The opinion
KAUFMAN, J.
I dissent.
I agree with several of appellant’s contentions each of which invalidates the commission’s orders.
Statement of Basis
Labor Code section 1177 mandates: “Each order of the commission shall include a statement as to the basis upon which the order is predicated . . . . ” As the majority note, the Supreme Court in California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 210-211 [ 157 Cal.Rptr. 840 , 599 P.2d 31 ], pointed out several functions to be served by the statement of basis, including facilitating meaningful judicial review of agency action; enabling more informed scrutiny by the Legislature and the public of the agency, its decision-making processes and its decisions; and inducing agency action that is reasonable, rather than arbitrary, capricious or lacking in evidentiary support. To perform these functions the statement of basis “must show that the order adopted is reasonably supported by the material gathered by or presented to the commission—through its own investigations, the wage *128 board proceedings, and the public hearings—and is reasonably related to the purposes of the enabling statute.” (California Hotel & Motel Assn. v. Industrial Welfare Com., supra, 25 Cal.3d at p. 213 , fn. omitted.) Statements such as have been made in the case at bench consisting primarily of unsupported conclusions and generalizations made post facto serve none of these purposes. Having been made after the fact such statements of basis had nothing to do with promoting reasonable agency action, and inasmuch as they constitute rationalizations for agency actions rather than the true bases of decision, such statements are of little value to a reviewing court nor do they promote informed scrutiny of agency action by the Legislature and the public.
The answer of the majority to appellant’s contention that the statements of basis lack reference to the facts is that “[t]he commission, having been relieved of the obligation of meeting any separate requirement, under [Lab. Code] section 1178, that the commission ‘investigate and find’ that wages, hours, or working conditions were inadequate or prejudicial [by the Supreme Court in California Hotel & Motel Assn. v. Industrial Welfare Com., supra, 25 Cal.3d at p. 209 ], may not then be required to set forth findings based upon such a separate investigation.” (Ante, p. —.) Even if that be so, however, the statements of basis were nevertheless required to “show that the order adopted is reasonably supported by the material... presented to the commission... through.. .the wage board proceedings, and the public hearings.. ..” (California Hotel & Motel Assn. v. Industrial Welfare Com., supra, 25 Cal.3d at p. 213.) The court in California Hotel & Motel Assn. v. Industrial Welfare Com., supra, could not have intended to eliminate the requirement for reference to the pertinent facts in the statement of basis, for although it held that “three legislative pronouncements together relieved the commission, in the present instance, of meeting any separate requirement under section 1178 that the commission ‘investigate and find,’” it nevertheless also held that the statement of basis was inadequate, in part because of its failure to include and deal with the pertinent facts. (See 25 Cal.3d at p. 215 [e.g., “The commission did not explain how it distinguished adequate from inadequate collective bargaining agreements.”])
In my view the statements of basis are inadequate to serve the purposes enumerated and to meet the standards set forth in California Hotel & Motel Assn. v. Industrial Welfare Com., supra, 25 Cal.3d 200 .
*129 Labor Code Section 1173— Consultation With Cal/OSHA
Section 1173 of the Labor Code provides in pertinent part: “Before adopting any new rules, regulations, or policies, the commission shall consult with the Industrial Safety Board to determine those areas and subject matters where the respective jurisdiction of the commission and the Industrial Safety Board overlap. In the case of such overlapping jurisdiction, the Industrial Safety Board shall have exclusive jurisdiction, and rules, regulations, or policies of the commission on the same subject have no force or effect.” (Italics added.)
The duty of the commission to consult with the California Occupational Safety and Health Standards Board (Safety Board) to determine areas in which there is overlap and with respect to which, therefore, the jurisdiction of the Safety Board is exclusive (Lab. Code, §§ 142.3, 1173), may not be delegated by the commission to its staff. (Henning v. Industrial Welfare Commission of State of California (1975) 76 Lab. Cas. (CCH) ¶ 53,639 , 22 Wage Hour Cas. 225, 227.)
The record in the case at bench discloses without contradiction that there was one meeting between the commission and the Safety Board on December 9, 1975. At the meeting the consulting parties were given the misguided advice that they could delegate to their staffs the function of ascertaining and defining those areas in which there was a conflict in jurisdiction. The commission and the board made no determination of the areas of potential conflicting jurisdiction; that statutory duty was left entirely to the staffs.
Even if it could be said that the commission and the board attempted to define the areas of potential jurisdictional conflict, an improper standard was employed. The minutes make abundantly clear that it was the commission’s view that it was free to promulgate regulations in any area not yet regulated by the Safety Board regardless of whether or not that area fell within the Safety Board’s jurisdiction. After the December 9, 1975, meeting jurisdictional conflict issues were resolved by the commission’s staff forwarding proposed orders to the staff of the Safety Board. If the Safety Board’s staff had no objection to the proposed order, the commission was free to implement it. A memorandum dated March 8, 1976, outlines the procedure: “In any area where IWC feels that a proposed regulation covering working conditions may overlap with the safety or health jurisdiction of Cal/OSHA, IWC should sim *130 ply send a draft of the proposed regulation to Mr. Rinaldi. He will promptly notify IWC if their proposal is in conflict with an existing standard or a standard which is in process of development. [¶]. . . The IWC should feel free to promulgate regulations where Cal/OSHA has no proposed or existing standards. . . . ”
The “construction” of Labor Code section 1173 in Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 719-725 [ 166 Cal.Rptr. 331 , 613 P.2d 579 ], to mean that the Industrial Welfare Commission can regulate where Cal/OSHA has not promulgated a conflicting regulation is not yet final, and, hopefully, will be changed before finality. It flies in the face of the very plain language of the statute and constitutes a blatant legislative revision by the court. At the time of the September 9, 1975, meeting, the Safety Board already had regulations covering rest periods, dressing rooms, drinking and washing facilities, lighting, ventilators and elevators. Although admittedly the problem is a perplexing one, in my view there is no question but that many provisions of the commission’s orders relate to matters within the exclusive jurisdiction of the Safety Board. The problem was created by the Legislature, and I think it should be left to the Legislature to resolve.
Conclusion
I would reverse the judgment.
A petition for a rehearing was denied August 15, 1980.