Labor & Employment Law

Using the employer's e-mail

By Harvey Randall, Esq.

Using the employer's e-mail
Benson v Cuevas, App. Div., 3rd Dept., 293 A.D.2d 927

Roger E. Benson, President of the New York State Public Employees Federation [PEF], appealed New York State Public Employment Relations Board's [PERB] determination that the New York State Department of Education did not commit an improper employer practice when it terminated an employee's access to the Department's e-mail system. The employee, C. Michael Darcy, also served as an elected PEF official.

Darcy used "mass e-mail" to advise Department employees of a union delegates' conven­tion and to transmit the union newsletter. In early 1999, PEF's use of e-mail was dis­cussed at labor/management meetings but there was no decision concerning the use of Department e-mail by PEF. On April 19, 1999, however, PEF's council leader at the Department was told that "the existing contract contained no provision authorizing the use of the e-mail system for union business and that, pending the outcome of ongoing contract negotiations on the issue, such use was impermissible."

A few days later the Governor's Office of Employee Relations [GOER] sent a memoran­dum to all State agency heads reiterating that employees may not use State equipment for any business "not related to the official assignments or job responsibilities of employees or the mission of State agencies".

Notwithstanding these events, Darcy sent a number of e-mail to all Department em­ployees critical of proposed legislation, the Governor and GOER. Following a meeting concerning the use of e-mail for PEF matters, Darcy was told to stop using the Depart­ment's e-mail to broadcast union positions.

Darcy sent an e-mail summarizing the meeting and said that he did not intend to comply with the request to cease his use of the e-mail system "since PEF's position remained unchanged on the issue." The Department then told Darcy that as "he had made clear that he planned to continue using Department e-mail in a manner contrary [to] oral and writ­ten requests and in violation of Department policy," his access to the Department's e-mail system was being disconnecting and would not be restored unless "Darcy confirmed in writing that he would refrain from broadcasting e-mails that were in violation of the policy, or if GOER and PEF negotiated a different position on the issue."

PEF filed an improper employer practice charge with PERB alleging that the Department had violated the Taylor Law by deliberately interfering with the rights of union members and discouraging their participation in union activities. Ultimately PERB ruled that the decision to block Darcy's access to the Department's e-mail system was not improperly motivated and dismissed the charge. The Appellate Division sustained PERB's ruling.

The court said that "PERB's decision is supported by substantial evidence" in the record before it: i.e., "[u]ndisputed testimony revealed that the Department had an existing policy regarding employee use of e-mail, that Darcy was considered to be in violation of that policy on more than one occasion ... and that Darcy refused to comply with the e-mail policy, resulting in the disconnection of his e-mail access."

Full post as published by New York Public Personnel Law on March 12, 2008 (boomark / email).