Teamsters Local Union No. 117, Et Al., Appellants V. Dept. Of Corrections, Et Al., Respondents (Majority)

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FILED LilvisloH 11 20! 4 JAN 22 AM 9: 16 S1 EI f IN THE COURT OF APPEALS OF THE STATE OF WASHIN DIVISION II TEAMSTERS LOCAL UNION NO. Washington State labor 117, organization, No. 43604 -3 - II a and PHYLLIS CHERRY, Appellants, V. PUBLISHED OPINION STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS, Employer, and PUBLIC EMPLOYMENT RELATIONS COMMISSION, JOHANSON, J. whether chapter This is a case of first impression in which we are asked to determine 41. 80 RCW protects public employees' " interference, restraint, or coercion. clearly does not protect public 1" concerted activities"' from employer We hold that Washington' s public employee rights statute employees' " concerted activities." Teamsters Local Union No. Concerted activities" are activities undertaken by employees, jointly with one another, for the purpose of 169, their working conditions. Bravo v. Dolsen Cos., 125 Wn.2d 745, 752, 888 Unlike the federal National Labor Relations Act (NLRA), 29 U. S. C. §§ 151- improving P. 2d 147 ( 1995). which applies to private sector employees and expressly protects " concerted activities," Washington' s public employee rights statute ' does not expressly protect public employees' concerted activities," the category of conduct at issue here. No. 43604 -3 -II 117 ( Union) and Phyllis Cherry appeal from a Public Employment Relations Commission PERC) order that dismissed Washington Corrections Center for Women ( Corrections Center) shop steward Cherry' s unfair labor practice complaint. The Teamsters argue that ( 1) PERC erred in interpreting chapter 41. 80 RCW' s protections, ( 2) PERC erred in concluding that Cherry' s e- mail activities were not statutorily protected, and ( 3) evidence adequately supports the hearing examiner' s vacated conclusions and rebuts PERC' s conclusions. Analyzing the merits of the issues properly before us on appeal, we hold that the Teamsters do not demonstrate that state law protects " concerted activities," which they contend includes the two a -mails Cherry sent to Corrections Center custody staff; nor do the Teamsters demonstrate that PERC erred in interpreting Washington' s public employee rights law. Further holding that sufficient evidence supports PERC' s findings that Cherry' s actions were not protected by chapter 41. 80 RCW, we affirm PERC. FACTS Cherry is a Department of Corrections ( DOC) officer at the Corrections Center. She is also a shop steward for the Union, meaning that she acts as a contact, an information source, and an advocate for Corrections Center union employees. 2 in this Cherry filed the unfair labor practice complaint, and Cherry was the only party listed in PERC' s order, though throughout the action Cherry and the Union are both plaintiffs suit. the Union represented her. In superior court, however, the Union was listed as a party along with Cherry. Both appeal the superior court order. We refer to them collectively as " the Teamsters." 2 No. 43604 -3 -II CONCERTED ACTIVITIES" 1. " A. August 2009, No Immediate Sanctions In August 2009; logged into the DOC' Cherry s intranet, " Inside DOC," and read an article about DOC hiring a former state senator to serve as a victim advocate for female inmates. Inside DOC" linked to a news article that included this new inmate victim advocate' s salary. After reading these articles, Cherry used her DOC computer to send an e -mail from her DOC e -mail address to all Corrections Center custody staff which read: For your information: The Corrections Center] will be getting a new staff [ member]... former state Senator to be the inmate advocate for victims of staff sexual misconduct. And of course, look at her salary to be an advocate for inmates. Phyllis Cherry Clerk' Papers ( CP) s at 274. Cherry' s e -mail linked to the news article that showed. the victim advocate' s salary. Within a month of Cherry' s e -mail, Corrections Center Superintendent Douglas Cole investigated e[- ] mail" allegations to DOC staff. who acknowledged, " that CP Cherry at 379. This [ e -mail] had committed misconduct by sending " an unprofessional Correctional Captain Michael Green interviewed Cherry, wasn' t union business "; " I didn' t mention anything about the union, nor the [ T] eamsters, nor did I sign this as Shop Steward Phyllis Cherry, it is not union related." CP at 381 ( emphasis added). Instead, Cherry stated that