Stanford Law School - Robert Crown Law Library

Filed 7/1/10

IN THE SUPREME COURT OF CALIFORNIA

CITY OF SAN JOSE,
Plaintiff and Appellant,
S162647
v.
Ct.App. 6 H030272
OPERATING ENGINEERS LOCAL
UNION NO. 3 et al.,
Santa Clara County
Defendants and Respondents. )
Super. Ct. No. CV064707

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.
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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.
I
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.
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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.1
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

1
The record before us contains no explanation why, after identifying in the
trial court 110 employees whose services were alleged to be essential to public
health and safety, the City‟s writ petition in the Court of Appeal put the number of
such employees at 59.
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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.2
II
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, § 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 the
history of local public employment labor law in California, particularly as it has
affected PERB‟s jurisdiction and the right of public employees to strike.
A. PERB Jurisdiction and Public Employee Strikes
In 1961, the Legislature enacted the George Brown Act (Stats. 1961, ch.
1964, § 1, pp. 4141-4143, adding Gov. Code, § 3500 et seq.), which granted public
employees in California the right to organize and have their representatives “meet
and confer” with their employers over wages and working conditions (Gov. Code,
former § 3505). That right was expanded in 1968, when the Legislature enacted
the MMBA (Gov. Code, §§ 3500-3510) authorizing public entities and labor

2
In the Court of Appeal, PERB filed a friend-of-the-court brief in support of
the Union. But it did not do so in this court. In response to our invitation to file a
friend-of-the-court brief, PERB stated that it would not do so for “reasons that
include diminished resources” and because of its preference to maintain “a neutral
role in the current litigation.”
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representatives not only to confer but also to reach binding agreements on wages,
hours, and working conditions. (Gov. Code, § 3505; Coachella Valley Mosquito
& Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35
Cal.4th 1072, 1083 (Coachella Valley).) At that time, PERB had not yet been
created.
The history of PERB begins in 1975, when the Legislature enacted the
Educational Employment Relations Act (EERA) (Gov. Code, §§ 3540-3549.3).
That law established the Educational Employment Relations Board (EERB),
which in 1977 was renamed the Public Employment Relations Board. (Coachella
Valley, supra, 35 Cal.4th at p. 1085.) As an administrative agency, PERB was to
adjudicate unfair labor practice charges under the EERA, and its jurisdiction was
set forth in Government Code section 3541.5. That statute provided and still
provides, in part: “The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction of the
board.” (Italics added.)
We discussed Government Code section 3541.5 first in San Diego Teachers
Assn. v. Superior Court (1979) 24 Cal.3d 1 (San Diego Teachers) and later in El
Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946 (El
Rancho). In each case, we held that PERB had exclusive initial jurisdiction over
public employee strikes, as explained below.
In San Diego Teachers, supra, 24 Cal.3d 1, unfair labor practice charges
were pending before PERB when a superior court enjoined a teacher‟s association
from striking and further held the association and its president in contempt for
violating the injunction. We annulled the contempt orders “on the ground that
PERB had exclusive initial jurisdiction to determine whether the strike was an
unfair practice . . . .” (Id. at p. 14.)
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In El Rancho, supra, 33 Cal.3d 946, this court held that the statutory grant
to PERB of exclusive initial jurisdiction over unfair labor practice charges under
the EERA divested the superior courts of jurisdiction over a school district‟s
complaint for damages arising from a teachers‟ strike. (El Rancho, at p. 961.) We
noted that some four years earlier this court in San Diego Teachers, supra, 24
Cal.3d at page 12, had “embraced the preemption doctrine developed by the
federal courts under the National Labor Relations Act (29 U.S.C. § 151 et seq.
[NLRA]),” and “that the principles defining the preemptive reach of the NLRA are
generally applicable in determining the scope of PERB‟s preemptive jurisdiction
under EERA.” (El Rancho, supra, 33 Cal.3d at p. 953.) Accordingly, citing San
Diego Unions v. Garmon (1959) 359 U.S. 236, 244-245, we applied to PERB the
same rule of jurisdiction that the United States Supreme Court had adopted with
respect to the National Labor Relations Board. Under that rule, the administrative
agency “is held to have exclusive jurisdiction over activities arguably protected or
prohibited by” the governing labor law statutes. (El Rancho, supra, at p. 953.)
Neither San Diego Teachers, supra, 24 Cal.3d 1, nor El Rancho, supra, 33
Cal.3d 946, addressed whether public employees have a legal right to strike. And
both the EERA and the MMBA are silent on this subject. But in 1985 we did take
up that question in County Sanitation Dist. No. 2 v. Los Angeles County
Employees’ Assn. (1985) 38 Cal.3d 564 (County Sanitation). There we held:
“[S]trikes by public employees are not unlawful at common law unless or until it
is clearly demonstrated that such a strike creates a substantial and imminent threat
to the health or safety of the public. This standard allows exceptions in certain
essential areas of public employment (e.g., the prohibition against firefighters and
law enforcement personnel) and also requires the courts to determine on a case-by-
case basis whether the public interest overrides the basic right to strike.” (Id. at
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p. 586.) Thus, County Sanitation vested the courts with jurisdiction to decide
whether to allow or to prohibit a particular public employee strike.
In 2000, the Legislature extended PERB‟s jurisdiction to cover matters
arising under the MMBA — this was done through enactment of Government
Code section 3509, which became effective July 1, 2001. (Stats. 2000, ch. 901,
§ 8.) Subdivision (b) of that statute provides in relevant part: “A complaint
alleging any violation of [the MMBA] . . . shall be processed as an unfair practice
charge by [PERB]. The initial determination as to whether the charge of unfair
practice is justified and, if so, the appropriate remedy necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction of
[PERB].” (Italics added.) This enactment removed “from the courts their initial
jurisdiction over MMBA unfair practice charges” (Coachella Valley, supra, 35
Cal.4th at p. 1089) and vested such jurisdiction in PERB (id. at p. 1077). Does
this enactment also vest PERB with exclusive initial jurisdiction over public
employee strikes that may involve claims of unfair labor practices under the
MMBA? Our answer is “yes,” as explained below.
B. Initial Jurisdiction over Public Employee Strikes
The City contends that because the right of public employees to strike is
founded in the common law, the statute vesting initial jurisdiction in PERB for
claims of unfair practices arising under the MMBA (Gov. Code, § 3509, subd. (b))
is inapplicable to public employee strikes. We disagree. As we will explain, to
accept the City‟s argument would be at odds with the body of public employment
labor law as it has developed in California.
The language in Government Code section 3509, subdivision (b), which is
part of the MMBA, is virtually identical to the language in Government Code
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section 3541.5, which is part of the EERA.3 Both statutory provisions expressly
vest in the administrative board exclusive initial jurisdiction over unfair labor
practice charges. And with respect to the MMBA, in section 3541.5, this court in
San Diego Teachers, supra, 24 Cal.3d at pages 12-14, held this provision vests in
PERB “exclusive initial jurisdiction” to decide whether a strike is an unfair
practice and, if so, to determine the appropriate remedy.
Because of the similar language in these two jurisdictional statutes, and
because of the legal presumption that the Legislature is deemed to be aware of
existing judicial decisions that have a direct bearing on the particular legislation
enacted (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155-
1156; People v. Overstreet (1986) 42 Cal.3d 891, 897; Estate of McDill (1975) 14
Cal.3d 831, 837), we conclude that when in 2000 the Legislature transferred
jurisdiction over the MMBA from the courts to PERB it did so in light of this
court‟s existing case law. Those court decisions established: Public employees
have a right to strike unless it is clearly shown that there is a substantial and
imminent threat to public health and safety (County Sanitation, supra, 38 Cal.3d at
p. 586); PERB has exclusive initial jurisdiction over activities “arguably protected

