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Court of Appeal, Second District, Division 3, California.

EL RANCHO UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. NATIONAL EDUCATION ASSOCIATION (NEA), California Teachers Association (CTA), California Federation of Teachers (CFT), El Rancho Education Association (EREA), El Rancho Federation of Teachers (EERFT), Defendants and Respondents.

Civ. 61708.

Decided: February 25, 1982

Atkinson, Andelson, Loya, Ruud & Romo, Paul M. Loya, and Brian M. Libow, Long Beach, for plaintiff and appellant. Raymond Hansen, Los Angeles, Kirsten Zerger, Salines, and Penn Foote, Burlingame, for defendant and respondent California Teachers Association. Levy & Goldman, and Henry R. Fenton, Los Angeles, for defendants and respondents California Federation of Teachers and El Rancho Federation of Teachers.

Plaintiff El Rancho Unified School District (hereinafter District) appeals from the judgment dismissing its complaint for damages against defendants National Education Association (hereinafter NEA), California Teachers Association (hereinafter CTA), California Federation of Teachers (hereinafter CFT), El Rancho Education Association (hereinafter EREA) and El Rancho Federation of Teachers (hereinafter ERFT), after defendants' demurrers were sustained without leave to amend.   The complaint contains four causes of action.   The first cause of action charges that defendants induced their members and other certificated employees of plaintiff to breach their employment contracts by participating in a strike and thereby withholding their services.   It alleges that the defendants are labor organizations purporting to represent certificated employees of the district but that “at no time relevant hereto did any of the Defendant labor organizations enjoy the status of exclusive representative, as defined in Government Code Section 3540.1(e), of any certificated employees,” and further that “[n]o collective bargaining agreement was in effect and applicable to certificated employees at this time nor was any exclusive representative certified or recognized to represent certificated employees.”   As a result of this strike, plaintiff lost 19 days of instruction from the striking employees which allegedly caused damage in the sum of $1,085,000.   Charging that the defendants acted maliciously, the first cause of action also seeks punitive damages in the sum of $10,000,000.   It is also alleged:

“10.  Plaintiff has exhausted all necessary administrative remedies, if any, as a condition to proceeding with this action.   On or about September 20, 1976, Plaintiff sent a telegram to the Public Employment Relations Board notifying the Board of the work stoppage and asking for assistance.   Plaintiff also filed unfair labor practice charges against Defendants, which charges were dismissed by the Public Employment Relations Board;  such dismissal was stipulated by the parties to be without prejudice to Plaintiff in this litigation.”

The second cause of action charges that defendants engaged in an illegal strike against the District to its damage in the sum of $1,085,000.

The third cause of action alleges that none of the defendants was the exclusive representative of employees of plaintiff and that by their illegal strike against the District, “Defendants conspired to coerce and did coerce Plaintiff to illegally negotiate with Defendants NEA, CTA, CFT, EREA and ERFT and enter into a collective bargaining agreement in violation of Government Code Section 3543.3.”   The previously alleged damage is augmented by plaintiff's expenditure of more than $500,000 in additional benefits provided pursuant to the illegal collective bargaining agreement.

The fourth cause of action repeats the illegal strike and conspiracy allegations of the third cause of action and alleges that as a proximate result school children were unable to attend school, bringing about a violation of the California Compulsory Education Law.   No allegations of damage to the District are, however, made.

In sustaining defendants' demurrers, the trial court specified as the reason therefor:

“Lack of jurisdiction—The Court reads San Diego Teachers Assn. v. Superior Court, 1979, 24 C.3d 1, 154 Cal.Rptr. 893, 593 P.2d 838, as requiring a holding here that PERB [1] had initial jurisdiction, notwithstanding the allegations here that none of the defendants were certified as the exclusive representative and that there was no collective bargaining agreement in effect, and also notwithstanding the fact that damages are alleged here.”

Counsel for the District stated that it did not desire to amend its pleading and the demurrers were sustained without leave to amend.


Plaintiff contends that the trial court erred in sustaining defendants' demurrers because under the facts alleged:  (1) plaintiff has exhausted PERB remedies, if any existed;  (2) PERB did not have jurisdiction in view of (a) defendant unions' lack of “certified employee organization” status (Gov.Code, § 3540.1, subd. (b)), and (b) the absence of any arguable unfair practice issue;  (3) PERB could not, in any event, grant relief equivalent to a court award of damages;  and (4) public school employee strikes remain unlawful and actionable despite EERA.

