City of San Jose * * * OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, as recognized in Oakland Unified School District (2024) PERB Decision No. 2906, p. 18. * * * (PERB 2141M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF SAN JOSE,
Charging Party,
V.
ASSOCIATION OF BUILDING, MECHANICAL
AND ELECTRICAL INSPECTORS,
Respondent.
Case No. SF-CO-168-M
PERB Decision No. 2141-M
November 10, 2010
Appearances: Robert Fabela, Senior Deputy City Attorney, for City
of
San Jose; Wylie,
McBride, Platten & Renner by Carol L. Koenig, Attorney, for Association
of
Building,
Mechanical and Electrical Inspectors.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the City
of
San Jose (City) to the proposed
decision
of
an administrative law judge (ALJ) dismissing the complaint and underlying unfair
practice charge. The complaint alleged that the Association
of
Building, Mechanical and
Electrical Inspectors (ABMEI) violated the Meyers-Milias-Brown Act (MMBA) 1 by picketing
four private construction sites on three separate days. The complaint alleged that this conduct
constituted unlawful pressure tactics and thus a failure and refusal to meet and confer in good
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
* * * OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision
No. 2418-M, as recognized in Oakland Unified School District (2024) PERB Decision No. 2906, p. 18. * * *

faith, in violation
of
Sections 3505 and 3509(b), and PERB Regulation 32604(c).2 The ALJ
dismissed the complaint on the ground that the MMBA does not contain language prohibiting
secondary picketing.
The Board has reviewed the proposed decision and the record in light
of
the City's
exceptions,3 ABMEI' s response to the exceptions, and the relevant law. Based on this revievv,
the Board reverses the proposed decision for the reasons discussed below.
BACKGROUND
This case was submitted based upon stipulated facts and the City's exhibits admitted
without objection.
ABMEI is the exclusive representative
of
a bargaining unit
of
approximately 90
building inspectors employed by the City. The primary job
of
the building inspectors is to
conduct building, mechanical, electrical, and plumbing inspections for construction projects in
the City. All private residential and commercial construction sites requiring building permits
are subject to inspections by the building inspectors. Developers and contractors are not
permitted to substitute these City inspectors with inspectors
of
their own choosing; they must
use City building inspectors or choose from a list
of
qualified companies to hire an inspector to
perform specialized inspections when they cannot be performed by City inspectors.
PERB regulations are found at the California Code of Regulations, title 2,
section 3100 l et seq.
3 The City requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the
above criteria are met in this case. Therefore, the City's request for oral argument is denied.
2

The City and AB MEI operated under a memorandum
of
agreement that expired
on
October 19, 2007. Beginning September
5,
2007, the City and ABMEI entered into bargaining
for a successor memorandum
of
agreement.
On October 22, 2007, ABMEI distributed an "On Strike" flyer that stated:
As
of
today, the Inspectors Union (ABMEI) is ON STRIKE. All
items have been resolved in negotiations save one - City
Management wants us (and other Unions), to give up our right to
Binding Arbitration when we feel an employee has been fired
unjustly. WE WILL NOT GIVE UP THIS RIGHT. We proved
in the courts that ALL Unions have this right, and now they want
us to negotiate it away.
NO!!!! 	So we are now ON STRIKE. We are in our 3-day
cooling-off period, but come Thursday every construction site in
the City will come to a halt, until this issue is resolved.
	If
YOU
got fired TODAY, for no good reason, wouldn't you like
someone to stick up for YOU? Our members say YES, and for
that we are willing to fight. Keep us in your thoughts.
This is an informational pamphlet only -
if
you are
signatory to a Union Agreement, we do NOT ask that you honor
our picket lines Thursday. 	But know that our cause is just, and
we shall prevail. Thank you for your help.
Sincerely,
The Inspectors Union
ABMEI
(Emphasis in original.)
The same day, ABMEI Lead Negotiator Steve Stender (Stender) sent a letter to Gina
Donnelly, city employee relations officer, stating that the informational handout concerning the
strike "may have been premature." Stender informed the City that the ABMEI membership
would continue working during negotiations.
The parties were unable to reach agreement on the terms and conditions of a successor
memorandum
of
agreement and, after ABMEI and the City declared impasse, they agreed to
enter into mediation.
3