3
Government Code section 3541.5, which appears in the EERA, states in
relevant part: “The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction of the
board.” (Italics added.)

Government Code section 3509, subdivision (b), which the Legislature
added to the MMBA after this court‟s decision in County Sanitation, supra, 38
Cal.3d 564, recognizing the right of public employees to strike, states in pertinent
part, as noted above: “The initial determination as to whether the charge of unfair
practice is justified, and, if so, the appropriate remedy necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction of the
board.” (Italics added.)
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or prohibited” by public employment labor law (El Rancho, supra, 33 Cal.3d at
p. 953; see San Diego Teachers, supra, 24 Cal.3d at p. 12); and PERB‟s exclusive
initial jurisdiction extends to remedies for strikes considered to be unfair labor
practices (San Diego Teachers, supra, at pp. 12, 14).
The City insists, however, that this body of decisional law is inapplicable in
this case, which arises under the MMBA, because no provision of the MMBA
either “arguably protect[s] or prohibit[s]” (El Rancho, supra, 33 Cal.3d at p. 953)
threatened strikes by employees whose services are essential to public health and
safety. The City‟s argument runs counter to this court‟s decisions in San Diego
Teachers, supra, 24 Cal.3d 1, and in El Rancho, supra, 33 Cal.3d 946. Both were
decided before the right of public employees to strike was established in this
court‟s decision in County Sanitation, supra, 38 Cal.3d 564, and both involved the
EERA, a statutory scheme that like the MMBA generally prohibits unfair labor
practices but does not expressly either protect or prohibit public employee strikes.
In San Diego Teachers, this court invalidated contempt orders arising out of an
injunction against a strike by a teachers‟ association; we did so on the ground that
PERB had exclusive initial jurisdiction over the matter. (24 Cal.3d at p. 14.) And
in El Rancho, this court held that a complaint for damages arising out of a strike
by a teachers‟ union was within PERB‟s exclusive initial jurisdiction over unfair
labor practice charges. (33 Cal.3d at p. 960.) The holdings in those two cases
would have been precluded if, as the City here contends, express statutory
protection or prohibition of public employee strikes is a requirement of PERB‟s
jurisdiction over those strikes.
The City notes that under the “arguably protected or prohibited” principle
(El Rancho, supra, 33 Cal.3d at p. 953), “all claims in which a strike is involved
may hypothetically implicate some provision of the MMBA [] enough to invoke
PERB‟s jurisdiction.” As the Court of Appeal observed, however, PERB‟s
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jurisdiction extends only to complaints about practices governed by the
Government Code‟s MMBA. (Gov. Code, § 3509, subd. (b).)
The City contends that regardless of whether a public employee strike falls
within the “arguably protected or prohibited” principle (El Rancho, supra, 33
Cal.3d at p. 953), an action that, as in this case, seeks injunctive relief against a
public employee strike as to those public employees providing services essential to
the public welfare is outside PERB‟s purview under the “local concern” doctrine.
That doctrine was developed by the United States Supreme Court. In Sears,
Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, for example, the high court
held that the National Labor Relations Board‟s authority did not preempt state
court jurisdiction over an action by an employer for an injunction against a union
picketing on the employer‟s property even though the picketing was arguably
protected conduct under the federal labor law. This was so, said the court, because
the conduct touched interests “ „deeply rooted in local feeling and responsibility‟ ”
(id. at p. 195), and because the assertion of state jurisdiction did not create a
significant risk of prohibiting protected conduct (id. at p. 207). The doctrine has
been applied in California in cases determining PERB‟s jurisdiction under the
EERA. (Pittsburg Unified School Dist. v. California School Employees Assn.
(1985) 166 Cal.App.3d 875, 884-886.) The City argues that because the subject of
public health and safety has historically been a matter of local responsibility
(People v. Union Pacific Railroad (2006) 141 Cal.App.4th 1228, 1247; see Big
Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149), the
local concern doctrine should be applied in cases that, as here, involve strikes by
public employees whose services are essential to public welfare, vesting in the
courts exclusive jurisdiction over such cases.
The City‟s argument overstates the reach of the local concern doctrine. The
doctrine applies primarily when the subject of the action is peripheral to the labor
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dispute (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807,
1815), or when a judicial decision does not present a substantial danger of
interfering with labor decisions of an administrative agency (Kaplan’s Fruit &
Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 74-75). The local concern
doctrine has generally been applied in cases where it was necessary to “maintain[]
civil order by deterring and punishing violence and other intentional torts,
including defamation, trespass, and infliction of emotional distress.” (2 Higgins,
The Developing Labor Law (5th ed. 2006) pp. 2334-2335.) Here, there was no
evidence that a strike by the City‟s public employees posed an immediate threat to
civil order. At issue here is the legality of a public employee strike — an issue
that goes to the essence of labor law. (Fresno Unified School District v. National
Education Assn. (1981) 125 Cal.App.3d 259, 268; see County Sanitation, supra,
38 Cal.3d at p. 588.) Therefore, we reject the City‟s contention that the local
concern doctrine should be applied to defeat PERB‟s jurisdiction in all public
employee strike cases arising under the MMBA.
To summarize, a claim by a public entity that a proposed strike by public
employees includes employees who perform services essential to the public
welfare is generally subject to PERB‟s initial jurisdiction. We next discuss
whether a public entity may nevertheless bypass that administrative forum by
applying to a court for relief if it can establish a recognized exception to the
doctrine of exhaustion of administrative remedies.
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III

