By FACSIMILE TRANSMISSION and U.S. MAIL
(650) 358-6810
Mr. Greg Marvel
Assistant Chancellor
Employer-Employee Relations
San Mateo County Community College District
3401 College of San Mateo Drive
San Mateo, CA 94402
Re: Negotiability of District Communications Policy
Dear Mr. Marvel:
This office represents the San Mateo Community College Federation of Teachers, Local 1493, CFT/AFT, AFL-CIO. I have reviewed the recent District proposals concerning communications systems. The District is not privileged to adopt or implement these policies without negotiations with the Federation. We understand the District disputes this. As we explain, the District's communications policy is indisputably negotiable. The current collective bargaining agreement is open for negotiations. As a result, the Federation is willing to begin negotiations now.
The District may not adopt or implement its proposals without negotiations. Should it do so, the Federation is entitled to file an unfair practice charge with PERB and take other action as is appropriate. We are hopeful that after you review this letter you will agree the policies are negotiable and enter into bargaining.
Naturally, our analysis is based on several principles. First, the district is under a duty to negotiate any limitations on access to internal district communication systems. Second, the district may not interfere in the rights of the faculty or Federation, yet the proposed policy has exactly that effect. Third, the District may not discriminate against its employees who wish to engage in union activities involving district communication systems. Fourth, the District proposal intrudes on the privacy rights of faculty.
After nearly 24 years under the authority of the EERA and PERB, the District should realize that it must negotiate before adopting any policies which regulate access by employees and the Federation to district communication systems.
The EERA establishes a statutory right of access by labor organizations and employees to district means of communication. Government Code § 3543.1. This section provides,
Employee organizations shall have the right of access at reasonable times to areas in which employees work, the right to use institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation . . . ." (Section 3543.1(b) (emphasis added.)
PERB holds that these access rights are negotiable. San Mateo City School District (1984) PERB Dec. No. 325, 8 PERC ¶ 15021, p. 136; Davis Joint Unified School District (1984) PERB Dec. No. 474, 9 PERC ¶ 16045, p. 142.
The District's proposal directly affects employee and Federation access to means of communication. It covers e-mail, telephones, and internal mail systems. In accordance with Section 3543.1 and the above cases, the policy is negotiable.
We understand this proposal is the successor of prior policies, some of which deal with some of the subjects of this policy. Whenever new rules are proposed an employer has a duty to negotiate. NLRB v. Miller Brewing Company, 408 F. 2d 15, 70 LRRM 2907 (9th Cir. 1969), enf. 166 NRLB 831, 65 LRRM 1649 (1967); accord, Holland America Wafer Co., 260 NLRB 267, 109 LRRM 1188 (1982); Clements Wire & Mfg. Co., 257 NLRB 1058, 108 LRRM 1051 (1981); Boland Mfg. Co., 225 NLRB 828 (1976).
3543.5(a) of the EERA
By cross-referencing at least three other policies, and through vague and uncertain language, the meaning of the proposed policy is uncertain, and it allows the opportunity for abuses when implemented. None of these impacts should be a surprise, for the District's drafter surely understands it provides an opportunity for capricious or heavy-handed limitations on employees and district unions. For example, the proposal limits electronic mass mailings. Surely a union newsletter, or a union endorsement of a candidate for a district board position, both of which are directed to hundreds of union members, would not be "approved" whereas innocuous invitations would likely be approved. This "mass mailing" limitation is the sort of proposal which is especially suited for bargaining.
This District has previously violated the EERA by refusing to negotiate over release time activities. San Mateo Community College District, PERB Dec. No. 1030, 18 PERC ¶ 25027 (1993). It would be a waste of District resources for it to disregard its bargaining duty again, for it would surely be again found in violation of the EERA. As a recidivist that fails to bargain over a matter so clearly within the scope of negotiations given the above decisions, the District would face liability for the Federation's legal fees and costs.
