2005-13

Time Limit to Make an Unfair Labor Practice Charge before the Public Employment Relations Board is Six Months.

In Coachella Valley Mosquito and Vector Control District v. California Public Employee Relations Board, 2005 DJDAR 6736 (filed June 9, 2005) (published June 10, 2005), the Court considered the limitations period for a public employees' union to bring an unfair labor practice ("ULP") charge under the Meyers-Milias-Brown Act ("MMBA"). ULP claims under the MMBA came under the administrative jurisdiction of the Public Employment Relations Board ("PERB") effective July 1, 2001. Prior to that time, such actions were brought in the Superior Court in the form of writs of mandate. The statute of limitations for such ULPs was generally considered to be three years, under CCP ? 338(a), which sets the limitations period for an action to enforce a "state labor law." However, no such statute of limitations is expressly stated within the MMBA. Six other statutes governing public employee relations, which had previously been placed under the administrative jurisdiction of the PERB, expressly specified six-month limitation periods for unfair labor practice charges.

In July, 2001, the California School Employees Association ("Union") brought a ULP charge before the PERB which alleged violations by the Coachella Valley Mosquito and Vector Control District ("District") going back to December of 1999. PERB issued a complaint against the District on October 23, 2001. The District moved to dismiss the charge, arguing that the PERB lacked jurisdiction over alleged violations occurring before July 1, 2001, when it effectively obtained administrative jurisdiction over such matters. A PERB board agent denied the motion. Although the District requested a ruling by the PERB itself, under PERB regulations, the PERB will not review a board agent's interim ruling unless the agent joins in the party's request for review. The board agent refused to join.

Thereafter, the District petitioned the Superior Court for writs of mandate and prohibition, arguing that the PERB lacked jurisdiction to issue the complaint. The PERB and the Union opposed the petitions, arguing that the petition was barred because the District had not exhausted its administrative remedies. The Superior Court denied the petition, agreeing that the District had not exhausted administrative remedies.

On appeal, the Court of Appeal held inter alia, that: (1) the District was not required to exhaust administrative remedies because exhaustion would have been futile; (2) the PERB had jurisdiction to issue a complaint based on acts occurring before it assumed administrative jurisdiction over MMBA claims; (3) the limitations period for a ULP under MMBA is six months; and (4) to prevent unfair retroactive application of the shortened limitations period, charges based on unfair practices occurring before July 2001 would be deemed timely filed if filed with the PERB within three years of their occurrence or before January 1, 2001, whichever occurred first. PERB petitioned for Supreme Court review, which was granted.

The Court held that the futility exception to the requirement to exhaust administrative remedies did not apply. The District argued that it was futile to defend its case before the PERB on the basis of a six-month statute of limitations because the PERB had already issued previous rulings stating that the applicable limitations period was three years. However, "[f]or the futility exception to apply, it is not sufficient that a party can show what the agency's ruling would be in a particular issue or defense. Rather, the party must show what the agency's ruling would be on a particular case." Thus, for the futility exception to apply, it was insufficient for the District to show that the PERB would have ruled against it on its statute of limitations defense. It would have to show that the PERB would have ruled against it on the Union's unfair labor practice charges. Nevertheless, the Court held that exhaustion was excused under another exception to the exhaustion requirement which exists where a party is claiming that the agency lacks jurisdiction to resolve the dispute.

As to determining the applicable statute of limitations, the Court reviewed the separate histories of the MMBA and six other public employee relations laws enforced by the PERB.(1) All of the these other statutes expressly specify six-month limitations periods. The Court found that "the PERB suggests no way in which MMBA unfair practice charges differ from the unfair practice charges under the other six public employment relations laws within the PERB's jurisdiction ... so as to justify a limitations period that is six times longer than the six months allowed under each of these other laws."

