PERB: Unions Have Right to Use Employer Email System

Los Angeles Unified School District (2018) PERB Decision No. 2588-E (Issued on 10/17/18)

Earlier this year, in Napa Valley CCD (2018) PERB Decision No. 2563-E, PERB adopted the holding of the National Labor Relation Board in Purple Communications, Inc. (2014) 361 NLRB No. 126, which held that employees have the right to use employer e-mail systems for union activities on nonworking time. (Click here for my blog post.) In this case, the Board addressed whether the holding in Napa Valley CCD extends to employee organizations.

The Board first noted that EERA only provides that, “Employee organizations shall have . . . the right to use institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation.” (Gov Code section 3543.1.) Although that section does not mention email, the Board quickly held that modern-day email constitutes an “other means of communication” under EERA. As a result, the Board had little difficulty extending the right to use employer email systems to employee organizations.

However, in the underlying proposed decision, the ALJ had held that the district was obligated to send emails to its employees on behalf of the union.  The Board rejected this holding. The Board held that, unlike the cases cited by the ALJ, the union can send emails directly to bargaining unit members without the need for assistance from the district. The Board also noted that email addresses for employees are generally available through information requests or under the Public Records Act (PRA). Thus, the Board held that while an employee organization has the right to send emails through an employer’s email system, the employer does not have to send the emails on the employee organization’s behalf

Comments:

  1. I’m fine with this decision. As the Board noted, employee email addresses are generally subject to the PRA. Thus, even before this decision, there wasn’t much stopping a union from getting email addresses through a PRA request and then using those emails to communicate with employees. I’m actually more comfortable with this decision than the underlying Napa Valley CCD decision because it’s not always easy to ensure that employees are using email for union activities only on nonworking time. But when it comes to the union sending emails, there isn’t that same concern.
  2. The part that gives me pause about this decision has more to do with the impact of another decision. In March of 2018, the Board issued County of San Bernardino (2018) PERB Decision No. 2556-M, where it held that even non-exclusive employee organizations have a right of reasonable access. In reaching its decision, the Board relied on EERA decisions citing to section 3543.1, which is the same section at issue here.  Thus, presumably, this decision applies to all employee organizations, even non-exclusive employee organizations.
  3. In my humble opinion, the notion of giving non-exclusive employee organizations the same right of access—and, under this case, the same right to use an employer’s email system—as an exclusive employee organization is illogical. However, that’s the world we’re facing…
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