State of California (Departments of Personnel Administration, et al. * * * OVERRULED IN PART by County of San Diego (2020) PERB Decision No. 2721-M * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563 (PERB 1279S)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

* * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB
Decision No. 2563 and OVERRULED IN PART by County of San Diego (2020) PERB
Decision No. 2721-M * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES )
ASSOCIATION, SEIU LOCAL 1000, )

Charging Party, ) Case No. SA-CE-824-S
)
Vv. ) . PERB Decision No. 1279-S
)
STATE OF CALIFORNIA (DEPARTMENTS OF ) August 21, 1998

PERSONNEL ADMINISTRATION, BANKING,
TRANSPORTATION, WATER RESOURCES
AND BOARD OF EQUALIZATION) ,

Respondent.

)
)
)
)
)
)

Appearances: Howard Schwartz, Attorney, for California State
Employees Association, SEIU Local 1000; State of California
(Department of Personnel Administration) by Paul M. Starkey and
Wendi L. Ross, Labor Relations Counsel, for State of California
(Departments of Personnel Administration, Banking,
Transportation, Water Resources and Board of Equalization).
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISTON

AMADOR, Member: This case is before the Public Employment
Relations Board (Board) on exceptions filed by the State of
California (Departments of Personnel Administration, Banking,
Transportation and Water Resources) (State) to an administrative
law judge's (ALJ) proposed decision (attached). In the proposed
decision, the ALJ found that the State violated section 3519(a)

and (b) of the Ralph C. Dills Act (Dills Act)* when the

‘The Dills Act is codified at Government Code section 3512
et seq. Section 3519 states, in pertinent part:

It shall be unlawful for the state to do any
of the following:

(a) Impose or threaten to impose reprisals

Department 	of 	Transportation 	(Caltrans) 	adopted a policy 	that
allows 	employees 	to use 	the 	State's 	electronic mail 	system for
minimal 	amounts 	of personal 	communication so long as 	the 	subject
of 	the 	communication does 	not 	pertain to 	employee 	organization
matters. 	He also found that Caltrans, 	the Department of Banking
and 	the Department 	of Water Resources violated 	the Dills 	Act 	by
discriminatorily applying 	other policies. 	The ALJ dismissed all
other allegations.
The 	Board has 	reviewed 	the 	entire 	record, 	including
the proposed decision, 	the 	State's 	exceptions and the California
State Employees Association, 	SEIU Local 	1000's 	response. 	The
Board 	finds 	the ALJ's 	findings 	of 	fact and conclusions 	of 	law to
be 	free 	of prejudicial 	error and adopts 	them as 	the 	decision of
the 	Board 	itself.
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	the Board finds 	that the
State 	of 	California 	(Departments 	of 	Personnel Administration,
Banking, 	Transportation and Water Resources) 	(State) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(a)
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

and 	(b). 	We, find that the Department of Transportation
(Caltrans) 	violated the Dills Act when it 	adopted a policy that
allows 	employees 	to use 	the 	State's 	electronic mail 	system for
minimal 	amounts 	of 	personal 	communication but 	prohibits 	such use
when 	the 	subject 	of 	the 	communication pertains 	to 	employee
organization matters. 	We 	further find that 	Caltrans, 	the
Department 	of Banking 	(Banking) 	and Department 	of Water Resources
(DWR) 	violated 	the 	Dills Act 	by discriminatorily applying neutral
policies 	in a way 	that prohibits 	communication about 	employee
organization business 	while 	permitting 	other personal
communication. 	These 	discriminatory actions 	interfered with 	the
rights 	of 	employees 	to participate 	in the activities 	of 	employee
organizations 	and 	the 	right 	of 	the 	California 	State 	Employees
Association, 	SEIU Local 	1000 	to communicate with its members.
All 	other allegations 	of 	the 	complaint 	are hereby DISMISSED.
Pursuant to Dills Act section 3514.5 (c), 	it is hereby
ORDERED 	that 	the 	State and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Discriminatorily prohibiting Unit 	1 members
employed by Caltrans, 	Banking and DWR 	from such 	incidental 	and
minimal 	use 	of 	the 	State's 	electronic mail 	system for
communication about 	employee 	organization activities 	as 	those
departments permit 	for other non-business purposes.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Within ten 	(10) 	days 	following the date 	this
Decision is 	no longer subject 	to appeal, 	post at all work
3

locations where notices 	to persons 	employed 	in Unit 	1 	customarily
are posted, 	copies 	of 	the Notice attached as an Appendix hereto.
The 	Notice must 	be 	signed by an authorized agent 	of 	the 	State,
indicating 	the 	State will 	comply with the 	terms 	of 	this 	Order.
Such posting 	shall 	be maintained 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken to ensure
that 	this Notice 	is not 	reduced in size, 	altered, 	defaced or
covered by any 	other material.
2. 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order 	shall 	be made 	to 	the 	Sacramento 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with the 	director's 	instructions.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
44

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SA-CE-824-S,
California State Employees Association. 	SEIU Local 	1000 v. 	State
of 	California 	(Departments 	of 	Personnel Administration, 	Banking.
Transportation. 	Water Resources and Board of Equalization). 	in
which all 	parties had the 	right 	to participate, 	it has been 	found
that 	the 	State 	of 	California 	(Departments 	of 	Personnel
Administration, 	Banking, 	Transportation and Water Resources)
(State) 	violated the Ralph C. 	Dills Act 	(Dills Act), 	Government
Code 	section 3519(a) 	and 	(b). 	The State violated the Dills Act
when the 	Department 	of Transportation 	(Caltrans) 	adopted a policy
that 	allows 	employees 	to use 	the 	State's 	electronic mail 	system
for minimal 	amounts 	of personal 	communication 	so 	long as 	the
subject 	of 	the 	communication does 	not pertain 	to employee
organization matters.
It has also been found that Caltrans, 	the Department of
Banking 	(Banking) 	and Department 	of Water Resources 	(DWR)
violated 	the 	Dills 	Act 	by discriminatorily applying 	other 	neutral
policies 	in a way 	that 	prohibits 	communication about 	employee
organization business 	while 	permitting 	other personal
communication. 	These 	discriminatory actions 	interfered with 	the
rights 	of 	employees 	to participate 	in the 	activities 	of 	employee
organizations 	and 	the 	right 	of 	California 	State 	Employees
Association, 	SEIU Local 	1000 	to communicate with its members.
As a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Discriminatorily prohibiting Unit 	1 members
employed 	in Caltrans, 	Banking and DWR 	from such 	incidental 	and
minimal 	use 	of 	the State's 	electronic mail 	system for
communication about 	employee 	organization activities 	as 	those
departments 	permit 	for other non-business 	purposes.
Dated: 	STATE 	OF 	CALIFORNIA
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED BY ANY
OTHER MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 1000,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENTS 	OF
PERSONNEL ADMINISTRATION, 	BANKING,
TRANSPORTATION, 	WATER RESOURCES
AND BOARD OF EQUALIZATION),
Respondent.
Unfair 	Practice
Case No. 	SA-CE-824-S
PROPOSED 	DECISION
(2/5/98)
Appearances: 	Howard Schwartz, 	Attorney, 	for California
State Employees Association, 	SEIU Local 	1000; 	Paul M. 	Starkey and
Wendi L. 	Ross, 	Labor Relations Counsel, 	for State of California
(Departments of Personnel Administration, 	Banking, 	Transportation
and Water Resources 	and Board of Equalization).
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union that 	represents 	employees 	of 	the 	State 	of 	California
(State) 	here mounts 	a broad attack on the 	State's 	restrictions 	on
employee 	use 	of 	State 	communication equipment 	for union business.
In particular, 	the union challenges 	State policies 	that prohibit
union officers 	from using State 	electronic mail 	systems 	and
facsimile machines 	for union business. 	The union contends 	that
by 	imposing the 	restrictions, 	the 	State made a unilateral 	change
in a past practice, 	interfered with union and employee 	rights 	and
discriminated against 	the union.
The 	State denies 	all 	allegations, 	asserting both procedural
and substantive defenses. 	The 	State asserts that 	the
restrictions 	it 	imposed marked no 	change 	from a uniform past
)
)
)
)
)
)
)
)
)
)
)
)
)
______________ )

practice 	prohibiting 	any use 	of 	State 	equipment 	for 	other 	than
State 	business. 	The 	State points 	to 	evidence 	of 	numerous 	actions
it 	has 	taken 	against 	employees 	who misuse 	State 	equipment 	and
argues 	that 	it 	has 	treated use 	for union purposes 	no 	differently
from other personal 	use.
The 	California 	State 	Employees Association, 	SEIU Local 	1000
(CSEA or U n i o n ) , 	filed the unfair practice 	charge 	at 	issue 	on
April 	3, 	1996. 	CSEA filed a 	first 	amended charge 	on December 	11,
1996. 	The 	Office 	of 	the 	General 	Counsel 	of 	the 	Public 	Employment
Relations Board 	(PERB or Board) 	followed on January 7, 	1997, 	with
a 	complaint 	against 	the 	State. 	The 	State 	answered 	the 	complaint
on 	February 3, 	1997, 	denying 	allegations 	and setting out 	various
affirmative 	defenses.
The 	complaint 	was 	amended 	on 	the 	record 	to 	remove 	an
allegation 	that 	the 	State 	retaliated 	against 	CSEA 	activist 	Cathy
Hackett 	because 	of 	her participation 	in 	protected 	activities.1
As 	amended, 	the 	complaint 	alleges 	that 	the 	State:
(1) 	On or about October 30, 	1995, 	changed 	its past 	policy
on 	the 	use 	of 	electronic 	mail, 	personal 	computers 	and 	telefax
machines 	by denying 	four 	CSEA 	stewards 	the 	right 	to 	use 	those
machines 	to 	relay 	information 	to 	CSEA members;
(2) 	On or about November 2, 	1995, 	interfered with the
protected rights 	of 	Ms. 	Hackett 	by warning 	her 	that 	further use
of 	her 	computer 	for 	CSEA business 	would 	result 	in 	adverse 	action;
1See Reporter's Transcript, 	Vol. 	1, 	pp. 	8-9.
2

(3) 	On or about February 16, 	1996, 	interfered with the
protected 	rights 	of 	Salome 	Ontiveros 	by 	restricting 	her 	right
to 	use 	telefax 	equipment 	for 	the 	purpose 	of 	conducting 	CSEA
business;
(4) 	On or about October 30, 	1995, 	interfered with the
protected 	rights 	of 	Claudia 	Nordendahl 	by 	instructing 	her 	not 	to
use 	electronic 	mail 	for 	the 	purpose 	of 	conducting 	CSEA business;
(5) 	On or about 	December 	7, 	1995, 	interfered with the
protected 	rights 	of 	Ron 	Landingham by warning 	him 	that 	his
electronic 	mail 	would be 	monitored 	and 	that 	he 	would be 	subject
to 	adverse 	action 	if 	he 	used his 	electronic 	mail 	for 	the 	purpose
of 	conducting 	CSEA business.
By these 	acts, 	the 	complaint 	alleges, 	the 	State violated
Ralph C. 	Dills Act 	(Dills Act) 	section 3519(a), 	(b) 	and 	(c).2
2Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to
the 	Government 	Code. 	The 	Dills Act 	is 	codified at 	section 	3512
et 	seq. 	In relevant part, 	section 3519 provides 	as 	follows:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and 	confer 	in
good 	faith with 	a 	recognized 	employee
organization.
33