she had circulated the e -mail because she wanted to be informative and share public information with all Corrections Center custody staff. Following this investigation, DOC pursued nothing further against Cherry regarding this e -mail. 3 No. 43604 -3 - II B. October 2009 E mail and Reprimand Then in October 2009, 3 Project. , CP at Cherry learned about a Corrections Center program, the " IF Cherry e- mailed all Corrections Center custody staff, again from her DOC 637. computer: Check this out! !! Now tell me why we are being sensitive when they have projects like this going Inmates telling their stories as to how they made bad choices and ways to their lives. Inmates are trying to help others by telling that if they had on. change whatever .... However, This things could' ve been different. we are to be sensitive to their needs ... with that sensitivity class!!!!! filmed inside [ the Corrections Center] with several of the current was inmates ... even a person sentenced to life!!!!! Phyllis Cherry http:// theifproject.com/ CP at 352. Cherry' s e -mail referenced a "[ s] ensitivity" training class that the Corrections Center required all personnel to take as a result of misconduct between officers and female inmates. In response to this e -mail, Superintendent Cole ordered an investigation about Cherry' s unprofessional e[- ] mail" regarding the " IF Project." CP at 417. During the investigation, Cherry explained that she believed the " IF Project" was a great program and thought staff should know about it; she intended " to give information out and notify staff that this is a really good project." 3 CP at 419. The " IF Project" would have She asserted that she had sent the e -mail, not as a shop steward, but as asked changed inmates, " the path that If there was something someone could have said or done that lead you here, El what would it have been ?" CP at 350. No. 43604 -3 - II Correctional Officer Phyllis to related use, union business." Superintendent Cole Cherry." CP at 678. authorized CP at 424. She also added that " the e -mails [ were] not During this second investigation of Cherry' s DOC e -mail suspending DOC Cherry' s e -mail and intranet account. On Superintendent Cole issued a letter of reprimand for Cole' s personnel file, December 2, stemming from her " unprofessional e[ -] mail to all custody staff on two occasions." CP at 160. II. UNFAIR LABOR PRACTICE COMPLAINT Cherry, represented by the Union, filed an unfair labor practice complaint with PERC, alleging that the DOC interfered with employee rights and discriminated against Cherry in suspending her DOC online account, violating Washington law. In April 2010, a PERC hearing examiner heard testimony at an administrative hearing regarding Cherry' s unfair labor practice complaint. The hearing examiner ruled in favor of Cherry and the Union. PERC reversed the hearing examiner' s decision, reinstated the reprimand letter in Cherry' s personnel file, vacated the hearing examiner' s findings and conclusions, and issued its own findings Center staff advocate and It found, among other things, that Cherry had sent the Correction and conclusions. two one advising them of the Correction Center' s new inmate victim e- mails her salary and the other informing them of the " IF Project." PERC concluded that neither e -mail fell under the public employees' collective bargaining protection of chapter 41. 80 RCW. 4 Accordingly, PERC concluded that the DOC did not discriminate against Cherry or violate state law; and it dismissed her unfair labor practice complaint. 4 Specifically, PERC concluded, " Cherry' s actions [ in sending the two e -mails at issue] were not CP at 580. PERC determined that the e -mails did by [ not involve the type of actions that the statute protected, such as self organization, forming, In this appeal, DOC organizations, and collective bargaining negotiations. joining, assisting actions protected c] hapter 41. 