The Court rejected PERB's arguments based on the limitations period for MMBA actions in the Superior Court, holding that, while CCP 338(a) may have set the statute of limitations for judicial proceedings under the MMBA, it does not apply to administrative proceedings, and that when the Legislature moved enforcement of the MMBA under the jurisdiction of the PERB it, in effect, changed the statute of limitations. "By changing the forum ? vesting an administrative agency (the PERB) rather than the courts with initial jurisdiction over MMBA charges ? the Legislature abrogated the three-year statute of limitations under Section 338(a), and we assume that this abrogation was intentional and not inadvertent."

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Union Banners Proclaiming "Labor Dispute" with Third Party Employers Cannot Be Enjoined.

In Overstreet v. United Brotherhood of Carpenters and Joiners, 2005 DJDAR 6661 (filed June 8, 2005) (published June 9, 2005), a divided Ninth Circuit panel affirmed a district court's denial of an injunction against the United Brotherhood of Carpenters ("Carpenters") to prevent them from displaying banners advertising a "labor dispute" with companies which did business with non-union contractors. The Carpenters sought to pressure a number of retailers, hotels and other businesses ("Retailers") which contracted with non-union contractors to stop doing business with those contractors. The Carpenters sent letters to the Retailers threatening an "aggressive public information campaign against [the non-union contractors]," including "highly visible banner displays" at the Retailers' places of business. The letters urged each Retailers to not allow the non-union contractor with which it had done business to perform any work for them until the contractor "generally meets area labor standards," and that taking this step would "provide the greatest protection against your firm becoming publicly involved in this dispute."

When the Retailers did not respond, the Carpenters set up four foot by fifty foot banners at the site of each Retailer stating "SHAME ON [NAME OF RETAILER]" in large red letters, with the words "LABOR DISPUTE" in somewhat smaller black letters on either side of that text. The banners were clearly visible to motorists driving by on the street. If pedestrians approached the Carpenters with questions, the Carpenters would give them handbills which explained the dispute. One of the Contractors and two of the Retailers filed charges with the National Labor Relations Board ("NLRB") alleging unfair labor practices in violation of Section 8(b)(4)(II)(B) of the National Labor Relations Act ("Act or NLRA"). (2)

The General Counsel of the NLRB issued complaints against the Carpenters under Section 10(b) of the Act and petitioned the District Court for an injunction pursuant to Section 10(l) of the Act. The complaint alleged that the Carpenters' activities violated the Act on two grounds: (1) that the visibility of the banners to customers rendered the bannering impermissible secondary picketing and (2) because the banners included a fraudulent claim that there was a "labor dispute" with the Retailer. The district court denied the petition, ruling that the peaceful nature of the bannering activity "lacks the confrontational, sometimes intimidating conduct associated with traditional picketing" and that the banners were not misleading or fraudulent because "the carpenters beliefs [sic] that the Retailers' decision to do business with [the non-union contractors] contributes to the erosion of labor standards," thus "the union does, in fact, have a ?labor dispute' with the Retailers."

Shortly thereafter, an Administrative Law Judge ("ALJ") issued a decision in the unfair labor practices case before the NLRB, holding that the Carpenters' action was unlawful "signal picketing" and that the banners convey the false message that the Carpenters had a primary labor dispute with the Retailers named on the banners. Making essentially the same arguments, the Regional Director for the NLRB ("Overstreet") appealed the denial of the petition for an injunction as an abuse of discretion by the district court.

In an opinion by Judge Berzon, the majority first rejected Overstreet's assertion that a petition for an injunction brought by the General Counsel of the NLRB under Section 10(l) of the Act ? which applies specifically to illegal actions by unions ? is entitled to more deference than an injunction brought under Section 10(j) of the Act, which more generally provides for injunctive relief. The court held that Miller v. California Pacific Medical Center, 19 F.3d 445, 449 (4th Cir. 1994) overruled Nelson v. International Brotherhood of Electrical Workers, 899 F.2d 1557 (9th Circuit l990), which had provided the more deferential standard. The court also held that "because of the First Amendment backdrop of this case, ordinary principles of deference to Board interpretation of the Act do not apply here." Under Miller, a petition for an injunction is evaluated in terms of four equitable factors: (1) the movant's likelihood of success; (2) the possibility of irreparable injury to the movant if the injunction is not granted; (3) the extent to which the balance of hardships favors each party; and (4) whether the public interest will be advanced by granting preliminary relief. Moreover, because of the constitutional, free speech issues involved here, "Carpenters could be held to have committed unfair labor practices only if the statute clearly prohibits the Union's conduct."

