City of San Jose v. Operating Engineers Local No. 3
Filed March 4, 2008, Sixth District,
Cite as 2008 SOS 1437

Injunctive Relief against Strike Dismissed

During negotiations in 2006, the City of San Jose and the Operating Engineers Local Union No. 3 (union) failed to reach a new memorandum of agreement.

Following this, the union warned that they might stage a strike or work stoppage. In response the city filed a complaint for injunctive relief and a temporary restraining order, seeking to prohibit certain Union workers from joining in the planned work stoppage. The city believed the specified workers’ services are essential to the public health and safety of the citizens.

The Union contradicted the reasons and argued that the court’s jurisdiction was preempted in favor of the Public Employment Relations Board (PERB) because the underlying conduct was encompassed by the Meyers-Milias-Brown Act (MMBA), Government Code section 3500-3511.

The MMBA governs collective bargaining and employer-employee relations for most California local public entities, including cities, counties, and special districts.

During hearing, the court concluded that the dispute fell within the exclusive initial jurisdiction of the PERB. It granted a formal dismissal order terminating the action without prejudice because the city had failed to exhaust its administrative remedies.

AS a result, the city appealed, contending that the dispute should be heard in trial court based on the following grounds:

• the court had jurisdiction under the common law to enjoin public employee strikes that threatened public health and safety


• the city did not allege any violations of the MMBA, which was the only basis by which PERB would have exclusive initial jurisdiction


• That the agency’s remedies were inadequate in such cases and that exhaustion should have been excused.

In review, the court of appeal affirmed the decision, holding that the PERB had exclusive initial jurisdiction to determine whether the MMBA-covered public employees had the right to strike in a case implicating the MMBA.

Although the parties reached agreement on a new contract during the time the appeal was pending, making a decision technically moot, the court nevertheless exercised its inherent power to address the issues, which were important and of continuing interest.

In regard to the issue of jurisdiction, the court reviewed the development of the statutory law and case authority governing labor relations in public employment and identified the issues for analysis, the first of which was whether PERB jurisdiction was warranted on the notion that the conduct at issue implicated the MMBA.

The court found two conducts at issue:

• the threatened strike activity complained of by the city


• interference with that activity complained of by the Union.

In reviewing the case, the court had to consider whether the statute arguably prohibited or protected that conduct.

After examination, the court concluded that the MMBA did cover the conduct at issue.

It cited two critical elements:

• An illegal strike is arguably prohibited as an unfair labor practice under the MMBA, just as it is under the Educational Employment Relations Act (EERA). As amended effective 2001, the MMBA was brought under the same jurisdictional umbrella as other public employment statutes, such as the EERA.


• In this instance, despite its label as a common law claim, the underlying activity - an allegedly illegal strike - could run afoul of the MMBA. The “arguably prohibited” branch of the preemption doctrine thus was satisfied.

Further, the court refused to recognize an exception to PERB jurisdiction where ‘essential’ public employees were involved. It asserted that without an explicit statutory prohibition against strikes by particular employees, the question of the legality of such strikes was entrusted to PERB in the first instance.

In addition, as a matter of public policy it made sense to recognize exclusive initial jurisdiction in favor of the PERB so that it could perform its mandated duty, and so that it could exercise its informed and coherent expertise to bear on labor relations issues.

The Sixth Appellate District court therefore affirmed a judgment of dismissal. The court held that the Public Employment Relations Board had exclusive initial jurisdiction where a strike involving statutory unfair labor practice claims was threatened by public employees whose services were essential to municipal health and safety.