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PERB Gives Employees Presumptive Right to Use Their Employer´s E-Mail System During Non-Working Hours for Protected Communications

Employers Who Access Such E-Mail Messages Without Employee´s Permission May Commit Unfair Practice

01/31/2019

On May 16, 2018 we wrote here: 

"If you are a union steward or a union member and you want to communicate with anybody about a pending grievance or a discipline appeal, or even about a matter that may one day turn into a grievance or a discipline appeal, do not use your CSU e-mail account.  Instead, use a private e-mail account."

However, barely a week later, the California Public Employment Relations Board (PERB) issued a decision, Moberg v. Napa Valley Community College District, PERB Decision No. 2563 (May 25, 2018), in which it gave public employees a presumptive right to use their employer´s e-mail system during non-working hours for communications that are protected under California´s public employment collective bargaining laws, including the Educational Employment Relations Act (EERA) covering public school and community college employees and the Higher Education Employer-Employee Relations Act (HEERA) covering CSU and UC employees.  In Moberg, an EERA-case, PERB reasoned:

"Recognizing 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, we 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 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."

The same reasoning would apply in a HEERA-case.  (Presumably due to clerical error, the Moberg decision was not posted on the PERB website, which is why we learned about it only now.)

In its Moberg decision, the PERB "dissaproved" of, and thus effectively overruled, an earlier decision by itself, AFSCME v. Los Angeles County Superior Court, PERB Decision No. 1979-C (October 7, 2008), in which it gave public employees only a right not to have the employer´s e-mail policy applied discriminatorily to their union-related communications, but did not give them a right to use the employer´s e-mail system for such communications beyond any rights created by its e-mail policy for non-union-, non-work-related communications.  In other words, if the employer did not allow its employees to use its e-mail system for non-union-, non-work related communications, then it did not have to allow them to use it for union-related activities.  Under Moberg, it now presumptively has to do so.  

So where does this leave us? 

It is still true that, if the CSU attempts to introduce pilfered employee e-mail messages to or from, e.g., a union steward into the record at a a grievance or disciplinary appeal hearing, the Arbitrator or Administrative Law Judge (ALJ) will allow this evidence into the record, because Arbitrators and ALJs are not tasked with interpreting the HEERA and determining whether a communcation is protected under that statute.

However, by accessing such e-mail messages without the employee´s permission, the CSU may commit an unfair practice in violation of the HEERA, which makes it unlawful for an employer "to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by th[e] [HEERA]."  California Government Code § 3571(a).  Surely it interferes with an employee´s right under Moberg to use his or her employer´s e-mail system for union-relatd communications if the employer later pilfers such e-mails and uses them against the employee in a grievance or disciplinary appeal hearing.

The revised moral of the story is this:  If you are a union steward or a union member and you want to communicate with anybody about a pending grievance or a discipline appeal, or even about a matter that may one day turn into a grievance or a discipline appeal, do not use your CSU e-mail account.  Instead, use a private e-mail account.  But if you do use your CSU e-mail account for these purposes and later learn that the CSU has accessed your union-related e-mail messages without your permission, immediately contact APC´s Labor Relations Staff so that we can consider filing an Unfair Practice Charge with PERB.