Defendants controvert all of plaintiff's contentions.



Plaintiff's contention (2) is sound;  in view of defendants' lack of certified status and the absence of arguable unfair practice issues, there was no PERB jurisdiction over defendants' strike activity.   It is, therefore, unnecessary to resolve the issues posed by plaintiff's contentions (1) and (3).   We find no basis to question the applicability to public school employees of the settled rule prohibiting public employee strikes.   The complaint thus states a cause of action for damages under said rule.

No PERB Jurisdiction

 The judgment of the trial court is based entirely upon the holding of our Supreme Court in San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 7, 154 Cal.Rptr. 893, 593 P.2d 838, that PERB has “exclusive initial jurisdiction over remedies against strikes that it properly could find were unfair practices.”   Defendants assert that the facts alleged in the complaint establish PERB jurisdiction, relying in this respect upon:  (1) plaintiff's invocation of PERB jurisdiction by filing an unfair practice charge and the board's interim exercise of such jurisdiction until the stipulated dismissal, (2) the existence of arguable issues as to defendant's unfair practice in calling the strike, and (3) the alleged availability of unfair practice claims against plaintiff in justification of the strike.   We have examined each of these arguments and find them nonpersuasive.

 Plaintiff's purported invocation of PERB's jurisdiction by filing unfair practice claims did not confer jurisdiction upon the board.   In Summers v. Superior Court (1959) 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668, our Supreme Court said:

“Respondent Kaye correctly points out that petitioner started the very proceedings he now seeks to challenge, and contends that for this reason he is estopped from now challenging jurisdiction.   While estoppel may operate to confer jurisdiction over the parties to a controversy, jurisdiction over the subject matter cannot be conferred by consent, waiver or estoppel.  (See 1 Witkin, California Procedure, p. 278, where many cases are collected.)   The present case involves jurisdiction over the subject matter.”

 Nor is jurisdiction established by the fact that PERB entertained jurisdiction for a period of time until the proceeding was dismissed pursuant to stipulation.  “No court or tribunal can acquire jurisdiction by the mere assertion of it.”  (16 Cal.Jur.3d, Courts, § 71, p. 132;  Mannix v. Superior Court (1933) 133 Cal.App. 740, 743, 24 P.2d 507.)   We must, therefore, determine the jurisdiction of PERB on the basis of the statute creating that jurisdiction.  “Jurisdiction in any proceeding is conferred by law;  that is, by the constitution or by statute.”  (Harrington v. Superior Court (1924) 194 Cal. 185, 188, 228 P. 15.)

Government Code section 3541.3 bestows jurisdiction upon the board “[t]o investigate unfair practice charges or alleged violations of this chapter, and take such action and make such determinations in respect of such charges or alleged violations as the board deems necessary to effectuate the policies of this chapter.”   Section 3541.5 provides:

“The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.”

In San Diego Teachers Assn. v. Superior Court, supra, these sections were held to deprive courts of jurisdiction to grant injunctive relief in respect of a strike which could properly be found to constitute an unfair practice in violation of EERA, provided PERB could furnish relief equivalent to that available in a court action.   PERB was found to have exclusive initial jurisdiction over the strike in question because, arguably, it constituted “(1) failure to negotiate in good faith (§ 3543.6, subd. (c)), and (2) refusal to participate in the impasse procedure (§ 3543.6, subd. (d)).”  (Id., 24 Cal.3d at p. 8, 154 Cal.Rptr. 893, 593 P.2d 838.) 2

Inasmuch as both sections referred to apply only where the striking employee organization is recognized as the exclusive representative, the court was careful to limit its holding to that situation, saying (id., at p. 14, 154 Cal.Rptr. 893, 593 P.2d 838):  “Our holding is limited to injunctions against strikes by public school employee organizations recognized or certified as exclusive representatives (§ 3540.1, subd. (e)).”

The allegations of the complaint, which must be accepted as true, specifically negate defendants' status as exclusive representative.   Thus, the rationale employed in San Diego to establish PERB's jurisdiction is not available;  defendants' refusal to negotiate in good faith or to participate in the impasse procedure could not be found to be a violation of section 3543.6, subdivisions (c) or (d), of EERA and therefore could not on this basis be unfair practices.3

 Whether or not strikes by public school employees are unlawful, they are not as such made unlawful by EERA.   As stated in San Diego (24 Cal.3d at p. 13, 154 Cal.Rptr. 893, 593 P.2d 838):  “[S]ection 3549 does not prohibit strikes but simply excludes the applicability of Labor Code section 923's protection of concerted activities.”

