I’m often asked what I think are today’s “hot” issues involving PERB and public sector labor relations. I think one of the hottest issues today involves email. Specifically, whether a union has a statutory right to send union communications to its members via an employer’s email system. Under current PERB precedent, the answer is no, there is no statutory right although an employer cannot discriminate against union communications if it allows other non-business communications to be distributed via its email system. However, there could be challenges to this rule in the near future.
NLRB General Counsel: “email is the present day water cooler”
Currently pending before the NLRB is the case of Purple Communications, Inc. v. Communications Workers of America, AFL-CIO. In this case, the NLRB General Counsel is urging the NLRB to overturn its decision in Register-Guard, 351 N.L.R.B. 1110, enforced in relevant part, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009) where the NLRB held that employees have no statutory right to use their employer’s email system. Thus, Register-Guard held that an employer could lawfully prohibit employee use of its email system for non-job-related solicitations, including union communications.
In urging the NLRB to overturn Register-Guard, the NLRB General Counsel has taken the position that employees do have a statutory right to use their employer’s electronic communications system for protected activities, subject only to the employer’s need to maintain production and discipline. The General Counsel asserts that a total ban on employees’ right to communicate about non-work matters through using their employer’s equipment and/or email system is unlawful under the NLRB. According to the General Counsel:
[E]mail is the present day water cooler. In the last 10-plus years, the emergence and widespread use of email has transformed the manner in which many employees interact in the workplace. In many workplaces, technology has replaced face-to-face communication in a break room, cafeteria, or other traditional gathering places as the preferred method of communication. As employees increasingly use email as a primary mode of communication, email has, thus, become the “natural gathering place” for non-work-related communication. (GC Exceptions to ALJD, pp. 5-6.)
On April 30, 2014, the NLRB invited interested parties to submit amicus briefs on several issues, including whether the NLRB should reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system. Over a dozen amicus briefs were filed by the June 16, 2014 deadline. If you’re interested, you can view them here.
The Future of Email Policies Under PERB
Even if the NLRB overturns Register-Guard, it will not have a direct effect on the public sector in California since we are not covered by the NLRA. However, what is the likelihood that PERB will follow the NLRB?
Currently, the seminal PERB case on email use is Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, a case that arose under the Trial Court Employment Protection and Governance Act. In Los Angeles County Superior Court, PERB held that there is no statutory right for a union to use an employer’s email system beyond the range of permissible email use for non-business purposes under the employer’s rules. In its decision, PERB expressly cited to and relied upon the NLRB’s decision in Register-Guard. Thus, if Register-Guard is overturned, you can expect that unions will argue that Los Angeles County Superior Court should similarly be overturned.
Even before Purple Communications arose there have been attacks on the Los Angeles County Superior Court decision. The most interesting is the non-precedential PERB case City of County of San Francisco (2013) (PERB Case No. SF-CE-716-M) (37 PERC ¶171). In that case, the administrative law judge (ALJ) refused to extend the email policy set forth in Los Angeles County Superior Court to the MMBA. The ALJ noted that unlike the Trial Court Act, the MMBA expressly grants union access to union “bulletin boards, mailboxes, and other means of communication.” The ALJ concluded that email constituted an “other means of communication” protected by the MMBA. In discussing the use of email, the ALJ held that:
In the midst of society’s rapidly evolving technology and business practice, e-mail has proved to be a dominant form of electronic communication, owing to its unequaled advantages in terms of efficiency and effectiveness. While telephone receptionists were largely eliminated from the work force through voice-messaging, e-mail quickly surpassed telephones as the preferred means of business communication. … E-mail is better capable of promoting an exchange of information, ideas and opinions. E-mail is appreciably more timely than the City’ s inter-office mail system and capable of reaching a large number of employees simultaneously. A union’s access right by its very purpose requires the ability to communicate with the entire bargaining unit simultaneously.
Accordingly, the ALJ held that the MMBA entitled the union to use the City’s e-mail for purposes of accessing its members, subject to reasonable regulation. Because this decision is non-precedential, it is not binding on anyone other than the parties involved. However, I fully expect that the unions will use the rationale expressed in this case, along with the arguments being advanced to overturn Register-Guard, to continue to attack the Los Angeles County Superior Court decision. Indeed, the Weinberg firm—which has been on the cutting edge of many of the hottest issues before PERB—represented the union in the City of County of San Francisco case and also currently represents the union in the Purple Communications case.