Labor Relations: The Meet and Confer Process

Further, while labor organizations generally have the right of access at reasonable times to areas in which employees work, the right to use institutional bulletin boards, mailboxes and other means of communication, are subject to reasonable regulation. Thus, as long as an agency’s policies and practices are not discriminatory on their face or as applied, the agency can properly limit use of its website and prohibit the union from communicating through that forum. a. Union and Employee Use of Agency Email Neither PERB nor the courts have required a public employer to open up its electronic mail system to labor organizations if the employer reserves its computer system for business purposes only. In other words , if an employer desires to exclude an employee organization (or any other group or individual) from using its computer system, it may do so by reserving the system for business purposes only . 109 In contrast, if a public agency permits its computer system to be used for non-business reasons, e.g., social or recreational uses, a labor organization is entitled to an equal right to such use. An employer’s failure to grant a union the right to use the agency’s email or computer system, when it grants access for other non-business purposes, would likely constitute unlawful discrimination and a denial of rights guaranteed to employees and employee organizations. 110 For example, PERB found that the State of California violated the Dills Act by allowing minimal personal communication by email while prohibiting similar communications by a labor organization. 111 PERB has also held that employees who rightfully access their employer’s e-mail system also have the right to use the e-mail system to engage in protected communications on non-work time. 112 In Napa Valley Community College District , 113 the charging party applied for, and was hired as, a part-time adjunct instructor. The district required applicants to list their teaching experience, but charging party failed to list a past termination. The charging party used the employer’s e-mail system to engage in purportedly political discussions and challenged the employer’s directive to cease using the e-mail system for union business. The employer eventually withdrew its offer of employment to charging party for misrepresentations in his employment application. The adjunct instructor filed a PERB charge and alleged that the employer engaged in an unfair labor practice by withdrawing the employment offer and by terminating his access to its e-mail system in retaliation for his protected activity. PERB determined that charging party engaged in protected activity, with the employer's knowledge, when he sent e-mails, but upheld dismissal of the charge because the charging party failed to establish that the employer withdrew its offer of employment for retaliatory and unlawful reasons. In Napa Valley Community College District , 114 PERB cited and followed the NLRB’s decision in Purple Communications, Inc. , which ruled that employers must allow employees to use email for statutorily protected communications on non-work time if the employer has given employees access to the employer’s email system. 115 In the decision, the NLRB overturned prior precedent distinguishing between email for personal communications and email for organizational-related communications. 116 The NLRB reasoned that email has become a natural gathering place, pervasively used for employee conversations, and is an essential means of communication to employees’ exercise of their protected rights. 117 However, the NLRB’s Purple Communications

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 19