State of California

  M E M O R A N D U M

  REFERENCE CODE:
  98-050

  DATE:
  October 6, 1998

  TO:
  Employee Relations Officers
  Personnel Officers

  FROM:
  Department of Personnel Administration
  Labor Relations Division

  SUBJECT:
  Use of State Equipment (Internal Communications; E-mail)

  CONTACT:
  Rick McWilliam, Chief, Labor Relations
  (916) 324-0476, CALNET 454-0476
  FAX: (916) 322-0765
  OFFICE VISION: DPA(RGMCWILL)
  INTERNET: RickMcWilliam@DPA.CA.GOV


  This memorandum is to inform you about a recent decision of 
  the Public Employment Relations Board (PERB) concerning the 
  use of the State's electronic mail systems (e-mail) by 
  employees for union business. 
  
  In a significant decision favoring State management rights, 
  PERB ruled that employee organizations enjoy no statutory 
  right of access to the State's internal communications 
  systems under the Dills Act.  This means that any access to 
  such systems a union receives must be through law or rule, 
  negotiated or through some appellate ruling concerning a 
  non-negotiated practice. 
  
  State law permits agencies to limit the use of State 
  equipment to State business.  The current and expired 
  contracts define limited access to State communications 
  equipment.  In addition to or in implementing the above, 
  many agencies have policies regarding the use of State 
  equipment and the use of e-mail.  However, the recent PERB 
  decision found that to the extent that agencies, by policy 
  or practice, allow employees to use State e-mail for non-
  State business, employees may use e-mail for union-related 
  communications.  (CSEA v. State of California,1998) PERB 
  Decision No. 1279-S, (22 PERC Para. 29034.)  (Decision 
  attached.)  The PERB found that the State discriminated 
  against CSEA and Unit 1 members by denying "incidental and 
  minimal use" of e-mail for union-related communications 
  while allowing such use by employees for other non-State 
  business communications (e.g., bake sales, blood drives, 
  private charitable activities, etc.).
  
  The facts upon which the PERB ruled are limited to 
  employees in Unit 1 at the Departments of Banking 
  (Financial Institutions), Transportation and Water 
  Resources.  However, the practical effect of the Board's 
  decision is to be viewed as providing direction for all 
  State agencies concerning access to the State e-mail 
  system. Therefore, where an agency allows the employees use 
  of e-mail for non-State business, employees may use the e-
  mail system to the same degree (which we believe to be non-
  existent or, at the most, minimal and incidental) for 
  union-related purposes.
  
  The PERB pointed out that the State did not violate the 
  Dills Act by restricting CSEA activists, who had been 
  engaged in sending "regular and voluminous messages about 
  Union business"; "frequent and heavy levels of 
  communication"; "establishment of lengthy mailing lists"; 
  and "non-business messages to the entire department."  The 
  PERB found such use to be beyond the "incidental and 
  minimal" use allowed by the departments' policies.
  
  The decision also noted that the parties could agree to 
  restrict access rights through the bargaining process.  
  Current agreements for employees in Bargaining Units 16 and 
  19 prohibit use of State equipment by employees for union 
  organizing or any other union purpose, except employees in 
  those units may use telephones or e-mail for representation 
  activities. 
  
  You are encouraged to review your existing policies and 
  practices in light of the above decision.  As many of you 
  know, the Department of Information and Technology (DOIT) 
  has issued policy guidelines concerning the appropriate use 
  of the Statewide Internet, including e-mail.  These 
  guidelines are posted on the Internet at 
  http://www.doit.ca.gov/SIMM/internet.asp.  
  
  We recommend that agencies periodically remind employees of 
  department e-mail policies, including these points: 
  
  E-mail communications systems, including 
  computers, are state property; 
  
  E-mail is not confidential and/or private; 
  
  E-mail is subject to being monitored at any 
  time and for any reason; 
  
  Improper activity in connection with e-mail 
  use, including the misuse of State time, will 
  be subject to disciplinary action.  
  
  Improper activity includes, but is not limited 
  to: 
  
  E-mail messages which contains language that 
  is obscene, libelous, defamatory, harassing, 
  or of a partisan political nature;
  
  E-mail messages which incur a cost to the 
  state;
  
  E-mail messages that violate State laws, rules 
  or department policy.
  
  If you have any questions about this PML Memorandum, the 
  decision or its application, please contact:  
  
  James Wheatley, Senior Labor Relations Officer, DPA, at 
  (916) 324-0476, or e-mail, JAMESWHEATLEY@DPA.CA.GOV. OR 
  Paul Starkey, Labor Relations Counsel, or Wendi Ross, Labor 
  Relations Counsel, DPA, at (916)324-0512, or e-
  mail,PAULSTARKEY@DPA.CA.GOV. OR WENDIROSS@DPA.CA.GOV.
  
  
  
  
  James Wheatley
  Labor Relations Officer