PERB Adopts Heightened Version Of Purple Communications

Napa Valley CCD (2018) PERB Decision No. 2563-E (Issued on 5/25/18)

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”).

In Purple Communications, the NLRB concluded that e-mail “has effectively become a ‘natural gathering place,’ pervasively used for employee-to-employee conversations” in many workplaces. With respect to the employer’s property interest, the NLRB majority held that e-mail can be distinguished from other types of employer equipment such as bulletin boards, copy machines, public address systems, and telephone systems. In contrast to those media, the NLRB held that e-mail’s “flexibility and capacity make competing demands on its use considerably less of an issue,” in that “[e]mployee email use will rarely interfere with others’ use of the email system or add significant incremental usage costs.”

In deciding to follow Purple Communications, the Board noted that Purple Communications relied heavily on Republic Aviation Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 (“Republic Aviation”), which prior PERB decisions have followed. The Board also noted that framework of Republic Aviation allows consideration for different types of workplaces by allowing the employer to prove that special circumstances justify restrictions on employee rights in question. The Board concluded that there was “no sound reason why we should not also apply the Republic Aviation framework to the context of employee communication through e-mail.”

However, the Board did not stop at simply adopting Purple Communications, but went further by emphasizing that the language of the California public sector labor relations statutes provide even stronger protections for employee use of an employer’s e-mail system. Even though, for example, EERA and HEERA provide for union access to bulletin boards and mailboxes (but not expressly e-mail), the Board held that such language does not limit employee rights. In conclusion, PERB held that:

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 EERA 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.

Comments:

PERB’s adoption of Purple Communications does not surprise me. If anything, I’m surprised it took PERB more than three years to do it.
Although I’m not surprised at the holding, I continue to object to PERB making significant changes in the law in decisions involving an appeal from a dismissal. Unlike a case that has gone through an administrative hearing, a refusal to issue a complaint cannot be challenged by filing a writ with the court of appeal. Instead, a refusal to issue a complaint can only be challenged by filing a writ in the superior court under the Belridge Farms standard. (See Int’l Ass’n of Fire Fighters, Local 188, AFL-CIO v. PERB (2011) 51 Cal. 4th 259, 268. Under the Belridge Farms standard, there are only three limited grounds to challenge a decision; it must be shown that the decision: 1) violates a constitutional right; 2) exceeds a specific grant of authority; or 3) is based on an erroneous construction of an applicable statute. Thus, by issuing a decision in an appeal from a dismissal the Board greatly limits the ability of a party to challenge it. Moreover, because the employer actually prevailed in this case, it seems unlikely the employer will undertake the time and expense (and difficulty under the Belridge Farms standards) to mount a challenge to this decision.
It is also significant that the Board rooted its decision in the language of the various California public sector labor relations statutes. In my mind, PERB did this to Trump-proof this decision. Purple Communications was issued when the NLRB majority was appointed by President Obama. Thus, there is a chance that the NLRB under President Trump may overturn Purple Communications. But even if that happens it won’t affect this decision because the Board made a point of finding that California law provides even stronger support for employee use of an employer’s e-mail system than under federal law.
What should public employers do? Under this decision there is a presumption that employees have the right to use an employer’s e-mail system for communicating with each other on non-work time. This means that an employer almost certainly cannot have a blanket policy that prohibits all non-work use of email. Such a policy arguably “chills” employee rights. Thus, employers with a policy that prohibits all non-work use of email should consider modifying it as soon as possible. This decision does leave open the possibility that an employer can demonstrate “special circumstances” limiting employee use of e-mail. However, the employer bears the burden to make such a defense.