80 RCW." 5 No. 43604 -3 - II Cherry and the Union appealed PERC' s order to Pierce County Superior Court, which affirmed the PERC' s decision and also dismissed the Cherry appeals the superior complaint. court' s order. ANALYSIS I. DOES WASHINGTON LAW PROTECT " CONCERTED ACTIVITIES "? that PERC The Teamsters first activities" are not protected unless there is in concluding that erred a nexus to union negotiating employees' " concerted or administration.' We decline the Teamsters' invitation to legislate judicially by expanding Washington' s statutory law outlining activities protected for public employees to mirror federal NLRA. the We defer to PERC and affirm its interpretation of Washington law because the plain meaning of the statute' s language as drafted by our legislature clearly does not protect employees' " public concerted activities" from employer interference, restraint, or coercion. argues that discussed no with evidence the shows ( employer or 1) Cherry' s e -mails related to matters that the union had anticipated discussing with the employer, ( 2) the e -mails concerned the administration of a collective bargaining agreement, or ( 3) the e -mails involved union employer negotiations. 5 The Teamsters also argue that the superior court erred in concluding that the union' s right to self organize, under chapter 41. 80 RCW, ended with the union' s PERC certification. Because we do not review superior court appellate decisions in administrative appeals, and instead review only the administrative 77, 11 P. 3d 726 ( 2000), In the private record, see Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, the Teamsters' claim of superior court error is not properly before us. sector statutorily protected " concerted activities" also include collective employee activities for " other mutual aid or protections" regarding injunctions in labor disputes. Briggs v. Nova Servs., 135 Wn. P. 3d 910 ( 2009). App. 955, 964, 147 P. 3d 616 ( 2006), aff'd, 166 Wn.2d 794, 213 But our state legislature has not expressly extended protections for such concerted activities" to public employees. C No. 43604 -3 - II A. Standard of Review and Rules of Law We review a PERC decision in an unfair labor practice case according to Administrative Procedures Act ( APA) 7 standards. Pasco Police Officers' As we conduct our review, we sit in the same position as the 450, 458, 938 P. 2d 827 ( 1997). applying the RCW 34. 05. 570 superior court, 4ss' n v. City of Pasco, 132 Wn.2d standard directly to the agency Pollution, Control Hearings Bd., 142 Wn.2d 68, 77, 11 P. 3d 726 ( 2000). to relief if, among 2) the agency other reasons, ( order is arbitrary record. Postema v. An appellant is entitled 1) the agency has erroneously interpreted or applied the law, or and capricious. RCW 34. 05. 570( 3)( d), ( i). Where a statute is clear on its face, we derive its plain meaning from the statute' s language Ford Motor Co. v. City of Seattle, Exec. Servs. Dep' t, 160 Wn.2d 32, 41, 156 alone. P. 3d 185 ( 2007), cent. denied, 552 U. S. 1180 ( 2008). We accord substantial deference to an agency' s interpretation of law in matters involving the agency' s special knowledge and expertise. Overlake Hosp. Assn v. Dep' t ofHealth, 170 Wn.2d 43, 50, 239 P. 3d 1095 ( 2010). Washington' s legislature enacted RCW 41. 80. 050 to protect public employee rights to unionize and to bargain collectively. It provides that public union employees have the right to self organization, to form, join, or assist employee organizations, and to bargain collectively through representatives of their own choosing for the purpose of collective bargaining free from interference, restraint, or coercion. Employees shall also have the right to refrain from any or all such activities. RCW 41. 80. 050. Our legislature has also enacted state law prohibiting public employers from interfering public with representatives for the employees' of exercise purpose of collective their bargaining. Ch. 34. 05 RCW. I right to organize RCW 41. 56. 040. and designate Our legislature has No. 43604 -3 - II not, however, afforded Washington' s public employees as extensive protections as it has given private sector employees. B. Analysis The Teamsters argue that PERC erroneously interpreted RCW 41. 80. 050 and too narrowly construed what constitutes protected union activity when it ruled that this statute does not protect public employees' concerted activities unless it relates to union activity. 8 We reject the Teamsters' claims and affirm PERC on this issue. The Teamsters claim that PERC erred in determining that state law does not protect concerted The plain language of Washington' s public employee rights statute activities." expressly grants employees the right to organize, form, join, assist in the formation of employee organizations, and employer See RCW 41.,80. 050. collectively bargain. interference with public employees' organizing Another statute prohibits public and collective bargaining. See RCW 41. 56. 