The Union contends that the doctrine of exhaustion of administrative
remedies always applies in actions pertaining to public employee strikes that give
rise to claims of unfair labor practices under the MMBA, and that therefore the
doctrine‟s exceptions are never applicable to such strikes. The City, on the other
hand, argues that the exhaustion doctrine never applies to public employee strikes
because any remedy by PERB cannot be effective when a threatened public
employee strike includes employees whose services are essential to the public
welfare. Neither party is right. As we will explain, whether a public entity must
await PERB‟s adjudication of an unfair labor practice complaint before seeking
judicial relief depends upon the facts of each case.
When remedies before an administrative forum are available, a party must
in general exhaust them before seeking judicial relief. (Coachella Valley, supra,
35 Cal.4th at p. 1080.) Exhaustion requires “a full presentation to the
administrative agency upon all issues of the case and at all prescribed stages of the
administrative proceedings.” (Bleeck v. State Board of Optometry (1971) 18
Cal.App.3d 415, 432.) “ „The exhaustion doctrine is principally grounded on
concerns favoring administrative autonomy (i.e., courts should not interfere with
an agency determination until the agency has reached a final decision) and judicial
efficiency (i.e., overworked courts should decline to intervene in an administrative
dispute unless absolutely necessary).‟ ” (Coachella Valley, supra, 35 Cal.4th at
p. 1080.)
The exhaustion doctrine has certain exceptions. (Coachella Valley, supra,
35 Cal.4th at p. 1080.) The doctrine does not apply when the administrative
remedy is inadequate. (Glendale City Employees’ Assn., Inc. v. City of Glendale
(1975) 15 Cal.3d 328, 342.) For example, it does not apply when the
administrative procedure is too slow to be effective (Los Angeles County
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Employees Assn. v. Los Angeles (1985) 168 Cal.App.3d 683, 686), or when
irreparable harm would result by requiring exhaustion of administrative remedies
before seeking judicial relief (Department of Personnel Administration v. Superior
Court (1992) 5 Cal.App.4th 155, 169; 3 Witkin, Cal. Procedure (5th ed. 2008)
Actions, § 342, p. 448; see Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 7), or when
it is clear that seeking administrative remedies would be futile (Coachella Valley,
supra, 35 Cal.4th at p. 1080).
The Union contends that the doctrine of exhaustion of administrative
remedies always applies to public employee strikes arising under the MMBA
because of the adequacy of PERB‟s administrative remedies. It relies on this
court‟s statement in San Diego Teachers, supra, 24 Cal.3d at page 10, that to
“provide an adequate alternative to a party‟s own lawsuit for an injunction,
PERB‟s power to apply [to the courts] for injunctive relief should be exercisable
in response to any aggrieved party‟s request, not simply on its own motion.” The
Union‟s reliance is misplaced. The statement in question is devoid of any
suggestion that PERB‟s remedies are always adequate.
Likewise unconvincing is the Union‟s argument that if a matter is subject to
PERB‟s initial jurisdiction, the proceedings before that board must be finalized
before there can be jurisdiction in the courts.4 In support, the Union relies on

4
Subdivisions (a) and (b) of Government Code section 3509.5 provide that a
party aggrieved by a final decision or order of PERB in an unfair practice matter
— except for a decision not to issue a complaint — may seek writ relief in the
Court of Appeal. When the writ petition is filed timely, the Court of Appeal has
jurisdiction to grant “any temporary relief or restraining order” (Gov. Code,
§ 3509.5, subd. (b)) and to enforce, modify, or set aside PERB‟s decision or order.
Although this statute authorizes judicial review of PERB‟s final decisions or
orders, it does not address the issue confronted here. The question here is whether
a court is without jurisdiction or authority to act when PERB has not yet issued a

(footnote continued on next page)
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Fresno Unified School Dist. v. National Education Assn., supra, 125 Cal.App.3d
at page 271. Contrary to the Union‟s assertion, the Court of Appeal in that case
did not hold that the existence of PERB‟s initial jurisdiction over unfair labor
practice charges nullified the jurisdiction of the courts. Rather, it simply held that
the conflict there in issue between PERB‟s jurisdiction and the court‟s jurisdiction
could be resolved by having the superior court stay the judicial proceeding,
leaving it to the court‟s “discretion as to how long the judicial proceedings should
be stayed” while proceedings before PERB were pending. (Id. at p. 274.)
The Union also relies on this court‟s statement in San Diego Teachers,
supra, 24 Cal.3d at page 11, that there is no “disparity between public and PERB
interests” in arguing here that the PERB remedy is always adequate. According to
the Union, by making the statement in question this court recognized that the
PERB remedy is always adequate because PERB serves the same general public
interest as a court. The statement, however, was made in the limited context of
whether PERB could adequately minimize interruptions of educational services
and therefore it does not assist the Union‟s argument here.
Contrary to the Union‟s assertion, there is no legal obstacle to applying the
exceptions to the doctrine of exhaustion of administrative remedies to matters that
are within PERB‟s initial jurisdiction.
We now consider the City‟s contention that the PERB remedy can never be
effective when a proposed strike by public employees includes employees whose
services may be essential to protect the public welfare.