A hearing was 	conducted 	in 	Sacramento 	over nine
non-consecutive days beginning April 	29, 	1991, 	and concluding
September 22, 	1997. 	With the filing of briefs, 	the matter was
submitted for decision on January 21, 	1998.
FINDINGS 	OF 	FACT
The 	Department 	of 	Personnel Administration 	is 	the
representative 	of 	the Governor 	for the purposes 	of 	meeting and
conferring and 	is 	the 	State 	employer within the meaning of 	the
Dills Act. 	The other four departments named in the 	complaint,
Banking,3 Transportation, 	Water Resources 	and Board of
Equalization are 	the 	branches 	of 	State 	government 	that 	employ the
individuals 	whose 	rights 	allegedly were violated.
At 	all 	times 	relevant 	CSEA has 	been the 	exclusive
representative 	of nine State employee bargaining units, 	including
State Bargaining Unit 	1 	(Administrative, 	Financial 	and Staff
Services) 	where the events at 	issue took place. 	The collective
bargaining agreement 	covering Unit 	1 	expired on June 	30, 	1995.
Although 	the parties 	have 	been 	in negotiations 	continuously since
that date, 	they had not 	entered a 	successor agreement 	as of 	the
completion of 	the 	hearing.
Unit 	1 	is 	a 	large bargaining unit 	containing 36,000 	State
employees who work for 126 	separate agencies, 	boards or
3On July 1, 	1997, 	the name of the Department of Banking was
changed to the Department 	of 	Financial 	Institutions. 	(See
Reporter's Transcript, 	Vol. 	6, 	p. 	5.) 	By agreement of the
parties, 	the department was referred to as 	the Department of
Banking in the 	record, 	a practice 	that will 	be 	followed 	in this
proposed 	decision.
4

commissions. 	These departments 	conduct 	their 	functions 	through a
heavy usage of 	computers, 	telephones and facsimile machines.
Nearly all 	members 	of the unit 	have on their desks 	either a
personal 	computer or a 	less 	versatile 	computer programmed to
perform only specific agency functions. 	Substantial 	numbers 	of
Unit 	1 members have access to electronic-mail 	(e-mail) 	systems.
Some 	of 	the 	e-mail 	systems 	are 	capable 	only of 	circulating
messages within a particular department. 	Other systems, 	however,
provide 	the 	ability to 	communicate 	with 	employees 	throughout
State 	government 	or elsewhere.
The 	State 	has 	long-standing policies 	that 	prohibit 	employee
use 	of 	State 	equipment 	for purposes 	other than State business.
The 	record establishes 	that 	most 	State 	employees 	are 	informed
about 	these 	restrictions 	on the use 	of 	State 	equipment 	through
incompatible 	activities 	statements 	they 	sign 	shortly 	after
employment. 	Several 	versions 	of 	incompatible 	activities
statements were placed into 	the 	record which, 	although slightly
different, 	set out the same basic prohibition. 	One version,
issued by the 	State Board of Equalization 	(BOE), 	reads 	as
follows:
IMPROPER USE OF STATE FACILITIES, 	EQUIPMENT
OR SUPPLIES. 	Any use of 	state 	facilities,
equipment, 	or supplies which is not directly
related to an employee's work 	function, 	is
improper and prohibited, 	including but 	not
limited to use of: 	photocopying equipment,
data 	processing 	equipment 	including programs
and data, 	word processing equipment,
telephones, and automobiles. [4]
4Respondent's exhibit 	7.
55

Some 	department policies 	also warn of 	the potential 	for
disciplinary action because 	of 	improper use 	of 	State 	equipment.
The 	Employee Administrative Manual 	of 	the 	Department 	of 	Banking
sets out various causes 	for disciplinary action, 	one of which is
misuse of 	State property. 	Regarding the use of 	State 	equipment,
the Department 	of 	Banking policy reads:
All 	State property, 	including but not 	limited
to telephones; cars; typewriters; copiers;
and miscellaneous 	supplies, 	are to be used
only for official 	state business. 	Misuse of
State property is 	cause of 	disciplinary
action. [5]
In addition to 	the broad prohibitions 	against 	misuse 	of
State equipment, 	the various departments also have 	adopted
policies 	against misuse of particular types of 	equipment. 	These
include policies 	concerning misuse 	of 	e-mail 	and computers.
The Department 	of Water Resources 	(DWR) 	has a comprehensive
policy on 	"Responsible 	Network 	Computing 	and E-Mail 	Privacy."6
Regarding personal 	use 	of 	e-mail 	the 	DWR policy reads:
The 	State's 	computing 	resources 	(including
e-mail) 	are 	to be used for State business
only. 	The personal 	use 	of 	e-mail 	or 	Internet
services 	. 	. 	. 	should be treated much the
same as personal 	telephone use. 	SAM 	[State
Administrative Manual] 	Section 4525.8 	states
that personal phone 	calls 	should be held to a
minimum and must 	not 	interfere 	with 	the
conduct of State business. 	Likewise,
personal 	use of 	the 	Department's 	e-mail
system or 	Internet 	connection must 	be 	held 	to
a minimum and must 	not 	interfere 	with 	State
operations, 	adversely affect performance,
incur cost to the State, 	or violate
5Respondent's exhibit 	22.
6Respondent's exhibits 19 and 32.
66

government laws, 	rules, 	or Department policy.
The Department 	of Transportation 	(Caltrans) 	since 	at 	least
1980 	has 	had 	in effect 	a policy 	specifically prohibiting the 	use
of 	computer equipment 	for any purpose 	other than State 	business.
The policy in relevant part 	reads 	as 	follows:
A. 	Employees' 	use of computer equipment,
programs 	and data 	shall 	be 	directly related
to their work 	function. 	Use of 	State
controlled 	computer 	resources 	for non-state
work will 	be 	cause 	for 	immediate 	disciplinary
action.
B. 	Specifically prohibited are 	non-state
work computer games, 	and the preparation of
biorhythms 	and 	calendars 	using EDP
equipment. [7]
In a policy distributed in 1996, 	Caltrans 	set 	out 	these
guidelines 	regarding the use 	of 	electronic mail:
Caltrans 	encourages 	the 	responsible use 	of
electronic mail 	as 	a 	communication tool
available to employees. 	Users will not
engage 	in 	any activities 	via 	electronic 	mail
that 	will 	in any way discredit 	the Department
or state 	service.
Caltrans 	computers, 	workstations and the
networks 	that 	interconnect 	them are 	the
property of 	the State of 	California. 	Use of
this 	equipment 	and network 	connectivity 	is
limited to 	'business purposes' 	only. [8]
At 	a meeting with CSEA representatives 	on February 5, 	1996,
Caltrans 	Labor Relations 	Chief 	Dave 	Brubaker provided the Union
with copies of 	all 	Caltrans polices on e-mail. 	One of 	the
7Respondent's exhibit 	62.
8Respondent's exhibit 	62.
7

documents, 	entitled 	"Caltrans 	Computer/E-Mail 	Policy," 	in
relevant 	part 	amplified 	the 	1980 	policy 	as 	follows:
Employees' 	use 	of 	computer 	equipment,
programs 	and 	data 	shall 	be 	directly 	related
to 	their work 	function. 	Use 	of 	State
controlled 	computer 	resources 	for 	non-State
work 	will 	be 	cause 	for 	immediate 	disciplinary
action. 	However, 	use 	of 	e-Mail 	systems 	for
incidental 	employee 	social 	functions 	or
public 	service 	activities 	not 	related 	to
union 	business 	or 	union 	organization 	purposes
is 	permitted. 	Employees 	must 	receive 	prior
management 	approval 	for 	such use. [9]
The 	BOE 	policy 	on 	voice 	mail 	and 	e-mail 	similarly 	restricts
use 	of 	that 	department's 	equipment 	to 	State 	business. 	The 	policy
reads, 	in relevant part, 	as 	follows:
It 	is 	the 	policy of 	the 	Board 	of 	Equalization
(BOE) 	to provide 	voice 	mail 	and 	e-mail
systems 	for 	the 	use 	of 	its 	employees 	in 	the
conduct 	of 	the 	BOE's 	business. 	The 	voice
mail 	and 	electronic 	mail 	systems 	may 	not 	be
used 	for 	the 	conduct 	of 	personal 	business.
(Government Code Section 8314) . [10] 	All
9 Respondent's exhibit 	27.
10Section 	8314 	concerns 	the 	use 	of 	State 	resources 	for
unauthorized purposes. 	It 	reads 	in 	relevant 	part 	as 	follows
(a) 	It 	shall 	be unlawful 	for 	any elected
state officer, 	appointee, 	employee, 	or
consultant, 	to use 	or permit 	others 	to use
state 	resources 	for 	a 	campaign 	activity, 	or
personal 	or 	other 	purposes 	which 	are 	not
authorized 	by 	law.
(b) 	For purposes 	of 	this 	section:
(1) 	"Personal purpose" 	means 	those
activities 	the 	purpose 	of 	which 	is 	for
personal 	enjoyment, 	private 	gain 	or
advantage, 	or 	an 	outside 	endeavor 	not 	related
to 	state business. 	"Personal 	purpose" 	does
not 	include 	an occasional 	telephone 	call, 	or
an 	incidental 	and 	minimal 	use 	of 	state
8

telephone 	lines 	and 	computers 	and 	the 	data
stored on 	them are, 	and remain 	at 	all 	times,
the property of 	the BOE. 	As 	such, 	the voice
mail 	and 	e-mail 	systems 	remain 	at 	all 	times
the property of 	the 	BOE. [11]
In 	addition to 	the 	standing policies, 	some 	departments 	have
a 	practice 	of 	periodically 	sending memoranda 	to 	employees,
reminding 	them 	about 	the 	restrictions 	on 	the 	use 	of 	State
equipment. 	The 	BOE 	regularly 	sends 	out 	such memoranda, 	two
examples 	of 	which were placed 	into 	the 	record. 	On 	January 	12,
1995, 	BOE 	Executive 	Director Burton Oliver 	sent 	a memo 	to 	all
employees, 	warning 	about 	the 	possibility of 	corrective 	action 	for
inappropriate 	use 	of 	State 	equipment. 	The memo 	reads 	as 	follows:
This 	memo 	serves 	as 	a 	reminder 	to 	all
employees 	that 	personal 	use 	of 	state
equipment 	is 	inappropriate 	and 	could 	result
in 	a 	corrective 	action being 	taken.
Government 	Code 	Section 	19990 [12] 	prohibits
resources, 	such as 	equipment 	or office 	space,
for personal 	purposes.
(3) 	"State 	resources" 	means 	any state
property or asset, 	including, 	but 	not 	limited
to, 	state land, 	buildings, 	facilities, 	funds,
equipment, 	supplies, 	telephones, computers,
vehicles, 	travel, 	and state compensated time.
(4) 	"Use" 	means a use of 	state 	resources
which 	is 	substantial 	enough 	to 	result 	in 	a
gain 	or 	advantage 	to 	the 	user 	or 	a 	loss 	to
the 	state 	for which 	a 	monetary value 	may be
estimated.
11 Respondent's 	exhibit 	6.
12Section 	19990 	pertains 	to 	conflicting 	employment,
activities 	or enterprises. 	It 	provides 	in relevant 	part
A 	state 	officer 	or 	employee 	shall 	not 	engage
in any employment, 	activity, 	or enterprise
which 	is 	clearly inconsistent, 	incompatible,
99

the use of state time, 	facilities, 	equipment,
or 	supplies 	for private 	gain or 	advantage.
Examples of equipment 	include, 	but are not
limited to: 	photocopying equipment, 	data
processing 	equipment 	including programs 	and
data, 	word processing equipment, 	telephones
and automobiles.
State 	equipment 	is provided at 	the taxpayer's
[sic] 	expense with the sole 	intent that 	it 	is
used only in an official 	manner. 	Any use
other than 	for official 	state business 	is
considered 	inappropriate 	use 	of 	state
resources and the taxpayers' 	money.
Please 	ensure 	all 	state 	equipment 	and
supplies 	in your work area 	are 	used only 	for
official 	state business. 	Thank you 	for your
cooperation. [13]
On May 22, 	1995, 	Mr. 	Oliver sent a memo to BOE managers and
supervisors 	instructing 	them that 	they were 	to monitor employee
computer files 	for indications of 	improper use. 	In relevant
part, 	his memo reads as follows:
Board equipment 	will 	not 	be 	used 	for non-work
related activities. 	Managers 	and supervisors
should exercise 	reasonable 	discretion 	to
control 	the use of 	state 	equipment 	for
personal 	use by employees 	under 	their
supervision. 	Supervisors will make random
examinations of personal 	computers, 	related
equipment 	and 	files 	to 	ensure 	that 	improper
use 	and activity 	is 	discouraged and to 	ensure
that 	Board policies 	are being 	followed.
Examinations of 	all personal 	computers 	in
in conflict with, 	or inimical 	to his 	or her
duties 	as 	a 	state officer or employee.
. 	. 	. 	Activities and enterprises deemed to
fall 	in these categories 	shall 	include, 	but
(b) 	Using state time, 	facilities, 	equipment,
or supplies 	for private 	gain or advantage.
13Respondent's exhibit 	8.
10

each office 	should be 	completed at 	least 	once
a year; 	more 	frequently if a problem is
suspected.
This 	review will 	include 	checking 	the
contents 	of 	the 	computer hard disk 	for
non-work related files and programs. 	. 	.
At 	the Department of Banking, 	managers 	sent memoranda to
employees warning about personal 	use of 	State 	telephones. 	One
such memo was 	issued to all employees on July 12, 	1993, 	that they
were not 	to make or receive 	lengthy calls 	during work hours. 	The
memo directed 	further that 	personal 	calls 	should be made 	during
breaks and should result 	in no toll 	charges 	to the 	State. 	The
DWR distributed a memo to employees 	warning of 	improper use 	of
the 	internet. 	The memo warned against 	"conducting outside
commercial 	activities; 	sending or accessing 	sexually explicit
material; 	or 	sending messages 	or postings 	that 	could be 	seen as
insulting, 	harassing, 	or offensive by others." 	The memo also
warned of 	"surfing" 	the 	internet 	"or 	sending electronic
correspondence 	so 	frequently that 	work performance 	suffers."15
The memo warned 	that 	objectional 	internet 	sites would be
monitored 	for employee usage 	and that 	employees 	should have 	no
expectation of privacy in their use 	of 	e-mail.
The 	expired memorandum of understanding 	(MOU) 	between 	the
parties 	is 	silent 	regarding employee 	use 	of 	e-mail 	for Union
business. 	The only related provision 	in the MOU pertains 	to the
14Respondent's exhibit 	64.
15Respondent's exhibit 	34.
11

