Sunday, October 19, 2008

PERB Calls Meeting to Deal with Factfinding Budget

The 2008-2009 budget for PERB eliminated funding for factfinding, which in the previous year had been $85,000. However, the Legislature and Governor did not eliminate PERB's mandate under EERA and HEERA to fund factfinding. PERB has called a Board meeting for October 27, 2008, to address this problem.

In 2002-03, when the state also faced a serious budget crisis, PERB reduced the per diem it paid to factfinders to $100/per day from $600/per day. That resulted in a drastic reduction of individuals willing to as factfinders. The few factfinders who accepted the $100/day rate reduced the number of cases they would take and many considered it "pro bono" work. This time, it is unclear whether PERB will even be able to drastically reduce the rate it pays factfinders given that its entire factfinding budget has been eliminated.

PERB's agenda and a memo describing the problem can be found at this link: Agenda for October 27, 2008, Meeting

Thursday, October 9, 2008

Restrictions on Union Email Use Ok

Los Angeles County Superior Court (PERB Dec. No. 1979-C) (Issued on 10/7/08)

The Los Angeles County Superior Court (Court) has the following policy on email use:

“The Court provides access to its electronic communications systems for the purpose of facilitating the performance of court related business. . .. Employees may not use the system in a manner or to a degree that is disruptive or detrimental to the Court or to the employee's performance. . .. Any violation of this policy may subject an employee to discipline.”

This policy recognized that there would always be some incidental non-work related email use by employees. The policy sought to limit email use only if it was “disruptive or detrimental.” The Court considered disruptive or detrimental emails to include “broadcast” emails that went to a large number of recipients. Under this policy the Court had always allowed union job stewards to use email to communicate with individual employees on representation matters and also allowed the union to send broadcast e-mails into the Court's e-mail system from the outside.

In this particular case, a union job steward was disciplined for sending several “broadcast” emails to all 780 bargaining unit members from within the County’s email system. The complaint issued by the Office of the General Counsel asserted that the email use was protected activity and thus the discipline was unlawful.

In its decision, PERB noted that generally, “an employer may limit employees' non-business use of its e-mail system without committing an unfair practice as long as the limitation does not discriminate along union lines.” PERB then set forth a two-part test for determining whether an employer’s restrictions on email are lawful: First, PERB will establish the extent of permissible non-business email use under the employer’s email use policy. Second, PERB will determine whether each of the employee’s emails fell within the range of permissible use and was therefore protected activity.

Applying this test, PERB held that the job steward’s “broadcast” emails were not protected activity because the Court had never allowed employees to send broadcast emails in any other context.


The most significant legal holding in this case actually appears in footnote 15. It apparently was undisputed that the Court itself had sent “broadcast” emails to all its employees informing them of the status of negotiations. Because the Court itself sent “broadcast” emails, the union argued that it must be allowed to do the same. PERB said no.

PERB said that in considering the scope of email use allowed, the proper comparison is what other employees are allowed to do. According to PERB, the Court’s use of the email system is not the proper comparator as it is not an employee, but rather the employer. PERB reasoned:

“The Court is not required to provide AFSCME "equal time" use of its e-mail system under such circumstances. . . . Here, the record is replete with evidence that AFSCME had ample alternate means of communicating with Court employees, such as e-mail between union stewards and individual employees, distribution of flyers in the courthouse, use of Court bulletin boards, and a telephone hotline and website where members could obtain information about bargaining and upcoming meetings. Indeed, the Court even allowed APSCME to send broadcast e-mails into its system from the outside. In light of this evidence, the Court was not required to grant AFSCME an exemption from its e-mail use policy so that the union could state its position on labor relations issues via internally-generated broadcast e-mail as the Court had done.”

Thus, this case seems to suggest that an employer may use its email system however it wants to for “official” employer purposes but prevent the union from the same use as long as all employees face similar restrictions. This, of course, assumes that the union has alternate means of communication available. In reality, few mediums of communication are as effective in reaching a large number of people for minimal cost as email. Thus, even though PERB found the email use here unproected, I expect unions to continue to press this issue in the future and vigorously fight any employer attempts to limit email use.

Thursday, October 2, 2008

SB 1296 Signed by Governor

SB 1296 was signed by the Governor on 9/30/08. SB 1296 modifies the MMBA to provide that the superior courts, and not PERB, have exclusive jurisdiction over actions involving firefighter interest arbitration. [See my previous post on 8/28/08 for a discussion of the impact of SB 1296.]