Thank you for sharing!

Your article was successfully shared with the contacts you provided.
An appellate panel in Albany, N.Y., has upheld the right of a state agency to revoke e-mail privileges from a union official who used a government computer to communicate with other members of his labor organization. New York’s Appellate Division, 3rd Department, said the Public Employment Relations Board was within its authority when it overturned an administrative law judge’s determination on the matter. Benson v. Cuevas, 90433, allowed the court to address modern communications in the context of workplace rules and regulations. It also provided an opportunity to address the power of PERB vis-a-vis administrative adjudication. The appeal involved an employee in the State Department of Education, C. Michael Darcy, who was an officer in the Public Employees Federation (PEF). Although the Education Department had a policy prohibiting the use of the e-mail system for other than official purposes, Darcy repeatedly sent electronic messages to union members through his state account. Records show that Darcy sent a mass e-mail to employees in 1998. The department, although aware of the incident and viewing it as a violation of the policy, ignored the matter. Darcy then distributed the union newsletter via mass e-mail, prompting discussion at labor-management meetings, but resulting in no immediate resolution. In April 1999, Richard Cate, chief operating officer for the Education Department, advised PEF’s counsel that the use of the state e-mail system for union business was unauthorized and should be the topic of contract negotiations. Regardless, Darcy on May 4, 1999, sent an e-mail to all employees criticizing proposed legislation. Cate issued a memo reminding employees that the use of the department e-mail system for union business was not permitted. Five days later, Darcy sent a mass e-mail criticizing New York Gov. George Pataki and the Governor’s Office of Employee Relations. After a meeting, where Cate claims Darcy made clear his intention to continue using the e-mail system for union activity, the employee’s access was terminated. Darcy was advised that his e-mail privileges would be restored if he agreed to abide by the state’s policy until and unless a different position was negotiated with the union. Darcy responded with an improper practice charge, alleging that the department violated the Taylor Law provision prohibiting deliberate interference with union activity. A hearing was held before an administrative law judge, who concluded that Cate’s position — that use of the e-mail for union activity violated policy — was a pretext. PERB reversed the administrative law judge’s decision in a determination upheld Thursday by a unanimous Third Department panel. LIMITED REVIEW The panel noted at the outset that its review power is limited to whether PERB’s finding was supported by substantial evidence. “Petitioner argues that PERB’s decision must be overturned because PERB substituted its own credibility determinations for those of the ALJ and, in so doing, improperly deviated from its own precedent without setting forth a rational basis for doing so,” Justice Edward O. Spain wrote for the court. “We disagree. Although generally the decision of an ALJ which rests upon credibility should be given great weight, it is not conclusive and may be overruled by an administrative board” so long as the board’s determination is supported by substantial evidence. Here, the court said, the evidence that the Education Department had an existing policy, that Darcy violated that policy repeatedly and that he was denied access only after refusing to abide by the policy, is “more than sufficient,” Justice Spain said. Joining the opinion were Presiding Justice Anthony V. Cardona and Justices D. Bruce Crew III, Anthony J. Carpinello and Robert S. Rose. The appeal was argued by Steven M. Klein of Albany for PEF; Assistant Attorney General Robert M. Goldfarb for the Governor’s Office of Employee Relations; and Sandra M. Nathan of Albany for PERB.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.