A fire engineer filed suit in the California Superior Court. He alleged his city employer retaliated against him for his union advocacy in violation of Labor Code section 1102.5, California’s whistleblower statute. During the court-required meet-and-confer process, LCW Attorney Kamran warned the fire engineer’s counsel that these claims fell within the Public Employee Relations Board’s (PERB’s) exclusive initial jurisdiction. When the fire engineer persisted with the lawsuit, the city obtained a dismissal without leave to amend because the superior court lacked jurisdiction.
The fire engineer appealed. He argued that he should have been permitted to pursue his claims in court because PERB could not adequately address his related whistleblower claims under Labor Code section 1102.5. LCW continued to argue that PERB has exclusive initial jurisdiction over his action for retaliation based on union activity, even if the same alleged facts could also support a Labor Code violation.
The California Court of Appeal agreed with LCW and held that employees who allege retaliation based on union activity may first have to pursue administrative remedies before agencies like the National Labor Relations Board (NLRB) and PERB. The NLRB and PERB have primary jurisdiction over conduct protected or prohibited by the NLRA, and thus court claims based solely on that conduct are generally preempted. This framework provides important guidance for private-sector nonprofit employers facing claims rooted in union-related activity.