In County of Contra Costa v. Public Employees Union Local One, (— Cal.Rptr.3d —, 2008 WL 2136950, Cal.App. 1 Dist., May 22, 2008), a California Court of Appeal considered whether the Public Employment Relations Board (“PERB”) has exclusive initial jurisdiction “over whether certain essential employees may be prevented from participating in a strike.” The Court of Appeal held that “PERB does not have initial exclusive jurisdiction over whether a strike by essential employees poses an imminent threat to public health and safety” and consequently whether such employees are prevented from participating in a strike.
The County of Contra Costa ("County") filed a complaint against several public employee unions in June 2006 seeking to enjoin 270 employees from participating in a strike because it claimed that the participation of these "employees in the strike would create a substantial and imminent threat to public safety." County also asked the trial court to enjoin all members of a nurses' union from participating in a "sympathy strike." The trial court issued a temporary restraining order ("TRO") which enjoined 160 employees from striking including probation counselors, various hospital workers, airport operations specialists, and animal shelter workers. The court also enjoined nurses from engaging in a sympathy strike.
The PERB intervened in County's action asserting that it has exclusive jurisdiction over the issue before the trial court because "the unions' proposed strike 'is arguably protected or prohibited'" by the Meyers-Milias-Brown Act ("MMBA"). The MMBA "applies to local government agencies and their employees." The PERB is a state agency that is "charged with resolving disputes and enforcing statutes that pertain to several categories of public employees" including those covered by the MMBA. The trial court ruled that the PERB did not have exclusive jurisdiction and that the MMBA did not apply to County's complaint. The PERB and Public Employees Union Local One ("Union") appealed.
On appeal, the PERB and Union did not dispute the trial court’s finding that the employees at issue were essential to maintaining public health and safety but instead disputed that the PERB did not have exclusive jurisdiction over the issue. The Court of Appeal affirmed the trial court’s decision that the PERB did not have exclusive jurisdiction.
The employees at issue here and County are subject to the MMBA which governs employer-employee relations and collective bargaining for most local public entities in California, including counties, cities, and special districts. An employee association could bring an action in superior court to assert a violation of the MMBA before July 1, 2001. However, effective July 1, 2001, the California Legislature vested PERB “with exclusive jurisdiction over alleged violations of the MMBA.” Under Government Code section 3509, PERB has exclusive jurisdiction to make an initial determination as to whether an unfair practice charge is justified. An employee organization commits an unfair practice under the MMBA if it causes or attempts “to cause a public agency to engage in conduct prohibited by the MMBA;” interferes with, intimidates, coerces, or discriminates “against public employees because of their exercise of the right to join or abstain from joining labor organizations;” refuses or fails “to meet and confer in good faith;” fails “to exercise good faith while participating in any impasse procedure;” or “in any other way” violates the MMBA.
County argued that the PERB did not have jurisdiction here because County had not alleged any unfair practices under the MMBA and that it was not required to go to the PERB before going to the court to obtain orders to protect the public from imminent threats to health and safety. The court cited County Sanitation District No. 2 v. Los Angeles County Employees’ Association, (1985) 38 Cal.3d 564, in which the Supreme Court held “strikes by public sector employees in this state are neither illegal nor tortious under California common law.” The Supreme Court, however, “gave public entities the right to go to court to request an injunction based on a showing that the strike would have a detrimental impact on public health and safety.” A court then must “determine on a case-by-case basis whether the public interest overrides the basic right to strike.”
Union and the PERB asserted that the County Sanitation holding no longer applies after the legislative changes in 2001 when the PERB obtained jurisdiction over the MMBA. The Court of Appeal disagreed. It found that there was no indication “that any party to this case has committed, or threatened to commit, an unlawful labor practice.” No cases since County Sanitation have addressed the issue of “whether an otherwise lawful strike may be enjoined on the grounds that it presents a substantial and imminent threat to public health and safety.” The court stated, “the PERB does not have initial exclusive jurisdiction over whether a strike by essential employees poses an imminent threat to public health and safety.” “In the absence of any indication that the employees the County was seeking to prevent from striking were committing an unfair practice, or that the County was committing an unfair practice by seeking the injunction, the MMBA was not implicated and the PERB had no jurisdiction over the complaint.” The court found that it was not persuaded that the Legislature intended to take away the courts’ authority to hear matter falling under the holding of County Sanitation.
The Court of Appeal noted that a Court of Appeal in another district reached the opposite conclusion in City of San Jose v. Operating Engineers Local Union No. 3, (2008) 160 Cal.App.4th 951. A petition for review has already been filed in that case. The Court of Appeal here urged the Supreme Court to resolve the issue involving the PERB’s jurisdiction.