No Protection for “Concerted Activities” of State Employees

Recently, the Washington Court of Appeals was asked to decide whether the collective-bargaining statute for Washington State employees protects employees’ “concerted activities” from employer interference, restraint, or coercion.[1]  “Concerted activities” are those jointly undertaken by employees in an attempt to improve their working conditions.[2]  In this case of first impression, the court held that the concerted activities of Washington’s public employees are not protected.

The case involved two emails sent by Department of Corrections officer Phyllis Cherry to fellow staff.  The first email advised staff of the salary for a new employee; the second told staff about a prisoner story project.  Deeming these emails “unprofessional,” the Department suspended Cherry’s email and intranet accounts and issued a letter of reprimand.

Although Cherry admitted that the emails were not union related, Cherry and her union filed an unfair labor practice complaint.  The Public Employment Relations Commission dismissed the complaint ruling that the emails did not constitute union activity and thus were not protected by the Washington collective-bargaining statute as the statute only protected those “concerted activities” that related to union negotiating or administration.[3]  The dismissal was affirmed by the superior court and the court of appeals.

On appeal, the union argued for an expansion of Washington law for public employees to mirror the federal National Labor Relations Act (“NLRA”) which protects not just the right to engage in collective bargaining but also the “concerted activities” of private sector employees.[4]  Alternatively, the union argued that Cherry’s emails were protected union activity.[5]  The court affirmed that the emails were not union related and declined to expand protections for public employees beyond union activities to “concerted activities” reasoning that the legislature’s decision not to include the NLRA’s language was intentional.  The court also noted that while the concerted, non-union, activities of Washington’s private sector employees are statutorily protected under Washington law, “our state legislature has not expressly extended [these] protections . . . to public employees.”[6]

Thus, under both Washington and Federal law, private-sector employees have more freedom to engage in concerted activities to improve working conditions, even if it is not strictly union related.  But Washington State may discipline its employees for the same behavior.  While the Court of Appeals noted this discrepancy, it did not elaborate on the public policy behind it.  That policy was determined by the legislature, which has recognized the importance of allowing the “individual unorganized worker” to engage in “concerted activities” in the labor regulations relating to non-public employees,[7] while the statute for public employees is more narrowly focused on the right to join labor organizations.[8]

–Sarah Gohmann Bigelow