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co. (1991) 53 Cal.3d 1041, 282 Cal.Rptr. 277, 811 P.2d 296 (El Capitan ), our own Supreme Court also found that ERISA preempted an analogous California statutory scheme, which allowed employee benefit plans to assert real estate liens against an employer. In so doing, five members of the court endorsed an expansive view of ERISA preemption, which indicates the state law in issue here would likewise be preempted. They concluded the state law was preempted because it "singles out ERISA plans for special treatment." (Id. at p. 1049, 282 Cal.Rptr. 277, 811 P.2d 296.) While Justices Mosk and Broussard dissented, even they acknowledged that ERISA's preemptive sweep is "very broad and encompassing" (id. at p. 1057, 282 Cal.Rptr. 277, 811 P.2d 296 (dis. opn. of Broussard, J.)); and it is possible that even under their analysis the Council's decision in this case would be held preempted. We directed additional briefing in light of El Capitan.
We also received additional briefing in light of a recent federal decision on point, Boise Cascade Corp. v. Peterson (8th Cir.1991) 939 F.2d 632 (Boise Cascade ). In Boise Cascade, the Eighth Circuit followed the Ninth Circuit's ruling in Hydrostorage, and held that a Minnesota law regulating the training of apprentices was preempted by ERISA. Appellants are unable to suggest a reasoned way to distinguish Boise Cascade from our case, and they must necessarily contend the case was simply wrongly decided by the Eighth Circuit. However, Boise Cascade appears to be fully consistent with the plain meaning of the governing language of ERISA.
After these recent authorities, it appears that the Council's decision in this case is also preempted by ERISA. We cannot reconcile the Council's position, that it retains the power under state law to prevent employee benefit plans from providing benefits except pursuant to the Council's regulatory dictates, with the decisions by the Ninth Circuit in Hydrostorage, the Third District in Weiss, and the Eighth Circuit in Boise Cascade which squarely rejected those arguments. Those decisions held that state laws on apprenticeship, and the Council's authority pursuant thereto to prevent apprenticeship programs from varying from its directives, "relate to" employee benefit plans and are not saved from preemption by any relevant exception.
Appellants concede the apprenticeship programs in issue are ERISA plans, but contend ERISA might not preempt state laws here by virtue of the exception to ERISA preemption provided by section 514(d) of ERISA (29 U.S.C. § 1144(d)) and the federal Fitzgerald Act (29 U.S.C. § 50 et seq.). We agree, however, with the Hydrostorage While it is true these recent decisions by our fellow appellate courts are merely persuasive, rather than binding, authority, in order to properly distinguish or disagree with them we would have to return to first principles and rethink the issue of ERISA preemption entirely, adopting an approach at variance with that adopted by almost every court which has addressed the issue. In light of the recent El Capitan decision by our own Supreme Court which has now also acknowledged the preemptive force of ERISA, we cannot and will not do so. Under these authorities, the Council's decision in this case cannot stand.
We note, however, that another decision by the Ninth Circuit--which held a similar Washington state law regulating apprenticeship was preempted by ERISA--has been affirmed summarily by the United States Supreme Court. (Local Union 598 etc. v. J.A. Jones Const. Co. (9th Cir.1988) 846 F.2d 1213, affd. (1988) 488 U.S. 881, 109 S.Ct. 210, 102 L.Ed.2d 202.) It appears that a summary affirmance without a written opinion by the United States Supreme Court, on this question of federal law, could well be binding authority here. (Compare Serrano v. Priest (1971) 5 Cal.3d 584, 616, 96 Cal.Rptr. 601, 487 P.2d 1241 [A summary affirmance of the decision of a three-judge federal district court should not be binding authority, since an affirmance without opinion was merely the functional equivalent of a denial of certiorari.] with Hicks v. Miranda (1975) 422 U.S. 332, 344-345, 95 S.Ct. 2281, 2289-2290, 45 L.Ed.2d 223 [A summary disposition of an appeal by the United States Supreme Court is binding authority: "[T]he lower courts are bound by summary decisions by this Court ' "until such time as the Court informs [them] that [they] are not." ' "].) Since the issue of the binding effect of a summary decision by the United States Supreme Court appears also to be a federal question, Serrano's dicta on this point may be of questionable value. In summary, all relevant authority--persuasive authority dealing with the very California statutory scheme in issue, and apparently binding authority dealing with a similar Washington statute--indicates ERISA preempts state law here.
