Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIC510591, Sharon J. Waters, Judge.
The Zappia Law Firm, Edward P. Zappia, Cynthia Blaylock and Anna Kogan for Plaintiff and Appellant.
Weinberg, Roger & Rosenfeld, Alan G. Crowley, James Rutkowski and Jacob J. White for Defendant and Respondent.
OPINION
Gaut J.
1. Introduction
The present case concerns an ongoing dispute about contact between union representatives and workers at the Riverside County Regional Medical Center (the hospital). The County of Riverside complains that union representatives have interfered with the hospital providing medical care and preserving confidentiality for patients. Specifically, the County accuses Local 721 of intruding into restricted access and non-public areas and the County also claims a Local 721 representative impersonated a hospital employee.
Service Employees International Union, Local 721.
The County’s primary argument is that the superior court has jurisdiction over this dispute instead of the Public Employment Relations Board (PERB)—either because PERB does not exercise jurisdiction over claims involving trespass and privacy or because the “local concern” exception applies.
Government Code section 3541. All statutory references are to the Government Code unless stated otherwise.
In opposition, Local 721 continues to assert that jurisdiction rests exclusively with PERB, which is conducting ongoing administrative proceedings concurrently with the instant litigation.
The County appeals from an order denying its application to the superior court for a temporary restraining order and a preliminary injunction. The superior court ruled it did not have jurisdiction.
We affirm the judgment without prejudice to further proceedings after PERB rules in the underlying administrative action.
2. Factual and Procedural Background
Local 721 represents County employees, including about 400 hospital workers. In June 2007, after the County sought injunctive relief from PERB, the County and Local 721 agreed to terms permitting union access to County workers, especially about 500 Temporary Assignment Program (TAP) employees.
On September 9, 2008, the County initiated an unfair practice complaint against Local 721 with PERB, “alleging that [Local 721’s] improper and unlawful trespassing into non-public patient care and staff work areas... constituted violations” of many laws, regulations, and agreements. On September 15, the County also filed a request to PERB for an injunction, supported by 17 declarations from 16 County workers, describing their perceptions of the adverse effect of Local 721’s conduct on hospital operations.
On September 20, 2008, PERB issued an unfair practice charge against Local 721 concerning union bulletin board use and unauthorized union contact with employees in work areas. PERB issued a companion unfair practice charge against the County, also concerning bulletin board use and union access to employees. PERB denied without prejudice the County’s request for an injunction against Local 721. The PERB proceedings have apparently continued and were the subject of an evidentiary hearing in April 2009 after this appeal was filed.
On October 14, 2008, the County filed a civil suit, seeking declaratory and injunctive relief against Local 721. It alleged that, in 1998, the County created the TAP, which presently employs about 1,800 temporary County employees who are not part of a union. About 500 TAP employees work at the county hospital. The hospital designates various areas where patients are treated as non-public. The hospital is required by the federal Health Insurance Portability and Accountability Act (HIPAA) to protect confidential medical information. The County further alleged that Local 721 violated HIPAA by trespassing in the non-public areas of the hospital while trying to organize the TAP employees. The County sought to enjoin Local 721 from entering non-public areas at any time and restricting Local 721 to public areas—the cafeteria, the coffee shop, the gift shop, and the main lobby and corridors on the first floor—during visiting hours from 8:00 a.m. to 10:00 p.m.
The County’s application for a temporary restraining order and a preliminary injunction incorporated material previously submitted to PERB. It also included an additional nine declarations that repeated much of the same information as presented in the previous 17 declarations.
Local 721 filed opposition, including the declaration of Marward Sullivan-Taylor, a Local 721 shop steward, who denied she had ever tried to impersonate a hospital worker. Sullivan-Taylor, a former hospital employee for 23 years, offered a physical description of the hospital. The facility is five stories with a basement. The ground floor has the main entrance, a cafeteria, a coffee shop, and smoking areas. Each floor has an employee break room, locker rooms, and Local 721 bulletin boards. There are public waiting areas and corridors and breezeways connecting different departments. Sullivan-Taylor did not contact hospital workers in patient care areas.
Sullivan-Taylor asserted that, before June 2008, Local 721 representatives could meet hospital workers in break rooms, locker areas, waiting rooms, and public corridors. In June 2008, the County began to prohibit Local 721 representatives from meeting employees anywhere but the first floor cafeteria, coffee shop, and lobby.