(footnote continued from previous page)

final order or decision but there is a potential substantial and imminent threat of
harm to the public welfare.
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We begin with a brief review of the statutory source establishing PERB‟s
authority over requests for injunctions in unfair labor practice charges arising
under the MMBA, and the regulations implementing that authority. Government
Code section 3509, subdivision (a), incorporates into the MMBA the powers and
duties of PERB set forth in section 3541.3. Subdivision (j) of section 3541.3 says,
in pertinent part: “Upon issuance of a complaint charging that any person has
engaged in or is engaging in an unfair practice, the board may petition the court
for appropriate temporary relief or restraining order.” To implement this statutory
authority, PERB has adopted regulations setting forth its procedures when
injunctive relief has been requested. (Cal. Code Regs., tit. 8, §§ 32450-32470.)
Under those regulations, a party may, after giving the opposing party 24
hours‟ notice, file a request with PERB‟s general counsel to have PERB apply to
the court for injunctive relief. (Cal. Code Regs., tit. 8, § 32450(a), (c).) The
general counsel then initiates an investigation (id., § 32455), after which “the
General Counsel shall make a recommendation to [PERB] within 120 hours after
the receipt of a request, unless the request is made during a work stoppage or
lockout, in which case the General Counsel shall make a recommendation to
[PERB] within 24 hours after the request is received” (id., § 32460). PERB then
decides whether to seek injunctive relief in court. (Id., § 32465.) If PERB is
unable to act within 24 hours of receiving the general counsel‟s recommendation,
the general counsel is authorized to apply to the court for an injunction if the
general counsel has “reasonable cause to believe that such action is in accordance
with [PERB] policy and that legal grounds for injunctive relief are present.” (Id.,
§ 32470.)
The City is wrong in asserting that in a case such as this the PERB remedy
can never be adequate because PERB‟s regulations prevent it from acting with
sufficient speed to prevent the proposed public employee strike from leading to
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irreparable harm to the public welfare. As noted above, the minimum time for
PERB to seek injunctive relief from a court is 24 hours. (Cal. Code Regs., tit. 8,
§ 32450(a), (c).) In this case the Union agreed to give, and did give, the City at
least 72 hours‟ notice of the possibility of a strike. Thus, even if we assume that
injunctive relief was appropriate here, there was sufficient time for the City to
have asked PERB for injunctive relief and sufficient time for PERB to have
decided whether to apply for such relief in court.
IV
Whenever possible, labor disputes asserting unfair labor practices under the
MMBA should be submitted first to PERB rather than a court. If an exception to
the doctrine of exhaustion of administrative remedies is claimed, the trial court
should afford due deference to PERB and issue injunctive relief only when it is
clearly shown that PERB‟s remedy would be inadequate.
Here, as noted above, while the matter was pending in the Court of Appeal
the parties were able to resolve their dispute and ratify a labor agreement. At the
urging of the parties, however, the Court of Appeal went ahead and decided the
merits of the issues because of their statewide importance.
We affirm the judgment of the Court of Appeal.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

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

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 160 Cal.App.4th 951
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S162647
Date Filed: July 1, 2010
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Kevin J. Murphy

__________________________________________________________________________________

Attorneys for Appellant:

Richard Doyle, City Attorney, George Rios, Assistant City Attorney, Robert Fabela and Suzanne Hutchins
Deputy City Attorneys, for Plaintiff and Appellant.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Plaintiff and Appellant.

Michael Aguirre, City Attorney (San Diego), Alan Hersh, Chief Deputy City Attorney; Renne Sloan
Holtzman Sakai, Jeffrey Sloan and Ivan Delventhal for City of San Diego as Amicus Curiae on behalf of
Plaintiff and Appellant.

Ann Miller Ravel, County Counsel (Santa Clara), Nancy J. Clark, Assistant County Counsel, and Lori E.
Pegg, Lead Deputy County Counsel, for County of Santa Clara as Amicus Curiae on behalf of Plaintiff and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Leonard Carder, Arthur A. Krantz, Margot Rosenberg; Weinberg, Roger & Rosenfeld and Antonio Ruiz for
Defendants and Respondents

Althsuler, Berzon, Nussbaum, Rubin & Demain, Altshuler Berzon, Jonathan Weissglass and Linda Lye for
California State Council of Service Employees as Amicus Curiae on behalf of Defendants and
Respondents.

Priscilla S. Winslow and Joseph R. Colton for California Teachers Association as Amicus Curiae on behalf
of Defendants and Respondents.

Michael R Clancy and Arnie R. Braafladt for California School Employees Association as Amicus Curiae
on behalf of Defendants and Respondents.

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Page 2 – S162647 – counsel continued

Attorneys for Respondent:

Robert Thompson, Robin Wesley, Carolyn Kubish and Tammy Samsel for Public Employment Relations
Board as Amicus Curiae on behalf of Defendants and Respondents.

