Clackamas County Employees' Assn. v. Clackamas County ( 2020 )

146
Argued and submitted July 8, reversed and remanded December 23, 2020
CLACKAMAS COUNTY
EMPLOYEES’ ASSOCIATION,
Petitioner,
v.
CLACKAMAS COUNTY,
Respondent.
Employment Relations Board
UP01018; A170373
480 P3d 993
Petitioner—a labor union—seeks judicial review of an Employment Relations
Board (ERB) order dismissing its unfair labor practice claims under ORS
243.672(1)(a). ERB dismissed the claims after it determined that a union rep-
resentative’s unprofessional email to a supervisor for which he was disciplined
was not union advocacy protected by the statute. Petitioner contends that ERB’s
order lacks substantial reason because, in determining that the email was not
protected activity, ERB did not give substantial weight to the context in which
it was sent. Additionally, petitioner argues that ERB erred in determining that,
because the email was unprotected activity, disciplining the representative for
sending it would not have had the natural and probable effect of deterring employ-
ees from engaging in protected activity. Held: Although ERB’s determination
that the email was unprotected activity was supported by substantial reason, it
erred in concluding that the representative’s discipline would not have deterred
other employees simply because the email was unprotected. Even if an employ-
ee’s activity is itself unprotected, an employer can still violate ORS 243.672(1)(a)
if, objectively viewed under the particular circumstances, the employer’s actions
would have the natural and probable effect of chilling employees in the exercise of
their protected rights. On remand, ERB must apply the appropriate test.
Reversed and remanded.
Kevin Keaney argued the cause and filed the brief for
petitioner.
Andrew M. Narus argued the cause and filed the brief for
respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
Reversed and remanded.
Cite as 308 Or App 146 (2020) 147
KAMINS, J.
This case requires us to determine whether an
employer’s decision to discipline an employee labor rep-
resentative for acting unprofessionally during what the
employee reasonably perceived to be protected labor activ-
ities amounts to an unfair labor practice under the Public
Employee Collective Bargaining Act (PECBA). Because we
conclude that the Employment Relations Board (ERB) mis-
applied the law, we reverse ERB’s decision and remand for it
to correct the error.
I. BACKGROUND
We spend some time with the timeline of facts,
taken from ERB’s findings and the record, because context
is critical. Morales, an elected member of the Clackamas
County Employees’ Association (the Association), frequently
represented county employees in disciplinary matters. From
late 2017 to early 2018, he represented a union member, EZ,
during two contentious disciplinary matters involving a
manager, Dooley. The first matter related to events in late
2017 and did not end favorably for EZ. In that matter, Dooley
and another manager, King, conducted an investigative
interview with EZ, represented by Morales, on December
13, 2017. Dooley issued a notice of proposed suspension to
EZ on January 4, 2018. On January 9, Dooley conducted a
mitigation meeting with EZ and Morales regarding the pro-
posed suspension.
Approximately two weeks later, on January 24,
another notice of investigative interview on a separate new
matter was issued against EZ. That interview was held the
next day, on January 25, where a similar scene played out:
Morales again represented EZ in an investigative interview
with Dooley and King. That same day, Dooley emailed the
final decision in the first case and officially issued a suspen-
sion for EZ. Morales responded that day via email to Dooley
and others expressing his frustration with inaccuracies in
the notice of suspension and other errors in the proceedings
that he attributed to Dooley.1 Dooley forwarded this email to
1
That email stated, in pertinent part:
“You send out meeting letters with the wrong month and you send out a sus-
pension notice with two days instead of one.
148 Clackamas County Employees’ Assn. v. Clackamas County
the county’s Human Resources Department because of her
belief that it was unprofessional. Human Resources did not
discipline Morales, but did send him an email expressing
dissatisfaction with his tone and requesting that he read
future emails before sending them.2 Morales forwarded that
email to Association officers and again expressed his frus-
tration over the manner and quality of Dooley’s handling of
disciplinary proceedings and his concern over the impact
of those errors on the Association’s ability to represent
employees.
Over three weeks passed after this heated email
spate while EZ and Morales were waiting for the outcome of
the second investigation. At some point during the week of
February 18, King verbally informed EZ (but not Morales)
that management had decided not to impose any discipline
against him. Morales, however, continued to believe that
the second proceeding—and his representation of EZ—was
ongoing. That same week, King announced her resignation
from the county. EZ forwarded that announcement email to
Morales with the letters “FYI” and a smiley face. Morales
responded, “You think she got tired of ‘Looney’ Dooley”
and copied Dooley on the response. Dooley again forwarded
Morales’s email to Human Resources, stating “Wow, such
professionalism.” This time, Human Resources decided to
initiate disciplinary proceedings.
