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The Commission upheld the Executive Director's dismissal of a complaint filed by the Technical Employees' Association (TEA) alleging that King County wrongfully barred the union, under threat of discipline, from using the employer's e-mail system to communicate with its members.

The employer sent a letter to the union's attorney accusing the union of using the e-mail system for organizing activities and distribution of the union's newsletter. The employer threatened the union with lawsuits if it did not comply. In response, the union filed unfair labor practice charges with the Commission. In its original complaint, it contended the employer allowed it to use the e-mail system as a past practice, and the employer unilaterally changed the practice with its letter. It further claimed that the employer was showing preference to another union by allowing it access to the system. It accused the employer of interference because employees could reasonably perceive a threat of discipline from the tone of the letter.

The employer later withdrew the letter, but the Commission rejected the employer's claim that the issue was moot:

Because we are making a ruling on whether a statutory unfair labor practice was committed, the fact that the employer has retracted the disputed letter does not make the issue moot. If the employer committed a violation of the statute, the union would be entitled, at a minimum, to an order that the employer refrain from such conduct in the future.

The Commission found that the employer "was under no obligation to allow its resources to be used by any union," as no provision of State statute or administrative code allows the private use of public property. The Commission found no evidence in the record of such a written policy or past practice on the part of the employer. In fact, the employer's written policy states that "the use of County equipment for ... advocacy of a cause or special interest ... is prohibited."

To support its claim of favoritism, the union attached an e-mailed document to its complaint that was supposedly generated by the other union. The Commission found this evidence insufficient because it appeared that the document was not generated by that union. The Commission dismissed the interference charge, finding that the union did not "sufficiently tie any potential discipline to protected activity." The Commission added that although :"the employer threatened sanctions, the threats were for inappropriate use of its resources, rather than for union activity."

King County, PECB 6734-A (2000)

PUBLIC EMPLOYEE E-MAIL EXEMPT FROM PUBLIC DISCLOSURE

A former secretary for the Spokane County Prosecutor's office was terminated for poor performance and for using paid time and her employer's computer for sending a great deal of personal e-mail 467 messages to friends and relatives over a 40-day period. After she threatened a lawsuit, local media organizations asked for copies of her e-mail, and the employer advised her that it intended to comply. The question on appeal was whether Washington's Public Disclosure Act, RCW 42.17, requires the disclosure of a public employee's personal e-mail. Division III determined that the content of the employee's messages were exempt from disclosure.

The court determined that personal e-mail of a public employee is a public record because it was the subject of her termination and threatened litigation over that termination. Personal information contained in public records, however, is exempt if disclosure would violate an employee's right to privacy and that privacy interest outweighs the public's interest in disclosure. The questions that must be answered are whether (1) disclosure would be highly offensive to a reasonable person, and (2) the content of the record is of legitimate concern to the public. The court held that the highly personal nature of her e-mail made disclosure highly offensive.

Content of Personal E-Mail Irrelevant

The court next determined that the content of the messages was not of legitimate public concern. It was a matter of public concern that she sent so many personal messages while on the payroll of a public agency, but what those messages said was irrelevant.

Finally, the court rejected her request for attorney fees. It disagreed with her claim that the employer had acted in bad faith, citing precedent holding that the attorney fees section of the Public Disclosure Act is not applicable when an individual, as opposed to an agency, opposes disclosure.

Tiberino v Spokane County, Nos. 18830-2-III & 18870-1-III (Wa. App., December 14, 2000)

SEATTLE'S PRE-EMPLOYMENT DRUG TESTING PROGRAM ENJOINED

The American Civil Liberties Union (ACLU) challenged the constitutionality of a City of Seattle policy that required a preemployment urinalysis drug test for about half the vacancies filled by the City. Division I of the Court of Appeals held that to be valid under Article I, Section 7 of the Washington State Constitution as a "a warrantless search without particularized grounds for suspicion," the employer must show the testing program "is narrowly drawn to achieve a compelling governmental interest."

The court had no difficulty concluding that the employer's drug testing program was a warrantless search and an invasion of a job applicants' right to privacy. The question was whether there were sufficiently compelling reasons for the policy that would justify the intrusion. The court held that public safety constitutes a compelling governmental interest for drug testing and that preemployment testing could be required for applicants for police and firefighter positions.

The court based its ruling on the Washington Constitution and not the Fourth Amendment to the U.S. Constitution in large part because cases under the federal constitution have held that there is an implied consent factor in similar cases: Job applicants can choose not to be tested, although by doing so, their applications will not be considered. Washington Supreme Court decisions have rejected this theory in cases applying Article I, Section 7 of the Washington Constitution. For example, court decisions have held that a school district has no right to search students' bags as a condition for going on a field trip, that police cannot erect random roadblock sobriety checkpoints, and Seattle cannot conduct pat-down searches as a condition for admission to Coliseum rock concerts.

Employer Must Show Safety Sensitivity of Each Position

In adopting its program, Seattle's City Council limited the testing to positions involving:

1) public safety responsibilities; 2) handling dangerous substances; 3) hazardous physical activities; 4) routine operation of motor vehicles, heavy equipment, or power tools; and 5) routine performance of other safety-sensitive activities.

It also adopted a 600-page legislative record that found that most illicit drug users are employed and are in all kinds of jobs, that workplace drug use causes substantial monetary loss because of lost productivity, absenteeism, turnover, health care costs, and increased accidents and injuries. The City Council was concerned about becoming a "last resort employer" because of the widespread preemployment testing in the private and public sectors. It noted statistics showing that preemployment testing programs reduce the number of new employees with drug problems.

On appeal, the employer told the court that its program was "narrowly restricted to outside applicants for vacancies in safety-sensitive positions." However, the court was skeptical "since half the city's jobs are deemed to fall in this 'safety sensitive' category." For example, the city claimed that safety-sensitive jobs included the use of electricity, life guarding and operating motor vehicles and heavy equipment. The problem for the court was that the city did not explain what safety-sensitive duties were performed by accountants, ushers, librarians, administrative assistants and public relations specialists subject to the testing.

Economic Considerations Not Compelling

The court rejected any suggestion that this latter group of jobs implicates public safety because of the higher level as worker's compensation claims among drug users. According to the court, this interest relates to cost and efficiency, not safety, and "important as these concerns are, they are not ordinarily considered compelling in the constitutional sense."

Thus, the court could not conclude which jobs "directly and genuinely implicate the safety of the public" and which ones do not, with the exception of police officers, firefighters and positions requiring an employee to carry a firearm. The dispute was remanded to the trial court for a determination.

Robinson v. Seattle, No. 45511-7-1, (Wa. App., Oct. 2, 2000)