use of 	State 	telephones. 	Section 2.3 	of 	the expired MOU reads 	as
follows:
Union 	stewards 	shall 	be permitted
reasonable use 	of 	State phones 	to make 	calls
for Union representation purposes; 	provided,
however, 	that 	such use of 	State phones 	shall
not 	incur additional 	charges 	to 	the 	State
or 	interfere with the 	operation of 	the
State. [16]
Beginning in mid-1995, 	the various 	respondent departments
in this 	case 	took 	steps 	to halt 	use 	of 	e-mail 	and 	facsimile
machines 	by the 	four 	CSEA activists 	identified 	in 	the 	complaint.
In each instance, 	State managers discovered the use of 	State
communications 	equipment 	for Union business 	through 	a
transmission 	that 	came 	to 	their attention.
Ron Landingham was 	the 	first 	of 	the 	CSEA activists
to be barred from use 	of 	the 	e-mail 	for CSEA business. 	He 	is
employed 	as 	a program specialist 	at 	the 	DWR where 	he 	conducts
16A steward's 	use of 	the 	telephone 	is 	limited to use within
that 	steward's 	area of responsibility. 	The 	limitation is 	set 	out
in 	section 2.1 	of 	the 	expired MOU which reads 	as 	follows:
b. 	A written 	list 	of Union 	stewards,
broken 	down by units 	within 	each 	individual
department 	and designated 	area 	of 	primary
responsibility, 	shall 	be 	furnished to each
department 	and a 	copy sent 	to 	the 	State
immediately after their designation, 	and the
Union 	shall 	notify the 	State promptly of 	any
changes of 	such stewards. 	Union stewards
shall 	not 	be 	recognized by the 	State 	until
such lists 	or changes 	thereto are 	received.
A Union 	steward's 	"area 	of 	primary
responsibility" 	is meant 	to mean institution,
office or building. 	However, 	the parties
recognize 	that 	it 	may be 	necessary for the
Union to 	assign a 	steward an area of 	primary
responsibility 	for 	several 	small 	offices 	or
buildings 	within 	close 	proximity.
12

economic research. 	Mr. 	Landingham has a personal 	computer, 	with
access 	to e-mail, 	on his desk. 	He uses 	the computer continuously
throughout 	his 	workday.
Mr. 	Landingham is a member of Unit 	1 	and a 	long-time
activist 	in CSEA. 	He 	is 	a 	job 	steward for CSEA and 	is vice 	chair
of the Unit 	1 bargaining council 	for CSEA. 	In this position, 	he
relays 	information between Unit 	1 	members 	and the 	bargaining
council. 	He has 	served on the negotiating team for CSEA. 	In
addition to his role 	in CSEA, 	Mr. 	Landingham is the 	statewide
coordinator of 	the Caucus 	for a Democratic Union 	(CDU), 	an
activist 	group 	of 	CSEA members pressing 	for 	changes 	within CSEA.
Prior to the events at 	issue, 	Mr. 	Landingham regularly used
the 	DWR e-mail 	system 	for CSEA and CDU business. 	He 	would 	send
about 	four e-mail 	messages 	a day to 	CSEA and CDU activists. 	This
included 	information 	regarding various 	proposals 	under
consideration 	in negotiations. 	He 	also 	sent 	organizing messages
intended 	to get 	people 	to 	attend events 	designed to pressure 	the
State 	into negotiating concessions. 	He 	testified that 	during
this period he 	also would receive 	about 	four or 	five 	e-mail
messages 	from other 	CSEA and CDU activists.
Mr. 	Landingham testified that 	he 	used the 	State 	e-mail
system because 	it was 	a highly effective means 	of 	communication.
Since 	he works 	on a 	computer, 	the 	e-mail 	system was 	readily
available 	to him. 	He 	said by using e-mail 	he 	could 	send the 	same
message to several persons at once, 	simultaneously. 	He said it
13

was 	much 	easier and 	less 	time-consuming 	to use 	e-mail 	than 	to
make 	a 	series of 	telephone 	calls.
On July 13, 	1995, 	Mr. 	Landingham sent an e-mail message
concerning CSEA business 	to 	23 	State 	employees 	in various
departments. 	The 	subject of 	the message was 	listed as 	"CPAC vs
CSEA." 	Twenty-two of 	the 	e-mail 	addresses 	were valid and the
message was 	transmitted to them without 	incident. 	However, 	one
address, 	for an employee at 	the BOE was 	invalid. 	The 	invalid
address 	caused the message 	header, 	which included the 	subject 	of
the message 	and the 	full 	list 	of 	addressees, 	to return to the
computer 	system administrator. 	The 	system administrator, 	alerted
by the 	subject 	of 	the message, 	advised the 	DWR labor relations
office 	about 	the 	apparent 	use 	of 	the 	computer 	for Union business.
At 	the 	request 	of Robert 	Highhill, 	DWR labor relations
manager, 	DWR computer 	system administrators 	commenced 	the
monitoring of Mr. 	Landingham's use of 	e-mail. 	Over several
weeks, 	the subjects and addressees of all Mr. 	Landingham's 	e-mail
were 	examined 	for evidence 	of 	non-State use. 	The monitoring
revealed a number of 	Landingham messages pertaining, 	apparently,
to Union activities.
On or about August 	9, 	1995, 	Mr. 	Landingham was 	called to a
meeting with his 	supervisor regarding his use of 	the 	e-mail. 	He
brought with him two 	representatives 	of 	CSEA, 	one whom was 	Joan
Bryant, 	CSEA manager of bargaining services. 	At 	the meeting,
Emil 	Calzascia, 	DWR acting district 	chief, 	gave Mr. 	Landingham a
memo warning 	him 	that 	his 	e-mail 	messages 	had been and would
14

continue 	to be monitored.17 He 	also 	advised Mr. 	Landingham that
the 	initial 	monitoring of 	his 	e-mail 	revealed 	"an extensive
number of messages" 	sent 	to persons 	outside 	the DWR regarding
matters 	apparently unrelated to DWR business. 	Mr. 	Calzascia
advised Mr. 	Landingham that 	he was 	subject 	to potential 	adverse
action for misuse of 	e-mail.
During the meeting, 	the 	CSEA representatives 	took 	the
position that 	DWR could not 	deny Mr. 	Landingham the 	right 	to use
e-mail 	for CSEA business. 	Because 	DWR permits 	employees 	to use
e-mail 	for personal business, 	CSEA argued, 	the department 	cannot
prohibit 	use 	for Union business. 	Banning use 	of 	e-mail 	for Union
business, 	the CSEA representatives asserted, 	would be a
unilateral 	change 	and a discrimination 	toward Union 	activities.
DWR 	representatives 	rejected 	this 	assertion 	and 	stated 	they would
monitor Mr. 	Landingham's use 	of 	e-mail 	despite 	CSEA objections.
By letter of August 24, 	1995, 	Ms. 	Bryant again protested
to Mr. 	Calzascia.18 She 	asserted that 	the 	restriction on
Mr. 	Landingham's use of e-mail was 	a unilateral 	change 	and a
failure 	to negotiate 	in good faith. 	Ms. 	Bryant 	argued that 	under
the 	DWR policy on 	"Responsible Network 	Computing" 	personal 	use 	of
e-mail 	is 	to be 	treated much the 	same 	as personal 	use of 	a 	State
telephone. 	Under the expired contract, 	Ms. 	Bryant continued,
Union 	stewards 	are 	entitled to use 	State 	telephones 	for
representational purposes. 	Therefore, 	she argued, 	it was the
17Charging party's exhibit 	6.
18Respondent's exhibit 	36.
15

practice 	that 	stewards 	could use 	e-mail 	for 	CSEA representational
purposes.
In a November 1, 	1995, 	response, 	DWR labor relations chief
Highhill 	rejected the 	argument 	that 	the 	expired agreement 	could
be 	read to permit use 	of 	DWR e-mail 	for Union business. 	The
contract, 	he wrote, 	permitted only limited use of 	State
telephones 	and does 	not 	apply to e-mail. 	"The 	State's 	computer
system and E-mail 	are 	for State business 	only, 	absent 	an express
contract 	provision permitting other 	specified usage," 	he wrote.
Because of Mr. 	Landingham's 	admitted use 	of 	e-mail 	for non-State
business, 	he wrote, 	DWR would continue to monitor his e-mail
communications. 	As of the date of 	the hearing, 	the restriction
on Ms. 	Landingham's use of 	the e-mail 	remained in effect.
Mr. 	Landingham's e-mail messages, 	DWR managers 	soon
discovered, 	revealed 	substantial 	correspondence with Cathy
Hackett, 	a budget analyst at Caltrans. 	Mr. 	Highhill testified
that 	he 	subsequently contacted the 	labor 	relations 	office 	at
Caltrans 	and reported the 	apparent, 	non-business 	communication
that was 	taking place between Mr. 	Landingham and Ms. 	Hackett. 	He
said 	he 	contacted 	Caltrans 	labor 	relations 	representatives
because he works 	closely with that 	department. 	He 	testified that
Mr. 	Landingham's 	correspondence 	revealed a potential 	statewide
problem with 	improper use 	of 	e-mail.
Ms. 	Hackett 	is 	a 	long-time 	CSEA activist who has held
numerous 	positions 	within 	CSEA ranging 	from 	steward 	to 	deputy
division director of 	finance. 	She 	has been active 	in CSEA since
16

1983, 	serving for a time as the chair of 	the Unit 	1 negotiating
committee. 	She also 	is 	a member of 	CDU since 	it was 	formed in
1990 	and is 	one of 	the principal 	activists 	in that 	organization.
Ms. 	Hackett 	testified that 	she used the 	Caltrans 	e-mail
system to 	send messages 	to Union members 	whenever 	it 	was
necessary, 	usually on a daily basis. 	She 	said the messages
concerned different 	issues 	that 	the Union was 	dealing with,
including 	information 	about 	demonstrations 	or picketing 	or
meetings, 	"any kind of 	information that you want 	to get out
quickly to as many people as possible."
Ms. 	Hackett 	testified that 	she had several 	e-mail
distribution 	lists. 	She 	said the 	largest 	list 	contained the
names 	of 	30 	to 40 	CSEA activists. 	She 	said she had another
distribution 	list 	containing the names 	of 	about 	10 	to 	15 	Caltrans
stewards. 	She had a list of 20 	to 25 	CDU activists. 	She 	said
that 	on an average 	day she 	would 	send messages 	to 	about 	20
persons.
Ms. 	Hackett 	testified that 	she used e-mail 	because 	it was
a particularly efficient means 	of 	communication. 	She 	said
she 	could send a 	single message 	to a number of persons 	at 	the
same 	time. 	She 	said the 	recipients 	can read the message 	and
respond at 	the 	same 	time. 	She described e-mail 	as 	a major means
of 	communication among State 	employees.
Beginning in October of 	1995, 	at 	the 	request 	of 	the 	Caltrans
employee 	relations 	office, 	Caltrans 	computer system operators
commenced monitoring all 	of Ms. 	Hackett's e-mail messages. 	Each
17

day, 	all 	of 	her messages were 	retrieved and copies were printed
for the 	labor relations office. 	The 	labor relations office
forwarded these messages 	to 	the 	Caltrans personnel 	office which,
on October 27, 	1995, 	took adverse action against Ms. 	Hackett 	for
improper use 	of 	the 	State's 	e-mail 	system.19
Several days after receiving the adverse action, 	Ms. 	Hackett
sent 	an 	e-mail 	message 	to 	Caltrans 	labor 	relations 	manager David
Cabrera 	asking 	for 	an extension 	to 	file 	a grievance 	on behalf 	of
an employee. 	Mr. 	Cabrera replied by memo of November 2, 	1995,
advising Ms. 	Hackett 	to make 	the 	request 	to another Caltrans
administrator. 	His memo 	continued with a warning:
Additionally, 	it 	is a violation of State
and Caltrans policy to use 	computers 	or
e-mail 	systems 	for personal, 	union business,
or representation communications. 	Such use
is 	not 	authorized by the Unit 	I 	Memorandum of
Understanding. 	You have 	just 	received
Adverse Action 	for this misuse 	so you 	should
clearly understand these 	rules. 	I 	am
advising you that 	any 	further use 	of
computers 	or electronic mail 	systems 	for
other 	than official 	state 	business 	could be
cause 	for 	further adverse 	action. 	Please use
the 	telephone 	or respond 	in writing 	to
request 	an extension 	. . . 	of 	the 	time 	line
to respond to 	[the] 	grievance. [20]
As of 	the date of 	the hearing, 	the restriction set 	out 	in the
memo 	remained 	in effect.
Claudia Nordendahl 	was 	the 	third Unit 	1 member warned 	to
cease using State 	e-mail 	for Union business. 	Ms. 	Nordendahl 	is
19An allegation regarding the 	adverse 	action was 	amended
out 	of 	the 	complaint 	on the 	first 	day of 	hearing. 	See 	footnote
no. 1, infra.
20Charging party's exhibit 	8.
18