Local 721 argued that PERB, not the superior court, had exclusive jurisdiction over the matter. The court agreed and denied the County’s application for a temporary restraining order and injunction.
In announcing her tentative ruling, Judge Sharon Waters commented: “My tentative thoughts are that this is a matter within the [ex]clusive jurisdiction of the PERB board and that the local concern exception does not apply here. Clearly there is an issue of significant state interest that would otherwise warrant the Court taking action. But my view right now is that the exercise of jurisdiction by this Court is likely to interfere with the regulatory jurisdiction of the administrative agency, that being PERB.”
Ultimately, Judge Waters concluded: “For the Court to evaluate what areas are authorized, what areas are not authorized, what areas implicate patient privacy, but nonetheless, it may be authorized areas, it seems to me this is exactly what the PERB board is going to be deciding in that case.
“I do not think this Court has exclusive or concurrent jurisdiction now that PERB is actually in this case to make rulings which, in fact, [are] going to require the Court to go through exactly the same analysis that the PERB Board will have to go through to determine where these SEIU [Local 721] representatives can and cannot go. For that reason, I remain of the view that the Court does not have jurisdiction here. And the matter is within the exclusive jurisdiction of PERB.”
3. Discussion
Although we conduct an independent review on the issue of subject matter jurisdiction (Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801), we concur fully with the reasoning expressed by Judge Waters.
First, we assure the County that this court has reviewed the many declarations the County submitted but we are unconvinced that the County has demonstrated there has been any actual, as opposed to anticipated, disruption of patient medical care or safety or any real, as opposed to perceived, threat to patient privacy. For the most part, the declarations simply recite instances in which Local 721 representatives were observed on hospital property in more sensitive areas like the gastrointestinal laboratory, the adult critical and progressive care units, and the diagnostic imaging, surgery, and emergency departments.
Although Local 721’s presence in some areas of the hospital may have been objectionable or undesirable for other reasons, there are no examples provided in which a patient suffered or was negatively affected because of Local 721 activity in his or her vicinity. (Washington State Nurses Association v. NLRB (9th Cir. 2008) 526 F.3d 577, 583-585, citing NLRB v. Baptist Hospital (1979) 442 U.S. 773 and Beth Israel Hosp. v. NLRB (1978) 437 U.S. 483.) For this reason, we reject the County’s repeated assertions that it is undisputed that Local 721 activity disrupted hospital operations and threatened patient care and privacy.
Notwithstanding the foregoing, we decide the jurisdictional issue in favor of Local 721. Although the instant matter is fundamentally a labor dispute, the County tries to characterize its claims as involving trespass, privacy, and “local concern,” which are subject to the jurisdiction of the superior court. We disagree.
Under the Government Code, the Meyers-Milias-Brown Act (MMBA) covers local public employee organizations like Local 721. (Gov. Code, § 3500 et seq.) The PERB has broad authority to enforce the MMBA: “The MMBA governs employer-employee relations for most California local public entities. (§ 3501, subd. (c).) One of the purposes of the MMBA is to provide ‘a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations. (§ 3500, subd. (a).)
“PERB is an expert, quasi-judicial administrative agency. [Citation.] One of PERB’s primary functions is to investigate and adjudicate charges of unfair labor practices. (§ 3541.3, subd. (i).)
“Before July 1, 2001, an employee association claiming a violation of the MMBA could bring an action in superior court. [Citation.] Effective July 1, 2001, however, the Legislature granted PERB ‘exclusive jurisdiction’ over alleged violations of the MMBA. [Citation.] That power is described in section 3509. As is relevant it states:
“‘(a) The powers and duties of [the board] as described in Section 3541.3 shall also apply, as appropriate, to this chapter and shall include the authority as set forth in subdivisions (b) and (c)....
“‘(b) A complaint alleging any violation of this chapter or of any rules and regulations adopted by a public agency pursuant to Section 3507... shall be processed as an unfair practice charge by the board. The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board....
“‘(c) The board shall enforce and apply rules adopted by a public agency concerning unit determinations, representation, recognition, and elections.” (§ 3509, subds. (a)-(c).)
