                                                                                                                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.                           117,   a                      No. 43604 -3 - II
Washington        State     labor    organization,     and

PHYLLIS CHERRY,


                                      Appellants,


           V.



STATE OF WASHINGTON DEPARTMENT                                               PUBLISHED OPINION
OF CORRECTIONS, Employer, and PUBLIC
EMPLOYMENT RELATIONS
COMMISSION,




           JOHANSON, J. —         This is a case of first impression in which we are asked to determine

whether chapter      41. 80 RCW       protects public employees' "       concerted activities"'        from employer


interference,    restraint, or coercion.        We hold that Washington' s public employee rights statute


clearly does     not protect public       employees' "     concerted activities."    Teamsters Local Union No.




1"
      Concerted activities" are activities undertaken by employees, jointly with one another, for the
purpose of      improving    their working conditions. Bravo v. Dolsen Cos., 125 Wn.2d 745, 752, 888

P. 2d 147 ( 1995).        Unlike the federal National Labor Relations Act (NLRA), 29 U. S. C. §§ 151-
169,     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
     Cherry   and   the Union       are   both     plaintiffs   in this
                                                         Cherry filed the unfair labor practice
                                                                          suit.


 complaint, and Cherry was the only party listed in PERC' s order, though throughout the action
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



                                                 1. "    CONCERTED ACTIVITIES"


                                        A. August 2009, No Immediate Sanctions


         In August 2009;              Cherry     logged into the DOC'            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'   s   Papers ( CP)     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       allegations       that   Cherry       had    committed misconduct         by   sending "   an unprofessional




e[- ] mail"    to DOC       staff.    CP    at   379.     Correctional Captain Michael Green interviewed Cherry,

who acknowledged, "               This [ e -mail]       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,                Cherry     learned     about     a   Corrections Center      program,   the " IF


             3
Project. ,        CP   at   637.    Cherry e- mailed all Corrections Center custody staff, again from her DOC

computer:



           Check this out! !!


           Now tell me why we are being sensitive when they have projects like this going
            on.    Inmates telling their stories as to how they made bad choices and ways to
            change    their lives. Inmates are trying to help others by telling that if they had

           whatever ....        things could' ve been different.


            However,        we are    to be   sensitive   to their   needs ...   with that sensitivity class!!!!!

            This    was      filmed inside [ the Corrections Center] with several of the current
            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."         CP   at   419.     She asserted that she had sent the e -mail, not as a shop steward, but as



3
    The " IF Project"         asked    inmates, "   If there was something someone could have said or done that
would      have    changed         the path that   lead you here,         what would      it have been ?" CP at 350.




                                                                     El
No. 43604 -3 - II



 Correctional Officer Phyllis             Cherry."       CP     at   424.    She also added that " the e -mails [ were] not


related   to    union   business."    CP    at   678.   During this second investigation of Cherry' s DOC e -mail

use,   Superintendent Cole           authorized     suspending         Cherry' s     DOC   e -mail and    intranet   account.   On


December 2,            Superintendent Cole issued a letter of reprimand for Cole' s personnel file,

                                                                                                two                  CP at 160.
stemming from her " unprofessional                 e[ -] mail   to   all   custody   staff on         occasions."




                                      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      and conclusions.         It found, among other things, that Cherry had sent the Correction

Center        staff   two   e- mails —   one advising them of the Correction Center' s new inmate victim

advocate and          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
          4
RCW.           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
 actions protected by [         c] hapter       CP at 580. PERC determined that the e -mails did
                                            41. 80 RCW."
not involve the type of actions that the statute protected, such as self - organization, forming,
joining, assisting  organizations, and collective bargaining negotiations.  In this appeal, DOC



                                                                      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             complaint.        Cherry appeals the superior

court' s order.



                                                            ANALYSIS


                        I. DOES WASHINGTON LAW PROTECT " CONCERTED ACTIVITIES "?


         The Teamsters first                       that PERC           erred     in concluding that          employees' "      concerted



activities"   are not protected unless             there   is   a nexus     to      union   negotiating      or administration.'    We


decline the Teamsters' invitation to legislate judicially by expanding Washington' s statutory law

outlining     protected       activities   for public      employees           to   mirror    the    federal NLRA.       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        public   employees' "      concerted




activities" from employer interference, restraint, or coercion.




argues   that      no   evidence      shows (      1)   Cherry' s e -mails related to matters that the union had
discussed      with     the    employer      or    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             record, see     Postema       v.   Pollution Control Hearings Bd., 142 Wn.2d 68,
77, 11 P. 3d 726 ( 2000),           the Teamsters' claim of superior court error is not properly before us.

