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.
In 2012, the President of the Chula Vista Educators (CVE) union resigned to become the school district’s Human Resources Director. Once this change was announced, the CVE’s Vice-President sent an email to the new President and other teachers stating, in part:
I am deeply dismayed by your letter describing your ascendency to President of CVE. It does not appear in any way to convey the offense the union should take at what I believe is a clear case of a breach of fiduciary duty by our past President …
This case provided PERB the opportunity to emphasize the limited nature of reconsideration. Under PERB Regulation 32410, a “request for reconsideration” is warranted only in “extraordinary circumstances.” PERB affirmed that, “A party may not use the reconsideration process to register its disagreement with the Board’s legal analysis, to re-litigate issues that have already been decided, or simply to ask the Board to “try again.”
This case involves a very common scenario. An employee is subject to discipline and requests a hearing. In preparation for the hearing the union submits several information requests, including a request for a list of employees disciplined for similar conduct in the past and the penalties imposed in each case. In making such a request, the union is obviously exploring whether the penalty imposed by the employer was disparate in some fashion. As is common, the employer in this case refused to provide this information based on several grounds, including a right to privacy by the other employees and the undue burden of compiling such a list. In rejecting the employer’s defenses, PERB set forth some guidance that all employers should be aware of going forward.
This precedential decision involves an appeal from a dismissal. The central issue was whether charging party, an employee, engaged in protected activity by sending e-mails to co-workers. To answer this question the Board had to decide whether the employee had the right to send e-mails via the employer’s e-mail system. This question provided PERB an opportunity to consider whether to follow the National Labor Relations Board (“NLRB”) decision in Purple Communications, Inc. (2014) 361 NLRB No. 126 (“Purple Communications”).