Within the right of access is a protected right of employee organizations to communicate with employees and members while at work. State of California (Department of Transportation) (1981) PERB Dec. No. 159b-S, 5 PERC ¶ 12068, p. 317.
The PERB has applied a reasonableness standard to communications policies in regards to interference. The District proposal allows all employees, including managers and supervisors, to send or receive e-mails for personal use, so long as they do not "interfere with the employers work." On its face, this seems a reasonable goal and appears to be consistent with the past practice. The Federation and the employees know that the District has allowed managers, supervisors and employees to send and receive e-mail and faxes for personal matters.
Yet the District would also exclude employees and the union from using the electronic network for any "use which is contrary to the goals, purpose and intended use of the [4CNet] network." We have no idea what this limitation means. It suggests that the district proposes a content-based policy, which proscribes uses solely because they are related to or include union or other concerted activities. Please provide us all information you have concerning the goals, purpose and intended use of the 4CNet network. The policy also says that users of district communications systems must comply with "District Rules and Regulations." Such rules and regulations are negotiable as they pertain to access to communications systems. The proposed policy says that "Electronic communications are not private," the "activities of individuals using the electronic communications systems may be monitored," and hat each user "consents to such monitoring." (Proposed Policy, Nos. 8-10). On its face these proposals are unreasonable and violate EERA and Constitutional rights.
With three campuses and many departments and work units, faculty are often physically separated and lack many opportunities to discuss their concerns in a common place. One common space in which they can now meet, despite physical isolation and conflicting work schedules, is in cyberspace, often in the form of the employer-maintained Local Area Network (LAN) or Wide Area Network (WAN), or the Internet. Internet technology is uniquely conducive to employee communication - its allows multiple messages, thus saving considerable time and providing a more efficient and effective means of communication (unlike the phone, which often depends on two people both being simultaneously available). Thus, there are important reasons why any employer should not discourage reasonable use of such resources. The proposed policy discourages such use.
Furthermore, access to such resources improves the ability of workers to act collectively, which is a primary purpose of the EERA. Employees naturally resort to informal communications to discuss their work and academic concerns. Kinder-Care Learning Centers, Inc., 299 NLRB 1171, 136 LRRM 1056 (1990) The Internet provides a tremendous opportunity to advance the purpose of the EERA. Long ago the NLRB recognized that employees cannot realize the benefits of the right to self-organization guaranteed by the labor laws, unless there are adequate means of communication open to them, so that they can be informed and advised of their rights, and have the opportunity for the interchange of information and ideas. Le Tourneau Co., 54 NRLB 1253, 1260 (1944), aff'd sub nom. Republic Aviation v. NLRB, 324 U.S. 793 (1945).
The U.S. Supreme Court recognizes that, "The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees." NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974)
In academic settings, this country has long fostered the notion of academic freedom and open debate of ideas. Given this special setting, it is especially ironic that the District apparently wishes to limit employee communication. In an age when technology offers an opportunity to increase communication and community, why would the District's current administration feel compelled to restrict it? What exactly does the District's current administration fear? Yet as proposed, the District will discourage Internet use. Faculty will be dissuaded by "rules" stating there is no expectation of privacy, or that the District reserves the right to monitor or retrieve employee communications. In such circumstances faculty will, fearing monitoring, not want to use the communications system.
Because of the overriding statutory policy in favor of communication, where an employer rule "constitutes such a serious impediment to the freedom of communication which is essential to the exercise of the right to self-organization . . . the right to self-organization must be held paramount, and the rule give way." Id.
Because faculty have access to these district communication systems in the normal course of their employment, many of the limitations proposed in the District policy violate employee and union access rights. The place to hammer these out is in negotiation.
The proposed policy states that,
"Electronic communications are not private. In the course of network maintenance or monitoring, the activities of individuals using the electronic communications systems may be monitored. The District reserves the right to conduct audits . . ." Anyone using the electronic communications systems expressly consents to such monitoring . . . ." (emphasis added).
