Female Prison Guard Shop Steward Appeals PERC Ruling

A Washington state court of appeals considered a decision by the Public Employment Relations Commission (PERC) on whether an agency has erroneously interpreted or applied the law, or whether an agency order is arbitrary and capricious. The court was asked to determine whether state law protects public employees' “concerted activities.” State law provides “concerted activities” are activities undertaken by employees jointly and with one another for the purpose of improving their working conditions. State law is unlike the federal National Labor Relations Act (NLRA act) which applies to private sector employees and expressly protects “concerted activities.” The Washington Public Employee Rights statute does not expressly protect public employees' “concerted activities.”

Phyllis Cherry was a prison guard at the Washington Corrections Center for Women (Corrections Center) and shop steward for Teamsters Local Union No. 117. As shop steward, Cherry acts as a contact, information source, and advocate for Corrections Center union employees.

In August 2009, Cherry used her DOC computer to send an e-mail to all Corrections Center staff informing them that a former state senator was hired as an inmate advocate for victims of staff sexual misconduct. The e-mail linked to a news article that showed the advocate’s salary.

Within a month of Cherry's e-mail, the Corrections Center superintendent instigated an investigation that Cherry had committed misconduct by sending an unprofessional e-mail to DOC staff. Cherry claimed the e-mail was not union related, that she only wanted to be informative with Corrections Center staff. DOC pursued nothing further against Cherry.

In October 2009, Cherry learned of the “If Project,” which asked inmates “If there was something someone could have said or done that would have changed the path that led you here, what would it have been?”

Cherry again e-mailed Corrections Center staff on a DOC computer, giving information about the “If Project” and a sensitivity training class that all personnel were required to take as a result of misconduct between officers and female inmates.

The superintendent ordered an investigation about Cherry's unprofessional e-mail regarding the “If Project.” Cherry again stated the e-mail was not related to union business. The superintendent authorized suspending Cherry's DOC e-mail and internet account. On December 2, 2009, the superintendent issued a letter of reprimand for Cherry's personnel file and for her unprofessional e-mail to all staff on two occasions.

Cherry filed an unfair labor practice complaint with the PERC alleging that the DOC interfered with employee rights. In April 2010, a hearing examiner ruled in favor of Cherry and the union. PERC reversed that ruling, reinstated the reprimand letter in Cherry's file, and issued its own findings concluding that the DOC did not discriminate against Cherry or violate state law. Because the Teamsters did not demonstrate that PERC erred, the court deferred to the interpretation of state law which does not protect public employees “concerted activities.”

Washington law protects employees acting as union presidents and participating in collective bargaining negotiations where the plaintiff-employee clearly demonstrates engaging in statutorily protected union activities related to bargaining, filing grievances, or collective bargaining negotiations when the employer interfered.

PERC ruled Cherry's two e-mails did not involve protected union activities. The e-mails never mentioned a union connection, union activity, or Cherry's shop steward position. During the investigation, Cherry stated the e-mails were not union related. Therefore, the e-mails were “not statutorily protected conduct.”  

The Washington State Court of Appeals affirmed the PERC conclusion that Chery's e-mails did not constitute protected activity under state law. See: Teamsters Local Union No. 117 v. Dep't of Corr., 179 Wn. App. 110 (Wash. Ct. App. 2014).

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