“Section 3507, subdivision (a), states that a ‘public agency may adopt reasonable rules and regulations... for the administration of employer-employee relations under this chapter.’” (City and County of San Francisco v. International Union of Operating Engineers, Local 39 (2007) 151 Cal.App.4th 938, 943-944.) Among the rules and regulations a public agency may adopt are those pertaining to “Access of employee organization officers and representatives to work locations.” (§ 3507, subd. (a)(6).)
Here PERB has already assumed jurisdiction and issued two charges of unfair practices, one against the County and one against Local 721. Although it denied without prejudice the County’s request for injunctive relief, PERB has conducted an evidentiary hearing and will be issuing a decision about the two charges. Even if issues involving privacy and trespass are implicated, the present case involves employee rights to be represented by a bargaining unit, which are matters subject to PERB’s jurisdiction. It is for PERB, not the superior court, to decide in the course of its proceedings whether and to what extent Local 721 representatives may have access to the hospital workers. (NLRB v. Baptist Hospital, supra, 442 U.S. at pp. 778-791.)
We are also not persuaded that the “local concern” exception applies. In El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 957, the court applied federal cases and principles, holding that PERB preempts a court’s jurisdiction if the conduct at issue is arguably protected or prohibited by one of the labor statutes administered by PERB and the controversy presented to the state court “may fairly be termed the same” as that presented to PERB. The “local concern” exception to the general rule of PERB’s exclusive jurisdiction permits a court to exert jurisdiction when there is a “‘significant state interest in protecting the citizen from the challenged conduct’” and “the exercise of state jurisdiction... entail[s] little risk of interference with the regulatory jurisdiction of [PERB].” (Pittsburg, supra, at p. 885, citing Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1978) 436 U.S. 180, 196.)
Cases decided before 2001, should be read with regard for the exclusive jurisdiction now accorded PERB. (Pittsburg Unified School Dist. v. California School Employees Assn. (1985)166 Cal.App.3d 875, 884-888 (Pittsburg) citing El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d at pp. 956-960.)
The cases cited by the County are not sufficiently analogous to support applying the local concern exception. In Pittsburg, supra, 166 Cal.App.3d at pages 881, 883, 886-887, the union engaged in picketing and leafleting outside the personal businesses of Pittsburg school board members and blocked access for their customers. The court concluded the conduct violated state statutes—Education Code section 35230 against corrupt practices and Government Code section 1090 against conflict of interest. The disruptive and illegal union activity in Pittsburg was not comparable to the legitimate activity of union representatives contacting employees in the workplace.
Other cases addressing the local concern exception involve dissimilar extreme conduct like trespass, violence, vandalism, destruction of property, and threats to public health and safety. (Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, 436 U.S. at pp. 200, 202; Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 756; Youngdahl v. Rainfair (1957) 355 U.S. 131, 132-134, 139; Hillhaven Oakland Nursing etc. Center v. Health Care Workers Union (1996) 41 Cal.App.4th 846, 854-855, 857, citing Kaplan’s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 69-70; Bertuccio v. Superior Court (1981) 118 Cal.App.3d 363, 365-366, 369.)
Nor does the present case involve other purported violations of law—a circumstance not demonstrated here by the evidence offered by the County. The County incorrectly relies on two more cases concerning violations of the Education Code. (California School Employees Assn. v. Travis Unified School District (1984) 156 Cal.App.3d 242, 249-250; California School Employees Assn. v. Azusa Unified School Dist. (1984) 152 Cal.App.3d 580, 591-593.)
Instead, we conclude that, where PERB has already exercised its jurisdiction, as Judge Waters recognized, there is a substantial opportunity for conflict. Disparate factual determinations are a real possibility. Furthermore, although the issues presented to PERB and the superior court are not “identical” (Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, 436 U.S. at p. 197), neither are they “completely unrelated.” (Id. at p. 198.) There is a core identity of issues presented to PERB and the court, making conflict and inconsistency even more possible. (Hillhaven Oakland Nursing etc. Center v. Health Care Workers Union, supra, 41 Cal.App.4th at pp. 859-860.)
4. Disposition
In summary, we do not accept the County’s argument that claims of trespass and privacy violations were established or that the local concern exception to jurisdiction by PERB applied. The superior court properly declined to exercise jurisdiction and grant the County’s application for a temporary restraining order and preliminary injunction.
We affirm the judgment. Local 721, as the prevailing party, shall recover its costs on appeal.
We concur: Hollenhorst Acting P. J., Miller J.