040. Neither of these statutes mentions " concerted activities." The federal NLRA, in their right to " contrast, expressly and bargaining or other mutual aid or protection." decades bargaining before our concerted engage in other concerted activities for the purpose of collective . activities" 1935, protects private sector employees' " legislature and protection statutes. 29 U. S. C. § 157. enacted Congress passed the NLRA in Washington' s public employee collective Although Washington' s legislature borrowed much of the NLRA language, it did not choose to incorporate the NLRA language specifically protecting 8 The Teamsters assert that the superior court erred in failing to protect Cherry' s union activity; but we do not consider the superior court' s appellate decisions when we review an agency action in the administrative appeal context. See Postema, 142 Wn. 2d at the Teamsters' related claim that PERC misinterpreted state law. 3 77. Thus, we instead focus on No. 43604- 3- 11 concerted activities" legislature clearly of Washington' opted not 9 s public to protect public On the contrary, the. Washington employees- employees' analogous " concerted activities." And it is not for our court to read such legislatively rejected protections into RCW 41. 80. 050 simply because Congress included such protections in the NLRA, a federal law outlining protections for private- sector employees. Extending deference to PERC, we hold that it did not " erroneously interpret[] or appl[ y] the law" when it evaluated Cherry' s conduct in light of RCW 41. 80. 050' s express protections, and not under the federal NLRA, RCW 41. 80. 050 plainly does which protects private employees' " not protect " concerted activities."' concerted activities." Because the Teamsters do not demonstrate that PERC erred, we affirm PERC' s dismissal of Cherry' s unfair labor practice complaint. II. E -MAILS WERE NOT PROTECTED UNION ACTIVITY Alternatively, the Teamsters argue that PERC erred in concluding that her DOC e -mails were not statutorily protected because overwhelming evidence establishes that they were inextricably linked 9 to her shop steward role and thus were protected union activity. PERC, The federal protection for " concerted activities" is noticeably absent from our state' s version of the analogous statute. Compare: Employees shall have the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining. 29 U. S. C. § 157 ( emphasis added), with: E] mployees shall have the right to self organization, to form, join, or assist employee organizations, and to bargain collectively through representatives of their own choosing for the purpose of collective bargaining. RCW 41. 80. 050. 9 No. 43604 -3 -I1 however, properly concluded that Cherry' s e -mails were unprotected under the applicable statute because the Teamsters failed to establish that Cherry' s e -mails constituted protected union Thus, we affirm PERC' s order dismissing Cherry' s unfair labor practice complaint on activity. this alternative ground as well.lo A. Standard of Review and Rules of Law State law prohibits employers from discriminating or retaliating against a public employee because 41. 80. 110( 1)( c). that employee' s membership of in an employee organization. See RCW To determine whether an employer unlawfully discriminated or retaliated against an employee, PERC first analyzes whether the complainant has outlined a prima facie case by presenting evidence showing that ( 1) the complainant exercised a statutorily protected right, or communicated to the employer an intent to do so; ( 2) the employer deprived the complainant of some ascertainable right, benefit, or status; and ( 3) the exercise of the legal right and discriminatory the action are causally connected. Yakima Police Patrolmen' s Ass' n v. City of Yakima, 153 Wn. App. 541, 554, 222 P. 3d 1217 ( 2009). Because PERC is entitled to substitute its findings for those of the hearing examiner, it is PERC' 552. s findings that are relevant on appeal. Yakima Police Patrolmen' s Ass' n, 153 Wn. App. at We review challenges to PERC' s factual findings for substantial evidence in light of the io The Teamsters also contend that although federal law does not protect unreasonable concerted activity," her DOC e -mails should have been protected as reasonable. But a inquiry is relevant only for protected conduct. See Vancouver Sch. Dist. No. 37 Serv. Emps. Int' l Union, Local 92, 79 Wn. App. 905, 919 -20, 906 P. 2d 946 ( 1995), review reasonableness v. denied, 129 Wn.2d 1019 ( 1996), abrogated on other grounds by City of Federal Way v. Pub. App. 509, 512 -13, 970 P. 2d 752 ( 1998). Because Cherry' s eEmp' mails were not within Washington' s statutorily protected public employee activities, their t Relations Comm' n, 93 Wn. reasonableness is inconsequential. Accordingly, this reasonableness argument lacks merit. 