During the period from October 22 through November 28, 2007, the City and ABMEI
participated in impasse procedures pursuant to MMBA section 3505 and in compliance with
the Local Rules
of
the City.
The impasse procedures were completed on November 28, 2007, at which time the
parties had not come to an agreement. ABMEI went on strike against the City on
November 29. The City hired non-employees to perform the work
of
the bargaining unit
members represented by ABMEI. Those non-employees began performing the work
on
or
about December 3.
The striking workers carried signs that stated "ABMEI On Strike Against the City
of
San Jose." The striking workers picketed outside
of
City Hall during the first week
of
the
strike.
On December 6, 2007, ABMEI members picketed in front
of
the private construction
site
of
Three Sixty Residences, located on South Market Street in San Jose, carrying the same
signs. 	This resulted in most
of
the construction on that day shutting down, except for a crane
operator who was already on the job. Presumably, the private construction workers chose not
to cross the picket line.
On December
6,
2007, AB MEI members picketed the private construction site
of
EBay
Development, located on Onel Drive in San Jose. This caused the construction work at EBay
Development to shut down that day, presumably because the private construction workers
chose not to cross the picket line.
On December 7, 2007, ABMEI's members again picketed the private construction site
of 	Sixty Residences. Once again this caused the construction site to shut down that day,
presumably because the private construction workers chose not to cross the picket line.
4

On December 7, 2007, ABMEI members picketed the private construction site known
as Tamien Place Condominiums in San Jose. This caused about half the job to shut down.
On December 10, 2007, ABMEI's members picketed the private construction site
known
as
Axis Building, located at 3 8 Almaden Boulevard in San Jose. This caused all but
work done by non-union concrete and glass workers to shut down.
The general contractors and subcontractors performing work at the above private
construction sites were not City employees.4 The construction projects at these sites were not
part
of
any City construction/public works project. The construction projects at these sites
could not be completed without passing inspections conducted either by City inspectors or by
individuals designated or approved by the City to conduct inspections.
During the picketing, AB MEI and the City continued to negotiate over the terms
of
a
successor agreement. The City and ABMEI met on days
of
the picketing. The parties agreed
to meet and negotiate during the picketing, and did meet and negotiate each and every time
either party requested a meeting.
In a news article posted by the San Jose Mercury News on December 7, 2007, ABMEI
President Tom Brim (Brim) was quoted as saying, "This morning began the second week, we
called for phase two,
...
	Hopefully, we'll never have to go to phase three and four."
An article posted by NBC
11
dated December 10, 2007, stated that, according to Brim,
the picketing was "an effort to shut down work on the projects and show the city council and
city administrators that more projects could be targeted." The article also quoted Brim as
saying, "[i]f the issue is not resolved over the next few days, the union will hit as many as
15
construction[] sites."
There is no evidence in the record to indicate that any representatives of the City were
present and working at the private construction sites during the picketing.
5

ABMEI and the City reached agreement on a new memorandum
of
agreement on
December 11, 2007. The picketing ceased.
PARTIES' CONTENTIONS
The City contended before the ALJ and on appeal that the picketing
of
private
construction sites for the purpose
of
placing pressure on the City to settle its labor dispute
constituted an unlawful pressure tactic in violation
of
MMBA sections 3505 and 3509(b ), and
PERB Regulation 32604(c). ABMEI contended before the ALJ and on appeal that its
picketing was constitutionally protected free speech and assembly, that it did not fail or refuse
to engage in good faith bargaining, and that its picketing
of
private construction sites was not
unlawful. The ALJ determined that, because there is no language in the MMBA making
ABMEI's conduct an unfair practice, the City failed to meet its burden
of
proof that AB MEI
violated any provision
of
the MMBA. 	On appeal, the City also contends that the ALJ erred in
failing to find ABMEI's conduct to be unlawful secondary picketing and in concluding that
ABMEI's conduct was arguably a protected sympathy strike. ABMEI disagrees and contends
that the ALJ was correct in making this finding.
DISCUSSION
The issue in this case is whether ABMEI violated the MMBA by picketing at private
construction sites in a manner that caused work on those sites to shut down. The MMBA, like
the other statutes administered by PERB, does not specifically address the legality
of
either
strikes or picketing. (See Couniy Sanitation Dist. No. 2
v.
Los Angeles County Employees'
Assn. (1985) 38 Cal.3d 564, 573 (County Sanitation) [MMBA provides no "clear legislative
directive" on the right to strike].) Moreover, 	the
6

