By Ed Jacques, LEJ Editor

For a number of years, the City of Saginaw has allowed its employees to use its e-mail system to send correspondences that are not directly work-related. The City also allowed the unions representing its employees, including the Saginaw Police Officers Association (SPOA) to use the system to send e-mails to their members.

On July 4, 2008, Saginaw Police Officer Daniel Kuhn sent an e-mail to members of the bargaining unit concerning certain actions of the City Pension Board. On July 15, 2008, Saginaw Police Chief Gerald Cliff unilaterally implemented a new written internet and e-mail policy by means of Police Department General Order. The Union requested to bargain the new policy, but the City refused to address the request. The new policy included the statement that all e-mails sent through the City’s system were the property of the City and employees were not allowed to criticize any City official.

In 2008, contract negotiations between the City and the SPOA had collapsed and a petition for interest arbitration under Public Act 312 had been filed. At the time, Saginaw’s City Manager also served as the President of a professional organization, the International City and County Managers Association (ICMA).

In addition to their defined benefit pension, SPOA members are eligible to participate in a City-sponsored 457 Deferred Compensation Plan. In 2008 employees could choose between two vendors/administrators, the Hartford Group and ICMA. In the fall of 2008, several members of the bargaining unit suggested that the City bring in a third vendor. The two parties engaged in informal discussions on the topic.

Dan Kuhn was asked why he had subsequently stopped making new contributions to his ICMA account and directed all new contributions to his Hartford account. On October 16, 2008, Kuhn sent the following group e-mail using the City of Saginaw’s e-mail system.

“I left ICMA because of principle mainly. To have a nickel of my fees paid to lobbyists who campaign against employee’s interest, and pay people who train the likes of their new president, bothers me.”

On January 7, 2009, Kuhn was served with a notice of a one-day suspension with the threat of further discipline up to and including discharge. The City claimed that the sending of Kuhn’s e-mail was in direct violation of the Saginaw Police Department General Order because his e-mail disparaged the City Manager.

POAM filed both a contractual grievance and an unfair labor practice (ULP). The grievance alleged that Kuhn’s discipline was without just cause and violated Article 6.1 of their contract. The ULP alleged a violation of Officer Kuhn’s rights under the Public Employees Relations Act (PERA), Section 9 as it relates to the right to engage in lawful, concerted activities for the purpose of collective bargaining.

It is well-stated law that public statements made by a single union representative concerning a labor-management dispute constitute concerted activity protected by Section 9, as long as those statements do not involve the disclosure of confidential information. Rude, insulting, even threatening remarks for which an employee would normally be subject to discipline may be protected if made in the course of protected conduct. Protection by the Act can only be severed if an employee’s misconduct is severe.

In Administrative Law Judge Julia C. Stern’s written opinion, she states, “respondent’s argument that Kuhn’s e-mail disparaged the City Manager strikes me as disingenuous. Kuhn’s e-mail contains nothing that could be interpreted as a personal attack. Kuhn’s criticism of Early is actually a complaint about respondent’s conduct at the bargaining table.”

POAM Assistant General Counsel Douglas Gutscher agreed that employees do not have an absolute right under Section 9 of PERA to use an employer’s e-mail for union or other communications protected by PERA, but once a practice is established the employer cannot unilaterally alter the terms of use. Further, the National Labor Relations Board (NLRB) has consistently held that the employer cannot lawfully apply its rules against the use of its equipment in a discriminatory fashion to prohibit protected, concerted conduct.

Judge Stern agreed and in her recommended order instructed the employer to remove the discipline issued and make Officer Kuhn whole for any monetary losses suffered as a result of the discipline including interest on the amount owed at the rate of 6% per annum, computed quarterly.

In typical fashion, Kuhn responded by saying “I wish I would have got 30 days, I haven’t been able to make that kind of interest in a long time.”

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