Mary Maloney Roberts, William L. Kasley and Rebecca M. Ceniceros for Administrative Office of the
Courts as Amicus Curiae.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert Fabela
Deputy City Attorney
200 East Santa Clara Street
San Jose, CA 95113-1905
(408) 535-1900

Arthur A. Krantz
Leonard Carder
1330 Broadway, Suite 1450
Oakland, CA 94612
(510) 272-0169

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Petition for review after the Court of Appeal affirmed a judgment of dismissal of a civil action. This case presents the following issue: Does the Public Employment Relations Board have the exclusive initial jurisdiction to determine whether certain "essential" public employees covered by Meyers-Milias-Brown Act (Gov. Code, sections 3500 3511) have the right to strike, or does that jurisdiction rest with the superior court?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 07/01/2010	49 Cal. 4th 597, 232 P.3d 701, 110 Cal. Rptr. 3d 718	S162647	Review - Civil Appeal	submitted/opinion due	CONTRA COSTA COUNTY v. PUBLIC EMPLOYEES UNION (S164640) SACRAMENTO COUNTY v. AFSCME LOCAL 146 (S166591)

Dockets
Apr 15 2008	Petition for review filed   City of San Jose, plaintiff and appellant by Robert Fabela, Sr. Deputy City Attorney, City of San Jose CRC 8.25(b)
Apr 15 2008	Record requested
Apr 17 2008	Received Court of Appeal record   one file folder/briefs/transcripts
Apr 18 2008	Request for extension of time filed   Arthur A. Krantz counsel for respondents requesting to June 9, 2008 to file answer to the petition for review (to court for permission)
Apr 28 2008	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer to the petition for review is extended to and including June 6, 2008. The filing may be made by facsimile (415/865-7183) with the original and thirteen (13) copies of the answer to follow by mail.
May 27 2008	Request for judicial notice received (pre-grant)   City of San Jose, appellant by Robert Fabela, Sr. Deputy City Attorney
Jun 5 2008	Answer to petition for review filed   Operating Engineers Local Union No. 3, defendants and respondents by Arthur Krantz, counsel
Jun 12 2008	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including July 14, 2008, or the date upon which review is either granted or denied.
Jun 17 2008	Reply to answer to petition filed   City of San Jose, plaintiff and appellant Robert Fabela, counsel (CRC 8.25(b))
Jun 18 2008	Petition for review granted (civil case)   The request for judicial notice is denied as unnecessary. (Quelimane Co. v. Stewart Title Guaranty Co. (1998 ) 19 Cal.4th 26, 46, fn. 9.) The petition for review is granted. George, C.J., was absent and did not participate. Werdegar and Corrigan, JJ., were absent and did not participate Votes: Chin, A.C.J., Kennard, Baxter and Moreno, JJ.
Jun 18 2008	Letter sent to:   counsel requesting each party to file "Certification of Interested Entities or Persons."
Jun 26 2008	Certification of interested entities or persons filed   by Arthur Krantz, counsel for respondents
Jul 2 2008	Certification of interested entities or persons filed   by Robert Fabela, counsel for appellant
Jul 17 2008	Request for extension of time filed   City of San Jose, Appellant, requesting a 30-day extension to and including August 18, 2008 to file appellant's opening brief on the merits.
Jul 18 2008	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including August 18, 2008.
Aug 19 2008	Opening brief on the merits filed   City of San Jose, Plaintiff and Appellant. Robert Fabela, Sr., Deputy City Attorney (CRC, rule 8.25(b))
Sep 11 2008	Answer brief on the merits filed   Operating Engineers Local Union No. 3, Defendant and Respondent Arthur Krantz, counsel
Sep 11 2008	Request for judicial notice filed (granted case)   Operating Engineers Local Union 3, Defendant and Respondent. Arthur Krantz, counsel
Sep 22 2008	Request for extension of time filed   Robert Fabela counsel for appellant's requesting to October 31, 2008 (30-days) to file reply brief on the merits. (to court for permission)
Sep 23 2008	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including October 31, 2008.
Nov 3 2008	Application filed   for permission to file reply brief in excess of 4200 words (to court for permission) City of San Jose, Plaintiff and Appellant. Robert Fabela, Sr., Deputy City Attorney
Nov 4 2008	Reply brief filed (case fully briefed)   w/permission City of San Jose, Plaintiff and Appellant. Robert Fabela, Sr. Deputy City Attorney
Nov 26 2008	Received application to file Amicus Curiae Brief   Administrative Office of the Courts (AOC) by Mary M. Roberts, counsel
Dec 1 2008	Received application to file Amicus Curiae Brief   California State Association of Counties and League of California Cities Jennifer B. Henning, counsel (to court for permission)
Dec 1 2008	Received application to file Amicus Curiae Brief   California Teachers Association Priscilla S. Winslow and Joseph Colton, counsel (to court for permission)
Dec 1 2008	Received application to file Amicus Curiae Brief   California State Council of Service Employees Linda Lye, counsel
Dec 4 2008	Received application to file Amicus Curiae Brief   City of San Diego Jeffrey Sloan,counsel (to court for permission)
Dec 4 2008	Permission to file amicus curiae brief granted   The application of The Administrative Office of the Courts for permission to file an amicus curiae brief is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 4 2008	Amicus curiae brief filed   Administrative Office of the Courts Mary Maloney Roberts, counsel
Dec 5 2008	Received application to file Amicus Curiae Brief   California School Employees Association Arnie R. Braafladt, Deputy Chief Counsel (CRC, rule 8.25(b) - FedEx)
Dec 8 2008	Permission to file amicus curiae brief granted   The application of the California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 8 2008	Amicus curiae brief filed   Calfornia State Association of Counties and League of California Cities in support of appellant. Jennifer B. Henning, counsel
Dec 8 2008	Permission to file amicus curiae brief granted   The application of California Teachers Association for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 8 2008	Amicus curiae brief filed   California Teachers Association in support of respondents. Priscilla S. Winslow and Joseph R. Colton, counsel