a 	staff 	services 	analyst 	for the 	Department 	of 	Banking 	in San
Francisco. 	She has 	a computer with e-mail 	capability on her desk
at work. 	Ms. 	Nordendahl 	is a long-time activist 	in CSEA. 	She 	is
a 	job 	steward and 	is president 	of 	the 	CSEA District 	labor 	council
at 	her work site. 	She also is an active member of 	CDU.
An e-mail 	system was 	installed on Ms. 	Nordendahl's 	computer
in the 	spring of 	1995. 	For about 	six months, 	she used it
regularly to 	communicate 	about 	Union business 	with Unit 	1 	members
employed 	in the Department 	of 	Banking. 	She 	responded to
questions 	about 	proposed contract 	changes 	and 	job problems.
In the 	fall of 	1995, 	employees 	in the Department of Banking
faced the prospect 	of 	layoffs. 	In response 	to numerous
inquiries, 	Ms. 	Nordendahl on October 30, 	1995, 	sent an e-mail
message 	advising employees 	that 	CSEA would meet 	with management
about 	the 	layoffs. 	She 	also pledged to assist 	employees 	in
every possible 	way and provided 	a 	listing of 	CSEA stewards.
Ms. 	Nordendahl 	used a Department 	of Banking address 	list 	to 	send
the 	message which 	resulted 	in 	its 	delivery to 	every employee,
including the 	top managers.
That 	same day, 	Ms. 	Nordendahl 	received a reply message 	from
Phyllis Garrett, 	administrative officer for the Department of
Banking, 	directing her to cease using e-mail 	for Union business.
Ms. 	Garrett's directive reads as follows:
You are 	not 	to use 	the Department's E-Mail 	or
any part 	of 	the 	computer 	system 	for union
19

business. 	Please do not 	send E-Mail 	to any
employee regarding union matters. [21]
Ms. 	Nordendahl 	testified that 	she was 	"shocked" 	when she 	received
the 	instruction from Ms. 	Garrett because 	it was 	the 	first 	time
anyone 	had told her 	she 	could not 	use 	e-mail 	for Union
communications.
The 	fourth employee 	facing a ban on the use 	of 	State
equipment 	is Salome Ontiveros. 	Ms. 	Ontiveros 	is employed by
the BOE 	in Oakland as 	a business 	tax representative. 	She 	is
a 	long-time 	CSEA activist 	and has 	served 	in a number of 	positions
within the 	organization, 	ranging 	from steward to alternate 	deputy
division director. 	At the time of the hearing, 	she was
responsible 	for 	coordinating the 	efforts 	of 	nine 	CSEA negotiating
teams 	and 	she 	oversaw the 	CSEA budget 	for bargaining.
For the 	three or four years prior to the events at 	issue,
Ms. 	Ontiveros has had access to a State 	facsimile machine. 	She
had used 	the machine both to 	receive 	and 	transmit 	documents
pertaining to 	CSEA business. 	She 	had used the machine 	to 	send to
other 	CSEA activists 	and 	staff 	members 	copies 	of 	negotiating
proposals, 	memoranda and 	information related to 	statewide 	CSEA
offices. 	From others 	she had received 	faxes 	concerning
grievances 	and other Union matters.
Ms. 	Ontiveros 	testified that 	she used the 	fax machine
because 	it was a 	fast way to 	send information, 	much quicker than
the 	several 	days 	required 	for mailed documents. 	On some 	days 	she
21Respondent's exhibit 	21.
20

would send two or three documents, 	on other days, 	none. 	She 	said
she would receive 	about 	three 	or 	four documents per week. 	She
usually transmitted her 	faxes 	during her 	lunch period but,
sometimes, 	would send Union-related faxes 	during work 	time.
The 	fax machine used by Ms. 	Ontiveros was 	located near the
offices of her supervisors, 	a considerable distance 	from her work
site. 	On February 14, 	1996, 	Ms. 	Ontiveros received a 29-page
fax, 	a copy of a grievance, 	from a State employee 	in San Diego.
The 	fax was delivered to Ms. 	Ontiveros by her supervisor, 	Rick
Murphy.
The next day, 	Ms. 	Ontiveros was called to a meeting with
Mr. 	Murphy and Joe N. 	Cowan, 	the administrator of the BOE office
in Oakland. 	The meeting was 	terminated quickly because
Ms. 	Ontiveros asked for the assistance of 	a Union representative
who was not 	immediately available. 	On February 16, 	1996,
Mr. 	Cowan gave Ms. 	Ontiveros a memo instructing her to cease use
of 	State 	telephones 	and telefax equipment 	to conduct 	Union
business, 	unless 	she had prior supervisory approval. 	After she
received this warning, 	Ms. 	Ontiveros asked other Union activists
to cease 	sending 	faxes to the machine 	at 	her office.
The 	telefax machine 	at 	the BOE office 	in Oakland 	is 	heavily
used 	for State business. 	Accountants 	and lawyers 	representing
taxpayers 	frequently send documents pertaining to audits, 	tax
collections 	and escrows. 	Approximately 100 	documents pass
through the machine each day. 	Because 	of 	this 	heavy use 	for
21

State business, 	BOE administrators do not want 	the machine used
for non-State business.
CSEA presented evidence 	to 	show that, 	despite 	the warnings
given to the 	four employees here, 	the State 	in fact has 	tolerated
both Union and personal 	use 	of 	its 	telecommunications 	equipment.
J. 	J. 	Jelincic, 	an investment officer at the Public Employees'
Retirement 	System, 	described his 	extensive use 	of 	State 	e-mail,
facsimile machines 	and telephones 	for CSEA and CDU business. 	He
testified that 	he 	regularly corresponds 	by e-mail 	with 	80 	to 	90
members 	of Unit 	1 	regarding CSEA and CDU business. 	He 	said
his 	typical 	message 	is eight 	to 	10 	lines 	long and he 	estimated
that he spends 3 0 minutes a day, 	sending e-mail messages.
Mr. 	Jelincic testified to a belief 	that 	the 	State has 	the
capacity to monitor employee 	use 	of 	e-mail 	and that 	it 	has
monitored his messages.22
CSEA witnesses 	described a variety of 	non-business 	messages
they have 	seen 	transmitted over 	the 	State 	e-mail 	and 	facsimile
machines. 	The 	subjects 	of 	such transmissions described by CSEA
witnesses 	include: 	announcements 	of 	office parties 	for
retirements, birthdays, 	new babies, 	Christmas; announcements of
bake sales, 	nacho sales, 	spaghetti lunch for flood victims;
announcements 	of potluck 	lunches 	for halloween, 	Thanksgiving and
St. 	Patrick's day, 	ice cream socials; 	sales of Girl Scout
cookies, 	poinsettias, 	Sees' 	Candy; announcements of marriages,
22Mr. 	Jelincic offered double hearsay as 	evidence 	that 	the
State 	has monitored his 	e-mail 	messages. 	(See Reporter's
Transcript, Vol. 1, pp. 46-47.)
22

new babies, 	deaths, 	persons in the hospital; 	meetings of golf
clubs, 	birthday clubs, 	bicycle clubs, 	games and practices of
softball 	teams; 	the circulation of vacation pictures; 	blood bank
drives; 	solicitations 	for the United Way and the 	sale 	of 	savings
bonds; 	pools 	for betting on college 	and professional 	basketball
tournaments; 	announcements 	that 	the 	office 	refrigerator would be
cleaned out; 	jokes. 	CSEA witnesses put 	the 	frequency of 	such
e-mail 	transmissions 	as 	ranging 	from several 	times 	a 	day to
several 	times a week.
State 	managers 	and supervisors 	who were 	called as 	witnesses
asserted 	that 	some 	of 	the 	messages 	described by 	CSEA witnesses
were work-related and thus permissible. 	As 	to messages 	that 	were
indisputably not 	related to work, 	State witnesses professed no
knowledge.
Mr. 	Highhill 	testified that 	he 	had received messages 	related
to 	the 	United Way campaign but 	characterized 	such messages 	as
being work-related. 	He 	said he 	did not 	remember 	seeing any
personal 	messages 	sent by e-mail. 	He 	said he does not 	send and
has 	not 	received social messages.
Ms. 	Garrett 	testified that 	she has 	seen e-mail messages
about 	office gatherings with cake 	for departing employees. 	She
said 	such messages 	are work 	related 	in her view and are
permissible. 	She 	said she has 	seen no messages 	regarding the
sale 	of personal 	items or candy or cookies 	for employees'
children. 	Ms. 	Garrett 	said that personal messages are
discouraged 	in the Department 	of Banking. 	She 	said when a
23

manager 	sent 	a message 	regarding a 	super bowl 	game between San
Francisco and 	San Diego he was 	reminded by several 	other managers
that 	such a message was 	an 	improper use 	of 	e-mail. 	She
acknowledged, 	however, 	that 	she had received messages 	from
co-workers 	inviting her to go 	for a walk at 	lunch.
Marylyn Hammer, 	labor relations officer at 	Caltrans,
testified that 	she might 	have 	seen e-mail 	messages 	regarding
employee birthday celebrations, 	retirement parties 	and gatherings
in honor of 	departing employees. 	She 	said she 	also may have 	seen
messages 	regarding Christmas 	and Thanksgiving parties. 	She 	said
she 	once was 	sent 	a 	joke by e-mail 	and she 	advised the 	employee
that 	sending jokes was not 	a proper use 	of 	the 	e-mail 	system.
Mr. 	Cowan testified that 	he was 	not 	aware 	of 	any employee
use 	of 	the 	fax machine 	for transmission of 	information about
football pools 	or the 	sale of 	candy. 	He 	said he once had
permitted an employee 	to use 	the 	fax machine 	on 	an emergency
basis 	to 	transmit 	a document.
The 	State 	presented a 	substantial 	quantity of 	evidence
demonstrating 	that 	the 	departments 	involved here 	regularly take
action against 	employees 	who misuse 	State 	equipment. 	The
improper 	activities 	have 	ranged 	from accessing 	sexually explicit
sites 	on 	the 	internet 	to use 	of 	State 	computers 	for outside
businesses. 	Following is 	a 	summary of 	the disciplinary actions
placed 	into 	the 	record.
DWR 	employees 	have 	been given counseling memoranda 	and/or
adverse 	actions 	for: 	using state 	computers 	to access 	sexually
24

explicit 	sites 	on the World Wide Web, 	sending sexually explicit
e-mail 	to 	another employee, 	sending vulgar and 	sexually oriented
jokes by e-mail 	to another employee, 	sending racially and
religiously offensive messages 	by e-mail 	to 	another 	employee,
creating 	a 	computer 	sub-directory 	2,000 	layers 	deep 	and 	thereby
damaging State computer programs, 	storage of 	sexually explicit
files 	on a 	State 	computer.
Caltrans 	employees 	have 	been 	given 	counseling memoranda
and/or adverse 	actions 	for: 	using State 	computers 	and programs
to draft 	and develop documents 	and engineering plans 	for private,
non-State projects, 	storage 	of 	non-State 	engineering work and
documents 	on State 	computers, 	using State 	computers 	and programs
to print plans 	for improvements 	to 	an employee's personal 	home,
using State 	computers 	to design renovations 	for the 	home of 	an
employee's 	relative, 	storage of 	sexually explicit 	files on a
State computer, 	use of a State computer for preparation of
personal 	correspondence and other personal 	documents, 	use of 	a
State 	computer 	for preparation and 	storage 	of 	documents 	used 	in
the operation of 	a private business, 	use of a State computer to
type personal 	letters 	and perform a 	job 	search.
At 	the Department of 	Banking an employee was 	given a
counseling memo 	for 	installing 	and playing 	a 	computer golf 	game
on her State 	computer. 	Another employee was 	required to
reimburse 	the 	State 	for the 	cost 	of 	his personal 	use 	of 	a 	State
facsimile machine. 	He also was 	charged for personal 	use 	of 	State
envelopes. 	There was no evidence 	any employee at 	the Department
25

of 	Banking had been 	counseled or 	reprimanded 	for misuse 	of 	the
State 	e-mail 	system.
Despite 	the 	discipline 	of 	employees 	for improper use 	of
State 	equipment, 	State managers and supervisors have tolerated
use 	of 	State 	e-mail 	systems 	for purposes 	other than State
business. 	CSEA witnesses 	testified that 	supervisors 	and managers
regularly have 	been 	included as 	addressees 	in 	the 	distribution of
e-mail messages 	involving matters 	that 	were not 	State business.
One 	CSEA witness, 	David Hart, 	testified that he 	sometimes
receives 	e-mail messages 	intended 	for Ray Hart, 	the 	deputy
director of 	DWR. 	He 	said that 	on one occasion he 	received a
personal 	e-mail message 	from Ray Hart's mother, 	intended 	for her
son. 	On another occasion, 	he 	received a message 	intended for Ray
Hart 	regarding a meeting of 	a breakfast 	club.
CSEA also produced examples 	of 	e-mail messages, 	distributed
to supervisors 	and managers, 	which did not 	involve 	State
business.23 Among these messages were 	the 	following:
announcement 	of 	a bake 	sale with proceeds going to 	"Cancer Kids"
distributed 	to 	all 	employees 	including 	supervisors 	and managers
in two sections 	at DWR; 	a 	solicitation for memberships 	in the
Alhambra Athletic 	Club distributed 	to 	all 	employees 	including
23See 	in particular charging party's exhibits 	9, 	10 	and 12.
These 	exhibits 	involve messages 	that 	were 	transmitted after 	the
events 	at 	issue. 	However CSEA witnesses 	testified that 	they had
not 	retained copies 	of messages 	from the period prior to 	the
filing of 	the unfair practice 	charge. 	They also 	testified that
the messages which they produced, 	some 	of which were 	sent 	during
the period of 	the unfair practice 	hearing, 	were 	representative of
messages 	which they had 	seen 	for years.
26

