California court deals blow to open-shop apprenticeship

BY ROBERT P. MADER Of CONTRACTORs staff SACRAMENTO, CALIF. A California court has dealt a blow to an open-shop apprenticeship program run by the California Plumbing-Heating-Cooling Contractors. The court ruled that the California Apprenticeship Council had not followed its own rules when it approved expansion of the open-shop program statewide in 1998. The PHCC program was approved as a state-recognized

BY ROBERT P. MADER

Of CONTRACTOR’s staff

SACRAMENTO, CALIF. — A California court has dealt a blow to an open-shop apprenticeship program run by the California Plumbing-Heating-Cooling Contractors. The court ruled that the California Apprenticeship Council had not followed its own rules when it approved expansion of the open-shop program statewide in 1998.

The PHCC program was approved as a state-recognized apprenticeship program in Sacramento County in 1994. The ruling in Sacramento County Superior Court only affects the expansion of the program outside Sacramento County.

California PHCC will continue to run the program, said the group’s executive vice president, Steve Lehtonen, but its students will not be recognized by the state as apprentices. They will technically be “trainees.” The programs also lose state education funding. The students will not be allowed to work on public works projects.

The pipe trades unions are trying to protect their hold on large mechanical work and public works projects, Lehtonen said, although that’s not an issue with PHCC. Lehtonen said he believes more training should focus on residential service and repair work.

After the expansion of the PHCC program was approved in 1998, one of unions filed suit. The court told the union that it could not sue because it had not exhausted its administrative remedies, Lehtonen explained. The union opted not to file a complaint with the California Apprenticeship Council during the Republican administration of Gov. Pete Wilson. After the election of Democrat Gray Davis, the union filed a complaint with the California Apprenticeship Council, arguing that the statewide approval didn’t follow statutory procedural requirements that existing programs had to have opportunity to comment on whether a new apprenticeship program is needed. The apprenticeship council agreed and the Sacramento County Superior Court upheld that decision.

“What’s up for debate here is that you don’t decide whether an apprentice program is needed in an area based on what contractors and the people who want an education say, but based on whether an existing program feels it would be unfair competition,” Lehtonen said.

California law requires the Division of Apprenticeship Standards to survey existing apprenticeship programs to see if there’s a need for new ones, explained Trish Black, apprenticeship administrator for the Plumbers Unilateral Apprenticeship Committee. It failed to do so, Black said, and PHCC lost on that technicality.

The Division of Apprenticeship Standards would ask existing union programs if another apprenticeship program is needed and, of course, they would say no. That assertion would be untrue, however, Black said, because 82% of the construction industry in California is non-union.

California’s “needs policy,” which only affects construction apprenticeship, has put the state in hot water with the U.S. Department of Labor. The Bureau of Apprenticeship Training believes the policy violates federal law.

Federal apprenticeship law was amended in 1977 to allow states to run apprenticeship programs. Twenty-seven states, including California, opted to run state apprenticeship councils.

On May 10, 2002, the Labor Department initiated action to “de-recognize” the California Apprenticeship Council and to take over the state’s apprenticeship programs.

The Labor Department notified the California Department of Industrial Relations that it intended to de-recognize the state. The Industrial Relations Department responded by asking for a hearing before an administrative law judge, who has been assigned to the case. When and where he will hold hearings has not been determined.

The PHCC program runs 13 schools, educating more than 400 students, said Gary Risse of Risse Mechanical in Rio Linda. He is chairman of the Plumbers Unilateral Apprenticeship Committee.

“We lost basically because we followed the directions of state officials who approved the program,” Risse said. “But we have a great program and we will continue to try to make it the best one in the state. We’ve met a great need of the merit shop industry in the state of California and promoted the growth of contractors. Merit shop contractors do over 80% of the work in the state of California and all contractors know we are only as good as our workers. This decision will only make us band together and make us stronger than before.”

Black said that the Plumbers Unilateral Apprenticeship Committee would reapply for approval by the state “and hope this time the Division of Apprenticeship Standards processes it correctly.” The Plumbers Unilateral Apprenticeship Committee will also ask the Labor Department for federal recognition, she said.