10 No. 43604 -3 - II i. e., whole record, evidence sufficient Police Patrolmen' novo and may Officers' As' ' s of the laws Ass' 153 Wn. n, substitute our n, it s 132 Wn.2d to App. persuade at interpretation at a 552 -53. of minded fair - person of their truth. Yakima We review PERC' s conclusions of law de the law for PERC' s interpretation. Pasco Police Again, we extend great deference to PERC' s interpretation 458. Pub. Emp' t Relations Comm' n v. City of Kennewick, 99 Wn.2d 832, administers. 841 -42, 664 P. 2d 1240 ( 1983). B. Analysis The Teamsters contend that PERC should have found Cherry' s e -mails were linked to her shop steward role and were part of her union efforts, thus legally protected from employer interference. But PERC concluded that chapter 41. 80 RCW did not protect Cherry' s two e -mails and that Cherry failed to establish a prima facie discrimination case under RCW 41. 80. 110; therefore, PERC dismissed her unfair labor practice complaint." In order to determine whether state law protected Cherry' s e- mails, we must first evaluate what actions fall within the class of actions statutorily protected by chapters 41. 80 and 41. 56 RCW. PERC has For activities." the collective concluded example, " bargaining that activities constitute a public employee' s " protected an employee who asserts, or indicates an intent to assert, a violation of agreement, 5, Decision 8850 -A ( PSRA, 2006). 11 various is exercising a protected union activity." Cmty. Coll. Dist. Additionally, an employee' s filing of a grievance or unfair The Teamsters apply an " overwhelming evidence" test in contending that the record supports a conclusion They do that not conclusions legal state appear, that de protected however, to Cherry' conclusions Teamsters' " law s her e- mails. contest Br. of the validity e -mails were not protected. novo. Appellant of 31 ( capitalization omitted). PERC'§ findings, but rather its legal As we note above, we review PERC' s Pasco Police Officers' Ass' n, overwhelming evidence" standard does not apply. 11 at 132 Wn.2d at 458. Thus, the No. 43604 -3 -II labor practice complaint may constitute a protected activity. Mukilteo Sch. Dist., Decision 5899 Union organizing A ( PECB, 1997). Decision 2471 -A ( PECB, 1987). and participating in collective activities are also protected. Asotin County Hous. Auth., And state law protects employees acting as union presidents bargaining negotiations. Oroville Sch. Dist., Decision 6209 -A In each of these examples, the plaintiff employee clearly demonstrated having PECB, 1998). been engaged in statutorily protected union activities related to organizing, filing grievances, or collective bargaining negotiations when the employer interfered. in Here, engaging in grievances,, or connection, union to acknowledged about anything the collective activity, the DOC two Cherry' s contrast, bargaining. Cherry' s or shop DOC that her first union," did e -mails not involve organizing, filing Cherry' s a -mails never mentioned a union steward e -mail " wasn' and was not " union related." To position. t union CP at the contrary, business," " 387. Cherry didn' t mention Because Cherry' s first e- mail, regarding the hiring of an inmate victim advocate, by her own admission, lacked any indicia tying it to union business or Cherry' s role as shop steward, that e -mail was clearly not protected union activity under state law. Similarly, Cherry steward, not but send reiterated union as " this at sent the DOC Correctional Officer Phyllis e -mail for business union her deposition that business." second CP at 678. she e -mail, Cherry." purposes, regarding the " IF Project," not as a shop CP at 424. Again, she stated that she did but simply to inform the staff. She even had told the DOC that " the e -mails [ were] not related to Thus, this second e -mail, like the first, again by Cherry' s own admission, had no direct ties to union activity or business. Therefore, the second e -mail, like the first, was not statutorily protected conduct. 12 No. 43604 -3 - II In unspecific other does PERC has concluded that evidence that is too generalized and contexts, not rise to the level of protected union See Dieringer Sch. Dist., activity. To tie Cherry' s e -mails to union business would require us to Decision 8956 -A ( PECB, 2007). 