Is There an Implied Right of Access under the MMBA? Answer Still Unknown.

City of Porterville (PERB Dec. No. 1905M) (Issued 5/10/07)

All the statutes administered by PERB have differences in statutory language. Despite these differences, PERB has generally interpreted the statutes the same absent clear legislative intent to the contrary. Thus, a decision regarding the right to representation under EERA would also be applicable under HEERA, Dills, MMBA, etc.

One area where there has been some confusion is the right of unions to access employer facilities. EERA and HEERA provide for such a right by statute. The Dills Act does not; but PERB has interpreted the Dills Act to include an “implied” right of access. The MMBA also fails to include statutory language granting access rights but does provide that such rights can be subject to local rule. The question then arises – if a local entity does not have a local rule on a union’s right to access employer facilities, does the MMBA grant an implied right of access? The Board intentionally avoided this question in Fresno Irrigation District (PERB Dec. No. 1565M) (that decision was subsequently overturned by the court of appeal).

The question arose again in this matter. Here, the issue was whether the employer violated the MMBA by denying union access to its facilities. In the proposed decision, the ALJ held that, “the MMBA inferentially includes a right of access for employee representatives . . .” Thus, the ALJ answered in the affirmative the question that was explicitly deferred by the Board in Fresno Irrigation District.

The Board then rejected the ALJ’s proposed decision. Without stating whether it agreed, the Board noted the employer’s argument that access rights under the MMBA must be determined by local rule. The Board also stated that the fact that access rights are subject to local rules under the MMBA “gives the City a measure of discretion in drafting its own access policy.” Unfortunately, the Board never addressed whether an implied right of access exists under the MMBA. Also unanswered is how much discretion the Board will give to an employer’s local rule on union access.

Until a more definitive answer is provided by the Board, employers under the MMBA would be wise to generally conform their local rules on access to the scope of the right under EERA, HEERA and the Dills Act. Any attempt by a local entity to enact local rules that are more restrictive should be narrowly tailored and supported by business necessity. Because this area of law is in flux, it would be wise for local entities to consult with counsel before making changes.

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