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City of San Jose v. Operating Engineers Local Union No. 3

July 1, 2010


Ct.App. 6 H030272 Santa Clara County Super. Ct. No. CV064707 Kevin J. Murphy.

The opinion of the court was delivered by: Kennard, J.

In California, labor relations between most local public entities and their employees are governed by the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.), which recognizes the right of public employees to bargain collectively with their employers over wages and other terms of employment. The administrative agency authorized to adjudicate unfair labor practice charges under the MMBA is the California Public Employment Relations Board (PERB). Subject to certain exceptions, local public agencies and their employees must exhaust their administrative remedies under the MMBA by applying to PERB for relief before they can ask a court to intervene in a labor dispute.

California allows public employees to go on strike to enforce their collective bargaining demands unless the striking employees perform jobs that are essential to public welfare. But whether a particular employee's job is so essential that the employee may not legally strike is a complex and fact-intensive matter, and one on which public employee organizations and public entities may disagree.

Here, we address this issue: If a public entity is of the view that a threatened strike by its employees will be unlawful because a strike by some or all of the employees creates a substantial and imminent threat to public health and safety, must the public entity first file an unfair labor practice complaint with PERB and await PERB's adjudication of the complaint before asking a court for an injunction prohibiting the strike?

We agree with the Court of Appeal that PERB has initial jurisdiction over a claim by a public entity that a strike by some or all of its employees is illegal. In addition, we conclude that a public entity must exhaust its administrative remedies before PERB before seeking judicial relief unless one of the recognized exceptions to the exhaustion of administrative remedies requirement is established.


In January 2006, plaintiff City of San Jose (City) and defendant Operating Engineers Local Union No. 3 (Union), which represented some 808 full-time employees of the City, started negotiating a new labor contract. The old contract was to expire on April 14, 2006. The parties agreed that if their negotiations reached an impasse, the Union would give the City 72 hours' notice before engaging in any work stoppages. The Union did so on May 30, 2006, when it notified the City that work stoppages could occur any time after June 2. The City responded that it would by June 2 seek a court order prohibiting any strike or work stoppage by Union members performing services essential to public health and safety.

On May 31, 2006, the Union filed with PERB an unfair labor practice charge against the City. The Union alleged that the City's threatened court action interfered with the Union's right to represent its members, interfered with the rights of its members to participate in activities of an employee organization, and breached the City's obligation to meet and confer with the Union in good faith.

On June 1, 2006, the City filed a complaint in the superior court seeking to enjoin 110 employees (identified by name and employment position) from engaging in any work stoppage, as such action would endanger public health and safety. Specifically, the complaint alleged that such work stoppage would: (1) disrupt the City's environmental service department's operation and maintenance of the San Jose/Santa Clara Water Pollution Control Plant, which treats waste and sewage water of some 1.3 million people before discharge into San Francisco Bay; (2) impair the ability of the City's department of transportation to maintain and repair traffic signals and streetlight poles; and (3) impair the ability of the City's general services department to adequately service facilities that support communications among emergency personnel, such as the police and fire departments.

The Union opposed the City's request for injunctive relief, as did PERB. In denying relief, the superior court pointed to the City's failure to exhaust administrative remedies by not first seeking relief from PERB, which the court ruled had exclusive initial jurisdiction over the matter.

The City filed a notice of appeal, and it petitioned the Court of Appeal for a writ of supersedeas. That court issued a stay prohibiting a strike by the 59 employees identified in the City's petition.*fn1

When the Court of Appeal learned that the parties had in November 2006 ratified a labor agreement, it deemed the appeal to be moot but, at the urging of both parties, nevertheless addressed the issues presented because of their statewide importance. Agreeing with the trial court, the Court of Appeal concluded that PERB "has exclusive initial jurisdiction to determine whether particular public employees covered by the MMBA have the right to strike in cases that implicate the MMBA." We granted the City's petition for review.*fn2


When a public employer is of the view that a threatened strike by certain public employees will endanger the public welfare, must it generally first seek relief from PERB before asking a superior court for injunctive relief? Our answer is "yes." This is why: The Legislature has expressly vested in PERB initial jurisdiction over claims of unfair labor practices arising under the MMBA. (Gov. Code, ยง 3509.) Because a public entity's claim that a threatened public employee strike is illegal generally constitutes an unfair labor practice claim, the claim comes within PERB's initial jurisdiction. We begin our analysis by reviewing ...

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