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Employee Use of a Public Employer's Email System is a Mandatory Subject of Bargaining According to the ERB

October 28, 2013

By Kirk S. Peterson & Daniel L. Rowan

PUBLIC SECTOR LABOR NOTEBOOK

In two recent cases, the Oregon Employment Relations Board held that the Oregon Department of Administrative Services committed unfair labor practices when it temporarily banned union-represented employees from using the work email for union-related matters.

Both cases featured the same fact pattern. Following the expiration of a collective bargaining agreement, the DAS imposed a ban on the use of the State’s email system for union-related communications. Although the expired contract had allowed for such communications, the DAS believed that expiration of the contracts allowed it to restrict the use of the work email system for union purposes. DAS reasoned that this involved a permissive, not mandatory, subject of bargaining. The union disagreed and filed a complaint. It contended that the practice of permitting employees to use the work email for union-related matters was long-standing and could not be changed without bargaining.

The ERB agreed with the union. After noting that the Public Employee Collective Bargaining Act does not directly address whether union use of work email is a mandatory subject of bargaining, the Board applied its balancing test. The Board concluded that the subject of access to and limitations on the use of the work email system for union-related matters has a greater impact on employees’ wages, hours, and other terms and conditions of employment than on management prerogatives. The Board stated that:
 
“Email has become an essential part of today's workplace, surpassing yesterday's bulletin board, water cooler, and mail room…Employees rely on this means of communication more and more each year to communicate with each other and their designated representative about a wide variety of employment matters, particularly in bargaining units where employees are spread across multiple agencies and work sites.”

Thus, the Board concluded that there was a duty to bargain over the subject of union use of an employer’s email system, and the DAS violated the duty to bargain in good faith by its post-contract unilateral change to the status quo.

The Board also held that the ban was facially discriminatory because it expressly singled out union-related communications while still allowing other non-business use of the system. The Board acknowledged that employers may promulgate rules regulating employees’ use of equipment, including email, but also said that any such rules cannot discriminate against union activity. Thus, the DAS ban, which did discriminate against union activity, unlawfully interfered with the right of employees to engage in protected activity. 

Practical Considerations
These decisions demonstrate the tension between what the Board finds as lawful and unlawful conduct. For example:
  • On the one hand, a union and its members do not have an independent statutory right to use an employer’s equipment to communicate.
  • However, as a mandatory subject of bargaining, there is a duty to bargain over access to and limitations to the use of a public employer’s email system. Thus, there may be contractual rights allowing for or limiting such use.
  • Contractual rights to use an employer’s email system for union or protected purposes survive the expiration of the parties’ labor agreement. Thus, even though access rights may begin as contractual rights, the Board held that they are not “purely contractual rights” that provide an exception to the status quo doctrine. In other words, such contractual rights continue after the expiration of the contract based on the statutory status quo. They essentially convert from contractual rights to statutory rights upon the expiration of the labor contract.
  • In addition, an employer’s policies regarding use of an email system must not be applied or expressed in a discriminatory fashion. If it has a practice of allowing employees to use email for other non-work-related purposes, an employer may have to allow the same degree of union-related use (or else it may be found to have unlawfully discriminated against union activity).
  • However, a non-discriminatory rule or policy that prohibits union-related speech or the distribution of union materials in working areas or during work time is presumptively valid. But even the majority of the Board acknowledged that there is “difficulty in directly correlating [its] rules regarding employee communications in ‘working/nonworking areas’ to the context of using the State’s e-mail system.”

Bullard Law will continue to monitor these and other developments affecting public employers. Please also feel free to contact us anytime with any questions about these matters or any other labor, employment, or benefits issues. 

 
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