September 2018 Newsletter – Community College Districts
Employer E-Mail System, Employee Forum
Do employees have the right to communicate about their working conditions on an employer-supplied e-mail system? The National Labor Relations Board previously addressed the question in Register Guard ((2007) 351 NLRB 1110), finding that employees had no statutory right to access and use the employers e-mail system for Section 7 purposes. Section 7 broadly protects employee rights to organize, to form and join a labor union, to collectively bargain, and to engage in “concerted activities” with other employees. The Register Guard decision turned on a company policy that prohibited uses of the company e-mail system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job related solicitations.” The NLRB adopted the view that the employer e-mail system was rightfully the employer’s property, and the employer had an important interest in minimizing exposure to viruses, liability for inappropriate conduct, and to maintain productivity.
PERB later incorporated Register Guard into a two-part test: 1) whether and to what extent the employer policy allows non-business email use, and 2) whether the employee’s use of the e-mail system fell within the permissible range of the policy and may be considered protected activity. (Los Angeles County Superior Court (2008) PERB Decision No. 1979-C.) Where the employer takes an adverse action based on protected activity that implicates union business, the employer committed an unfair practice.
Subsequently, the NLRB decision in Purple Communications, Inc. (361 NLRB 1050 (2014)) overturned Register Guard. The Purple decision reasoned that Register Guard relied too heavily on the ownership of the e-mail system and did not attribute enough significance to employee Section 7 rights to communicate about their work conditions. Purple also emphasized the importance of e-mail communications in the modern workplace. Arguing that e-mail is effectively a digital gathering place and represents the dominant form of communication in most workplaces, restrictions on e-mail use inherently interferes with employee Section 7 rights.
Recognizing that they find the analysis in Purple more persuasive than its prior Los Angeles County Superior Court decision, PERB elected to abandon the prior framework. (Napa Valley CCD (2018) PERB Decision No. 2563.) Holding that “e-mail is a fundamental forum for employee communication in the present day, serving the same function as faculty lunch rooms and employee lounges did when EERA was written,” PERB articulated a presumption that employees with rightful access to the employer’s e-mail system during working time has a “right to use the e-mail system for EERA-protected communications on nonworking time.” (Id at 19.) Notably, on the facts present in Napa Valley, PERB flagged the working-/nonworking-time of communications as a distinction that may prove determinative, while leaving the distinction (not plead on the facts) to another day.
District’s will need to diligently evaluate potential disciplinary decisions based on employee access and use of District e-mail systems. If employee communications implicate EERA rights to form, join, or participate in union activities, the District has knowledge of the protected activity, the District takes an adverse action against the employee, and the employee can establish an unlawful motive, the employee has a colorable unfair practice charge. PERB left “for another day” the question of whether an employee organization has the right to use a District’s e-mail system.
Finally, we note that on August 1, 2018, the NLRB invited briefs on questions relating to whether the Board should overrule, modify, or retain Purple Communications. Briefing should be complete on September 5, 2018, presumably with a decision at some later date. However, as PERB is independent agency interpreting a set of similar-not-identical statutes, and PERB views NLRB decisions as persuasive at best, the ruling in Napa Valley seems to be the California public-sector status quo.
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