Employer’s E-Mail Policy Discriminates On Basis Of Union Activity

The City of Saginaw, Michigan Police Department permits its employees to use the City’s e-mail system for non-work-related purposes. Daniel Kuhn is the president of the Saginaw local of the Police Officers Association of Michigan.

On October 16, 2008, Kuhn used the City’s e-mail system to send his members a message about the City’s deferred compensation system. In the e-mail, Kuhn wrote the following about the general status of the relationship between the Association and the City: “I have seen no good faith bargaining on behalf of our employer to date, in fact, the proposals being taken before the arbitrator are offensive and extremely unappreciative of the police officers who serve this town daily. You wonder if the risk and commitment is worth it.”

The City suspended Kuhn for one day, citing an internal rule that the City’s e-mail “is not to be used for conflict resolution or criticism of the administration of the City or the Police Department.” The Association filed an unfair labor practice charge against the City, alleging that the City’s policy discriminated on the basis of protected labor relations activity.

Michigan’s Employment Relations Commission upheld the Association’s charge, and ordered the reversal of Kuhn’s suspension. The Commission reasoned: “We recognize that an employee’s right to use his employer’s e-mail system for union or other protected communication under the collective bargaining law is not unlimited. Instead, the Commission has adopted the NLRB’s holding in Lockheed Martin Skunk Works, 331 NLRB 852 (2000), that an employer may restrict the use of its equipment to work-related purposes and prohibit any personal use of e-mail, telephones, copiers, and other office equipment. However, that an employer may not exercise its discretion in a content-discriminatory fashion, such as by allowing non-work related e-mails as long as they do not contain union-related information. In the present case, it is clear from reading the City’s e-mail policy that the City did not intend to prohibit all personal e-mail. The fact that Kuhn’s e-mail was singled out because he complained that his employer was not bargaining in good faith makes this action discriminatory.”

City of Saginaw, Case No. C09 A-009 (Mich. ERC 2011).