12 dots. generalize and connect nonexistent No evidence supports an inference that Cherry' s e- mails were intended to further union business, especially against the backdrop of her admission that these emails were unrelated to union business.' 3 Furthermore, we note that not all .communications between a shop steward and fellow employees, represented Washington' 12 s applicable their regarding are employer, protected automatically under Being a shop steward or union official does not give statutes. " The Teamsters reference generalized conclusions, which they contend their overwhelming evidence They supports. note that engaging in protected, Washington law does not protect interests, Cherry concerted public served an effective advocate for employee as " Br. activity." employees' " of concerted Appellant activity." at 35. As noted, The Teamsters also state that employees and management perceived Cherry as " the Union' s lynchpin in terms of the communication and do not tie Cherry' s distribution of information." Br. leader to these role as a union of Appellant e- mails. at 35. , Again, the Teamsters Finally, the Teamsters assert that the DOC' s conduct temporarily suspending Cherry' s DOC online access and issuing a letter of reprimand " Appellant had at a 35. chilling effect on her and other members of the bargaining unit." Br. of Even if true, the Teamsters do not demonstrate how this conclusion is of consequence here. 13 The Teamsters cite the hearing examiner' s findings of fact. Again, we do not review the hearing examiner' s findings. See Yakima Police Patrolmen' s Ass' n, 153 Wn. App. at 552. Instead, we review PERC' s decisions, including its findings of fact. The Teamsters Cherry' state, "[ s emails as actions Teamsters, however, I] n issuing the letter of reprimand, the Employer expressly viewed taken in her mischaracterize role ` as a the record. shop steward. "' Br. of Appellant at 36. The In the letter of reprimand, Superintendent Cole As a Shop Steward and your position and role as a correctional professional, your conduct CP at 378. Superintendent Cole simply stated that Cherry' s negatively on you." conduct reflected poorly on her as a leader, a shop steward and correctional officer. said; " reflected 13 No. 43604 -3 -II employees carte blanche to engage in behavior that would ordinarily lead to discipline. "14 Univ. of Wash., Decision 11199 ( PSRA, 2011) ( protected rights disrespectful" when a e- mail). shop steward ruling that employer did not interfere with employee' s was disciplined for sending an " insubordinate and Ultimately, absent any connection between Cherry' s DOC e -mail communications and union business, we cannot conclude that these e -mails were statutorily protected activities. constitute protected Therefore, we affirm PERC' s conclusion that Cherry' s e -mails did not activity under state law. 15 14 The Teamsters contend that PERC has historically protected public employee conduct when is " a slight connection to union activity." Br. of Appellant at 31. They cite Renton Technical Coll., Decision 7441 -A (CCOL, 2002), and Clallam County, Decision 4011 ( PECB, there 1992). But Renton Technical Coll. involved a public employer' s adverse actions against a union employee after the public employee contacted a legislator seeking information to assist the union In Clallam County, an employer disciplined a public employee after the employee made derogatory remarks about the in its negotiations and after he filed grievances against his employer. employer' s recent management decisions that were contrary to the union' s stance on that issue. There, PERC concluded that the public employee' s comments were protected because they were made in the midst of contract negotiations and responded to a county resolution that the union had publicly opposed. Unlike Renton Technical Coll. and Clallam County, here, Cherry' s DOC-. originated e -mails had no direct connection with union activity. 15 The Teamsters also argue that substantial evidence supports the hearing examiner' s conclusion that the DOC improperly interfered with protected union activity. Because we do not review the hearing examiner' s conclusions, see Yakima Police Patrolmen' s Ass' n, 153 Wn. App. at 552, this claim is not properly before us. 14 No. 43604 -3 -II We affirm PERC' s dismissal of Cherry' s unfair labor practice complaint. i. J We con cur: N Worswick, C. J. 15

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