Decision 1979C – Los Angeles County Superior Court * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563
LA-CE-2-C
Decision Date: October 7, 2008
Decision Type: PERB Decision
* * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563 * * *
Description: AFSCME alleged that the Court discriminated against employee/union president by suspending her for sending union business e-mails and reserving a courtroom for a union meeting.
Disposition: The Board reversed the ALJ’s proposed decision and dismissed the charge. The courtroom reservation and one of the e-mails were protected activities. The remaining three e-mails were unprotected because they violated the Court’s e-mail use policy. AFSCME established a prima facie case of discrimination because the Court disciplined the employee for protected activity. However, the Board concluded that the Court would have imposed the same discipline based on the three unprotected e-mails regardless of the employee’s protected activity.
Perc Vol: 32
Perc Index: 151
Decision Headnotes
300.15000 – Speech
* * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563, where the Board held that employees who have access to an employer’s e-mail system as part of their job duties have a right to use that system to engage in EERA-protected communications on nonwork time. * * *
An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer.
300.01000 – In General
* * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563, where the Board held that employees who have access to an employer’s e-mail system as part of their job duties have a right to use that system to engage in EERA-protected communications on nonwork time. * * *
An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer.
401.04000 – Access – Union Right
* * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563, where the Board held that employees who have access to an employer’s e-mail system as part of their job duties have a right to use that system to engage in EERA-protected communications on nonwork time. * * *
An employer’s use of a particular internal means of communication to state its position on labor relations issues does not entitle a union to use that same means, unless the union can show it has no effective alternate means of communicating its position to employees. Employer’s use of broadcast e-mail messages to update employees about ongoing collective bargaining did not require the employer to grant the union an exemption from its policy prohibiting broadcast e-mails so the union could state its views on labor relations issues via broadcast e-mail, especially when the record clearly showed that the union had ample alternate means of communicating with employees regarding collective bargaining.
501.01000 – In General; Elements of Prima Facie Case
* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *
Even though the complaint characterized it as interference, allegation in the charge that the employer suspended the employee because of the employee’s protected activity should be analyzed under the discrimination standard.
503.02000 – Suspension, Dock in Pay
* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *
Notice of intent to suspend and suspension itself were both adverse actions.
300.17000 – Other
* * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563, where the Board held that employees who have access to an employer’s e-mail system as part of their job duties have a right to use that system to engage in EERA-protected communications on nonwork time. * * *
An e-mail about union matters is protected activity only if it falls within the range of permissible non-business use under the employer’s e-mail use policy. Employee’s union e-mails to entire countywide bargaining unit were not protected activity because employer policy prohibited broadcast e-mails. Employee’s union e-mail to group of 55 unit members in the same courthouse was protected activity because it fell within the range of non-business e-mail use allowed by the employer.
504.12000 – Employer Statements or Conduct; Threats
* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *
An employer’s statement that it is taking adverse action against an employee because of the employee’s protected activity provides direct evidence of the employer’s unlawful motivation and is sufficient in itself to establish the required nexus between the employee’s protected activity and the employer’s adverse action. Employer’s written statement that the employee was being suspended for using the employer’s e-mail system “to conduct union business” and for using the employer’s facilities “for union business without prior authorization” constituted direct evidence of the employer’s unlawful motivation sufficient to establish nexus.
505.03000 – Misconduct
* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *
To establish the “but for” affirmative defense in mixed conduct cases, where discipline is based on both protected and unprotected activity, the employer bears the burden of showing it would have imposed the same discipline for the unprotected conduct standing alone as it imposed for the mixed conduct. Board found that the employer would have suspended the employee based solely on the employee’s unprotected activity and therefore the employee’s protected activity was not the true motivation behind the employer’s adverse action. PERB has no authority to determine the appropriate level of discipline for unprotected activity.
1107.04000 – Unalleged Violations
* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *
The Board may review violations not alleged in complaint when all of the following requirements are met: (1) adequate notice and opportunity to defend has been provided to the respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on this issue; and (5) the unalleged violation must be within the applicable statute of limitations. Though the complaint alleged only interference, the Board could consider discrimination allegation arising out of the same facts because parties had extensively litigated whether the employer applied its e-mail use policy to an employee’s union e-mails in a discriminatory manner and in its post-hearing brief the employer defended against the allegation on the alternative grounds of interference and discrimination.