PERB: Implied Right of Access Exists Under MMBA

Omitrans (2009) PERB Decision No.2030-M (Issued on 5/29/09)

Section 3507, subdivision (a), of the MMBA provides, in relevant part, that:

“A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations under this chapter. The rules and regulations may include provisions for all of the following: . . . (6) Access of employee organization officers and representatives to work locations.”

Thus, under MMBA section 3507(a)(6), a union’s right to access employer facilities has always been subject to an employer’s reasonable rules. However, the question has often arisen, what’s reasonable? I’ve always told employers that having a rule that denies all access would be considered unreasonable under the MMBA. Short of that, it’s hard to say.

In this case, PERB relied on NLRB precedent to find that there is an implied right to access under the MMBA. Specifically, PERB held that, “Considering the language of the MMBA in light of the well -established implied right of access grounded in the non-interference and non-discrimination provisions of other labor relations statutes, we hold that the MMBA grants a recognized employee organization a right of access to a public agency's facilities for the purpose of communicating with employees subject to reasonable regulation by the public agency.”

Comments:

1. By finding an implied right to access the Board has essentially set minimum standards for what constitutes reasonable regulation of a union’s access rights. Those minimum standards are comprised of the body of case-law developed by PERB over the years. In other words, you can still adopt a reasonable rule under the MMBA, but if you're rule provides less access rights than under EERA, HEERA, or Dills, then it's (likely) unreasonable. Here, PERB is sending a clear signal that it views access rights under the MMBA no differently than under the other major statutes.

2. If this case is not appealed and becomes final (my bet is that it will be appealed), every MMBA employer should review its rules and regulations governing reasonable access and compare those rules to PERB’s existing standards. For example, many local rules limit union access to only certain activities (eg only grievance processing, but no general union meetings), require certain procedural rules to be met (eg advance notice, obtaining permission, etc.), and otherwise limit union access to sites even during non-work times. Those rules should be evaluated to see if they are consistent with PERB case-law; if not PERB might find the local rule “unreasonable” as it did in this case.

Final Comments:

Lastly, I’ll just note that in this case PERB issued a very unusual remedy. Here, the employer had the employee arrested when he wouldn’t leave the premises. That caused the employee all sorts of legal problems. Because PERB found that the employee had a right to be in the break-room, it order the employer to make the employee whole, including: 1) paying the employee’s attorneys’ fees that he incurred in the criminal proceedings; and 2) joining the employee in petitioning the court to have his record expunged.

That leads me to my final comments. For employers, be aware that calling in the police on the union really ups the ante (that's putting it mildly). Unless property is being damaged or people are getting hurt, I don't advise having your employees arrested. You're better off imposing discipline (if it's unprotected and unlawful activity) and/or filing an unfair practice charge with PERB, including seeking injunctive relief if necessary. For union folks, I still think you're better off abiding by the maxim "obey now, grieve later." It's just not worth the risk of defying your employer's direct order to make a point; make your point before PERB.

UPDATE: I've been informed that Omitrans has just filed a writ challenging this decision.