PERB Opens Door To Remedial Postings On Intranet Sites

Trustees of the California State University (East Bay) (2015) PERB Decision No. 2408-H (Issued on 01/13/15)

When PERB determines that there has been an unfair practice, the traditional remedy is that the party found to have committed the unfair practice is ordered to post a notice incorporating the terms of the order. The notice in such cases states that the offending party has acted unlawfully, is being required to cease and desist from its unlawful activity, and will comply with the order. PERB requires that the notice be posted in places where the employer customarily posts notices to employees (eg. break room bulletin boards.).

In City of Sacramento (2013) PERB Decision No. 2351-M, PERB modified this traditional remedy by holding that where an employer “regularly communicates with public employees by email, intranet, websites, or other electronic means, it shall be required to use those same media to post notice of the Board’s decision and remedial order.” (Click here for that post.) In City of Sacramento, PERB ordered the city to send a copy of the notice electronically to employees.

In this case, after PERB found that the California State University (CSU) committed an unfair practice, the charging party requested that the notice be posted on the CSU systemwide website or on the campus website where the unfair practice occurred. In discussing charging party’s request, the Board affirmed that, “[t]he purpose of posting a notice incorporating the terms of the order is educational for the represented employees.” The Board noted that visitors to the CSU systemwide and campus websites are not only represented employees but “students, parents, and members of the public.” Accordingly, the Board found charging party’s request to be overbroad.

But the Board cautioned:

Had [charging party’s] request been a posting to some digital employee bulletin board or intranet site which [the CSU campus] has for its employees it would have been closer to the purposes set forth in Placerville, however, the evidentiary record does not support such a finding for an intranet capability existing at CSU.

Comments:

Although I don’t expect it in every case, I do expect that in certain cases unions will now try to introduce evidence at hearings on how the employer communicates with its employees. The unions will then try to use this evidence to justify an expanded notice-posting requirement. Indeed, the Board has already sanctioned “posting” via email and strongly hinted that posting on intranets might be ordered in the future.
Unfortunately for employers, the Board’s refinement of its remedial posting doctrine may not end with ordering electronic transmission. Under the NLRA, the General Counsel has for several years pushed for harsher penalties under the act. For example, the NLRB has ordered “notice-reading” in cases “where the violations are so numerous and serious that the reading aloud of a notice is considered necessary to enable employees to exercise their Section 7 rights in an atmosphere free of coercion, or where the violations in a case are egregious.” (Postal Service, 339 NLRB 1162, 1163 (2003).) Luckily, to my knowledge PERB has never ordered a notice-reading remedy. I don’t think such an order would be justified in the public sector. However, I have handled several cases where the union listed “notice-reading” as a requested remedy in its unfair practice charge. Given recent trends in PERB decisions, I expect unions to continue pushing the envelope on requested remedies.