Board: Non-Employee Union Reps Have Right Of Access Under MMBA

County of Riverside (2012) PERB Decision No. 2233-M (Issued on 1/23/12)

When PERB took jurisdiction over the MMBA in 2001, there was uncertainty over the rights of employee organizations to access employer facilities in order to communicate with employees. The uncertainty arose because the MMBA only provides that a public agency “may” adopt reasonable rules and regulations on subjects including, “Access of employee organization officers and representatives to work locations.” (Gov. Code, §3507, subd. (a)(6).) In contrast, EERA and HEERA both provide that employee organizations “shall” have the right to reasonable access to employer facilities. (See Gov. Code, §3543.1, subd. (b); 3568.) The wording of the MMBA begged the question, what right does an employee organization have to access employer facilities in the absence of a local rule?

That question was partially answered in Omnitrans (2009) PERB Decision No. 2030-M (Omnitrans), in which PERB held that the MMBA gives recognized employee organizations an implied right to access an employer’s facilities for the purpose of communicating with employees, subject only to reasonable regulation. The decision in Omnitrans followed the Board’s cases under the Dills Act which similarly does not contain an express right of access. However, the Omnitrans decision did not resolve the question of whether non-employee representatives of employee organizations have the same access rights as employees. PERB answers that question here.

In this case, the Board rejected the District’s argument that PERB should follow the National Labor Relations Board (NLRB) and allow employer restrictions on non-employee access absent proof by the union that alternative communication channels are insufficient or that the employer’s restrictions discriminate against the union. Instead, the Board held the following:

We therefore have formulated a presumptive right of access to California’s public facilities by union agents, subject to reasonable regulation upon the employer’s showing that a particular regulation is: (1) necessary to the efficient operation of the employer’s business and/or the safety of its employees and others; and (2) narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights.

We apply this right of access without distinction to both employee and non-employee union representatives. We conclude that by expressly placing in the MMBA the provision for organizational access, the Legislature intended to and did assure employees the right to confer with non-employee organizational representatives at their work locations, subject only to reasonable regulation. This construction harmonizes MMBA with our other statutes providing expressly for access by employee organization officers and representatives to employee work locations. Had the Legislature intended to rely solely on the implied and limited right of access found by the NLRB in the NLRA, it could have omitted (or removed) any express access provision from the MMBA. It did not do so.

Comments:

The holding of this case is that there is a presumptive right of access by union representatives, both employee and non-employee, and that the burden of proof to demonstrate the reasonableness of restrictions falls on the employer. I like decisions that give clear guidance. So although I don’t necessarily like the way this decision came out, at least the Board’s holding is clear.
My main quibble with this decision is the reasoning used to justify it. The Board in at least two places cites to the MMBA’s “express” provisions on access rights as a justification for the holding. However, when you take a careful look at other statutes, it’s clear—at least in my mind—that the MMBA does not contain an “express” right of access. If you want to see an express right of access, take a look at EERA and HEERA. (See Gov. Code, §3543.1, subd. (b); 3568.) The MMBA, in contrast, provides that an employer “may” adopt reasonable rules on access. Based on this difference, it could be argued that the Legislature did not intend there to be a presumptive right of access under the MMBA.
As an example, consider the Regents of University of California v. Public Employment Relations Bd. (1985) 168 Cal.App.3d 937, 944-945 (1985) (“Regents”) case. In Regents, the issue involved the rights of non-exclusive representatives. The language on this issue under HEERA differed from the other statutes administered by PERB. PERB concluded that even though language in all the other statutes was missing in HEERA, it could still read that language into the act. The court of appeal disagreed and held: “We cannot agree with the Board’s conclusion that HEERA’s omission of a “right to represent” was without significance. It is true that we must accord great respect to an administrative agency’s interpretation of the statute it is charged with enforcing. [Citations omitted] But upholding such a reading would go well beyond respect for the agency’s interpretation. It would authorize the Board to rewrite the statute to suit its notion of what the Legislature must have intended to say about organizational rights. It would do this in the face of strong evidence of a contrary legislative intent: the Legislature’s use of the same construction in four different pairs of statutes, and its failure to use that construction in the statute under scrutiny. The Legislature would be rendered nearly powerless to make changes in the law if we were to permit the Board to interpret this obvious change as an attempt to continue the same legal relationships established in the George Brown Act, EERA, and SEERA.” Similarly, one could argue that the express right of access in EERA and HEERA that is lacking under the MMBA demonstrates a legislative intent that there not be such a right under the MMBA.
I admit that the Regents case appears to be an outlier, especially in light of the California Supreme Court’s holding in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072. There, the California Supreme Court held that a six-month statute of limitations applied to the MMBA. The Court came to this conclusion based heavily on the fact that all the other statutes administered by PERB had a six-month statute of limitations, even though the MMBA did not contain such language. In addition, in fairness it should be noted that the Dills Act also does not contain an express right of access yet PERB has found that such a right exists and no court case has held to the contrary. As a management advocate, I may not have reached the same conclusion as the Board in this case but I recognize the public policy concerns behind it. I think the Board could have cited to its treatment of the same subject under the Dills Act as enough support for its holding. I just wouldn’t have characterized the right of access as being “express” under the MMBA.