Unfair Labor Practice. The New York Department of Education's e-mail policy prohibits the use of the e-mail system for unofficial purposes, except that officials of the New York Public Employees Federation (PEF), the union representing state employees,

Question

can use the system for some limited communications, including the scheduling of union meetings and activities. In 1998, Michael Darcy, an elected PEF official, began sending mass, union-related e-mails to employees, including a summary of a union delegates' convention, a union newsletter, a criticism of proposed state legislation, and a criticism of the state governor and the Governor's Office of Employee Relations. Richard Cate, the department's chief operating officer, met with Darcy and reiterated the department's e-mail policy. When Darcy refused to stop his use of the e-mail system, Cate terminated his access to it. Darcy filed a complaint with the New York Public Employment Relations Board, alleging an unfair labor practice. Do the circumstances support Cate's action? Why or why not?

Answer 1

Unfair labor practice
The Public Employment Relations Board's (PERB's) administrative law judge found that the Department had committed an improper practice by blocking Darcy's access to the e-mail system. On review, however, PERB reversed this decision and dismissed the charge. Through Roger Benson, PEF's president, in an action against Michael Cuevas, PERB's chairperson, Darcy appealed to a New York state intermediate appellate court, which affirmed the dismissal of his complaint. The court pointed out 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, that Cate . . . did not take immediate action against Darcy but instead Cate reiterated the policy and warned Darcy, and that Darcy refused to comply with the e-mail policy, resulting in the disconnection of his e-mail access. This evidence is more than sufficient to provide a rational basis in the record to support the findings upon which the agency's determination is predicated."