Dec 8 2008	Permission to file amicus curiae brief granted   The application of California State Council of Service Employees for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 8 2008	Amicus curiae brief filed   California State Council of Service Employees in support of respondents. Linda Lye, counsel
Dec 8 2008	Permission to file amicus curiae brief granted   The application of City of San Diego for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 8 2008	Amicus curiae brief filed   City of San Diego in support of appellant. Jeffrey Sloan, counsel
Dec 8 2008	Permission to file amicus curiae brief granted   The application of California School Employees Association for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 8 2008	Amicus curiae brief filed   California School Employees Association in support of respondents. Arnie R. Braafladt, counsel
Dec 8 2008	Request for judicial notice filed (granted case)   California State Council of Service Employees, amicus curiae Linda Lye, counsel
Dec 19 2008	Request for extension of time filed   Robert Fabela counsel for appellant City of San Jose and Arthur A. Krantz counsel for respondents Operating Engineers Local Union No. 3 requesting to February 3 to file their answers to amicus curiae briefs (to court for permission)
Dec 23 2008	Extension of time granted   On application of appellant City of San Jose and respondents Operating Engineers Local Union No. 3 et al. and good cause appearing, it is ordered that the time to serve and file their answers to the amicus curiae briefs is extended to and including February 3, 2008.
Feb 2 2009	Response to amicus curiae brief filed   Operating Engineers Local Union No. 3 et al., respondents. Arthur Krantz, counsel
Feb 4 2009	Request for extension of time filed   City of San Jose, appellant, requests an extension of time, until February 17, 2009, to file a response to amicus curiae by California School Employees Association, by Robert Fabella, Sr. Deputy City Attorney
Feb 4 2009	Response to amicus curiae brief filed   by City of San Jose, appellant, in response to California Council of Service Employees, non-party, by Robert Fabela, Sr. Deputy City Attorney ** CRC 8.25(b)
Feb 4 2009	Response to amicus curiae brief filed   by City of San Jose, appellant, in response to California Teachers Association, non-party, by Robert Fabela, Sr. Deputy City Attorney **CRC 8.259(b)
Feb 5 2009	Extension of time granted   On application of the appellant and good cause appearing, it is ordered that the time to serve and file the response to California School Employees Association's amicus curiae brief is extended to and including February 17, 2009.
Feb 18 2009	Response to amicus curiae brief filed   City of San Jose, Plaintiff and Appellant, to AC Brief filed by California Schoool Employees Association. Robert Fabela, Attorney CRC 8.25 (b)
Aug 19 2009	Supplemental briefing ordered   The court requests the Public Employment Relations Board to serve and file an amicus curiae brief in this case. The brief is to be served and filed on or before September 18, 2009. An answer to that brief may be served and filed by any party within twenty days of the filing of the brief.
Sep 17 2009	Received:   letter brief from Public Employment Relations Board, by Harry J. Gibbons, counsel
Sep 21 2009	Amicus curiae brief filed Amicus curiae: Public Employment Relations Board   Public Employment Relations Board, Amicus curiae *Filed with Permission*
Oct 7 2009	Response to amicus curiae brief filed Plaintiff and Appellant: City of San JoseAttorney: Robert Fabela
Oct 9 2009	Response to amicus curiae brief filed Defendant and Respondent: Operating Engineers Local Union No. 3Attorney: Arthur Krantz
Feb 8 2010	Filed:   Respondent's Supplemental brief regarding new authority Operating Engineers Local Union No. 3, respondent by Arthur Krantz, counsel
Mar 3 2010	Case ordered on calendar   to be argued Tuesday, April 6, 2010, at 9:00 a.m., in Los Angeles
Mar 4 2010	Filed:   Letter from appellant City of San Jose deputy city attorney, Robert Fabela, requesting to postpone oral argument.
Mar 4 2010	Argument rescheduled   to be called and continued to the May 2010 calendar
Mar 10 2010	Received:   Letter from Arthur Krantz, counsel for respondent Operating Engineers, requesting that argument be set for the first week in May due to various trial and hearing commitments in late May and June.
Mar 11 2010	Supplemental brief filed Defendant and Respondent: Operating Engineers Local Union No. 3Attorney: Arthur Krantz   SECOND
Mar 11 2010	Request for judicial notice filed (Grant or AA case) Defendant and Respondent: Operating Engineers Local Union No. 3Attorney: Arthur Krantz
Mar 11 2010	Received:   Document entitled: Declaration of Arthur Krantz in support of supplemental request for judicial notice Operating Engineers Local Union No. 3 by Arthur Krantz, counsel
Mar 30 2010	Case ordered on calendar   to be argued on Wednesday, May 5, 2010, at 9:00 a.m., in San Francisco
Apr 6 2010	Cause called and continued   continued to Wednesday, May 5, 2010, at 9:00 a.m., in San Francisco, per calendar circulated on 3/30/2010.
Apr 28 2010	Request for judicial notice granted   Respondent's request for judicial notice, filed on March 11, 2010, is granted.
Apr 28 2010	Letter sent to:   each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument."
Apr 28 2010	Stipulation filed   Stipulation by counsel Arthur Krantz, that respondents have no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Apr 29 2010	Stipulation filed   Stipulation by counsel Robert Fabela, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Apr 30 2010	Request for judicial notice granted   Defendant Operating Engineers Local Union No. 3's request for judicial notice filed in this court on September 11, 2008, is granted as to exhibits 6, 7, and 8 and is denied in all other respects. Defendant Operating Engineers Local Union No. 3's supplemental request for judicial notice filed in this court on March 11, 2010, is granted. Amicus Curiae California State Council of Service Employees' motion for judicial notice filed in this court on December 8, 2008, is granted.
May 5 2010	Cause argued and submitted
Jun 30 2010	Notice of forthcoming opinion posted   To be filed Thursday, July 1, 2010 @ 10 a.m.