Act (EERA),5 the Higher Education Employer-Employee Relations Act (HEERA),6 and the
Ralph C. Dills Act (Dills Act),7 the MMBA does not specifically define any unfair practices,
but imposes a mutual obligation on the public agency and representatives
of
recognized
employee organizations to meet and confer in good faith.
	(§
3505.) By regulation, PERB has
made it an unfair practice for an employee organization under the MMBA to "[r]efuse or fail to
meet and confer in good faith as required by Government Code section 3505 or by any local
rule adopted pursuant to Government Code section 3507." (PERB Reg. 32604(c).)
Notwithstanding the absence
of
any specific statutory language in the MMBA
addressing the right to strike, it is now well established that certain public sector strikes are
lawful. (County Sanitation at pp. 572-573.) Likewise, it is well established that "the right to
picket peaceably and truthfully is one
of
organized labor's lawful means
of
advertising its
grievances to the public, and as such is guaranteed by the Constitution as an incident
of
freedom
of
speech." (Pittsburg Unified School Dist.
v.
California School Employees Assn.
(1985) 166 Cal.App.3d 875, 891 (Pittsburg).) However, "[p]icketing can nevertheless be
regulated because it involves not only speech but also an element
of
conduct." (San Marcos
Unified School District (2003) PERB Decision No. 1508 (San lvfarcos), citing lvfiller
v.
UFCW
Local 498 (9
th
Cir. 1983) 708 F.2d 467, 471.) The issue presented here is what limits,
if
any,
exist on the right
of
employee organizations to engage in peaceful picketing that induces
employees
of
third party employers to cease performing work.
5 EERA is codified at Section 3540 et seq.
6 HEERA is codified at Section 3560 et seq.
7 The Dills Act is codified at Section 3512 et seq.
7

Concerted Activities and the Duty to Bargain in Good Faith
As indicated above, the MMBA imposes an obligation on both employers and
recognized employee organizations to meet and confer in good faith regarding wages, hours
and other terms and conditions of employment. (§ 3505.) The conduct of the parties away
from the bargaining table is relevant to determining whether a party has fulfilled its obligation
to negotiate in good faith. 	(Radisson Plaza Minneapolis v. NLRB (8 th Cir. 1993) 987 F.2d
1376, 1381.) Concerted activities such as strikes may constitute "illegal pressure tactics" that
demonstrate a lack of good faith in the bargaining process. (San Diego Teachers Assn. v.
Superior Court of San Diego County (1979) 24 Cal.3d 1, 8 (San Diego Teachers).) Thus, in
considering whether a teachers' strike could constitute an unfair practice, the California
Supreme Court stated:
The question of negotiation in good faith is resolved by
determining whether there was a genuine desire to reach
agreement. (Placentia Fire Fighters v. City of Placentia (1976)
57 Cal. App. 3d 9, 23 [129 Cal. Rptr. 126] (construing Meyers-
Milias-Brown Act,§ 3505).) Under the NLRA a strike does not
itself violate the duty to confer in good faith because '[the]
presence of economic weapons in reserve, and their actual
exercise on occasion by the parties, is part and parcei of the
system that the Wagner and Taft-Hartley Acts have recognized.'
(Labor Boardv. Insurance Agents (1960) 361 U.S. 477,489 [4 L.
Ed. 2d 454,464, 80 S. Ct. 419]; cf. Lamphere Sch. Dist. v.
Lamphere Fed. ofTchrs. (1976) 67 Mich. App. 485 [241 N.W. 2d
257] (teachers' strike did not establish failure to bargain in good
faith).) Thus if [the union's] strike were held legal it would not
constitute a failure to negotiate in good faith. As an illegal
pressure tactic, however, its happening could support a finding
that good faith was lacking.
An unfair practice consisting of' [refusal] to participate in good
faith in the impasse procedure' (§ 3543, subd. (d)) could be
evidenced by a strike that otherwise was legal.
(San Diego Teachers at p. 8; emphasis added.)
8

PERB has exclusive initial jurisdiction to determine what conduct amounts to an
unlawful pressure tactic constituting a refusal to bargain in good faith. 	(San Diego Teachers at
p. 14; Compton Unified School District (1987) PERB Order No. IR-50 (Compton).) Moreover,
PERB is not limited to explicit statutory prohibitions in finding activity to be bad faith
bargaining. (Leek
v.
Washington Unified School Dist. (1981) 124 Cal.App.3d. 43, 48-49;
Compton.) Thus, PERB has held, even where the objective
of
a strike is lawful, the means
used to carry out that objective may be unlawful. (San Ramon Valley Unified School District
(1984) PERB Order No. IR-46 (San Ramon).)
PERB has held certain concerted activities may constitute unlawful pressure tactics that
violate the duty to bargain in good faith. 	Examples include pre-impasse strikes not provoked
by unfair practices (Sacramento City Unified School District (1987) PERB Order No. IR-49
(Sacramento City); Rio Hondo Community College District (1983) PERB Decision No. 292);
pre-impasse strike threats and preparations (South Bay Union School District (1990) PERB
Decision No. 815; Regents
of
the University
of
California (2010) PERB Decision No. 2094-H
(Regents
of
the UC)8
);
post-impasse intermittent and surprise strikes (San Ramon; Fremont
Unified School District (1990) PERB Order No. IR-54 (Fremont)); and partial work stoppages
(Palos Verdes Peninsula Unified School District (1982) PERB Decision No. 195; El Dorado
Union High School District (1985) PERB Decision No. 537 (El Dorado); Los Angeles Unified
School District (1990) PERB Decision No. 803; Modesto City Schools (1983) PERB Decision
N 	29 <
,
0. 	l.)
9
8 On October 7, 2010, the First District Court of Appeal summarily affirmed the
Board's decision in Regents
of
the UC.
9 When interpreting the MMBA, it is appropriate for PERB to take guidance from
decisions interpreting other statutes under PERB' s jurisdiction that contain similar provisions.
(Fire Fighters Union
v.
City of Vallejo (1974) 12 Cal.3d 608, 617.)
9

The legality
of
California public sector picketing has been addressed in only a few
cases. Non-disruptive informational picketing is generally regarded as protected activity.
(Pittsburg; San Marcos.) In Pittsburg, a court
of
appeal held that picketing the private
business offices
of
members
of
the governing school board did not violate EERA, where the
picketers did not block ingress or egress from the buildings and no one was otherwise
discouraged from entering the members' business premises or from doing business with them.
(Pittsburg, at
p.
886.) Similarly, in San Marcos, the Board held that non-disruptive
informational picketing outside a city hall prior to public meetings
of
the city's governing
board was protected both under EERA and by constitutional free speech principles.
Consequently, the employer violated EERA when it threatened to discipline employees for
engaging in such picketing.
In Fresno Unified School District (1982) PERB Decision No. 208 (Fresno), the Board,
adopting federal standards developed under the National Labor Relations Act (NLRA), held
that the determination
of
whether picket line misconduct during a strike constitutes coercion
and intimidation is an objective one, i.e., whether the misconduct "may reasonably tend to
coerce or intimidate employees in the exercise of their rights." (Citing International Union
of
Operating Engineers
v.
NLRB
(3 rd
Cir. 1964) 328 F.2d 850; NLRB
v.
W
C.
McQuaide, Inc.
(3 rd
Cir. 1977) 552 F.2d 519.) Applying this standard, the Board held that picket line conduct
consisting
of
making verbal comments to non-striking employees who crossed the picket lines,
photographing and taking down non-striker license numbers, and causing brief delays in
getting in and out of parking lots could not reasonably be considered threatening. Therefore,
the Board concluded, 	did not unlawfully coerce or threaten employees who
their right to refrain to participating in the strike.