We dispute the District's contention that electronic communications originating on a computer tied to the District's network, sent through or received in the network, are not private. The District's position appears to be that because the District maintains the network, that communications over it lose their right of privacy. If this is the District's justification, the District is misinformed. And faculty cannot be forced to surrender this privacy rights. The Federation cannot waive faculty Constitutional rights.
Merely because an activity occurs on District property, does not cause it to lose privacy protections which apply to District employees. Retrieving stored e-mail conversations, or monitoring conversations as they occur, constitute more than passive observation of employee activity. F.W. Woolworth Co., 310 NLRB 1197, 143 LRRM 1187 (1993).
Faculty use District communication systems, including e-mail, for a number of activities, including concerted and union activities. The faculty also communicate directly with their union representatives, and each other, on matters of wages, hours and working conditions. Faculty contact each other to discuss their complaints over working conditions. The surveillance of employees engaged in protected concerted activities on employer property violates the EERA because it has a tendency to intimidate employees. F.W. Woolworth Co., 310 NLRB 1197, 143 LRRM 1187 (1993); Waco, Inc., 273 NLRB 746, 747 (1984). The District's suggestion that it is entitled to retrieve and view employee e-mails has the effect of discouraging protected union and concerted activity. Florida Coca Cola Bottling Co., 321 NLRB 21, 153 LRRM 1119 (1996).
Since the earliest days of the National Labor Relations Act, the law has considered surveillance of employees by an employer on employer premises to violate employee rights. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 3 LL.B. 645 (1938).
Because employees have an expectation of privacy in their communications with each other and with their union representatives, it is inappropriate for the District to suggest or propose that electronic communications are "not private." The District's belief that because it owns and operates a computer network, that it has a right to inspect e-mail communications, is an untenable proposition. The National Labor Relations Board, and PERB, have both held that even on an employer's property, employees have a right to engage in protected union or concerted activities during non-working time. Republic Aviation Corp., 51 NLRB 1186 (1943), enforced 142 F.2d 193 (2d Cir. 1944), affirmed, 324 U.S. 793 (1945). In Republic Aviation the Supreme Court affirmed the NLRB ruling that an employer could not prohibit union activity on company property outside of work time, and that such a prohibition constitute an unreasonable impediment on the right to self-organization guaranteed by the NLRB. PERB follows the same rule. (Id.) Likewise, the employer cannot attempt to negotiate away employee privacy or free speech rights. The union cannot waive such rights. Phillips v. State Personnel Board (1986) 184 Cal. App. 3d 651, 658-659.
Under Federal labor law where a communication can reasonably be expected to occasion a spontaneous response or initiate reciprocal conversation, it is considered a solicitation and must be permitted in all areas of an employer's operations, absent an overriding employer interest. Solicitations which occur where the communication is one-sided and the purpose of the communication is achieved so long as it is received, are considered "distribution." Distribution is allowed under the NLRA and EERA on non-work time in work areas.
E-mail messages constitute both solicitation and distribution. E-mail messages have been characterized as a "substitute for telephonic and printed communications, as well as a substitute for direct oral communications." In Re: Amendments to Rule of Judicial Administration, 651 So. 2d 1185 (Fla. Sup. Ct. 1995) E-mail is often informal and individually targeted. But even where it is neither informal nor personalized, it is still not the same as a flyer because in e-mail the recipient can respond. "This ability to exchange ideas and discuss what action to take collectively is the key to the effective preservation of labor rights . . . electronic communication promotes responsive interchanges and . . . resemble[s] speech more than distribution of literature." Networkers' rights: The NLRA And Employee Electronic Communications, Elena Broder, 105 Yale Law Journal, 1639, 1662 (1996); National Labor Relations Board, General Counsel Advice Memo, 1998 NLRB GCM Lexis 40 (1998), p. 18.
Some e-mail may also warrant treatment as oral solicitation. The union uses e-mail to communicate with its members and solicit their assistance in union-related matters, including a wide variety of union activities, from support for particular issues to support for particular candidates. Artificial limitations in the nature or number of Federation messages inhibit this communication.
