Email in a Purple Haze: PERB Holds Employees Have the Right to Use Employer Email for EERA Purposes

07.10.2018

On May 25, 2018, the Public Employment Relations Board overturned years of precedent and held that an employee engages in “protected activity” by using an employer-owned email system for any purpose related to the Educational Employment Relations Act, as long as (1) the employee had legitimate access to the email system and (2) the use occurred outside of work time. (Napa Valley Community College District (2018) PERB Decision No. 2563.)

Background
The Napa Valley Community College District hired Eric Moberg as an adjunct instructor in 2014. Moberg’s employment application listed teaching experience at various community colleges from 2009 to 2013 and employment with the San Mateo County Office of Education (SMCOE) from 1994 to 2009. As the reason for leaving SMCOE, Moberg wrote “To move out of area”; in fact, Moberg resigned that employment as part of a settlement agreement that resolved a number of disputes including several PERB unfair practice charges. He did not include on the application his employment in 2009-2010 with the Monterey Peninsula Unified School District (MPUSD), from which he was terminated for cause.

In September 2015, Moberg sent an email to all faculty at Napa College in response to a message from the faculty association president about a meeting. Moberg’s response suggested, “How about we take some money from the bloated Pentagon budget that funds death and destruction instead of education and enlightenment.” A few days later, another faculty member responded directly to Moberg that, as the mother of a soldier killed in Iraq, she was disturbed by his email. Moberg did not apologize but thanked the faculty member for “joining our discussion.” His department chair asked him to honor the faculty member’s request to exclude politics from the discourse, and referred Moberg to the District’s email use policy. The faculty association president sent a message to all faculty members disavowing the email chain that included Moberg’s message.

Moberg filed a grievance objecting to the directive to refrain from using the email system to discuss pay issues. The college dean declined to respond to the grievance, as Moberg was not a unit member as defined by the collective bargaining agreement. In October 2015, Moberg sent an email to various individuals, including the board of trustees, titled “UN-AMERICAN OPPRESSION CONSPIRACY GRIEVANCE Level Three.”

In January 2016, the district withdrew its offer of employment to Moberg for the Spring 2016 semester. The letter of withdrawal gave three reasons: (1) Moberg stated a false reason on his job application for leaving employment with SMCOE; (2) Moberg failed to disclose in his application his employment with and termination for cause from MPUSD; and (3) had the district been aware of the facts underlying Moberg’s termination from MPUSD, he would not have been offered a position.

The letter of withdrawal cited an unpublished 2013 California Court of Appeal decision, Moberg v. Monterey Peninsula Unified School District, in which the court upheld Moberg’s dismissal for cause (as a first-year probationary teacher) based on evident unfitness for service and persistent violation of laws or employer policies. Moberg’s dismissal from MPUSD had resulted, in part, from his “disrespectful” use of email. In addition to suing MPUSD, individual officials of MPUSD, and SMCOE in court, Moberg had filed multiple unfair practice charges against them and other employers, including the Cabrillo Community College District, the Hartnell Community College District, and the West Valley-Mission Community College District.

Proceedings Before PERB
Moberg filed an unfair practice charge alleging the district violated the EERA by withdrawing its offer of employment in retaliation for his protected activity. Initially, the PERB Office of the General Counsel dismissed the charge. The General Counsel determined Moberg engaged in protected activity by filing PERB charges against SMCOE in 2009, but found no facts establishing that the district knew of those charges, and concluded those charges were too remote in time to serve as evidence of motive. The General Counsel concluded Moberg’s email messages to district faculty and others did “not appear to be protected activity.”

Moberg, representing himself as he has in all of his employment-related litigation, appealed to the PERB itself, asserting various errors in the General Counsel’s dismissal. The PERB first addressed whether Moberg had engaged in protected activity by filing a grievance in September 2015. The General Counsel had determined Moberg’s email moving the grievance to level three was not protected. The PERB held that grievance processing, whether by an employee or an exclusive representative, is protected activity, and therefore Moberg’s filing and processing his grievance was protected even if it did not arise under a collective bargaining agreement.

The General Counsel likewise had determined Moberg’s email messages to coworkers about adjunct faculty pay were not protected because they did not appear to address collective concerns of the bargaining unit. The PERB again disagreed. Although Moberg suggested a solution to faculty pay that was beyond the control of the district – taking federal money from the Defense Department to spend on education – the PERB found “the relationship between federal government spending on defense and education and the employment and/or wages of Moberg and other District faculty is not so attenuated that the e-mails lost their protection under EERA.”

The PERB next addressed the question – not considered by the General Counsel – whether Moberg had the right to disseminate his statements over the district’s email system. In 2008, PERB had held that employees’ use of their employer’s email system is protected only if it falls within the range of “permissible non-business use” under the employer’s email policy. (Los Angeles County Superior Court (2008) PERB Decision No. 1979-C.) That case relied in part on a 2007 decision of the National Labor Relations Board, which enforces federal labor law in the private sector. (The Register-Guard (2007) 351 NLRB 1110.) The NLRB overruled The Register-Guard in 2014, in Purple Communications, Inc. (2014) 361 NLRB No. 126.

In The Register-Guard, the NLRB held that an employer’s ban on employee use of email for all “nonjob-related solicitations” did not violate the National Labor Relations Act. The NLRB relied on cases recognizing an employer’s “basic property right” that allows it to restrict employees’ use of its equipment or media as long as the restrictions are not discriminatory. In Purple Communications, the NLRB concluded its earlier decision “focused too much on employers’ property rights and too little on the importance of email as a workplace communication,” and that employees’ rights include “the right effectively to communicate with one another regarding self-organization at the jobsite.” Email, the NLRB concluded, “has effectively become a ‘natural gathering place,’ pervasively used for employee-to-employee conversations” in many workplaces.

Accordingly, in Purple Communications the NLRB stated a new rule presuming “that employees who have rightful access to their employer’s email system in the course of their work have the right to use the email system to engage in … protected communications on nonworking time.” The NLRB could envision only the “rare case where special circumstances justify a total ban on nonwork email use by employees.”

In Napa Valley, the PERB likewise disapproved its former precedent as “flawed” and adopted a “better rule” which “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.”

Significance for Public Employers
This case is significant for school, community college, and other public employers subject to the EERA or other collective bargaining laws under PERB’s jurisdiction. Many employer email use policies prohibit all non-work-related use of the email system, except minor, incidental personal use. At the same time, exclusive representatives are typically permitted to use the email system to communicate with members about meetings and other union activities.

Under Napa Valley, employees’ use of employer email outside of work time will be considered “protected” if the communication addresses an EERA-related topic. Such topics could include discussions of work hours, wages, and other terms and conditions of employment. The scope of protected communications as a result of this decision will likely be disputed in unfair-practice litigation for years to come.

PERB did not hold that employers must permit all non-work-related email use. For example, excessive purely personal use of an employer’s email system, or non-work email use during work hours, may still be prohibited and subject to discipline. Nor does this decision affect the prohibition in Education Code section 7054 on use of school or community college district funds or equipment to urge the passage or defeat of a ballot measure or political candidate.

As with any major departure from a settled legal principle, we encourage employers to seek legal counsel when addressing situations that involve employee use of email and may implicate the Napa Valley PERB decision. As a first step, employers should review their email use policies to identify and remove terms that are inconsistent with this decision.

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