Confidential employees under the MMBA, compared to the NLRA

A common misconception about the status of “confidential employees” in the public sector under the Meyers-Milias-Brown Act (“MMBA”) exists. The MMBA covers the rights of City, County and special district employees to organize and be represented by unions in bargaining with their employers.

The misunderstanding arises because of case law involving confidential employees in the private sector under the National Labor Relations Act (“NLRA”). The difference comes from the existence of specific language about confidential employees’ rights in the MMBA that does not appear in the NLRA. Thus, in the private sector the United States Supreme Court held that confidential employees may be excluded from bargaining units. But MMBA (California Government Code section 3507.5) merely says that a public employer may adopt a “reasonable” rule that confidential employees may not serve as the representative of other employees. The public sector law has no language in it preventing confidential employees from being in the same bargaining unit as other employees, or from being covered by the same contract.

For questions regarding confidential employees under the MMBA, contact your labor law counsel.

By Stewart Weinberg | March 25, 2016

Legal Developments