Shockey v. City of Portland

• Decision Date: 25 August 1992
• Parties: , 143 L.R.R.M. (BNA) 2594 William H. SHOCKEY, Respondent on Review, v. CITY OF PORTLAND, a municipal corporation; Jack C. Irvin, individually and in his official capacity; and John Lang, individually and in his official capacity, Petitioners on Review. CC A8611-06957; CA A49282; SC S36999.
• Court: Oregon Supreme Court

Page 505

837 P.2d 505

313 Or. 414, 143 L.R.R.M. (BNA) 2594

William H. SHOCKEY, Respondent on Review, v. CITY OF PORTLAND, a municipal corporation; Jack C. Irvin,

individually and in his official capacity; and

John Lang, individually and in his

official capacity, Petitioners

on Review.

CC A8611-06957; CA A49282; SC S36999.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Dec. 4, 1990.

Decided July 9, 1992.

Reconsideration Denied Aug. 25, 1992.

Harry Auerbach, Deputy City Atty., City of Portland, argued the cause and filed the petition for petitioners on review.

Richard C. Busse, Portland, argued the cause for respondent on review. With him on the response brief was Donald B. Potter, Portland.

Robert D. Durham, of Bennett & Durham, Portland, filed a brief on behalf of amici curiae Oregon Trial Lawyers Ass'n, American Civil Liberties Union, Oregon Educ. Ass'n, AFSCME Council 75, AFSCME Local 189, Portland Police Commanding Officers Ass'n, Portland Police Ass'n, and Oregon Public Employees Union.

GILLETTE, Justice.

This action for damages involves a city employee's claim that he was wrongfully terminated in retaliation for circulating a petition protesting a work safety policy. The circuit court directed a verdict against the employee. The Court of Appeals reversed the judgment of the circuit court, holding that firing petitioner for circulating the petition would violate petitioner's right to free speech under the federal constitution. ¹ Shockey v. City of Portland, 100 Or.App. 166, 785 P.2d 776 (1990). We reverse in part and affirm in part the decision of the Court of Appeals.

Plaintiff was a wastewater mechanic for defendant City of Portland (city). Defendants Lang and Irvin were his supervisors. During 1984, the city considered implementing a policy requiring wastewater mechanics and other employees who could be exposed to chlorine gas to wear respirators. Pursuant to an administrative rule, the policy also included a provision that required bearded employees to shave any facial hair that would be located under the sealing surface of the respirator.

Plaintiff, who has worn a beard for over 25 years, strongly opposed the policy. He circulated within his own city agency a petition that stated:

"We, the undersigned, find the proposed rules demanding that beards be shaved before a respirator test can even be taken to be arbitrary and discriminatory. The wearing or not wearing of beards was not a condition of employment and any hazards that exist now existed at that time. Furthermore, if everyone on site is to be available in a chlorine emergency, the questions of fit, maintenance and hygiene of the respirators, the supplying of respirators for those who wear glasses, training of all employees in their use, hazard pay, and the availability of respirators for office staff, contractors' employees and visitors must be answered. The aforementioned proposed rules do not take into account the use of respirators by the last three mentioned groups.

"It would be far more practical to have a volunteer crew, specially trained and outfitted to deal with chlorine in emergency and non-emergency situations."

(Emphasis in original.)

In August 1984, the city implemented the policy. Plaintiff refused to shave his beard and sought to be exempted from the policy by providing an evaluation from a social worker that he "is a normally integrated man who has organically integrated his beard into his identity." Evidence also indicated that plaintiff would develop "a most uncomfortable and distressing facial inflammatory skin eruption" if he shaved. The city refused to make an exception for plaintiff. Plaintiff did not shave off his beard. On June 10, 1985, the city discharged him.

Plaintiff sought review by the city's Civil Service Board. The board found that, in violation of the city's charter, the "discharge decision was not made in good faith for the purpose of improving public service" and ordered that plaintiff be reinstated with back pay.

Plaintiff then brought an action for damages based on the common law tort of wrongful discharge. ² He also claimed damages under 42 U.S.C. § 1983, on the ground that his employment had been terminated wrongfully because he had exercised his constitutionally protected right of free speech when he circulated the petition. Plaintiff also brought a claim against Lang and Irvin as individuals for intentional interference with economic relations. ³

The case was tried to a jury. After plaintiff rested his case, the circuit court granted defendants' motion for directed verdict on the wrongful discharge and § 1983 claims, finding that there was "no evidence to indicate that [plaintiff] was terminated as a result of the circulation of the petition." The jury found in favor of plaintiff on the remaining claim against Lang and Irvin for intentional interference with economic relations, but awarded no damages.

