Court: PERB Does Not Have Exclusive Jurisdiction Over Essential Employee Strikes

Contra Costa Co. v. Public Employees Union Local One (— Cal.Rptr.3d —, 2008 WL 2136950 (Cal.App. 1 Dist.)

In response to a threatened strike by public employees, the County of Contra Costa (County) sought a court injunction prohibiting “essential” employees from participating in any strike. Of the 5800 employees threatening to strike, the County argued that 270 employees were essential to maintaining public health and safety. PERB intervened in the court proceedings to assert that it had exclusive initial jurisdiction over the dispute since any strike would arguably be protected or prohibited by the Meyers-Milias-Brown Act (MMBA).

Finding that the MMBA was not implicated by the County’s application for an injunction, the court rejected PERB’s attempt to assert jurisdiction. The court similarly rejected the unions’ assertion that it could not issue an injunction without complying with Labor Code 1138—California’s version of the Norris-LaGuardia Act. The court then issued a temporary restraining order (TRO) enjoining 160 employees from striking because they were essential to maintaining public health and safety. The enjoined employees included airport operations specialists, animal services workers, probation counselors, and various County hospital workers. The court also issued a TRO forbidding nurses from engaging in a sympathy strike.

THE COURT OF APPEAL’S DECISION

PERB Does Not Have Exclusive Jurisdiction over All Strike Issues

The Court of Appeals, First Appellate District affirmed the trial court’s ruling that PERB did not have jurisdiction over this dispute. The court acknowledged that because of legislative changes in 2001, “PERB now has jurisdiction over strikes under the MMBA insofar as the strikes constitute unfair labor practices.” However, the court noted that neither the courts nor PERB has ever held that all strikes implicate unfair labor practices.

Examining the facts in this case, the court found no allegation that either party had committed an unfair practice. Because no unfair practice was alleged, the court distinguished several other cases arising under EERA. Those cases all held that PERB has exclusive jurisdiction over requests for injunctive relief; but those cases all involved situations where unfair practice charges had already been filed with PERB.

The court also discussed the Sixth District Court of Appeals’ recent decision in City of San Jose (160 Cal.App.4th 951 (2008)). In City of San Jose, the court reached the opposite conclusion as the court here, finding that PERB has exclusive jurisdiction over essential employees’ strikes. The court here called the City of San Jose decision overbroad as it would give PERB jurisdiction over every public employee strike, thus eviscerating the rights of public employers under County of Sanitation.

Labor Code Section 1138 Does Not Apply to Public Safety Injunctions

Finally, the court affirmed the trial court’s ruling that Labor Code section 1138 was not applicable to this dispute. In evaluating the applicability of Labor Code section 1138, the court noted that several of the factors in the statute made no sense in the context of a public employee strike. For example, one requirement is that there is a showing of substantial and irreparable injury to a party’s “property.” The court noted that there is no property at stake here, but rather the public’s health and safety. After examining some of the other factors, the court concluded that Labor Code section 1138.1 was not applicable here because the present case does not involve an unfair labor practice and arguably is not one “involving or growing out of a labor dispute.” The court stopped short, however, of expressly holding that Labor Code section 1138 does not apply to public entities or public employees.

Comments

The court in this case reached the opposite conclusion as the one in City of San Jose . Because there is now a split of authority over this issue, look to the Supreme Court to grant review of one of these cases in order to resolve the dispute

In the meantime, a public employer facing a strike by essential employees must carefully evaluate its options. If the employer decides to seek injunction relief through PERB—by alleging an unfair practice—this case suggests that there is a higher likelihood that PERB will have exclusive jurisdiction over the dispute.

A public employer that decides to proceed directly to court under County of Sanitation may assert the same arguments as Contra Costa County in this case and hope that the court will reach the same conclusion. However, public employers that proceed in this fashion should expect an attempt by PERB to intervene in any court proceedings in order to assert its “exclusive jurisdiction.”