PERB Says Public Sector Unions and Workers Can Use Employer E Mail Systems

The California Public Employment Relations Board (PERB) issued two decisions establishing the legal right of public sector employees and unions to use employer email.

In Napa Valley Community College District, PERB Decision No. 2563 (2018) https://www.perb.ca.gov/decisionbank/pdfs/2563-E.pdf, PERB revisited its previous decisions about whether employees have the right to use employer email systems to discuss wages, hours and working conditions.  In the past, PERB had allowed employers to ban all non-business use of their email systems, as long as they did not selectively enforce those policies to discriminate against union emails or other labor-related emails.  But in Napa Valley CCD, PERB noted that in the private sector, the National Labor Relations Board has decided that generally, employees have the right to use the email system to engage in protected activities on non-working time (Purple Communications, 361 NLRB No. 126 at 361 NLRB 1050 (2014)[1]).  PERB recognized that email has become a “fundamental forum for employee communication in the present day, serving the same function as faculty lunch rooms and employee lounges did when EERA [the Educational Employment Relations Act] was written.”  PERB ruled,

[W]e conclude the better rule which reflects this change in the contemporary workplace, presumes that employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in EERA-protected communications on nonworking time.  An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.

Since the facts in Napa Valley CCD only involved employee rights, PERB left “for another day” the question of whether employee organizations have the right to use employer email systems.  That day came when PERB decided Los Angeles Unified School District, PERB Decision No. 2588 (2018) https://www.perb.ca.gov/decisionbank/pdfs/2588-E.pdf.  The statute provides that employee organizations must have reasonable access to bulletin boards, mailboxes, and “other means of communication.”  PERB held:

Today, an employer’s e-mail system serves the same function as its physical mail delivery system did when EERA was written.  Accordingly, we hold that a public school employer’s e-mail system is an “other means of communication” under EERA section 3543.1, subdivision (b), which employee organizations have a right to use to communicate with employees.

PERB noted that a union can use an information request or a Public Records Act request to get the work email addresses of the employees.  Of course, unions and employees should choose wisely about when to use work email, and when to use  an email system that is inaccessible to the employer.  But these cases establish that unions and employees generally must have the option.

By Anne Yen | January 4, 2019

Legal Developments