PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

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102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1 and El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 953, both established that PERB has exclusive initial jurisdiction to determine unfair practice charges and fashion a remedy, or not, where the conduct in question is arguably protected or prohibited by the statutes administered by PERB. Subsequent opinions from the courts of appeal amplified this doctrine, holding that if the alleged conduct at issue was either arguably protected or arguably prohibited under EERA, exclusive initial jurisdiction required the dispute to be brought to PERB in the first instance, regardless of how the case was pleaded, and even if there were constitutional issues to be decided. The Legislature intended that PERB exercise jurisdiction over matters that could be unfair practices or other violations of EERA, even if the claims also alleged constitutional violations. Where there is a reasonable probability that PERB’s adjudication of non-constitutional issues could obviate consideration of the constitutional challenges, PERB does have exclusive initial jurisdiction over the matter. Moreover, the parties are required to exhaust administrative remedies. If the administrative proceedings do not resolve the constitutional issues, the aggrieved party is not precluded from raising the constitutional issues in subsequent judicial proceeding. Unilateral change issues are squarely within PERB’s authority and expertise to decide. From the earliest days of this agency, the Board has articulated and applied its test for determining whether an employer’s unilateral actions constitute a violation of the duty to bargain in good faith. Even in cases where the underlying conduct unquestionably meets one or both prongs of the arguably-protected-or-prohibited test, courts relying on the local concern exception have refused to cede jurisdiction to the labor agency if the matter mainly touches upon matters within the traditional police powers of the state and in which adjudication by a superior court will not pose a substantial danger of interference with administrative adjudication by the labor board. Thus, the labor board will not have exclusive jurisdiction where mass picketing blocks ingress or egress; or where there was violence; or in cases of libel; or in cases of intentional infliction of emotional distress. Even though leafleting is a constitutionally protected activity, subject to reasonable time, place and manner restrictions, the question of unilateral change in the employer’s leafleting policy can be decided without resort to enforcing constitutional rights. As noted earlier, if the parties believe that our decision fails to resolve underlying constitutional issues, or that our decision intrudes on constitutional rights, they will be free to seek redress in the courts, having exhausted their administrative remedies. The right to picket peaceably and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. The same right is protected under EERA, as it is a collective activity both constitutionally protected and long recognized in foundational labor law to be intimately related to the ability of employees to engage in union activities, a right literally conferred by the text of EERA. No less protected is the right to leaflet. Both activities are undertaken to publicize the labor dispute to the public, to garner the public’s support for labor’s position, to demonstrate the strength and support for union demands, to build solidarity among fellow employees, etc. Also within PERB’s expertise and jurisdiction is the ability to assess whether the employer’s defense of waiver through collective bargaining agreement language or bargaining conduct is valid.