As we mentioned earlier, faculty have an expectation of privacy in their union and concerted activities. Although some such activities may be designed to be public, faculty expect to be able to decide when this is so. They have a right to expect no surveillance by the employer. The courts have been especially protective of citizens' privacy when engaged in these activities. As a corollary, the courts have struck down regulations which might interfere in anonymity in the exercise of speech. Tally v. California, 362 U.S. 60 (1960) The Supreme Court recognized that a governmental rule which provided for identifying distributors of leaflets "tend[ed] to restrict freedom to distribute information and thereby freedom of expression." Tally, 362 U.S. at 64. Leaflets "have been historic weapons in the defense of liberty." Tally, supra, at 62. In the "new millennium" e-mails may serve the same function. The Supreme Court has continued to protect anonymous speech. McIntyre v. Ohio Elections Commission , 514 U.S. 334 (1995) The District policy must respect these important free speech rights.
Faculty also have a privacy interest in their communications with students. See Family Education Rights Privacy Act, 20 U.S.C. 1232 et seq. Further, California accords all its citizens the protection of Article I, section 1 of its Constitution, which includes the right of privacy. Faculty have historically been permitted to communicate with each other without being subject to having their communications being overheard by district administration. Any proposal to retrieve faculty e-mail involves privacy interests protected by the California Constitution. Luck v. Southern Pacific Transportation Company (1990) 218 Cal. App. 3d 1, 267 Cal. Rptr. 618. Where privacy interests are implicated, California courts have been careful to protect employees from suspicionless searches. Loder v. City of Glendale, 14 Cal. 4th 846, 59 Cal. Rptr. 2d 696 (1997). Yet a policy which treats all communications as non-private, or allows retrieval at the whim of the employer, amounts to a suspicionless search.
Academic freedom is the freedom of faculty to inquire, debate, and give their opinions. Such activities occur throughout the campus and faculty expect privacy in many of these communications. Some communications involve highly controversial and delicate subject, with faculty and students sharing personal opinions, sometimes in confidence.
Faculty have an expectation of privacy in their offices, desks and file cabinets. Faculty keep correspondence, books, lectures, notes, manuscripts, grades, and personal mementos. They have no reason to expect a generalized search of their offices, desks or file cabinets. The courts have recognized that employees may have an expectation of privacy in their offices, desks and file cabinets, even when they are owned by the employer. Ortega v. O’Connor, 480 U.S. 709, 727-729; Ortega v. O’Connor, 146 F. 3d 1149, 156 (9th Cir. 1998); U.S. v. Hoffa, 385 U.S. 293, 301 (1966). Faculty have a right to expect that their privacy in these fixtures and their offices will be respected by the district. As a consequence, the District can search their offices, file cabinets and desks only based on a legitimate, work-related need, or individualized suspicion. Otherwise, the District violates the 4th Amendment to the U.S. Constitution. Ortega v. O’Connor, supra, 480 U.S. at 720-721. In these circumstances, faculty also have a reasonable expectation that the computer e-mails they receive and generate will not be searched indiscriminately.
The District's proposed policy already acknowledges that employees are privileged to use the e-mail system for personal communications which do not interfere in the District's business. As noted, this is also the established practice. We have demonstrated that five grounds exist for faculty expectations of privacy in their e-mail communications: union and concerted activities, free speech, academic freedom, FERPA, and the California Constitution. Given the afore-mentioned, employees do have a reasonable expectation that their e-mail and other communications will not be intercepted, monitored, audited or retrieved by the District, at least without a reasonable, individualized suspicion that meets Fourth Amendment due process requirements. The eventual District policy must respect this.
For the reasons set forth above, the District's proposed e-mail and communications policy is negotiable and must assure the protection of faculty EERA and privacy interests. Please contact the Federation to discuss instituting negotiations.
Very truly yours,
Robert J. Bezemek
RJB:Mtas
cc: San Mateo Community College Federation of Teachers
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