At the hearing before ERB, Morales explained
that he was still “waiting for the response” on the second
disciplinary matter and he worried that management was
“THIS IS UNPROFESSIONAL...AND INCOMPETENT.
“In the future please read what you [are] sending out BEFORE you send it.”
Dooley forwarded that email with the following text: “I guess this email sates
[sic] it all. How about the unprofessional email. I really am tired of this bullying
and intimidation that he is allowed to get away with. Leslie will follow up with
an email around our investigation today. Thanks.”
2 .
That email stated:
“I know that having [a] respectful and professional work environment is
important to you and me, as well as CCEA and the County as a whole; how-
ever, I must say that the content and tone of your email below was not called
for, nor was it conducive to a collaborative and respectful working relation-
ship and environment. In line with the advice you provided to * * * Dooley,
please read what you are sending before you send it. We can talk more about
this if you wish.”
Cite as 308 Or App 146 (2020) 149
intentionally delaying a decision to “keep [EZ] stressed out,
to keep something over his head.” According to Morales, in
his experience, Dooley “only moves when you really push a
little or send a message.” The county issued a written rep-
rimand, concluding that Morales violated various profes-
sionalism provisions of County Personnel Ordinances. The
Association, on Morales’s behalf, appealed the reprimand to
ERB.
Before ERB, the Association contended that the
reprimand was an unfair labor practice in violation of
ORS 243.672(1)(a) because Morales was punished for his
involvement in protected union activity. In the alternative,
it contended that the reprimand for his engagement in the
exercise of union activity would chill employees from par-
ticipating in protected activity. ERB disagreed, rejecting
the notion that the email was protected activity in the first
place because nothing about it related to Morales’s role as
a union representative. As far as chilling other employees,
ERB concluded that “in light of” its determination that the
email was not protected activity, the “reprimand would not
have the natural and probable effect of deterring employ-
ees from engaging in protected activity.” The Association
renews its arguments on appeal.
II. STANDARD OF REVIEW
We review ERB’s order for substantial evidence
and substantial reason. ORS 183.482(8)(c). “Substantial evi-
dence to support a finding of fact is evidence that, viewing
the record as a whole, would permit a reasonable person to
make that finding.” Portland Assn. Teachers v. Mult. Sch.
Dist. 1, 171 Or App 616, 627, 16 P3d 1189 (2000). Substantial
reason requires us to review the reasoning that led ERB
from those facts to its conclusions and evaluate whether
that reasoning reflects a correct interpretation of the law.
Id.III. ANALYSIS
Public employees have the right to “participate in
the activities of labor organizations * * * for the purpose of
representation and collective bargaining.” ORS 243.662.
ORS 243.672(1)(a) protects that right by making it an
150 Clackamas County Employees’ Assn. v. Clackamas County
unfair labor practice for a public employer to “[i]nterfere
with, restrain or coerce employees in or because of the exer-
cise of” those rights. As we have observed, the text of ORS
243.672(1)(a) encompasses “two distinct prohibitions:” one
that protects employees from interference, restraint or coer-
cion “because of” protected activity and one that protects
employees from interference, restraint, or coercion “in” the
exercise of protected activity. Portland Assn. Teachers, 171
Or App at 623. The “because of” prong hinges on the motive
behind the employer’s action whereas the “in” prong hinges
on the consequences of that action. Id.
A. “Because of” Claim
It is undisputed that the county took an adverse
employment action (a written reprimand) because of
Morales’s email. The county contends however—and ERB
concluded—that the county was authorized to punish
Morales for sending the email because it was not protected
activity in the first place.
The Association responds that the email was part
and parcel of Morales’s role as a union representative.
Morales was actively representing EZ in one investigation
and had just completed representation of EZ in another.
Indeed, the first investigation was very contentious, and
Morales had not been shy about expressing his unvar-
nished views that Dooley mishandled the investigation
and obstructed Association activities.3 The Association also
points out that Morales and Dooley work in completely dif-
ferent sections of the county and had no social relationship
outside the county; meaning that the only reason Morales
would have for including Dooley on the email would be in his
capacity as a union representative.
