Public Sector Case Notes

• Citation: Vol. 38 No. 2
• Publication year: 2024
• Author: Katharine McDonagh

PUBLIC SECTOR CASE NOTES

AUTHORS^*

Katharine McDonagh

Dylan Holmes

CALIFORNIA COURT OF APPEAL

THE MMBA PREEMPTS CALIFORNIA'S TRESPASS STATUTE

Palomar Health v. National Nurses United, 97 Cal. App. 5th 1189 (2023)

During negotiations for successor collective bargaining agreements (CBAs), unions representing workers at Palomar Health, a public healthcare district, began a leafletting campaign outside the main hospital and set up stations inside to meet with employees. Although the expired CBAs allowed for union access to the facilities to ensure compliance with the contract, adjust grievances, and update the unions' bulletin boards, Palomar began denying union representatives that access. Palomar then filed a state court lawsuit against the unions, alleging trespass and unlawful picketing.

The unions immediately filed an unfair practice charge with the Public Employment Relations Board (PERB) asserting that Palomar was denying the unions access rights in breach of the Meyers-Milias-Brown Act (MMBA).¹ The unions also filed a demurrer and an anti-SLAPP motion in response to Palomar's lawsuit, arguing that PERB's jurisdiction preempted Palomar's state law claims.

The trial court denied the unions' motions, finding there was no "substantial danger of interference" with PERB's adjudication of the unions' charge. The unions appealed.

In its decision, the Fourth Appellate District observed that the MMBA governs "labor relations between most local public entities and their employees," and that PERB is the agency authorized to adjudicate unfair practice charges under the MMBA. As such, PERB has exclusive initial jurisdiction over activities "arguably protected or prohibited" by public employment labor law. Therefore, to "shield the system of regulation of labor relations from conflicting regulation of conduct," local public agencies must exhaust administrative remedies under the MMBA by first applying to PERB for relief related to a labor dispute.

In its ruling, the trial court had relied on Sears, Roebuck & Co. v. San Diego County District Council of Carpenters,² a U.S. Supreme Court case decided in 1978, that also involved an employer filing a state trespass suit against a union, to find that Palomar's trespass claim was not preempted. However, the appellate court observed that central to the Sears holding was the question of whether the controversy presented to the state court is identical to, or different from, that which could have been presented to the National Labor Relations Board (NLRB).

The appellate court here found that Palomar's state trespass claim met the standards for preemption, noting that the unions invoked PERB's jurisdiction immediately after Palomar filed suit by asking PERB to determine whether its conduct was protected by the MMBA. The court further noted there is a presumptive right under the MMBA for employees and non-employee union representatives to have access to a public employer's premises, and found this right extends to "leafleting to advertise a labor dispute." The appellate court considered this right of access in California along with the fact that the unions immediately filed a charge with PERB to conclude that the risk of interference to PERB's jurisdiction was much greater than the risk of interference with the NLRB's jurisdiction in Sears.

It also found that the issue before the court of whether the union representatives' alleged trespass is protected or unprotected by the parties' agreement and the MMBA is identical to the one being adjudicated by PERB, and that there was a risk of conflicting decisions if it was litigated in parallel proceedings. The appellate court also rejected the argument that trespass was "so deeply rooted in local feeling and responsibility" that it could not

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infer that the legislature intended to deprive courts of jurisdiction over trespass claims.

The court agreed with the unions' preemption argument, reversed the trial court, directed it to enter an order sustaining the demurrer without leave to amend, and declared that the case was under the exclusive initial jurisdiction of PERB.

PUBLIC EMPLOYMENT RELATIONS BOARD

SCHOOL DISTRICT MUST BARGAIN OVER EFFECTS OF SCHOOL CLOSING DECISION

Oakland Unified School Dist., PERB Decision No....