The court ultimately affirmed the district court's denial of the petition for injunction, primarily based on the first of the above factors. It held that the NLRB "has little likelihood ? not even a ?fair chance' ? of succeeding in showing that Section 8(b)(4)(2)(B) prohibits the Carpenters bannering activity." In reaching this conclusion, the court first reviewed case law balancing the NLRA's ban against secondary picketing against First Amendment concerns, principally the U.S. Supreme Court's decision in NLRB v. Retail Store Employees Union, 447 607 (1980) and Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 578 (1988). Under these decisions, the court held that the Carpenters bannering would lose constitutional protection only if it amounted to "intimidation by a line of picketers" rather than "mere persuasion." Citing the peaceful manner of the bannering and the substantial distance of the banners from the entrance to the Retailers' facilities, the court held that the bannering is constitutionally protected. Moreover, the Court held that the bannering was not "signal picketing" designed to signal other union members to take action against businesses not involved in the primary labor dispute, because the bannering was intended to communicate to the public, not other union members.

The majority also rejected Overstreet's argument that the bannering was fraudulent because placing only the name of the Retailer on the banners with the words "LABOR DISPUTE" implies that the Carpenters have a primary labor dispute with the Retailers. It agreed with the district court's analysis that the use of the term "labor dispute" was not a false statement and that the Carpenters had no obligation to specify in their banners that they referred only to a secondary labor dispute. The majority held that the public, to whom the banners were intended to communicate, does not understand the distinction between primary and secondary labor disputes, stating: "[T]he primary/secondary distinction is the stuff of labor law treatises, not a common parlance." It further held that "the presence of any labor dispute is determinative of the question whether the Carpenters' assertion of a "labor dispute" was misleading to the public." The majority further cited to the fact that one of the Retailers to whom the bannering was directed responded by putting up its own banner reading "We Support Our Subcontractors! It Is a Right to Work State . . . Shame on Carpenters Local Union 1506." According to the majority, this showed that the Carpenters and the Retailers were engaged in a "dispute" about a "labor" issue, and thus were engaged in a "labor dispute."

In a scathing dissent, Judge Kleinfeld stated:

"The argument is that the public cannot be expected to understand the fine distinctions between primary and secondary labor disputes. I think that is true, but it cuts the other way. The public cannot be expected to imagine what the Union's real dispute is, when it invokes "SHAME" because of a "LABOR DISPUTE" on companies who are contractually two steps removed from the company from which the Union is actually seeking benefits for its members. A reasonable person driving by the Westin Bonaventure or the other firms subjected to the banners would think ?that company must not be treating its employees right,' not ?that company must be dealing with other companies that deal with yet other companies that don't treat their employees right.'"

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1. These are the Dills Act, the Educational Employment Relations Act (EERA), the Higher Education Employer-Employee Relations Act (HEERA), the Trial Court Employment Protection and Governance Act (TCRPGA), the Trial Court Interpreter Employment and Labor Relations Act (TCIELRA) and the Los Angeles County Metropolitan Transit Authority Transit Employer-Employee Relations Act (TERA).

2.That section states, in pertinent part:

"It shall be an unfair labor practice for a labor organization or its agents ... to threaten, coerce, or restrain any person engaged in commerce or industry affecting commerce, when in either case an object thereof is ... forcing or requiring any person ... to cease doing business with any other person. ... Provided, that nothing contained in this clause ... shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing."