Board Member Kari Miner’s last day was March 31, 2011. Because she was appointed by Governor Schwarzenegger on one of his last days in office she had not been confirmed by the Senate. That meant Governor Brown could withdraw her appointment at any time. That has left PERB with only two Board members and without a quorum to conduct any business.
So what happens if PERB receives a request for injunctive relief involving a strike? Remember, under City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, the courts have held that PERB has exclusive initial jurisdiction to consider whether a strike constitutes an unfair practice. PERB actually considered that such a situation might occur and promulgated PERB Regulation 32470. That regulation provides that:
In the event that a quorum of the Board itself is unavailable to act upon the request for injunctive relief within 24 hours after the time the General Counsel’s recommendation is filed, the Board authorizes the General Counsel to seek injunctive relief in every case in which the General Counsel has reasonable cause to believe that such action is in accordance with Board policy and that legal grounds for injunctive relief are present.
The question on everyone’s mind is when Governor Brown will appoint new Board members and who they might be. Hopefully we’ll find out soon.