The opinion
SULLIVAN, J., * Concurring and Dissenting.
I agree generally with the majority that the decision of the general counsel of the Agricultural Labor Relations Board not to issue complaints against real parly in interest is not judicially reviewable under Labor Code section 1160.8. Consequently, these proceedings to review the general counsel’s decision should be dismissed.
That should be the end of the matter. It should not be lost sight of that after a denial without opinion by the Court of Appeal for the Fifth Appellate District of the instant petition for a writ of review, this court granted a hearing and ordered issuance of a writ of review. Pursuant to the writ a “Certified Administrative Record” was brought up and filed with us. Presumably the majority, after an examination of the record, are satisfied that the general counsel acted properly in refusing to issue complaints. Having reached this conclusion, the majority, instead of dismissing the proceedings, pursue the matter further and in the final sentence of their opinion attempt to transmogrify a special statutory proceeding in review into an extraordinary writ proceeding in mandamus.
With all due respect to my colleagues, I cannot join them in this disposition of the case or concur in the remaining portions of the opinion upon which they seek to ground this result. Although the majority opinion cites a number of federal cases (ante, pp. 556-557) professedly in support of the proposition that a decision of the general counsel is reviewable by a writ of mandate, it offers no analysis or explanation showing how these decisions, which are not in point, provide a basis under California law for the issuance of a writ of mandate by a California appellate tribunal in situations like the present one. One might reasonably expect that if the position of the majority opinion were a sound one, the opinion would have encountered no difficulty in finding ample
*561 support in the California statutory scheme (Code Civ. Proc., §§ 1084-1097) and in the wealth of California case law on the subject, to the end of demonstrating that a writ of mandate (which was never sought in the instant petition) would properly he in the present circumstances. Nevertheless, while positing the extension of the writ to the present case the majority opinion remains surprisingly silent concerning California law. Indeed the majority seem content with the single case of Hollman v. Warren (1948) 32 Cal.2d 351 [ 196 P.2d 562 ] (ante, p. 559) cited for the proposition that “In California mandamus is available to compel an official to exercise his discretion when his refusal is based on an erroneous view of the power vested in him.” (Ante, p. 559.) Clearly Hollman is not applicable here, since the general counsel did exercise his discretion by refusing to issue the complaints.
I would dismiss the instant proceedings.
The petition of the real party in interest for a rehearing was denied September 20, 1978, Bird, C. J., did not participate therein.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.