supervisor and managers 	in two 	sections 	at 	DWR; 	an announcement
sent 	out 	by a DWR supervisor 	to 	all 	employees 	in 	two DWR 	sections
that 	a 	sign-up 	list 	for the purchase 	of Girl 	Scout 	cookies was
available 	in front 	of his office; 	an announcement 	sent 	to all 	300
employees at 	a Caltrans 	laboratory, 	including managers and
supervisors, 	regarding a bicycle 	ride over the Golden Gate Bridge
sponsored by an 	employee 	club.
Both 	the Union and the 	State 	have proposed during 	the
current 	round of 	bargaining to 	change 	contract 	section 	2.3,
regarding Union use of 	State phones. 	The Union proposed to
expand the 	section 	to permit 	reasonable 	use 	by Union 	stewards 	of
all 	"State 	electronic 	and 	telecommunication devices." 	Such
language would 	include e-mail 	and facsimile machines. 	The 	State
countered with 	a proposal 	that 	would have 	placed more
restrictions on the use of 	State 	telephones. 	The State 	also
proposed 	contractual 	language 	which would 	explicitly prohibit
Union stewards 	from using 	"any State machine, 	equipment, 	or
communication 	system, 	including but 	not 	limited to 	computer,
photocopier, 	E-mail, 	voice mail, 	fax machine, 	for Union
representation or other Union purposes." 	Ultimately, 	the Union
dropped its proposal. 	As of 	the conclusion of 	the hearing, 	the
State proposal was 	still 	on the 	table.
The 	State 	presented 	evidence 	demonstrating 	that 	CSEA has
other means of 	communication, 	apart 	from the use of 	the 	State
e-mail 	system. 	Both Mr. 	Landingham and Ms. 	Hackett have personal
computers 	at 	home with access 	to e-mail. 	CSEA has a home page on
27

the World Wide Web which contains provision 	for e-mail. 	In
addition, 	CSEA has bulletin boards 	in State buildings 	and several
publications which it distributes 	to members. 	CSEA offices 	have
facsimile machines. 	CSEA also maintains 	a 	telephone 	hot 	line
with 	recorded messages 	which members 	may call 	for up-to-date
information about 	bargaining and other 	subjects.
Finally, 	the 	State 	introduced copies 	of various 	grievances
and unfair practice 	charges 	in an attempt 	to demonstrate 	that 	the
policies 	at 	issue 	do not 	constitute 	a 	change 	in the past
practice. 	These exhibits 	include: 	a 1985 	settlement
agreement24 between the 	State and the Teamsters Union
establishing 	the procedure 	for 	the 	distribution of mail 	from the
Teamsters Union at 	Caltrans work sites; 	a 	1988 	grievance 	filed by
Ms. 	Hackett25 challenging a prohibition against 	the placement by
her of Union literature 	into employee mailboxes; 	a 	1993
settlement 	agreement26 in an unfair practice 	case 	in which the
State grants 	CSEA stewards 	the 	right 	to 	"reasonable use" 	of
typewriters, 	copy machines 	and word processors 	to prepare
grievances 	and grievance 	appeals.
The 	State 	also 	introduced as 	evidence 	a 	1995 	Caltrans
"Information 	Security Policy Manual"27 which was 	sent 	to 	CSEA as
a 	"final 	draft" 	on or about January 31, 	1995. 	A letter
24Respondent's 	exhibit 52.
25Respondent's 	exhibit 58.
26Respondent's 	exhibit 	1.
27Respondent's 	exhibit 61.
28

accompanying 	the manual 	invited CSEA to 	contact 	the 	Caltrans
labor relations office if the Union 	"wish[ed] 	to discuss" 	the
manual. 	The 	introduction to the manual 	states 	that 	it 	"sets
forth the polices 	of 	Caltrans 	and the 	State of 	California with
respect 	to 	information security." 	The 	document 	is 	a 	summary of
rules 	and procedures 	for use 	of 	information possessed by
Caltrans. 	An examination of 	the 	document 	shows 	that 	its purpose
is 	to 	set 	out 	rules 	for the protection of 	Caltrans 	information
and data 	from unauthorized persons. 	One 	line 	in the 	five-page,
single-spaced document 	reads 	as 	follows:
Use Caltrans 	information asstes 	[sic] 	for
business purposes 	only.
In one other place, 	the document 	asserts 	that 	Caltrans 	reserves
the 	right 	"to monitor and 	inspect 	E-mail 	transmissions 	for
reasonable business purposes."
LEGAL 	ISSUES
1. 	Did the State, 	on or about October 30, 	1995, 	change its
past practice on the use of 	State electronic mail, 	personal
computers 	and telefax machines, 	and thereby fail 	to meet 	and
confer in good 	faith in violation of 	section 3519 (c)?
2. 	Did the State, 	on various dates 	in 1995 and 1996, 	by
denying 	four CSEA stewards 	the 	right 	to use 	State 	computers,
e-mail, 	and/or telefax equipment, 	thereby:
A. 	Interfere with the 	rights 	of 	the 	four
stewards 	to participate 	in the 	activities 	of 	an
employee organization in violation of 	section 3519(a);
29

B. 	Interfere with the 	right 	of 	CSEA to have
access 	to 	State 	employees 	in violation of 	section
3519(b)?
CONCLUSIONS 	OF 	LAW
Timeliness
As 	an initial 	line of 	defense, 	the 	State 	argues 	that 	the
charge must 	be 	dismissed because 	it 	is untimely.28 The 	State
cites what 	it 	finds 	to be 	clear evidence 	that 	CSEA knew of 	State
restrictions 	on 	the use 	of 	e-mail 	substantially more 	than 	six
months prior to April 	3, 	1996, 	the 	filing date of the present
charge. 	The State 	finds evidence of prior knowledge 	in: 	(1) 	an
information policy which Caltrans 	gave 	to 	CSEA 	in February of
1995, 	(2) 	a long-standing Caltrans policy on distribution of
personal 	letter mail, 	known to Ms. 	Hackett as early as March of
1988, 	and 	(3) 	a warning about e-mail use given to Mr. 	Landingham
and his 	CSEA representatives on August 	9, 	1995.
The 	PERB is precluded under section 3514.5(a)29 from
issuing a 	complaint 	based on 	conduct 	that 	occurred more 	than
six months prior to 	the 	filing of 	the 	charge. 	The Board has 	held
that 	the 	six-month time period 	is 	jurisdictional. 	(California
28This 	argument 	resurrects 	a motion to dismiss 	the 	State
made 	following 	the presentation of 	the 	charging party's 	case 	in
chief. 	That motion was not granted.
29Section 3514.5(a) 	provides 	that 	the Board:
. 	. 	. 	shall not 	. 	. 	. 	(1) 	issue a complaint
in 	respect 	of 	any charge based upon 	an
alleged unfair practice 	occurring more 	than
six months prior to 	the 	filing of 	the 	charge;
30

State University 	(San Diego) 	(1989) 	PERB Decision No. 	718-H.)
Timeliness 	cannot 	be waived either by the parties 	or the 	Board
itself 	and need not 	be plead affirmatively. 	It 	is 	the 	charging
party's burden to 	show timeliness 	as part 	of 	its prima 	facie
case. 	(Regents of 	the University of 	California 	(1990) 	PERB
Decision No. 	826-H.)
The 	limitations period 	"begins 	to 	run on the 	date 	the
charging party has 	actual 	or constructive 	notice 	of 	the
respondent's 	clear intent 	to 	[engage 	in the prohibited conduct],
providing 	that 	nothing subsequent 	to 	that 	date 	evinces 	a wavering
of 	that 	intent." 	(Regents 	of 	the University of 	California,
supra. 	PERB Decision No. 	826-H.) 	Notice of a proposed change
-
must 	be 	given to 	an official 	of 	an employee 	organization who 	has
the 	authority to act 	on behalf 	of 	the organization, 	and the
notice must 	clearly 	inform the 	recipient 	of 	the proposed change.
(Victor Valley Union High School 	District 	(1986) 	PERB Decision
No. 	565; 	see also State of California 	(Board of Equalization)
(1997) 	PERB Decision No. 	1235-S.) 	The six-month period is to be
computed by 	excluding 	the 	day the 	alleged misconduct 	took place
and including the 	last day, 	unless the last day is a holiday, 	and
then it 	also 	is 	excluded. 	(Saddleback Valley Unified School
District 	(1985) 	PERB Decision No. 	558.)
Two 	types 	of unfair practices 	are 	alleged here:
interference 	and 	failure 	to 	negotiate 	by making 	a 	unilateral
change.
31

The 	evidence 	in support 	of 	the 	charge 	of 	interference
establishes 	that 	the 	departments whose 	conduct 	is under attack
prohibited the 	four employees 	from using either 	e-mail, 	computers
or 	the 	fax machine 	for Union business. 	The 	evidence 	establishes
that 	the restrictions, 	once put 	into effect, 	remained in effect
continuously thereafter. 	Meanwhile, 	the evidence establishes,
the 	four departments 	continuously tolerated use 	of 	the 	same
equipment 	by other 	employees 	for 	certain 	other non-business
purposes.
The challenged conduct, 	therefore, 	is continuing in nature.
At 	issue 	is 	a 	continuously discriminatory application of 	a policy
that 	treats 	usage 	of 	State 	communications 	equipment 	one 	way 	for
Union purposes 	and another way for other non-business purposes.
This 	type 	of unfair practice 	is 	a 	"continuing violation." 	In
such cases, 	even if the 	first 	act 	in a series was outside
the period of 	timeliness, 	the 	underlying unfair practice may
be 	revived by a 	subsequent 	act within 	the 	statutory period.
Although the prior 	incidents may not 	be 	the basis 	for the 	finding
of 	a violation, 	the underlying unfair practice can be 	"revived"
by the new wrongful 	act 	that was 	timely raised. 	(Compton
Community College District 	(1991) 	PERB Decision No. 	915.)
I 	conclude 	that 	as 	to 	the 	alleged 	interference with employee
and employee 	organization rights, 	the unfair practice 	charge was
timely filed. 	This 	is because 	the 	challenged discriminatory
application of 	the 	State 	policy remained 	in effect 	during 	the
period six months prior to 	the 	filing of 	the 	charge.
32

A somewhat 	different 	situation 	is 	presented 	in 	the 	State's
timeliness 	challenge 	to the Union's 	charge 	of unilateral 	change.
A unilateral 	change in a past practice, 	as alleged here, 	is not a
continuing violation. 	Even though the 	effects 	of 	a unilateral
change may be 	continuous, 	the 	time 	line 	for filing a charge
commences 	to 	run when the 	appropriate Union representative 	has
notice 	that 	the 	change has been made.
In 	contending that 	the 	Union had notice more 	than 	six months
prior to 	the 	filing of the charge, 	the 	State points 	first 	to the
Caltrans 	"Information Security Policy Manual." 	A draft 	copy of
this document was given to CSEA in January of 	1995. 	I 	conclude
that 	the manual provides 	no 	clear notice 	of 	intent 	to prohibit
all 	use of 	State equipment 	for Union communications. 	The manual,
by title 	and content, 	pertains 	to the protection and
confidentiality of 	information maintained 	in 	Caltrans 	computer
files. 	It 	says nothing about prohibitions 	against use of 	State
equipment 	for Union purposes. 	The 	section of 	the manual 	quoted
by the 	State 	limits 	the use of 	Caltrans 	"information assets" 	to
"business purposes only." 	It does not 	even deal with use of
Caltrans 	equipment. 	The 	limitations period 	for the 	filing of 	a
charge was not 	commenced by this vague 	comment.
Nor do I 	find that Ms. 	Hackett's knowledge, 	as early as
March of 	1988, 	about 	the 	Caltrans policy on letter mail
constituted knowledge 	about 	the 	Caltrans 	policy on e-mail.
Letter mail 	and e-mail 	are 	entirely different 	types 	of
communication. 	Establishment 	of 	a policy regarding one 	form of
33