Briefs
Aug 19 2008	Opening brief on the merits filed
Sep 11 2008	Answer brief on the merits filed
Nov 4 2008	Reply brief filed (case fully briefed)
Dec 4 2008	Amicus curiae brief filed
Dec 8 2008	Amicus curiae brief filed
Dec 8 2008	Amicus curiae brief filed
Dec 8 2008	Amicus curiae brief filed
Dec 8 2008	Amicus curiae brief filed
Dec 8 2008	Amicus curiae brief filed
Feb 2 2009	Response to amicus curiae brief filed
Feb 4 2009	Response to amicus curiae brief filed
Feb 4 2009	Response to amicus curiae brief filed
Feb 18 2009	Response to amicus curiae brief filed
Sep 21 2009	Amicus curiae brief filed Amicus curiae: Public Employment Relations Board
Oct 7 2009	Response to amicus curiae brief filed Plaintiff and Appellant: City of San JoseAttorney: Robert Fabela
Oct 9 2009	Response to amicus curiae brief filed Defendant and Respondent: Operating Engineers Local Union No. 3Attorney: Arthur Krantz

Brief Downloads
1_appellants_petition_for_review.pdf (3009207 bytes) - Appellant's Petition for Review
2_respondent_operating_engineers_local_union_no_3_answer_to_petition_for_review.pdf (1408765 bytes) - Respondent, Operating Engineers Local Union No. 3, Answer to Petition for Review
3_appellants_reply_to_answer_to_petition_for_review.pdf (732390 bytes) - Appellant's Reply to Answer to Petition for Review
4_appellants_opening_brief_on_the_merits.pdf (1634491 bytes) - Appellant's Opening Brief on the Merits
5_respondent_operating_engineers_local_union_no_3_answer_brief_on_the_merits.pdf (582074 bytes) - Respondent, Operating Engineers Local Union No. 3, Answer Brief on the Merits
6_appellants_reply_brief_on_the_merits.pdf (916304 bytes) - Appellant's Reply Brief on the Merits
7_respondent_operating_engineers_local_union_no_3_supplemental_request_for_judicial_notice.pdf (4775062 bytes) - Supplemental Request for Judicial Notice by Respondent Operating Engineers Local Union No. 3

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jan 24, 2011 Annotated by sbarnard