In El Dorado, the Board expressly declined to consider whether picketing by teachers
before school hours violated EERA, but found that the picketing amounted to an unlawful
partial work stoppage, since it occurred during times when the teachers were required to be
available for parent conferences and other duties immediately preceding the start of class.
The disruptive nature of the picketing distinguishes the facts of this case from
Pittsburg, San Marcos and other decisions holding non-disruptive informational picketing to
be protected activity. Not only did the picketing in this case enmesh neutral third parties in
ABMEI's dispute with the City, it caused substantial disruption to those entities by effectively
shutting down four private construction sites. Unlike in Pittsburg and San Marcos, the
picketing was not directed at individual members of the City's governing board or their private
businesses. The court in Pittsburg emphasized that no employees or clients were prevented or
discouraged from entering the premises and there was no evidence that the picketing actually
affected their economic well-being adversely. (Pittsburg at pp. 893-894.) Here, the picketing
was directed at private employers with the object of inducing private employees to refuse to
work, shutting down private construction sites. Such conduct goes far beyond the non-
disruptive picketing sanctioned in Pittsburgh and San Marcos, and was an unfair tactic
designed to put undue pressure on the City to sign a contract with ABMEI, which it did five
days after the construction site picketing commenced. Moreover, given the fact that the
inspectors possessed direct regulatory control over the construction projects they picketed, we
find these tactics were particularly coercive. As noted by ABMEI in its post-hearing brief
before the ALJ:
The strategy of picketing at 	private construction 	was
highly effective. The targeted construction[] projects were
almost totally shutdown during the picketing and five days after
the picketing of the private job sites began, the parties settled the
MOU.
11

In light
of
the coercive nature
of
the picketing by
AB
MEI, it is not surprising that this
strategy was effective. However, by picketing neutral private employers, ABMEI's conduct in
this case both violated the public trust and placed the City at an unfair disadvantage in
negotiations. Clearly, the City has no control over the activities
of
private employees.
Consequently, it had no way
of
effectively responding to the work shutdowns other than to
accede to AB MEI' s demands to sign a contract. The disruption
of
the business
of
neutral third
parties is inconsistent with the public interest in promoting harmonious labor relations as well
as the efficient delivery
of
public services. Accordingly, we conclude that the picketing
of
private construction sites with the effect
of
shutting them down was an unfair pressure tactic in
violation
of
the MMBA.
Public Interest Concerns
In reaching this conclusion we note that, while much
of
California's public sector
collective bargaining law has been modeled after the NLRA, the federal law governing the
private sector, important differences exist. Unlike in the private sector, the statutes governing
collective bargaining in the public sector serve not only the interests
of
the public employer
and its employees, but also "express[] a legislative determination that the process
of
collective
negotiations furthers the public interest by promoting the improvement
of
personnel
management and employer-employee relations" within the public sector. (San Mateo City
School Dist.
v.
Public Employment Relations Bd. (1983) 33 Cal.3d 850, 862.) As noted by the
Board, "[ u]nlike the private sector, the public sector, by its nature, involves public interest."
(Fremont at p. 12.) Thus, MMBA section 3500(a) states as one of its purposes
to promote the improvement of personnel management and
employer-employee relations within the various public agencies
in the State of California by providing a uniform basis for
recognizing the right of public employees to join organizations of
12