communication does 	not 	constitute 	establishment 	of 	a policy
regarding 	the 	other.
Accordingly, 	I 	find no grounds 	for dismissing the 	allegation
of unilateral 	change 	as 	untimely because 	of 	the 	Caltrans policies
cited by the 	State.
However, 	a 	somewhat 	different 	situation obtains 	regarding
the 	allegation of unilateral 	change 	at DWR. 	Mr. 	Landingham and
Ms. 	Bryant, 	CSEA manager of bargaining services, 	were told on
August 	9, 	1995, 	that DWR would not permit Mr. 	Landingham to use
DWR e-mail 	for CSEA communications. 	Indeed, 	at 	the meeting of
August 	9, 	CSEA accused the DWR of making a unilateral 	change.
Plainly, 	if this was a new policy, 	CSEA was explicitly informed
about 	it on August 	9, 	1995, 	and understood the possibility it was
a unilateral 	change. 	The present 	charge was not 	filed until
April 3, 	1996, 	nearly eight months later. 	I conclude therefore
that 	the 	allegation of unilateral 	change 	was 	untimely 	insofar as
it pertains 	to the DWR.
The State asserts that the August 	9, 	1995, 	notice about
the 	rules 	at 	DWR constituted notice 	about 	the 	rules 	throughout
all departments 	in Unit 	1. 	Thus, 	in the State's view, 	all
allegations of unilateral 	change must 	be 	dismissed 	from this 	case
as untimely.
The 	four operating departments 	in this 	case 	are 	separate
appointing authorities. 	They do not 	operate 	in lock 	step with
each other. 	While 	it 	is doubtless 	true 	that 	the Governor could
impose uniform rules on State departments, 	absent 	such an
34

exercise 	of 	gubernatorial 	authority the 	various 	State 	departments
have 	autonomy in many areas. 	This 	is 	evidenced by the various
rules 	and regulations which have been 	introduced 	in 	the 	record,
here. 	They are not 	identical.30
There 	is 	no PERB decision on the 	question of whether notice
to 	the Union 	regarding a planned change 	at 	one 	State 	department
constitutes notice 	in another. 	But 	the 	Board has 	faced the
question 	in a 	case 	under the 	Higher Education Employer Employee
Relations Act31 (HEERA). 	In Regents of the University of
California, 	supra, 	PERB Decision No. 	826-H, 	the Board held that
university notice 	to 	a union representative 	at 	the 	Santa 	Cruz
campus 	regarding an alleged change 	in appointment 	policies 	was
not 	applicable 	to determine 	the 	timeliness 	of 	a parallel 	unfair
practice 	charge 	at UCLA. 	I believe that 	the 	same rule 	is
applicable among the various 	departments 	of 	State government.
According, 	I 	conclude 	that 	the unfair practice 	charge was
timely 	filed 	insofar as 	it 	pertains 	to a unilateral 	change 	at 	the
30See 	testimony of James Wheatley, 	the 	chief 	State
negotiator for Unit 1. 	(Reporter's Transcript, 	Vol. 	8, 	pp. 	104-
105.) 	Mr. 	Wheatley testified:
. 	. 	. 	some departments may permit employees
to use it 	[e-mail] 	for reasons, 	and they have
-- 	the department has 	identified a need. 	It
could be 	for morale, 	wanting the employees 	to
communicate with each other, 	but 	I also know
the departments have 	-- 	other departments
have 	strict prohibitions 	against 	the use 	of
e-mail 	for personal 	reasons.
31Section 3560 	et 	seq.
35

Departments 	of 	Banking and Transportation 	and 	the 	Board 	of
Equalization.
Alleged 	Failure 	to Negotiate
Regarding the 	allegation of unilateral 	change, 	CSEA contends
that 	it 	was 	the past practice 	that 	employees 	could use 	e-mail 	for
non-business purposes. 	The practice was 	and continues 	to be,
CSEA argues, 	one of 	limited tolerance. 	CSEA notes 	that 	in the
course 	of 	the present 	round of bargaining, 	the 	State proposed
specific 	contract 	language 	that 	would have 	prohibited 	employees
from using State 	equipment 	for Union proposes. 	As 	of October
1995, 	CSEA contends, 	the State recognized that 	the Union was
using State 	e-mail 	systems. 	When restrictions 	on e-mail
subsequently were 	imposed on Ms. 	Hackett, 	Mr. 	Landingham and
Ms. 	Nordendahl, 	CSEA concludes, 	they were done unilaterally and
prior to 	the parties 	reaching agreement 	on the 	subject.
The 	State 	argues 	that 	CSEA has 	demonstrated no 	change 	from
the past practice. 	The MOU is clear and unambiguous, 	the State
continues, 	and it permits a limited use of State 	telephones by
Union stewards 	for representational purposes, 	only. 	The MOU does
not 	authorize the use of e-mail or facsimile machines. 	Nor, 	the
State 	continues, 	has the Union demonstrated the existence of 	a
practice whereby the 	State permitted Union activists 	to use 	the
e-mail 	for Union business. 	The 	fact 	that 	some 	individual
employees 	did use 	the 	State 	e-mail 	for Union business 	does 	not
establish a practice, 	the State argues. 	There 	is no evidence,
the 	State points 	out, 	that 	State management permitted or condoned
36

such use. 	In sum, 	the State concludes, 	the Union has 	failed to
show any change 	in the 	status 	quo.
An employer's 	pre-impasse 	unilateral 	change 	in an
established, 	negotiable practice violates 	the 	duty to meet 	and
confer in good faith. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
2177].) 	Such unilateral 	changes 	are 	inherently destructive 	of
employee 	rights 	and are 	a 	failure per 	se 	of 	the 	duty to negotiate
in good faith. 	(Davis Unified School District, 	et al. 	(1980)
PERB Decision No. 	116; 	State of California 	(Department of
Transportation) 	(1983) 	PERB Decision No. 	361-S.)
In order to establish a unilateral 	change 	an exclusive
representative must 	prove 	that 	there 	existed a past 	practice
involving a negotiable 	subject. 	The 	exclusive 	representative
must 	prove 	that 	the 	employer changed that 	practice 	in a manner
that will have 	"a generalized effect" 	or a 	"continuing impact" 	on
the members 	of 	the negotiating unit. 	(Grant Joint Union High
School District 	(1982) 	PERB Decision No. 	196.)
An employer makes 	no unilateral 	change where 	an action 	the
employer takes does not alter the 	status quo. 	"[T]he 	'status
quo' 	against which an employer's 	conduct 	is evaluated must 	take
into 	account 	the 	regular 	and consistent 	past patterns 	of 	changes
in the 	conditions 	of 	employment." 	(Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51.)3 2 Only changes that so
32Thus, 	where 	an employer's 	action was 	consistent with the
past practice, 	no violation was 	found in a change 	that was not 	a
change 	in the status quo. 	(Oak Grove School District 	(1985) 	PERB
Decision No. 	503.)
37

deviate 	from the past 	practice 	as 	to 	change 	its 	"quantity and
kind" 	are 	inconsistent with the 	status 	quo and a 	failure 	to
negotiate 	in good 	faith. 	(Oakland Unified School 	District 	(1983)
PERB Decision No. 	367.)
It 	is well 	established that 	access 	rights 	are negotiable
and, 	if the parties 	so agree, 	can be set out 	in contract
language.33 Clearly, 	however, 	the parties have not negotiated
access 	rights 	that 	would grant 	by MOU the 	right 	of 	CSEA activists
to use 	State e-mail, 	computers and facsimile machines 	for Union
business. 	As the State argues, 	the applicable MOU clause
pertains 	only to the use of 	State telephones, 	and then only by
stewards performing representational 	duties. 	By its very
wording, 	the 	clause does not 	create 	the past practice which CSEA
advocates here.
I 	also 	conclude 	that 	CSEA has 	failed to establish 	the
existence 	of 	any practice by which 	the 	State permitted CSEA
activists 	to use 	e-mail 	and 	facsimile machines 	for Union
business. 	While 	is clear that 	the 	four employees 	in this 	case
did use 	State 	electronic 	equipment 	for Union purposes, 	CSEA has
not 	established that 	State 	management 	knew of 	such use.
Mr. 	Jelincic's testimony that 	State managers knew of 	and
33See Healdsburg Union High School 	District 	(1984) 	PERB
Decision No. 	375, 	at p. 	18, 	and Davis Joint Unified School
District 	(1984) 	PERB Decision No. 	474. 	The negotiability of
access 	rules 	under HEERA also 	is 	strongly 	implied 	in 	California
State University 	(1982) 	PERB Decision No. 	211-H, 	a case involving
a non-exclusive 	representative. 	See also, 	BASF Wyandotte
Corporation 	(1985) 	274 NLRB 978 	[119 LRRM 1035] 	enf. 	NLRB v. 	BASF
Wvandotte Corporation 	(5th Cir. 	1986) 	798 	F.2d 849 	[123 	LRRM
2320] .
38

tolerated his 	use 	of 	State 	e-mail 	for Union business 	is
uncorroborated hearsay and cannot 	be 	the 	basis 	for 	a 	finding.34
As to Ms. 	Hackett and Ms. 	Nordendahl, 	the weight of the evidence
is 	that 	State managers 	stopped their use 	of 	e-mail 	for Union
business 	as 	soon as 	it was discovered. 	While 	there 	are
indications Ms. 	Ontiveros' 	supervisors may have seen some
Union-related faxes 	addressed to her, 	I 	do not 	find this 	evidence
sufficient 	to 	show the existence 	of 	a practice.
I 	conclude, 	therefore, 	that the State did not change a past
practice 	nor 	fail 	to meet 	and confer 	in good 	faith by prohibiting
Ms. 	Hackett and Ms. 	Nordendahl 	from using State computers and
e-mail 	and Ms. 	Ontiveros 	from using State 	facsimile machines 	for
Union business. 	Accordingly, 	the 	allegation that by such conduct
the State violated section 3519 (c) 	must be dismissed.
Alleged 	Interference
CSEA argues 	that 	the 	State's 	restrictions 	on the use 	of
e-mail, 	computers 	and facsimile machines 	are 	an unreasonable
interference with the Union's 	"implied" 	right of 	access.
Acknowledging 	that 	the 	Dills Act 	contains 	no provision 	that
explicitly grants work 	site 	access 	to 	employee 	organizations,
CSEA nevertheless 	finds 	such a right 	in PERB decisions. 	PERB
decisions, 	CSEA argues, 	have extended to State employee
34In addition, 	Mr. 	Jelincic works 	for the Public Employees
Retirement System 	(PERS), 	a State department not 	a party to this
case. 	No policies of 	the 	PERS 	are under consideration here 	and
establishing that 	a practice 	exists 	at 	PERS does 	not 	establish
that 	the 	same practice exists 	in the 	four departments 	that 	are
parties 	to this case.
39

organizations 	the 	same access 	rights 	as 	are 	found 	in the
Educational Employment Relations Act 35 (EERA) 	and HEERA. 	Since
the 	other 	statutes provide 	access 	to 	"other means 	of
communication," 	CSEA argues, 	the Dills Act must be read to
include the same rights. 	Thus, 	although there 	is no PERB
decision 	specifically granting 	employee 	organizations 	the 	right
to use e-mail, 	computers and facsimile machines, 	the right can be
implied, 	CSEA reasons.
The 	State 	reads 	the 	statute 	and PERB 	decisions 	exactly the
opposite. 	By its plain terms, 	the State points out, 	the Dills
Act 	affords 	no access 	rights 	to employee organizations 	or their
members. 	Nor, 	the State continues, 	are there any PERB decisions
that 	would 	include 	a protected employee 	or 	employee 	organization
right to use State e-mail, 	computers or facsimile machines. 	In
the 	absence of a specific 	legislative grant 	of 	such a right, 	the
State 	reasons, 	it 	is 	clear that 	the Legislature did not 	intend
it. 	This 	is especially clear, 	the State reasons, 	since access
rights 	are 	included within 	the 	EERA and HEERA.
Despite 	the 	statutory differences, 	the 	PERB 	long has 	found
"a right of access 	. 	. 	. 	implicit in the purpose and intent" 	of
the 	Dills Act. 	(State of 	California 	(Department 	of 	Corrections)
(1980) 	PERB Decision No. 	127-S.) 	This right, 	according to the
Board, 	is 	inherent 	in the required nature of public 	access 	to the
functioning of government. 	Since 	a public 	employer cannot
35Section 	3540 	et 	seq.
40

totally exclude members 	of 	the public 	from 	its place 	of
operation, 	neither can it 	totally exclude employee organizations.
Within the 	right of 	access 	is 	a protected right 	of 	employee
organizations 	to 	communicate 	with 	employees 	and 	their members
at 	the work site. 	(See 	State of 	California 	(Department 	of
Transportation et al.) 	(1981) 	PERB Decision No. 	159b-S, 	p. 	18,
(Department 	of Transportation).) 	The extent of 	the 	right 	to
communicate 	has 	not 	been 	fully 	identified.
Still, 	as the State points out, 	the Dills Act contains no
provision 	explicitly granting 	employee 	organizations 	the 	right 	to
use 	the 	State's 	internal methods of 	communication. 	By contrast,
the 	EERA and HEERA assure 	employee 	organizations 	of 	a 	statutory
right 	of 	communication through the 	"use 	[of] 	institutional
bulletin boards, 	mailboxes, 	and other means of communication,
subject to reasonable regulation, 	. 	. 	."36 There is no PERB
decision that 	extends 	to unions 	operating under the 	Dills Act
the 	right 	to use an employer's bulletin boards, 	mail boxes or
"other means of 	communication" 	as 	those 	terms are used in the
EERA and HEERA.
The 	PERB may not 	overlook textual 	differences 	among
the 	three 	collective bargaining 	laws 	in an attempt 	to make
all 	three 	statutes 	identical. 	Differences 	among the 	three
PERB-administered statutes must be 	recognized, 	even where 	this
leads 	to different 	results under each statute. 	(See Regents 	of
36The EERA access rights are set out 	at 	section 3543.1(b).
HEERA access 	rights 	are 	set 	out 	at 	section 3568.
41