Plaintiff appealed, contending that the circuit court erred in granting the directed verdict. The Court of Appeals agreed with plaintiff and reversed the circuit court's entry of the directed verdict on both the wrongful discharge and § 1983 claims. The Court of Appeals held that "there was evidence of a causal link between plaintiff's petition and his termination" and that the petition was constitutionally protected by the free speech guarantee of the First and Fourteenth Amendments to the United States Constitution. ⁴ Shockey v. City of Portland, 100 Or.App. 166, 170, 785 P.2d 776 (1990). Defendants then petitioned this court for review, which we allowed. 310 Or. 195, 795 P.2d 554 (1990).

Defendants first contend that the circuit court lacked subject matter jurisdiction over plaintiff's common law wrongful discharge claim. Defendants reason that plaintiff's common law wrongful discharge claim is, in essence, a complaint alleging an unfair labor practice, "for which the Public Employees Collective Bargaining Act [PECBA], ORS 243.650 to 243.782, provides his exclusive remedy." Defendants argue in the alternative that, to the extent plaintiff's claim is not foreclosed by PECBA, "plaintiff's exclusive judicial remedy for challenging defendants' action is by writ of review, under ORS 34.010 to 34.100."

PECBA defines certain acts as unfair labor practices. Under the Act, the Employment Relations Board (ERB) is responsible for investigating complaints alleging unfair labor practices and, if necessary, conducts a hearing before issuing a final order. ORS 243.676.

ORS 243.672(1)(g) provides:

"(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following:

" * * * * *

"(g) Violate the provisions of any written contract with respect to employment relations[.]"

The collective bargaining agreement between the city and the union to which plaintiff belonged stated that the city could not discharge any employee "without just cause." We understand defendants to argue that plaintiff's claim for common law wrongful discharge constitutes an unfair labor practice under ORS 243.672(1)(g), because the discharge would be without just cause in violation of the collective bargaining agreement. We shall assume, for the purposes of this opinion, that firing plaintiff "without just cause" would be an unfair labor practice that ERB could investigate. ORS 243.672(1)(g) and (4); ORS 243.676.

Defendants' argument requires us to consider whether PECBA deprives the circuit court of subject matter jurisdiction over the wrongful discharge action. ORS 243.676(1) charges ERB with investigating an unfair labor practice complaint. ERB holds a hearing to determine whether the person named in the complaint has engaged in or is engaging in any unfair labor practice. If so, ERB must state its findings of fact, order the person to cease and desist from the unfair labor practice, take "such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as necessary to effectuate the purposes of" PECBA, and award representation costs and attorney fees. ORS 243.676(2).

PECBA, while granting jurisdiction to ERB to investigate and hear unfair labor practice complaints, is silent as to whether the Act was intended to foreclose common law state remedies, such as claims for wrongful discharge, and a review of the legislative history does not provide the answer to this issue.

This court has summarized its methodology in determining whether the legislature intended to foreclose a common-law remedy when it created a statutory one as follows:

"[A]n actionable common law tort [remains actionable] * * * unless the provisions of [the allegedly conflicting legislation] demonstrate the legislature's intent not only to provide what it considered to be adequate remedies to * * * plaintiff, but by implication show a legislative intent to abrogate or supersede any common law remedy for damages. See Brown v. Transcon Lines, 284 Or. , 611[, 588 P.2d 1087 (1978) ]."

Holien v. Sears, Roebuck and Co., 298 Or. 76, 90-91, 689 P.2d 1292 (1984).

PECBA expressly states that its purpose is to ensure that public employers and public employees enter into negotiations and collective bargaining agreements. For instance, ORS 243.656(5) states that:

"It is the purpose of [PECBA] to obligate public employers, public employees and their representatives to enter into collective negotiations with willingness to resolve grievances and disputes relating to employment relations and to enter into written and signed contracts evidencing agreements resulting from such negotiations. It is also the purpose of [PECBA] to promote the improvement of employer-employee relations within the various public employers by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice, and to be represented by such organizations in their employment relations with public employers."

PECBA also declares that the "peo...