In reviewing ERB decisions, we are mindful that
“the legislature has delegated to ERB the authority to deter-
mine the range of activities” that are protected by PECBA.
Central School Dist. 13J v. Central Education Assoc., 155 Or
App 92, 94, 962 P2d 763 (1998) (citing Springfield Education
3
Morales explained his aggressive strategy to Association members in his
January 29 email: “Maybe, some feathers were ruffled enough to encourage a
change.”
Cite as 308 Or App 146 (2020) 151
Assn. v. School Dist., 290 Or 217, 228, 621 P2d 547 (1980)).
Taking that together with our deferential standard of review,
although a close call, we conclude that ERB’s determination
that the email is not protected activity is supported by sub-
stantial evidence.
The email contained only six words that can read-
ily be characterized as an insult to Dooley, an insult that
Morales forwarded to Dooley herself. Nothing in the content—
as opposed to the context—of the email had anything to do
with any investigation for which Morales was serving as a
union representative. Although Morales would only have
reason to email Dooley because of his work as a union rep-
resentative, that fact does not insulate all communications
with her from discipline. Given the lack of other content in
the email and the temporal distance between the email and
any other union-related communications, ERB’s conclusion
that the insult was not factually connected to Morales’s
work as a union representative is permissible. In light of
that, ERB’s determination that an email unrelated to union
activity is not protected is supported by substantial reason.4
B. “In” Claim
Turning to the “in the exercise” claim, our focus
shifts from the motive behind the county’s action to the
likely effect of the county’s action. AFSCME Council 75 v.
4
Part of the reason that this is a close call is that the text of the email is not
the only consideration. Federal cases interpreting the National Labor Relations
Act (NLRA) have emphasized the importance of viewing insulting or offensive
remarks in the greater context of the employer-employee relationship to deter-
mine whether they are protected activities. See, e.g., Reef Indus., Inc. v. N.L.R.B.,
952 F2d 830, 838 (5th Cir 1991) (concluding that the act of sending a t-shirt with
a cartoon mocking management to a supervisor was a protected activity under
the NLRA because, when considered in context with events occurring during
the parties’ labor dispute, there was evidence that the cartoon related to union
activities); see also Leasco, Inc., 289 NLRB 549, 552 (1988) (employee who tells
his supervisor he will “kick [his] ass” in the context of a workplace complaint is
protected). Although we are not bound by federal case law, we do look to cases
interpreting the NLRA as persuasive authority and observe that several con-
textual factors support the Association’s position. Portland Assn. Teachers, 171
Or App at 631 n 6 (because the PECBA was adopted to model the NLRA, court
looked to “cases decided under the federal act—and particularly to cases decided
before 1973, the year in which PECBA was adopted—for guidance in interpreting
PECBA”). Indeed, the facts here are close enough that had ERB determined that
the email did amount to protected activity, we would conclude that substantial
evidence supported that decision as well.
152 Clackamas County Employees’ Assn. v. Clackamas County
Josephine County, 234 Or App 553, 559, 228 P3d 673 (2010).
Accordingly, the question is whether that action, “objectively
viewed * * * under the particular circumstances[,] would
chill [Association] members generally in their exercise of
protected rights.” Id. at 560. We conclude that ERB’s resolu-
tion of this claim is not supported by substantial reason.
Our substantial reason review requires us to deter-
mine whether ERB has “articulate[d] a rational connection
between the facts and the legal conclusions it draws from
them.” Fuller v. Dept. of Public Safety Standards, 299 Or
App 403, 413-14, 452 P3d 450 (2019) (citing Jenkins v. Board
of Parole, 356 Or 186, 195, 335 P3d 828 (2014)). An order
that fails to consider the facts necessary to reach that con-
clusion lacks substantial reason. Kay v. Employment Dept.,
284 Or App 167, 175, 391 P3d 969 (2017).
ERB rejected the Association’s “in” claim con-
cluding that, “in light of [its] finding that Morales was not
engaged in protected activity,” the county’s imposition of
discipline “would not have the natural and probable effect
of deterring employees from engaging in protected activity.”