the University of 	California v. 	Public 	Employment 	Relations 	Board
(1985) 	168 Cal.App.3d 937 	[214 Cal.Rptr. 	698].)
If 	employees 	or employee 	organizations 	have 	a right 	to use
State 	e-mail, 	computers 	and 	facsimile machines 	for union business
that right 	is not 	found in the text of the Dills Act. 	I 	share
the 	State's view that 	this 	statutory omission is 	significant. 	In
the 	absence 	of 	Dills Act 	language 	granting employee 	organizations
the 	right 	to use 	"other means 	of 	communication," 	PERB has no
power 	to 	create 	such a guaranteed right.
Nevertheless, 	even absent 	statutory authorization it 	is well
established 	in 	federal 	cases 	that 	employee 	organizations 	may 	in
some 	circumstances 	gain access 	rights 	to an employer's property.
(NLRB v. 	Babcock & Wilcox Co. 	(1956) 	351 U.S. 	105 	[38 LRRM
2001].) 	Such access 	rights become available 	in two
circumstances: 	(1) 	the usual means of communication are
ineffective or unreasonably difficult, 	or 	(2) 	the employer's
prohibition on access 	is 	discriminatory on its 	face 	or as
applied. 	This 	rule has been adopted by the 	PERB. 	(Department of-.
Transportation; 	Sierra Sands Unified School District 	(1993) 	PERB
Decision No. 	977.)
Although acknowledging the 	rule, 	CSEA attempts 	to 	shift 	the
burden of proof 	that 	is 	implicit 	in 	it. 	The Union would place
the burden on the 	State 	to 	show that 	its prohibition against 	use
of e-mail, 	computers and facsimile machines 	is 	"reasonable."
CSEA argues 	that 	an employer may place 	only 	"reasonable"
restrictions 	on access 	to e-mail 	and facsimile machines, 	citing
42

PERB 	cases 	decided under the 	EERA and HEERA. 	CSEA argues 	that
there 	is 	no 	evidence 	of 	disruption caused by CSEA's 	use 	of 	e-mail
and facsimile machines 	and no 	showing of 	costs 	to 	the 	State.
CSEA thus 	finds 	the 	State's 	restrictions 	to be unreasonable 	and
would 	have 	them 	overturned.
The 	PERB has 	applied a 	"reasonableness" 	standard under
the EERA and HEERA. 	This 	is because 	those 	statutes grant
employee organizations 	"use 	[of] 	institutional bulletin boards,
mailboxes, 	and other means of communication, 	subject to
reasonable 	regulation, 	. . . " 	Therefore, 	under those 	statutes 	an
employer must 	justify its 	regulation of 	means 	of 	communication by
showing that 	a regulation 	is 	a 	"reasonable 	regulation."
However, 	application of 	the 	"reasonableness" 	standard in
PERB 	cases, 	is 	limited to an employer's 	regulation of 	the
statutory access 	rights 	found in the 	EERA and HEERA. 	Since 	there
is no 	statutory right 	of 	access under the Dills Act, 	the 	standard
is not 	the 	"reasonableness" 	of 	the State employer's 	rules on use
of means of communication. 	The Dills Act 	rule, 	like the 	federal
rule, 	is whether the Union's usual means of communication are
ineffective 	or unreasonably difficult, 	or the 	State's prohibition
on access 	is discriminatory on its 	face or as applied. 	The
burden of proof 	in meeting this 	requirement 	is 	on the 	charging
party.
. . .
CSEA next 	argues 	that 	even 	if 	the 	existence 	of 	alternative
means of 	communication is 	a relevant 	factor, 	CSEA should prevail
nonetheless. 	It 	is clear, 	CSEA continues, 	that alternatives
43

to e-mail 	are 	"ineffective 	and difficult 	to use." 	Citing the
size and geographic 	dispersal 	of Unit 	1, 	CSEA argues 	that
communications with Unit 	1 members 	through traditional 	means 	is
very difficult. 	E-mail messages, 	transmitted simultaneously to a
specific group of employees, 	are 	far superior as a means of
communication to newsletters and pamphlets, 	CSEA argues.
However, 	CSEA cites 	no 	case 	in which a 	labor board has
granted 	a union access 	to 	an employer's 	property because 	access
would provide 	a more 	efficient means 	of 	communication. 	In the
private 	sector, 	unions get access to the employer's property when
other means 	of 	communication with employees 	are 	virtually
non-existent.37
Moreover, 	even under the 	statutory access provisions of 	EERA
and HEERA, 	an employer is 	not 	obligated to open to 	the unions
"every and all 	other means of 	communication." 	In Regents of 	the
University of 	California v. 	Public Employment 	Relations 	Board
(1986) 	177 Cal.App.3d 648 	[223 Cal.Rptr. 	127], 	the court
observed:
. 	. 	. 	It is unreasonable to assume the
Legislature 	intended 	that 	the 	University
could reserve no 	forms 	of 	communication 	for
official University communications only, 	and
that 	the University would have 	to provide 	to
the Union access 	to every other means 	of
communication. 	[Id. 	at 654; 	emphasis in
original.]
37See, 	for example, Husky Oil. 	N.P.R. 	Operations, 	Inc. v.
NLRB 	(10th Cir. 	1982) 	669 F.2d 643 	[109 LRRM 2548]. 	There, 	the
court 	enforced a National 	Labor Relations Board 	(NLRB) 	order
granting union organizers 	access 	to 	an employer's 	work 	site 	on
the 	remote northern 	slope 	of Alaska. 	The NLRB 	concluded that 	all
other means 	of 	communication were 	unsatisfactory.
44

CSEA has 	other means, 	entirely apart 	from use of 	the 	State
e-mail 	system, 	for communicating with employees who work 	in
Unit 	1 	jobs. 	Those 	CSEA members with their own personal
computers 	connected to the 	internet 	can be 	reached 	through the
private 	e-mail 	systems 	to which they subscribe. 	CSEA, 	as 	an
organization, 	has 	a home page on the World Wide Web which
contains provision for e-mail. 	In addition, 	CSEA has bulletin
boards 	in State buildings 	and several 	publications which it
distributes 	to members. 	CSEA offices have 	facsimile machines.
CSEA also maintains 	a 	telephone 	hot 	line with 	recorded messages
which members may call 	for up-to-date 	information 	about
bargaining and other 	subjects. 	CSEA has 	access 	to 	State
employees 	in the non-work areas of 	State buildings 	and has 	a
history of 	distributing material 	at 	work 	sites.
It 	is 	clear 	from the 	record that 	CSEA has 	access 	to
employees 	through a number of means 	of 	communication. 	While
these methods of 	communication might 	not be 	as 	convenient 	as
use of 	the 	State's 	e-mail 	system, 	they are not 	inadequate.
Accordingly, 	I 	conclude 	that 	CSEA has not 	demonstrated that 	the
usual 	means 	of 	communication are 	ineffective 	or unreasonably
difficult. 	It 	therefore has 	failed to 	justify use of 	the 	State's
e-mail, 	computer or 	facsimile machines under the 	first prong of
the Department 	of 	Transportation test.
The 	only remaining question 	is 	whether by wording or
application the 	State policies 	on employee use 	of 	e-mail,
computers 	or 	facsimile machines 	are 	discriminatory against
45

the Union. 	This 	is 	the 	second prong of 	the Department 	of
Transportation 	test.
In 	cases 	involving allegedly discriminatory access 	rules,
the 	PERB 	analyzes 	the 	employer's 	rule 	as 	a potential 	interference
with employee 	exercise 	of 	protected rights. 	A discriminatory
access 	rule potentially violates 	section 3519(a) 	because 	it
places 	unusual 	burdens 	on 	employee participation 	in union
activities. 	The Board seeks 	to determine whether the 	challenged
act 	interferes 	or tends 	to 	interfere with the 	exercise of
protected rights 	and whether 	the 	employer 	is 	able 	to 	justify 	its
actions 	by proving operational 	necessity. 	(Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89 	(Carlsbad).)38 In
an 	interference 	case, 	it 	is not 	necessary for the 	charging party
38The Board discusses 	its 	adoption of 	the 	Carlsbad test 	for
cases 	involving discriminatory access 	rules 	in Department 	of
Transportation. 	(See in particular footnote no. 	14 	and
accompanying text.) 	The Carlsbad test 	for interference reads, 	in
relevant part, 	as follows:
2. 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to or does
result 	in 	some 	harm to employee 	rights
granted under the EERA, 	a prima 	facie 	case
shall 	be 	deemed to 	exist;
3. 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification based on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and
the 	rights 	of 	the 	employees will be balanced
and 	the 	charge 	resolved 	accordingly;
4. 	Where 	the 	harm is 	inherently destructive
of employee rights, 	the employer's conduct
will 	be 	excused only on proof 	that 	it was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and that 	no 	alternative
course of 	action was available;
46

to 	show that 	the 	respondent 	acted with an unlawful 	motivation.
(Regents of 	the University of 	California 	(1983) 	PERB Decision
No. 	305-H.)
The evidence, 	CSEA argues, 	establishes that the State has
made 	its 	e-mail 	and 	facsimile 	equipment 	available 	to 	employees
for personal use. 	This use, 	CSEA continues, 	has ranged from
personal 	notes 	of 	congratulations 	or 	condolence 	to 	solicitations
for charity and social 	events. 	Some 	of 	these personal 	messages
were written by supervisors, 	CSEA asserts, 	while other messages
included 	supervisors 	and managers 	in 	the 	distribution 	list.
Notwithstanding policies 	to the 	contrary, 	the 	State 	has permitted
such personal uses, 	CSEA argues. 	The State, 	CSEA continues, 	has
not 	justified 	its 	dual 	standard of permitting 	some personal
messages while banning those 	involving the Union. 	Therefore,
CSEA concludes, 	the 	State has 	interfered with the 	rights of both
individual 	employees 	and those 	of 	CSEA.
The 	State 	argues 	that 	CSEA has 	failed to 	establish any
evidence of harm in its 	ability to represent 	its members. 	The
State 	contends 	that 	the Union must 	do more 	than demonstrate
theoretical harm; 	it must 	show actual 	harm to employee 	rights.
The 	State 	does 	not 	deny that 	several 	of 	the 	departments 	have
permitted some personal 	use 	of 	e-mail. 	But 	the 	"smattering of
examples" 	presented as evidence 	all 	demonstrate 	communications
"closely related 	to 	the work 	environment 	and culture," 	the 	State
contends. 	As such, 	the State continues, 	these communications are
within the 	ambit 	of 	State business 	and are not 	in conflict 	with
47

the policy. 	Incidental 	and occasional personal 	use of 	the
computers, 	e-mail 	and facsimile machines does not 	open the door
for 	the 	numerous 	regular 	communications 	CSEA has 	transmitted 	in
the past 	and would like 	to transmit 	in the 	future, 	the 	State
asserts.
The 	record here 	contains 	numerous 	policies 	and memoranda
pertaining to the use of 	State 	equipment. 	Most 	of 	these policies
and memoranda 	contain prohibitions 	and/or 	restrictions 	against
the 	use 	of 	State 	equipment 	for any purpose 	other 	than 	State
business. 	Only one policy specifically prohibits use 	of 	State
e-mail 	for communication related to union activities, 	although it
allows 	other types of personal 	communication. 	That policy, 	which
pertains 	to use of 	computers 	and e-mail 	at 	Caltrans, 	was given
to CSEA on February 5, 	1996. 	In relevant part, 	the Caltrans
policy 	sets 	out 	the 	following exception 	to 	its 	general
prohibition against 	personal 	use 	of 	e-mail:
. 	. 	. 	use of e-Mail systems for incidental
employee 	social 	functions 	or public 	service
activities 	not 	related to union business 	or
union organization purposes 	is permitted.
Through 	testimony and documentary evidence, 	CSEA established
that 	both Caltrans 	and DWR tolerate 	a certain 	level 	of personal,
non-union 	communication on 	their 	departmental 	e-mail 	systems.
CSEA also 	established that 	managers 	and 	supervisors 	in both of
these 	departments 	were 	aware 	of 	this 	communication either as
senders 	or recipients.
At 	DWR these messages 	have 	concerned 	such 	subjects 	as 	bake
sales 	for 	"Cancer Kids," 	the 	solicitation 	for membership 	to a
48