We acknowledge some reluctance to so hold. First, it may be argued that as a logical consequence of our decision all of California's laws regulating apprenticeship, including the authority of the Chief to approve apprenticeship programs under our state laws, would be preempted also. Although we do not address that issue here, such a result would allow only federal authorities to promulgate standards for apprenticeship programs, and strip the Division of Apprenticeship Standards of any function, except insofar as it may advise upon and enforce applicable federal laws and regulations. (See, e.g., 29 C.F.R. §§ 29.11 [allowing state authorities, such as the Chief, to hear complaints brought by apprentices concerning their apprenticeship agreements]; and 29.12 [recognizing state agencies' authority, under certain circumstances, to determine whether an apprenticeship program meets the requirements of federal law]; cf. also Electrical Joint Apprenticeship Com. v. MacDonald (9th Cir.) 949 F.2d 270 ["The only State regulation of apprenticeship programs permitted by ERISA is in the application of the standards of the [federal] regulations...."].) Congress may, of course, amend ERISA if this result is, as we suspect, unintended. However, we also join the other courts which have addressed this issue in indicating that, in light of the plain meaning of the language of ERISA and its consistent application by the courts for many years, any such solution lies squarely within the competence of Congress, not this court.
D. The Merits of Competition
We need not rely solely on ERISA preemption, however, in this particular case. Assuming arguendo that the Council To the contrary, it is clear at the very least, after the 1976 and 1984 amendments, that the relevant state law, properly interpreted, intends to encourage the wider provision of apprenticeship benefits, wherever there is a "need[ ]" for them. (§ 3075.) Neither the Council nor the existing programs seriously challenges the Chief's determination that there is a great unmet need for these benefits in the areas in issue here. Neither do they challenge the Chief's conclusion that this need cannot be met by the small existing programs affiliated with unions. It is completely inconsistent with the statute to allow the Council to deny apprenticeship benefits where there is a need for them, merely because the new programs might compete with existing programs and pay lower, non-union scale wages. The state law remains neutral as between union or non-union plans; it looks to a societal need and does not purport to insert itself into the conflicts between unions and employers.
We also reject the existing programs' claim, which was rejected by the trial court, the Chief, and even the Council, that the wages to be paid by the new programs, as modified in light of these proceedings, are so low as to violate applicable state law as expressed in California Code of Regulations, title 8, section 208. There is substantial evidence to support the administrative decision to the contrary, and no persuasive evidence in favor of this contention.
Further, even if we were to assume the state law was somehow intended to protect the existing programs from harmful competition, the trial court correctly found there was no substantial evidence before the Council in support of the contention that the existing programs, which worked on union projects, would in fact be harmed by competition from new programs who worked only on non-union projects.
It is true two directors of existing programs, who lacked any demonstrated expertise in economic analysis and were not competent witnesses on the point, opined in a general way that they did not know for sure, but felt their programs might be hurt in the future by competition from the new programs. However, as the trial court correctly concluded, this incompetent lay testimony--vague expression of opinions regarding a fear of future competition from interested witnesses--was not substantial evidence in support of a conclusion which, if it could be established at all, would have required competent expert testimony. (See, e.g., People v. McAlpin (1991) 53 Cal.3d 1289, 1308, 283 Cal.Rptr. 382, 812 P.2d 563 ["[W]hen a lay witness offers an opinion that goes beyond the facts he personally observed, it is held inadmissible."]; White v. State of California (1971) 21 Cal.App.3d 738, 758-762, 99 Cal.Rptr. 58 [Division One of this district, per Justice Elkington, held here that the vague and incompetent testimony of two witnesses did not constitute substantial evidence.].) Although the trial court suggested that on remand the parties or Council might seek to obtain such additional evidence from experts, none was ever introduced in subsequent proceedings.
We conclude with the observation that even if the Council's decision were not preempted by ERISA, and even if the Council could be allowed to ignore an existing need for apprenticeship programs, there was no substantial, competent evidence in support of the Council's decision, as the trial court aptly observed. III. DISPOSITION
The trial court's decision is affirmed. Each party shall bear its own costs.
SMITH, Acting P.J., and BENSON, J., concur.