Other sections of EERA are also invoked by defendants as bases for characterizing their strike as an unfair practice.   First, they embrace a contention stated by plaintiff in the complaint and in its unfair practice charge to PERB that the strike constituted coercion exercised upon the District to cause it to negotiate with defendants in violation of Government Code section 3543.3 which provides that the employer “shall meet and negotiate with and only with representatives of employee organizations selected as exclusive representatives of appropriate units ․”  (Emphasis added.)

The argument has surface plausibility but it overlooks the provision of section 3543.1 which states:

“(a) Employee organizations shall have the right to represent their members in their employment relations with public school employers, except that once an employee organization is recognized or certified as the exclusive representative of an appropriate unit pursuant to Section 3544.1 or 3544.7, respectively, only that employee organization may represent that unit in their employment relations with the public school employer.”

Read together, these sections clearly do not prohibit negotiation between the District and an uncertified union unless some union has been certified.

Defendants urge yet another basis for characterizing the strike as an unfair practice.   Citing section 3543, which guarantees public school employees “the right to represent themselves individually in their employment relations with the public school employer,” they assert that the strike arguably coerced nonmember employees to refrain from exercising such right.   But defendants do not explain how a strike can so operate, and we cannot conceive of any way that it could.   Should such employees join in the strike, that would be a part of their self-representation.   Should they not so join, it could have no effect on such right.

There does not, therefore, appear to be any arguable basis upon which the strike could be found to constitute an unfair practice or violation of EERA by defendants in this case.   And the other asserted bases for PERB jurisdiction to grant relief in respect of the strike are equally untenable.   We therefore conclude that PERB had no jurisdiction to deal with defendants' strike as an unfair practice or as a violation of EERA.

But defendants do not rely solely upon characterizing the strike as arguably an unfair practice.   They also urge that unfair practices of the District were in issue as justification for the strike.   One group of defendants argues that “[i]f the strike in question was to protest an unfair labor practice on the part of [the] District, then clearly the activity would be arguably protected under the EERA.”   They cite Mastro Plastics Corp. v. Labor Board (1956) 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309, and Lamphere Sch. v. Lamphere Fed. of Teachers (1977) 400 Mich. 104, 252 N.W.2d 818.  Mastro did not involve a public employee strike.   It dealt only with the interpretation of a no-strike clause in a collective bargaining agreement and held that an agreement “ ‘to refrain from engaging in any strike or work stoppage during the term of this agreement’ ” (350 U.S. at p. 271, 76 S.Ct. at p. 352) did not waive the employee's right to strike solely in protest against unfair labor practices.   Lamphere construed a Michigan statute which expressly prohibited strikes by public employees and specified the remedies applicable;  it expressly declined to create a common law action for damages such as that recognized in this jurisdiction.   Neither case is any authority for the proposition that the District's unfair labor practices could legitimize a strike made illegal by the general rule prohibiting public employee strikes.

 Defendants also urge that a teachers' strike is arguably a protected activity under the EERA when it is a response to an unfair labor practice.   They do not specify what provisions of EERA accomplish this revision in the law of California and we have been unable to find any.   Though EERA, as above noted, does not prohibit strikes by public education employees, it expressly withholds authorization for such strikes by providing in section 3549 that EERA “shall not be construed as making the provisions of Section 923 of the Labor Code applicable to public school employees ․”  Labor Code 923, by guaranteeing to workmen the right to employ “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” is the legislative recognition of employees' rights to strike.  (Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 689, 8 Cal.Rptr. 1, 355 P.2d 905.)   It is apparent that EERA leaves public education employees subject to existing case law prohibiting public employees strikes.