private 	athletic 	club, 	and an announcement by a 	supervisor that
he was accepting orders 	for Girl 	Scout cookies. 	At 	Caltrans, 	the
messages 	have 	concerned 	subjects 	such as 	an employee 	club bicycle
ride over the 	Golden Gate 	Bridge. 	Witnesses 	also described
e-mail 	messages 	soliciting donors 	for 	the 	blood bank 	and blood
bank contributions 	on behalf 	of 	relatives 	and 	friends 	of
employees. 	There 	also was 	evidence of 	considerable 	e-mail
traffic 	relating 	to 	the 	eating and 	sale 	of 	food.
The Department 	of Banking 	is much stricter 	in 	its
enforcement 	of prohibitions 	against personal use 	of 	e-mail.
Department 	managers 	are 	so 	strict 	that 	they once 	scolded a 	fellow
manager 	for using 	e-mail 	to make 	a 	casual 	comment 	about 	the 	Super
Bowl. 	Even at Banking, 	however, 	a brief e-mail 	invitation for a
walk at 	lunch 	is 	considered a permissible message, 	despite 	its
clearly personal 	nature.
The 	State 	argues 	that 	it 	did not 	discriminate 	against Union
communication, 	but enforces the rules evenly. 	As evidence, 	the
State points 	to 	its 	disciplinary action against 	several 	Caltrans
and DWR employees. 	In the main, 	these actions 	involved employees
who 	used 	e-mail 	to 	sexually harass 	co-workers 	and used 	State
computers 	to visit 	sexually-oriented web sites, 	store
sexually-explicit 	pictures 	or prepare 	engineering plans 	for
outside businesses.
The 	State's 	evidence 	about 	the discipline 	of 	such employees,
thus, 	misses 	the point. 	It 	involves conduct entirely dissimilar
from that 	of 	the Union activists 	who were warned to 	stop using
49

e-mail 	for Union communication. 	The 	evidence 	of 	disciplinary
action 	fails 	as 	rebuttal 	to 	CSEA evidence 	about 	DWR and Caltrans
tolerance of 	other types 	of 	non-business 	communication.
The 	rigid ban at 	Caltrans 	and DWR against 	all 	use 	of 	e-mail
for Union communication meets 	at 	least 	the 	"slight" 	harm element
of 	the 	Carlsbad test. 	Even though CSEA has 	other means 	of
communication available 	to 	it, 	Union activists 	are at 	least
slightly hindered by the 	ban 	in their 	ability to participate 	in
the 	activities 	of 	an employee 	organization. 	This 	conclusion 	is
consistent 	with Department 	of 	Transportation where 	the 	Board
concluded 	that 	a 	discriminatory policy on 	the 	distribution of
union mail 	impinged upon the 	rights of 	employees. 	(See 	also,
Sierra Sands Unified School District, 	supra, 	PERB Decision
No. 	977.)
The 	burden thus 	shifts 	to 	the 	State 	to demonstrate 	a
justification 	for 	its 	discriminatory ban against 	the 	use 	of
e-mail 	for messages about Union activities. 	In response, 	the
State 	argues 	that 	the permitted e-mail 	messages 	about 	bicycle
rides 	and cookie 	sales 	constituted the business 	of 	the 	State.
The 	State describes 	these 	communications 	as 	limited and
incidental 	work 	environment 	conversations 	and 	communications
between co-workers. 	They are part 	of 	the 	corporate 	culture 	and
therefore State business. 	It follows, 	the State continues, 	that
State-owned equipment 	can be 	used 	for 	such 	incidental 	and
occasional 	conversations.
50

As 	the State argues, 	the 	e-mail 	conversations 	regarding
bicycle 	rides, 	cookie 	sales 	and similar activities are normal
work place 	interchange. 	Such use 	of 	State 	equipment 	apparently
was 	anticipated 	and 	authorized by 	the 	Legislature 	in 	section
8314. 	That 	section, 	while prohibiting the use of State equipment
for personal purposes, 	defines 	"personal purposes" 	in a manner
that allows 	incidental use. 	Under the 	statute, 	"personal
purpose"
. 	. 	. 	does not include an occasional
telephone call, 	or an incidental 	and minimal
use of 	state resources, 	such as equipment or
office space, 	for personal purposes.
Section 8314 	further defines 	"use" 	of 	State 	resources as
. 	. 	. 	a use of state resources which is
substantial 	enough to 	result 	in a gain or
advantage 	to the user or a 	loss 	to the 	state
for which a monetary value may be 	estimated.
The 	types 	of personal 	uses 	of 	e-mail 	demonstrated at 	Caltrans 	and
DWR 	seem well 	within 	the 	range 	of 	activities 	allowable 	under 	the
statute.
What 	is unclear from the State's analysis, 	however, 	is why
a brief 	employee message 	about 	a Bay Area bicycle 	ride 	is 	the
business 	of 	the 	State whereas 	a brief 	employee message 	about
collective bargaining is not. 	Insofar as both messages
constitute 	"an incidental 	and minimal 	use 	of 	state 	resources,"
why 	is one permitted and the 	other 	is not? 	The 	State makes 	the
distinction solely on the 	content 	of 	the message, 	not 	on the
amount 	of 	time used to write 	or read 	it 	or the 	equipment 	required
to deliver 	it. 	The 	distinction clearly is 	discriminatory toward
51

employee participation 	in the 	activities 	of 	employee
organizations.
In 	the 	absence 	of a 	reasonable 	justification 	for this
distinction, 	I 	conclude 	that 	Caltrans, 	DWR and the Department of
Banking 	have 	discriminated 	against 	employee 	participation 	in
protected conduct 	in violation of 	section 3519(a). 	Caltrans
violated 	section 3519 (a) 	by its 	explicit policy that 	allows
minimal 	personal 	communication by e-mail, 	except 	when 	it 	pertains
to employee 	organization matters. 	All 	three departments violated
section 3519(a) 	by discriminating 	in the 	application of 	other,
more neutral policies, 	in a way that prohibits 	communication
about 	employee 	organization business 	while 	permitting other
personal 	conversation.
I want to make clear, 	however, 	that the State did
not violate the Dills Act by instructing Ms. 	Hackett 	and
Mr. 	Landingham to cease 	their use of 	State 	e-mail 	for regular and
voluminous messages about Union business. 	There 	is no evidence
that 	Caltrans 	and DWR have 	ever permitted employees 	to 	conduct,
for personal purposes, 	the 	frequent 	and heavy levels of
communication that Ms. 	Hackett 	and Mr. 	Landingham pursued for
Union business. 	There 	is no evidence 	that 	Caltrans has permitted
for personal 	purposes 	the 	establishment 	of 	the 	lengthy mailing
lists developed by Ms. 	Hackett 	for Union communication. 	There 	is
no 	evidence 	that 	the 	Department 	of 	Banking has permitted
employees 	to 	send non-business messages 	to the 	entire 	department.
52

The violation here 	is 	the prohibition by all 	three
departments 	against 	the 	"incidental 	and minimal 	use" 	of 	e-mail
for Union-related messages 	that 	is 	allowed 	for other non-business
purposes. 	Once 	an employer has 	opened a 	forum for non-business
communication, 	it 	cannot prohibit 	employees 	from using the 	same
forum for a 	similar 	level 	of 	communication 	involving employee
organization activities. 	(Sierra 	Sands Unified School 	District,
supra, 	PERB Decision No. 	977.) 	The 	same rule 	is applied by the
NLRB in the private sector. 	(See, 	for example, 	Roll and Hold
Warehouse and Distribution Corporation 	(1997) 	325 NLRB No. 	1 	[157
LRRM 1001] 	and E. 	I. 	du Pont de Nemours & Co. 	(1993) 	311 NLRB 893
[143 	LRRM 1121], 	a case 	involving a discriminatory prohibition
against 	the 	use 	of 	e-mail 	for 	the 	distribution of 	union
literature 	and notices.)
In accord with Department 	of Transportation. 	I 	conclude 	that
the 	discriminatory rule 	against 	use 	of 	e-mail 	for 	incidental 	and
minimal union communication also violates 	section 3519(b).
I 	am not 	persuaded 	that 	the 	State 	violated the 	Dills Act 	by
its 	restriction on the use of 	the 	facsimile machine at 	the BOE.
The 	record contains 	no copies 	of personal 	documents 	transmitted
on the machine, 	except 	for the Union-related materials 	sent
to Ms. 	Ontiveros. 	CSEA's only witness about use of 	the BOE
facsimile machine was Ms. 	Ontiveros whose work station is 	at 	a
considerable 	distance 	from the 	facsimile machine 	and well 	out 	of
sight of 	it. 	Mr. 	Cowan, 	whose work station is much closer,
testified that he was unaware 	of personal 	use of 	the machine
53

except 	for an employee who requested, 	and was granted, 	the 	right
to use the machine on an emergency basis. 	There 	is no
contradicting evidence 	that 	BOE managers were 	aware 	of 	and
permitted personal 	use of 	the 	facsimile machine.
Accordingly, 	I 	conclude 	that 	CSEA has 	failed to meet 	its
burden of proof 	in establishing a 	discriminatory 	standard 	in 	the
use of 	the BOE 	facsimile machine.
REMEDY
The PERB in section 3514.5 (c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative action, 	including but not
limited to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
Here, 	the State 	interfered with the right 	of 	three 	State
employees, Ms. Hackett, Mr. Landingham and Ms. Nordendahl, 	to
engage 	in the 	activities 	of 	an employee 	organization. 	The 	State
interfered with 	these 	protected 	rights 	when 	it 	discriminatorily
prohibited 	the 	employees 	from using 	the 	electronic 	mail 	system 	to
send messages 	about union activities. 	By the 	same 	conduct, 	the
State 	interfered with the 	right 	of 	CSEA to 	communicate with 	its
members.
The 	ordinary remedy 	in a 	case 	involving an 	interference with
protected rights 	is 	an order 	that 	the 	employer 	cease 	and desist
its unlawful denial of rights. 	It 	is 	further appropriate that
the 	State be 	directed to post 	a notice 	incorporating the 	terms 	of
the 	order. 	Posting of 	such a notice, 	signed by an authorized
54

agent 	of 	the 	State, 	will provide employees with notice that 	the
State has acted 	in an unlawful manner, 	is being required to cease
and desist 	from this 	activity, 	and will 	comply with the 	order.
It 	effectuates 	the purposes 	of 	the Dill Act 	that 	employees be
informed of 	the 	resolution of 	this 	controversy and 	the 	State's
readiness 	to 	comply with the 	ordered 	remedy. 	(Placerville 	Union
School District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire record in the 	case, 	it 	is 	found that 	the 	State 	of
California 	(State) 	violated section 3519(a) 	and 	(b) 	of the Ralph
C. 	Dills Act 	(Act). 	The State violated the Act when the
Department 	of 	Transportation 	adopted 	a policy that 	allows
employees 	to use 	the 	State's 	electronic 	mail 	system 	for minimal
amounts 	of personal 	communication 	so 	long as 	the 	subject 	of 	the
communication does 	not pertain 	to 	employee 	organization matters.
The 	State 	further violated the Act 	when 	the 	Departments 	of
Transportation, 	Water Resources 	and Banking discriminatorily
applied other, 	neutral policies, 	in a way that prohibits
communication 	about 	employee 	organization business 	while
permitting other personal 	conversation. 	These 	discriminatory
actions 	interfered with the 	rights 	of 	employees 	to participate 	in
the 	activities of 	employee organizations 	and the 	right 	of 	the
California 	State 	Employees Association 	to 	communicate with 	its
members.
55

All 	other 	allegations 	in the 	complaint 	are 	hereby DISMISSED.
Pursuant to section 3514.5 (c) 	of the Government Code, 	it
hereby is 	ORDERED that 	the 	State 	and its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
Discriminatorily prohibiting Unit 	1 	members 	employed 	in
the Departments 	of 	Transportation, 	Water Resources 	and Banking
from 	such 	incidental 	and minimal 	use 	of 	the 	State 	electronic 	mail
system 	for 	communication 	about 	employee 	organization 	activities
as 	those 	departments permit 	for other non-business purposes.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Within ten 	(10) 	workdays of the service of a final
decision in this matter, 	post at all work locations where notices
to persons employed in Unit 	1 	customarily are posted, 	copies of
the Notice attached hereto as 	an Appendix. 	The Notice must 	be
signed by an authorized agent 	of 	the 	State, 	indicating that 	the
State will 	comply with the 	terms of 	this 	Order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to ensure that 	the
Notice 	is not 	reduced in size, 	altered, 	defaced or covered with
any other material.
2. 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken to comply with the Order to 	the
Sacramento Regional 	Director of 	the 	Public 	Employment 	Relations
Board 	in 	accord with the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall 	become
56
'

final 	unless 	a party files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 	20
days of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should identify by page
citation or exhibit number the portions of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	A document is considered "filed" 	when
actually received before 	the 	close of business 	(5:00 	p.m.) 	on the
last 	day set 	for filing 	". 	. 	. o r when sent 	by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32135; Code of Civ. 	Pro. 	sec. 	1013 shall
apply.) 	Any statement 	of 	exceptions 	and supporting brief must 	be
served 	concurrently with 	its 	filing upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each copy 	served on
a party or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
57