   In the      private     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.            App.      955, 964, 147 P. 3d 616 ( 2006),                 aff'd, 166 Wn.2d 794, 213
P. 3d 910 ( 2009).            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
                                  7
Procedures Act ( APA)                 standards.   Pasco Police Officers'          4ss' n v. City of Pasco, 132 Wn.2d

450, 458, 938 P. 2d 827 ( 1997).               As we conduct our review, we sit in the same position as the


superior court,     applying the RCW 34. 05. 570              standard     directly   to the agency   record.   Postema v.


Pollution, Control Hearings Bd., 142 Wn.2d 68, 77, 11 P. 3d 726 ( 2000).                         An appellant is entitled


to   relief   if, among   other reasons, (      1) the agency has erroneously interpreted or applied the law, or

 2) the agency      order   is arbitrary      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       alone.    Ford Motor Co. v. City of Seattle, Exec. Servs. Dep' t, 160 Wn.2d 32, 41, 156
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       with    public         employees'    exercise       of   their   right   to   organize   and    designate


representatives         for the       purpose of collective   bargaining.      RCW 41. 56. 040.       Our legislature has




     Ch. 34. 05 RCW.



                                                                  I
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     activities."      The plain language of Washington' s public employee rights statute


expressly grants employees the right to organize, form, join, assist in the formation of employee

organizations, and       collectively bargain.            See RCW 41.,80. 050.       Another statute prohibits public


employer      interference    with public employees'           organizing    and collective        bargaining.        See RCW


41. 56. 040. Neither of these statutes mentions " concerted activities."


         The federal NLRA, in               contrast,   expressly    protects private sector employees' "             concerted




activities"    and   their   right   to "   engage in other concerted activities for the purpose of collective .


bargaining     or other mutual aid or protection."              29 U. S. C. § 157.         Congress passed the NLRA in


1935,    decades      before     our        legislature    enacted    Washington' s public              employee      collective


bargaining     and protection statutes.            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    77. Thus, we instead focus on
the Teamsters' related claim that PERC misinterpreted state law.


                                                                3
No. 43604- 3- 11



                                                                         9
 concerted     activities"   of   Washington'   s public    employees-        On the contrary, the. Washington

legislature clearly    opted not    to protect public   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,       which     protects    private   employees' "    concerted    activities."




RCW 41. 80. 050 plainly does          not protect " 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

                          to her shop                                                                           PERC,
inextricably linked                      steward     role   and   thus were     protected   union   activity.




9
    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

activity.         Thus, we affirm PERC' s order dismissing Cherry' s unfair labor practice complaint on

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    of   that employee' s membership           in   an   employee    organization.    See RCW


41. 80. 110( 1)(      c).    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    the       discriminatory     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'        s    findings that    are relevant on appeal.       Yakima Police Patrolmen' s Ass' n, 153 Wn. App. at

552.     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
reasonableness   inquiry is relevant only for protected conduct. See Vancouver Sch. Dist. No. 37
v.   Serv. Emps. Int' l Union, Local 92, 79 Wn. App. 905, 919 -20, 906 P. 2d 946 ( 1995), review
denied, 129 Wn.2d 1019 ( 1996),                    abrogated on other grounds by City of Federal Way v. Pub.
Emp'     t   Relations Comm'  App. 509, 512 -13, 970 P. 2d 752 ( 1998). Because Cherry' s e-
                                     n,   93 Wn.
mails were not within Washington' s statutorily protected public employee activities, their
reasonableness is inconsequential. Accordingly, this reasonableness argument lacks merit.

                                                                  10
No. 43604 -3 - II



whole record,         i. e.,       evidence sufficient            to   persuade        a    fair -
                                                                                                 minded      person of         their truth.    Yakima


Police Patrolmen'              s   Ass'   n,      153 Wn.      App.    at   552 -53.        We review PERC' s conclusions of law de


novo and     may       substitute our               interpretation          of   the law for PERC'           s   interpretation.        Pasco Police


Officers' As' '
            s        n,   132 Wn.2d                at   458.    Again, we extend great deference to PERC' s interpretation


of   the laws   it   administers.                 Pub. Emp' t Relations Comm' n v. City of Kennewick, 99 Wn.2d 832,

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                 concluded            that   various      activities      constitute      a public         employee' s "    protected




activities."    For       example, "              an employee who asserts, or indicates an intent to assert, a violation of


the   collective      bargaining              agreement,         is exercising         a protected union              activity."     Cmty. Coll. Dist.

5, Decision 8850 -A ( PSRA, 2006).                              Additionally, an employee' s filing of a grievance or unfair



11
     The Teamsters apply an " overwhelming evidence" test in contending that the record supports a
conclusion      that      state         law    protected       her   e- mails.        Br.   of   Appellant       at   31 (   capitalization omitted).