their own choice and be represented by those organizations in
their employment relationships with public agencies.
In recognition
of
this public interest, both PERB and the courts have considered the
impact
of
protected activity on third parties. For example, the Board in Compton found a
teacher strike unlawful where "the strike was employed to cause a total breakdown
of
two
discrete activities that are guaranteed by statute and case law: (1) basic education for students
and (2) negotiations free from coercive tactics that hold hostage that education." (Concurring
opinion
of
Member Hesse, at
p.
167.) Thus, the Board found that the coercive effect
of
the
strike on bargaining resulted in a "total inability
of
the District to provide even basic,
minimum-day education" was "an example
of
the 'larger harm' stemming from a teachers'
strike that the Supreme Court expressly permits PERB to address." (Ibid. at pp. 167-168,
citing El Rancho Unified School Dist.
v.
National Education Assn. (1983)
33
Cal.3d 946, 957.)
Concerted activity that has an adverse impact on third parties was also recognized in County
Sanitation (holding certain essential employee strikes unlawful), Regents
of
the UC
(recognizing that whether a strike at a health care institution poses an imminent threat to
public health or safety is to be determined on a case-by-case basis), 10
and International
Longshoremen's Assn.
v.
Allied Int'l (1982) 456 U.S. 212,223 (refusal to unload ships engaged
in trade with the U.S.S.R. in protest
of
Afghanistan invasion embroiled unoffending employers
in a controversy not their own). Similarly, the picketing in this case harmed the public interest
by enmeshing neutral employers in ABMEI's dispute with the City.
10
Ultimately, the Board did not reach this issue, finding instead that a strike threat and
preparations prior to exhaustion of statutory impasse procedures was an unfair practice.
13

Absence
of
Statutory Language Prohibiting Secondary Boycotts
We turn now to ABMEI' s assertion that, because the MMBA does not expressly
prohibit "secondary boycott" activity, such conduct is outside the scope
of
PERB' s review.
Section 8(b )(4)(b)
of
the NLRA contains specific prohibitions against certain types
of
secondary activity, including picketing "secondary," or neutral, employers
vvith
the object
of
forcing them to cease doing business with the primary employer. (29 U.S.C. § 158(b)(4)(b).)
"Secondary boycott activities are those which are calculated to involve neutral employers and
employees in the union's dispute with the primary employer." (Iron Workers Dist. Council
of
Pacific Northwest
v.
NLRB (9th Cir. 1990) 913 F.2d 1470, 1475.) The Agricultural Labor
Relations Act (ALRA), enacted after the MMBA, contains a similar prohibition against
secondary activities. (Labor Code,§ 1154(d).) 	As noted above, the MMBA and all
of
the
statutes administered by PERB are completely silent on the issue
of
both strikes and picketing.
We do not find the absence
of
specific language in the MMBA prohibiting secondary
picketing to preclude our finding that ABMEI' s activities in this case constituted an unlawful
pressure tactic in violation
of
the MMBA. First, it
is
well established that PERB has broad
authority to identify unfair pressure tactics that undermine the collective bargaining process,
even
if
such conduct is not specifically prohibited by the governing statute, most notably in the
area
of
strikes, which are not addressed at all in the MMBA or any other statute administered
by PERB. (San Diego Teachers.) Second, both the NLRA and the ALRA address labor
relations between private employees and their employers, and the secondary boycott provisions
contained in those statutes also protect private secondary employers. The MMBA and other
by 	on the 	hand, govern only the conduct of public
employers and employees and, as such, are also designed to protect the interest of the public in
the continued delivery of public services. (Compton; County Sanitation; Fremont).
14

