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June 23, 2015

2015.06.23: Great News: Free Speech Victory

Filed under: Uncategorized — nyclaw01 @ 3:15 pm
Tags: ,

From: Torres, Azalia
Sent: Tuesday, June 23, 2015 3:15 PM
To: CRIMINAL ATTYS ALL
Subject: Great News: Free Speech Victory

Seymour James has upheld a grievance (endorsed by ALAA) challenging management’s email restrictions on Michael Letwin (CDP-Brooklyn) for sending a message entitled “Racial Justice Update: Black and Palestinian Lives Matter.” The decision (see below) was issued two weeks after the public statement In Defense of Free Speech at The Legal Aid Society (April 14, 2015), signed by 118 ALAA and 1199 union members.

This decision cites management’s failure to decide the Mass Free Speech Grievance (July 15, 2014), signed by 173 ALAA and 1199 members (and endorsed by ALAA). It also acknowledges that, under Purple Communications, 361 NLRB No. 126 (2014), union members cannot be prohibited from using LAS email to communicate about “the terms and conditions of employment [and] protected concerted activity.” However, the decision does not address the longstanding pattern of discrimination against antiwar and Palestine human rights advocacy at Legal Aid. 

As “we stand together” for a fair contract, let’s continue to stand up for our vital free speech rights at the workplace.

———————–

From: James, Seymour
Sent: Friday, May 01, 2015 6:52 PM
To: Letwin, Michael
Cc: Wright, Deborah; Taylor, Bret; Pate, Michael; Fredericksen, Jeremy; Luongo, Justine; Fox, Allan
Subject: Your grievances filed on July 15, 2014, and March 6, 2015

On June 25, 2014, you sent an email to all ALAA and 1199 staff on The Legal Aid Society’s email system with the subject line:  “6pm Today: Emergency Rally: Stop Israeli Crimes in Palestine.”  This e-mail was not related to any business purpose of the Society, nor did it relate to any term or condition of employment or other protected concerted activity under Section 7 of the NLRA.

On June 26, 2014, you were directed by Allan Fox, the Chief Human Resources Officer, not to send any non-work related emails over The Legal Aid Society’s email system. In response to this directive, you filed a grievance on July 15, 2014, contending that the email was protected under ALAA Collective Bargaining Agreement (CBA) §3.5 (“Free Speech”) and §1.5 (“Union Activities”).

Section 1.5 of the CBA provides that the Union will have reasonable use of the Society’s internal communication mechanisms.  “Reasonable use of the Society’s internal communication mechanisms shall be interpreted to mean the following: The Legal Aid Society will maintain an e-mail group that permits the President of ALAA and her designee to send communications to all ALAA members and permits individual members to respond to the President of ALAA and her designee as the sender(s) and not to the whole e-mail group. The Legal Aid Society has provided ALAA with a one-time payment of $12,000 so that ALAA can develop and implement a free-standing e-mail group of ALAA members that is not on The Legal Aid Society’s computer network.”  Your email was not one sent by the President of ALAA or her designee pursuant to this provision, and therefore § 1.5 of the CBA is not implicated.

Section 3.5 of the CBA protects the expression of personal religious, political, social, and economic beliefs.  However, it does not confer the right to utilize the business equipment of the Society to communicate those beliefs except to the extent related to terms and conditions of employment or protected concerted activity.  Non-work related, non-Section 7 protected emails may, subject to ALAA’s internal procedures, be sent on the free standing email group of ALAA members that is not on the LAS computer network.

The email you sent on June 26, 2014 was not related to any business purpose of the Society, nor was it related to terms or conditions of employment or any other protected concerted activity at The Legal Aid Society. Accordingly, your grievance of July 16, 2014, is denied.

On March 6, 2015, you sent an email using Legal Aid’s email system to the CRIMIMAL PRACTICE ALL, CIVIL STAFF ALL, JUVENILE ALL, and all 1199 Members e-mail groups . Under the banner “Labor for Palestine” and “Tell New York City Council Members: DON”T TOUR APARTHEID,” the e-mail urged:  “Please Sign: Labor for Palestine to NYC Council Members: Don’t Tour Apartheid Israel.”  This email did not relate to any business purpose of the Society, nor did it relate to any term or condition of employment or other protected concerted activity.  Later on that same date, you received an email from Tina Luongo stating that despite prior warnings, your email violated the Society’s e-mail policy.  She further stated that in light of your disregard of prior warnings, your use of Outlook Distribution Lists will be limited for a six month period effective Monday, March 16, 2015.  She further stated that subsequent violations will result in further limitations in your use of Distribution Lists and may result in disciplinary action. You filed a grievance on March 6, 2015, based on your prior grievance of July 15, 2014.

During the grievance hearing on March 31, 2015, you requested that the email and the discipline restricting your use of the distribution lists be rescinded. You claimed that the email limitation was a denial of your free speech rights and violated §3.5 of the ALAA agreement and the right to engage in activity under Purple Communications. You further contended that there was lack of notice and therefore lack of good cause for the discipline. You argued that because you had not received a response to the July grievance, the issue had not been resolved, the notice was deficient and the disciplinary action restricting your use of the distribution lists did not constitute progressive discipline.

After giving consideration to your argument, I find that the email of March 6, 2015 was neither work-related nor related to any term or condition of employment or other Section 7 protected activity. Therefore, Ms. Luongo’s response to your email did not violate the holding in Purple Communications.  However, because the stated basis for Ms. Luongo’s temporary restriction of your use of Outlook Distribution Lists was your disregard of prior warnings, and because the July grievance concerning one such prior warning was not decided at that time, I am rescinding on that ground that portion of Ms. Luongo’s decision that temporarily restricts your use of Distribution Lists.

Please be advised that your use of Outlook distribution lists for communications that are neither work-related nor encompassed within Section 7 protected activity may subject you to discipline and restriction of your access to Legal Aid Distribution Lists.

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