In June 2005, the undersheriff for the Benton County, Oregon Sheriff’s Department received a series of e-mails on her home computer alleging that Corporal Al Schermerhorn’s work computer contained pornography. The anonymous e-mails did not contain the name of the sender, but did contain the sender’s e-mail address.
The County launched an internal affairs investigation, eventually analyzing the hard drive on Schermerhorn’s work computer. When the analysis concluded that the allegations of pornography on the computer were unsubstantiated and that no evidence existed that the hard drive had been cleaned, the Department concluded that the charges against Schermerhorn were unfounded.
In November 2005, the Benton County Deputy Sheriff’s Association filed a hostile work environment complaint against the Sheriff’s Department, alleging stress “induced by poor investigative and communication practices by management” that forced Schermerhorn to use 80 hours of comp time and 40 hours of sick leave. When the County refused to reinstate the leave, the Association filed a grievance.
While the grievance was pending, the Association sent a request for documents to the Sheriff, seeking copies of all documents relating to the investigation, including “all e-mails involving the complainant.” When the County refused to disclose the e-mails from the complainant, the Association filed an unfair labor practice complaint. Oregon’s Employment Relations Board (ERB) found that the County had engaged in an unfair labor practice.
The County argued that the Association failed to prove that the e-mails were relevant to the grievance concerning Schermerhorn’s use of leave as a result of stress caused by the investigation. The ERB rejected the argument as applying “the wrong standard. The County asserts that it need not provide the requested information because it is not relevant. We apply a more liberal discovery standard where even potential relevance is sufficient. The grievance here involves the County’s inquiry into Schermerhorn’s computer use and the injury he allegedly suffered as a result of the inquiry. The complaint that was the impetus for the inquiry is central to the grievance. It strikes us as obvious that the identity of the person who made the complaint, if not relevant in its own right, might at least lead to relevant evidence.”
The County next argued that the e-mails were confidential, and need not be disclosed. The ERB was unconvinced, holding that “in analyzing a party’s duty to provide information relevant to a grievance, the Board begins with the premise of full disclosure. A party asserting confidentiality has the burden of proving that the requested information need not be provided. We narrowly construe the confidentiality exemption. The exchange of information between the parties to collective bargaining fosters the type of cooperation the Legislature envisioned. In addition, the County has provided only pure speculation, but no concrete evidence, that the complainant would likely be subjected to harassment or retaliation, or that future informants would be chilled. The County has failed to carry the burden of proving its confidentiality defense.”
Benton County Deputy Sheriff’s Association v. Benton County, No. UP-24-06 (Or. ERB 2007).
This article appears in the July 2007 issue