Third, as noted by PERB in Regents of the UC, important differences exist between
private and public sector collective bargaining. For example, unlike in the California public
sector, the pre-impasse economic strike "is not an unfair practice under the NLRA unless it
violates one of the Act's prohibitions on specific strike activity." (Regents of the UC.) 	In
contrast, a pre-impasse strike in the California public sector creates a rebuttable presumption
that the employee organization is refusing either to negotiate in good faith or to participate in
statutory impasse procedures in good faith. (Ibid., citing Sacramento City; Westminster School
District (1982) PERB Decision No. 277; Fresno; Fremont Unified School District (1980)
PERB Decision No. 136.) 	Private employers also enjoy the right to employ economic
weapons that are effectively unavailable in the public sector, such as the lockout and the ability
to hire permanent replacement workers. (Regents of the UC; Fremont, supra, PERB Order
No. IR-54.) Thus, unlike in the private sector, California's public sector collective bargaining
statutes do not establish a similar scheme of unregulated economic weapons, but instead vest
in PERB the discretion and authority to determine whether a party has bargained in good
faith and to prohibit conduct that places undue pressure disruptive of the bargaining
process. 11 Therefore, given PERB's broad authority under the MMBA to regulate conduct
that disrupts the bargaining process, the absence of a specific statutory prohibition against
secondary boycotts is not dispositive of this case.
Sympathy Strike Argument
Finally, we address ABMEI's contention that the ALJ was correct in concluding that
it was "at least arguable that the private construction site employees who honored
Because we find that ABMEI' s conduct was an unfair pressure tactic under the
MMBA, we need not and do not reach the issue of whether it would also be prohibited under
section 8(b )(4) of the NLRA.
15

[ABMEI's] picket line engaged in a sympathy strike," citing Oxnard Harbor District (2004)
PERB Decision No. 1580-M (Oxnard). 	The term "sympathy strike" "ordinarily refers to a
strike conducted
by
workers belonging to one bargaining unit in support
of
a primary strike
that is conducted
by
workers belonging to another bargaining unit at the same plant
or
shop."
(Children's Hosp. Med.
Ctr.
v.
Cal. NursesAss'n. (9th Cir. 2002) 283 F.3d 1188, 1191.) In
Oxnard, the Board held that employees
of
the Oxnard Harbor District represented by the
Service Employees International Union did not violate a contractual general no-strike clause
when they engaged in a sympathy strike
by
refusing to cross an informational picket line
of
the International Longshore and Warehouse Union (IL WU) against another employer
working at the harbor. In so doing, the Board noted that the Oxnard Harbor District provided
the work location for the IL WU employees and that there was no indication that the
IL WU
picket line was an attempt to conduct a secondary strike or boycott prohibited under the
NLRA.
Here, however, the conduct
of
the private employees is not at issue. Thus, it is
irrelevant whether their conduct was privileged as a "sympathy strike" or otherwise.
Moreover, unlike in Oxnard, this is not a case in which the City provided the work location
for the striking employees. Rather, the striking employees chose to picket a wholly neutral
employer in order to cause it to cease doing business with the City.
Based upon the foregoing authorities, we conclude that ABMEI engaged in unlawful
pressure tactics when it engaged in picketing
of
private construction sites that caused the
disruption
of
work at those sites.
16

ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in
this case, it is found that the Association of Building, Mechanical and Electrical Inspectors
(ABMEI) violated the Meyer-Milias-Brown Act (MMBA), Government Code sections 3505
and 3509(b), and Public Employment Relations Board (PERB) Regulation 32604(c) (Cal. Code
Regs., tit. 2, § 31001 et seq.), by picketing at private construction sites and causing private
employees to cease performing work. Therefore, pursuant to MMBA section 3509(b), it is
hereby ORDERED that ABMEI, its administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
Picketing any private construction site within the City of San Jose (City) in a
manner that causes employees of private employers to cease performing work.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all locations where notices to employees are customarily posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signedby an
authorized agent of ABMEI, indicating ABMEI will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. 	Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. ABMEI shall
17

provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on the City.
Members McKeag and Wesley joined in this Decision.
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APPENDIX
NOTICE TO EMPLOYEES
POSTED
BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SF-CO-168-M, City
of
San Jose
v.
Association
of
Building, Mechanical and Electrical Inspectors, in which all parties had
the right to participate, it has been found that the Association
of
Building, Mechanical
and Electrical Inspectors violated the Meyers-Milias-Brown Act, Government Code
section 3500 et seq., and PERB Regulation 32604(c) by picketing at private construction sites
and causing private employees to cease performing work.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
Picketing any private construction site within the City
of
San Jose in a manner
that causes employees
of
private employers to cease performing work.
Dated: 	ASSOCIATION OF BUILDING, MECHANICAL
AND ELECTRICAL INSPECTORS
By: Authorized Agent
---------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.