As both parties acknowledge, contrary to ERB’s apparent
rationale, however, an “in” claim does not require the exis-
tence of a protected activity. Although establishing that the
county acted because of an employee’s protected activity
would be one way to mount an “in” the exercise claim, it is
not the only one. Indeed, as ERB itself has recognized, an
employer action “that might otherwise be lawful can never-
theless violate [the ‘in the exercise’ clause] depending on
the timing and circumstances.” Crook County Firefighters
Association, IAFF Local 5115 v. Crook County Fire and
Rescue, UP-011-18, ___ PECBR ___, ___ (Dec 5, 2019) (citing
Portland State University Chapter American Association of
University Professors v. Portland State University, 26 PECBR
438, 450 (2015)). Specifically, an employer could violate the
“in” clause by “present[ing] an entirely lawful act in such a
way that reasonably leads others to believe it was unlaw-
fully based on protected activity.” Eugene Charter School
Professionals, AFT, AFL-CIO v. Ridgeline Montessori Public
Charter School, 23 PECBR 316, 331 n 13 (2009). In other
words, the analysis is laser-focused on the natural and
Cite as 308 Or App 146 (2020) 153
probable effect of the employer’s actions on employees’ will-
ingness to engage in protected activity, not on whether the
employee engaged in protected activity.
In a footnote, ERB acknowledged that “engagement
in protected activity is not always an element of an ‘in’ claim”
but observed that “the Association does not allege, and there
is no evidence establishing, that the county engaged in
other conduct, such as discussing Morales’s discipline with
other county employees, that would naturally and probably
deter employees from engaging in protected activity.” This
formulation also misstates the legal framework. The stan-
dard, which is an objective one, does not turn on whether
anyone other than the disciplined employee was aware of
the employer’s action. The question is simply whether, from
an objective standpoint and in the context of the surround-
ing circumstances, the employer’s action would have the
natural and probable effect of chilling a union member
from exercising the member’s protected rights. Clackamas
County Employees’ Assn. v. Clackamas County, 243 Or App
34, 40, 259 P3d 932 (2011). In other words, an assessment of
whether the employer’s action would have the type of deter-
rent effect prohibited by ORS 243.672(1)(a) does not turn on
whether the employer took the action without publicizing it
to other employees.
For example, in a previous case involving this
same union representative, the Clackamas County District
Attorney threatened to remove Morales from a meeting
unless he stopped “smirking.” Id. at 37. The county argued
that, although Morales had the right to participate in the
meeting, he did not have the right to engage in “rude con-
duct.” Id. at 41. We disagreed, in part, because, “[b]y exert-
ing that level of control over Morales’s participation in the
meeting, the district attorney’s statement was objectively
likely to chill employees from exercising protected rights.”
Id. at 43. In reaching that result, we focused on the nature
of the county’s conduct, an analysis that did not turn on
whether the district attorney’s actions were known to any-
one beyond the employee at whom they were directed (even
though, in that case, the union representative was not sub-
jectively chilled from continuing protected activity).
154 Clackamas County Employees’ Assn. v. Clackamas County
On remand, ERB must apply the test for an “in”
claim; that is, ERB must determine “whether, objectively
viewed, the action that the employer took under the partic-
ular circumstances would chill union members generally in
their exercise of protected rights.” Portland Assn. Teachers,
171 Or App at 624 (emphasis added). Specifically, ERB
must evaluate the “particular circumstances” and deter-
mine whether, in light of those circumstances, the disci-
pline imposed would have the natural and probable effect
of deterring Morales or other employees in the exercise of
protected activity.
As should be clear, that question is not one that
can be answered solely by reference to the text of the email.
Rather, the standard requires an assessment of the cir-
cumstances in which it was sent, including the following:
(1) Morales was, as he had been doing for weeks, engaging in
advocacy that involved repeated challenges to Dooley’s role
in the investigations in which he was serving as a union rep-
resentative; (2) those communications were heated and con-
tentious; (3) a few weeks before Morales sent this email, he
sent several other emails harshly criticizing Dooley’s actions
in the investigation and suggesting that those actions
impaired the Association’s ability to effectively represent
its membership; and (4) at the time he sent this email, he
was waiting for what he believed was an inordinately long
time for the result of a disciplinary investigation involving
Dooley.
Because ERB’s resolution of the “in” claim failed to
apply the appropriate legal test and, thus, failed to connect
the facts to its legal conclusion under that test, it lacked sub-
stantial reason. Accordingly, we remand for the agency to
correct the deficiency. See Fuller, 299 Or App at 414 (agency
order that lacks substantial reason “requires us to reverse
and remand for the agency to correct the deficiency”).
Reversed and remanded.