Oral argument was held in the San Jose case on May 5, 2010. The issue in this case is:
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?Practically, the dispute is over whether employers must initially go to PERB when seeking injunctive relief against an essential employee strike or whether the employer can go directly to court. Employers have taken the position that they should be allowed to proceed directly to court, while the unions have argued that PERB has initial jurisdiction.
The case is incredibly important to those of us who practice public sector labor law. However, the case is apparently a sleeper for the Supreme Court. I heard from those in attendance that the justices only asked two substantive questions. And not very probing ones at that. One question was from Justice Moreno who asked whether the doctrine of exhaustion of administrative remedies has an emergency exception. Justice Chin asked whether strikes are "arguably" potential unfair practices. Those in attendance, both from the union and management, told me that the questions didn't really reveal how any of the justices were leaning.
So we'll have to wait. A decision is expected in 90 days.
One final note - a congratulations to both Ari Krantz from Leonard Carder and Rob Fabela from the City of San Jose for jobs well done in arguing before the Court!