Citation: 49 Cal.4th 597, 232 P.3d 701, 188 L.R.R.M. (BNA) 3037, 159 Lab.Cas. P 61,023, 10 Cal. Daily Op. Serv. 8392, 2010 Daily Journal D.A.R. 10,303. FACTS In January 2006, the City of San Jose (City) and the Operating Engineers Local Union No. 3 (Union) began negotiations for a new labor contract. The existing contract at the time was set to expire on April 14, 2006. Both parties agreed that if their negotiation efforts came to an impasse, the Union would give the City at least 72 hours’ notice before going on strike or engaging in any work stoppage. On May 30, 2006 the Union notified the City that work stoppage was possible any time after June 2. In response, the City said it would seek a court order by June 2 prohibiting any strike or work stoppage by any Union members that performed services “essential to public health and safety.” The Union then filed with the California Public Employment Relations Board (PERB) an unfair labor practice charge against the City on May 31, 2006. In this charge, the Union alleged that the City’s threatened court action: (1) interfered with the rights of the Union and its members, and (2) was a breach of the City's good faith obligation to meet and confer with the Union. In response, the City filed a complaint, as described below. PROCEDURAL HISTORY The City of San Jose filed a complaint in the superior court on June 1, 2006. This complaint sought to enjoin 110 employees from going on strike, claiming that any stoppage would “endanger public health and safety.” Both PERB and the Union opposed the request for injunctive relief. The superior court denied the City injunctive relief because the City had failed “to exhaust administrative remedies by not first seeking relief from PERB.” The court pointed out that the City should have exhausted such remedies because PERB had initial jurisdiction over the matter. The City petitioned the Court of Appeal for a writ of supersedeas. The Court of Appeal issued a stay that prohibited a strike by the employees identified in the City’s petition. In November 2006, the parties ratified a labor agreement which deemed the appeal moot. The Court of Appeal learned of the agreement, but both parties urged the court to address the issues anyway because of their “statewide importance.” The Court of Appeal affirmed the trial court’s judgment. The Supreme Court of California granted the City’s petition for review. ISSUES 1. Does the Public Employment Relations Board have exclusive initial jurisdiction to determine whether certain "essential" public employees covered by Meyers-Milias-Brown Act (Gov. Code, sections 3500 3511) have the right to strike, or does that jurisdiction rest with the superior court? 2. In cases where a public entity views a threatened strike by its employees as a “substantial and imminent threat to the public health and safety” is it necessary for that public entity to exhaust administrative remedies with PERB and await its adjudication before asking for injunctive relief from a court that would prohibit the strike? HOLDINGS 1. The Public Employment Relations Board does have exclusive initial jurisdiction to determine whether certain "essential" public employees covered by Meyers-Milias-Brown Act (Gov. Code, sections 3500 3511) have the right to strike. 2. Before seeking judicial relief, a public entity must first exhaust administrative remedies before PERB. The only time a public entity need not exhaust administrative remedies is when one of the recognized exceptions to the exhaustion of administrative remedies requirement is clearly established. ANALYSIS (Kennard, J.) PERB Jurisdiction and Public Employee Strikes First, the court reviewed California’s local public employment labor law history to ascertain whether PERB has exclusive initial jurisdiction to determine whether certain "essential" public employees covered by the Meyers-Milias-Brown Act (MMBA) have the right to strike. PERB (formerly known as the Educational Employment Relations Board, or EERB) dates back to 1975 when it was created to “adjudicate unfair labor practice charges” under the Educational Employment Relations Act. PERB’s jurisdiction is articulated in Government Code section 3541.5, which provides that initial exclusive jurisdiction as to whether the charges of unfair practices are justified is vested in PERB. Next, the Court examined its treatment of this code provision in two prior cases: San Diego Teachers Assn. v. Superior Court and El Rancho Unified School Dist. v. National Education Assn. In both cases, the Court held that exclusive initial jurisdiction over public employee strikes belonged to PERB. While neither of these two cases addressed public employee’s legal right to strike, the Court determined through its analysis in County Sanitation Dist. No. 2 v. Los Angeles County Employees’ Assn. that public employee strikes are not unlawful at common law “unless or until it is clearly demonstrated that such a strike created a substantial and imminent threat to the health or safety of the public.” While jurisdiction over public employee strikes is vested in PERB, the County Sanitation case vested jurisdiction in the courts to make the decision of whether or not to allow a public employee strike in the first place. In the year 2000, Gov. Code section 3509 expanded PERB’s jurisdiction with respect to issues arising under the MMBA. This expansion gave PERB exclusive jurisdiction to determine “whether [a] charge of unfair practice is justified,” along with authority to decide the appropriate remedy, thus removing the courts’ initial jurisdiction over any MMBA unfair practice charges. After this determination, it was necessary to inquire as to whether the enactment of section 3509 also gave PERB exclusive initial jurisdiction over public employee strikes involving claims of unfair labor practices under the MMBA. In its analysis of this issue, the Court rejected the City’s argument that Gov. Code section 3509 is inapplicable to public employee strikes, explaining that the argument ran counter to the body of public employment labor law in California. The Court then concluded that the history of this body of law establishes that PERB’s exclusive initial jurisdiction reaches to activities “arguably protected or prohibited” by the public employment labor law, and under San Diego Teachers, extends to cases concerning remedies for strikes that are considered unfair labor practices. The Court also rejected the City’s argument that under the “local concern doctrine,” all cases involving employee strikes arising under the MMBA are outside of PERB’s jurisdiction. The local concern doctrine is a development of the United States Supreme Court that says a state court has exclusive jurisdiction over conduct that touches interests “deeply rooted in local feeling and responsibility” so long as the assertion of such jurisdiction does not pose a substantial risk of “prohibiting protected conduct.” The Court explained that this doctrine applies when “the subject of the action is peripheral to the labor dispute . . . or when a judicial decision does not present a substantial danger of interfering with labor decisions of an administrative agency.” In the present case, the main issue—that of the legality of a public employee strike—is an issue that goes to the center of labor law and thus cannot be subject to the local concern doctrine. The exclusive initial jurisdiction analysis concluded with the Court holding that in general, PERB has initial jurisdiction over cases where a public entity makes a claim that a proposed strike includes employees whose services are “essential to the public welfare.” Doctrine of Exhaustion of Administrative Remedies The second major section of the Court's analysis involved determining whether a public entity may apply directly to a court for relief instead of having to first go through an administrative forum such as PERB in a case where it has been established that a recognized exception to the doctrine of exhaustion of administrative remedies applies. First, the Court explained that if there are administrative remedies available, as a general rule, a party must exhaust these remedies before turning to a court for relief. This is known as the exhaustion doctrine--a doctrine that favors administrative autonomy and judicial efficiency. Second, the Court gave a few examples of exceptions to the exhaustion doctrine: when the administrative remedy is inadequate, when there would be irreparable harm from requiring the exhaustion of administrative remedies before allowing for judicial relief, and when seeking administrative remedies would be futile. Next, the Court rejected the Union’s argument that the doctrine of exhaustion of administrative remedies always applies in actions concerning public employee strikes that give rise to claims of unfair labor practices under the MMBA, and that the doctrine’s exceptions never apply to such strikes because PERB’s administrative remedies are always adequate. The Court determined that the case law the Union relied upon did not actually support their argument. In addition, the Court also rejected the City's argument that because PERB’s remedies can never be effective in cases of a threatened strike by employees who provide services essential to the public welfare, the doctrine of exhaustion of administrative remedies never applies in such cases. The City had argued that PERB remedies are always inadequate because its regulations do not allow the entity to act fast enough to prevent the proposed strike from occurring and thereby irreparably harming the public welfare. The Court explained that the City’s view is unfounded because in cases such as the one at issue, there was sufficient time for the City to ask PERB for injunctive relief and for PERB to decide whether or not to ask the court for such relief. It turns out that neither the City nor the Union was right about when the doctrine of exhaustion of administrative remedies applies. Instead, the correct answer as to whether a public entity must first wait for PERB to adjudicate an unfair labor practice complaint before applying for relief from a court is: “[It] depends upon the facts of each case.” The opinion concluded with the Court's holding that any labor disputes asserting unfair labor practices under the MMBA should first be submitted to PERB instead of a court whenever possible. If a party claims that the doctrine of exhaustion of remedies applies, the trial court should give deference to PERB and give injunctive relief only in cases where the inadequacy of PERB’s remedy can be clearly shown. DISPOSITION: The Supreme Court unanimously affirmed the Court of Appeal. TAGS: PERB, Public Employment Relations Board, exclusive initial jurisdiction, exhaustion doctrine, doctrine of exhaustion of administrative remedies, essential public employee, strike, public welfare, unfair labor practices, labor dispute, Gov. Code. § 3500, injunction, Meyers-Milias-Brown Act, MMBA, Gov. Code. § 3541.5, local concern doctrine. KEY STATUTES Gov. Code § 3509 Gov. Code § 3541.59 KEY CASES CITED San Diego Teachers Assn. v. Superior Court, 24 Cal.3d 1 (1979). El Rancho Unified School Dist. V. National Education Assn., 33 Cal.3d 949 (1983). County Sanitation Dist. No. 2 v. Los Angeles County Employees’ Assn., 38 Cal.3d 564 (1985). OTHER CITED CASES Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., 25 Cal.4th 1072 (2005). San Diego Unions v. Garmon, 359 U.S. 236 (1959). Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991). People v. Overstreet, 42 Cal.3d 891 (1986). Estate of McDill, 14 Cal.3d 831 (1975). Sears Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978). Pittsburg Unified School Dist. v. California School Employees Assn., 166 Cal.App.3d 875 (1985). People v. Union Pacific Railroad, 141 Cal.App.4th 1228 (2006). Big Creek Lumber Co. v. County of Santa Cruz, 38 Cal.4th 1139 (2006). Service by Medallion, Inc. v. Clorox Co., 44 Cal.App.4th 1807 (1996). Kaplan’s Fruit & Produce Co. v. Superior Court, 26 Cal.3d 60 (1979). Fresno Unified School District v. National Education Assn., 125 Cal.App.3d 259 (1981). Bleeck v. State Board of Optometry, 18 Cal.App.3d 415 (1971). Glendale City Employees’ Assn., Inc. v. City of Glendale, 15 Cal.3d 328 (1975). Los Angeles County Employees Assn. v. Los Angeles, 165 Cal.App.3d 683 (1985). Department of Personnel Administration v. Superior Court, 5 Cal.App.4th 155 (1992). Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1 (1971). Annotation by: Shannon Barnard

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