They    do   not     appear,            however, to            contest   the validity            of   PERC'§ findings, but rather its legal
conclusions        that        Cherry'        s   e -mails were not protected.                    As we note above, we review PERC' s
legal   conclusions                de    novo.          Pasco Police Officers' Ass'                    n,   132 Wn.2d           at   458.    Thus, the
Teamsters' "         overwhelming evidence" standard does not apply.

                                                                                 11
No. 43604 -3 -II




labor practice complaint may constitute a protected activity. Mukilteo Sch. Dist., Decision 5899 -

A ( PECB, 1997).            Union organizing               activities are also protected.                 Asotin County Hous. Auth.,

Decision 2471 -A ( PECB, 1987).                      And state law protects employees acting as union presidents

and   participating in        collective        bargaining       negotiations.         Oroville Sch. Dist., Decision 6209 -A


 PECB, 1998).             In each of these examples, the plaintiff -
                                                                   employee clearly demonstrated having

been engaged in statutorily protected union activities related to organizing, filing grievances, or

collective bargaining negotiations when the employer interfered.

         Here,      in     contrast,      Cherry' s        two    DOC       e -mails     did        not    involve     organizing,    filing

grievances,, or       engaging in         collective        bargaining.       Cherry' s a -mails never mentioned a union

connection,        union     activity,     or    Cherry' s        shop    steward        position.          To   the    contrary,    Cherry

acknowledged          to    the    DOC that her first              e -mail " wasn'       t    union       business," "    didn' t mention


anything     about    the    union,"      and was not " union related."                  CP    at   387.    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              sent   the   second      DOC     e -mail,   regarding the " IF Project," not as a shop


steward,     but   as "   Correctional Officer Phyllis             Cherry."         CP   at   424. Again, she stated that she did


not   send   this    e -mail      for   union    business        purposes,    but simply to inform the                   staff.   She even


reiterated    at   her deposition that               she   had told the DOC that " the e -mails [ were] not related to


union   business."          CP    at    678.    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    other           contexts,         PERC has concluded that evidence that is too generalized and

unspecific        does           not   rise    to the level        of protected             union        activity.        See Dieringer Sch. Dist.,


Decision 8956 -A ( PECB, 2007).                             To tie Cherry' s e -mails to union business would require us to
                                                                        12
generalize and connect nonexistent                              dots.         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

represented                employees,             regarding        their       employer,              are    automatically              protected     under




Washington'            s    applicable            statutes. "     Being a shop steward or union official does not give




12
     The Teamsters reference generalized conclusions, which they contend their overwhelming
evidence         supports.              They       note   that    Cherry           served      as "    an effective advocate for employee
                                                                                                      Br.        Appellant               35.   As noted,
         engaging in protected,
interests,                                                     concerted           activity."               of                     at

Washington law does not protect                             public       employees' "           concerted        activity."       The Teamsters also

state that employees and management perceived Cherry as " the Union' s lynchpin in terms of the
communication and                      distribution       of    information."            Br.   of   Appellant        at   35. , Again, the Teamsters
do   not   tie   Cherry' s           role as a union           leader to these           e- mails.       Finally, the Teamsters assert that the
DOC' s conduct temporarily suspending Cherry' s DOC online access and issuing a letter of
reprimand "        had           a   chilling      effect   on    her        and    other   members          of the       bargaining       unit."     Br. of
Appellant         at       35.       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                    state, "[   I] n issuing the letter of reprimand, the Employer expressly viewed
                                                   taken in     her                                                  Br.    of   Appellant     at   36.   The
Cherry'     s emails as actions                                         role ` as a       shop   steward. "'

Teamsters, however,                     mischaracterize           the    record.         In the letter of reprimand, Superintendent Cole
      As a Shop Steward and your position and role as a correctional professional, your conduct
 said; "

reflected negatively on you."     CP at 378.     Superintendent Cole simply stated that Cherry' s
 conduct reflected poorly on her as a leader, a shop steward and correctional officer.



                                                                                    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) (             ruling that employer did not interfere with employee' s

protected   rights   when      a    shop   steward   was       disciplined for sending          an "   insubordinate   and


disrespectful"     e- mail).       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.     Therefore, we affirm PERC' s conclusion that Cherry' s e -mails did not
                                                          15
constitute protected      activity   under state   law.




14
  The Teamsters contend that PERC has historically protected public employee conduct when
thereis " 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,
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 its   negotiations   and after     he filed   grievances          In Clallam County, an
                                                                    against   his   employer.

employer disciplined a public employee after the employee made derogatory remarks about the
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