Defendants cite rulings of PERB recognizing employer unfair practices as justification for strikes in response thereto.   But these decisions all arose in cases where the strike was arguably an unfair practice.   So the ruling was in effect that a strike may escape condemnation as an unfair practice where it is in response to the employer's unfair practice.   Where, for example, the unfair practice charge is based on the proposition that the strike constitutes a refusal to negotiate by an authorized employee representative, there may be some logic to the proposition that the complaining employer must be in compliance with the law upon which the duty to negotiate depends.   This logic is dispelled, however, when the employer has no rights under EERA which are violated by the strike.   The question then becomes whether, independent of EERA, public employee strikes are unlawful and whether the rule, if any, which makes them unlawful recognizes such conduct of the employer as a defense.   Since defendants do not specify any conduct of the District upon which the hypothetical defense might be based, we are unable to conclude that it could be a defense to a court action.   Nor can we assume that it would arguably constitute unfair practice under EERA which has very limited application to employer conduct where there is no exclusive representative.   We note, moreover, that the six-months period for the initiation of unfair practice proceedings before PERB, with respect to any such claim, had long since expired when this action was dismissed so that there could be no occasion for conflicting decisions by the court and the board.  (Cf. Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 70, 160 Cal.Rptr. 745, 603 P.2d 1341.)

We conclude from the foregoing that the issues between plaintiff and defendants did not invoke the initial jurisdiction of PERB nor otherwise oust the court of jurisdiction to adjudicate plaintiff's damage claim.

Public School Employee Strikes Not Legalized

 Defendants question the continued vitality of the settled rule that strikes by public employees are unlawful, at least as applied to public school employees.   They cite in this respect the opinion in San Diego, supra, 24 Cal.3d 1, 154 Cal.Rptr. 893, 593 P.2d 838, which reviewed the numerous Court of Appeal decisions unanimously holding such strikes illegal, including a decision of this Division in Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 105–107, 140 Cal.Rptr. 41.   The opinion in San Diego further notes that though there is no Supreme Court holding in accord, the dictum of the court in Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, supra, 54 Cal.2d at page 687, 8 Cal.Rptr. 1, 355 P.2d 905, affirmed the rule that “[i]n the absence of legislative authorization public employees in general do not have the right to strike ․”  Beyond that, the court cited its comments in In re Berry (1968) 68 Cal.2d 137, 151, 65 Cal.Rptr. 273, 436 P.2d 273, and in City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 912, 120 Cal.Rptr. 707, 534 P.2d 403, that it was unnecessary to pass on this question.   The court then found it equally unnecessary to pass upon the matter in the San Diego case.   The situation, therefore, remains exactly as it was when we decided Pasadena.   In the absence of legislative authorization, public employees do not have the right to strike.   As above noted, we find nothing in EERA which implies any such right.   If the well-settled rule denying public employees the right to strike no longer represents the view of our Supreme Court, it is the province of that court to say so.   Its declination in San Diego to pass on the question adds nothing to its earlier decision similarly declining to resolve the question.


 From the foregoing it follows that the demurrers were improperly sustained to the first and second causes of action.   The third and fourth causes of action, however, are redundant except insofar as they erroneously characterize defendants' attempts to coerce plaintiff to negotiate as a violation of Government Code section 3543.3.   As we have held above, that section does not prohibit employers from negotiating with uncertified employee organizations except where there is a certified organization.   The demurrers to the third and fourth causes of action were therefore properly sustained.

The judgment is reversed insofar as it dismissed the first and second causes of action;  otherwise, it is affirmed.


1.   PERB is the accepted shorthand designation for the Public Employment Relations Board created by the Education Employment Relations Act (Gov.Code, § 3540 et seq., hereinafter EERA).

2.   Section 3543.6 provides in pertinent part:“It shall be unlawful for an employee organization to:“․“(c) Refuse or fail to meet and negotiate in good faith with a public school employer of any of the employees of which it is the exclusive representative.“(d) Refuse to participate in good faith in the impasse procedure set forth in Article 9 (commencing with Section 3548).”  (Emphasis added.)Section 3548 makes it clear that the impasse procedure is applicable only where the negotiating parties include the exclusive representative.

3.   As noted in San Diego, 24 Cal.3d at page 13, 154 Cal.Rptr. 893, 593 P.2d 838, “Moreover, EERA specifies no ‘unfair practices' but only acts that are ‘unlawful’ (§§ 3543.5, 3543.6) and thus does not segregate unfair practices from other violations.”Amador Valley Secondary Educators Assn. v. Newlin (1979) 88 Cal.App.3d 254, 151 Cal.Rptr. 724, and Council of School Nurses v. Los Angeles Unified School Dist. (1980) 113 Cal.App.3d 666, 169 Cal.Rptr. 893, cited by defendants, are also inapposite since each involved exclusive employee representatives.

POTTER, Associate Justice.

KLEIN, P. J., and LUI, J., concur.