                                                                                                           FILED
                                                                                                    COUi i OF AE P r' LS
                                                                                                         DIM10110M ii

                                                                                                  2014 MAR 25    AN S: 50
    IN THE COURT OF APPEALS OF THE STATE OF W.
                                                                                                                        GI,.GN

                                             DIVISION II
                                                                                                                11
CITY OF VANCOUVER, a municipality;                                             No. 43641 -8 -II


                                 Appellant,                             PUBLISHED OPINION




STATE OF WASHINGTON PUBLIC
EMPLOYMENT RELATIONS
COMMISSION; VANCOUVER POLICE
OFFICERS GUILD,


                                 Res


       WORGEN, J. — The Public Employment Relations Commission ( Commission) found that


the city of Vancouver (City) committed an unfair labor practice by discriminating against

Vancouver Police Officers' Guild (Guild) president Ryan Martin out of animus over his union


activities. The City appeals, contending that the Commission ( 1) improperly applied judicial

precedent   to the Guild' s discrimination   complaint; ( 2)    violated the Administrative Procedure Act


APA),_
     chapter_ 05 RCW,_ engaging_ improper ml_making;_and ( 3) based its decision _
             34.     by         in_         e                                    on.___

factual findings unsupported by the record.

       We hold that RCW 41. 56.030( 12) and RCW 41. 56. 160 show legislative intent to allow


the Commission to impose liability on individuals for unfair labor practices, but that the

Commission' s order did not impose personal liability on Police Chief Clifford Cook. We hold

also that the Commission applied an improper burden of proof in determining the City' s liability,

but that this error was harmless because the Commission' s findings show that the City

committed an unfair    labor   practice when   judged   under   the   proper   burden   of proof.   We   conclude
No. 43641 -8 -II



further that Martin suffered an adverse employment action when the City decided not to transfer

him to the motorcycle unit. Finally, we conclude that the Commission' s order was not an

exercise of rule -making authority and that the Commission' s findings of fact are supported by

substantial evidence. For these reasons, we uphold the Commission' s order.

                                                  FACTS


        In April 2007, the City hired Cook as its chief of police. Cook is a devotee of the

community policing theory and planned to reorganize the police department consistently with it.

In 2008 a budget crisis forced a departmental hiring freeze that created shortages in the number

of police officers assigned to basic patrol ditties. To remedy these shortages, Cook eliminated

several specialty units within the department, including its motorcycle unit, and transferred the

officers from these units back to patrol.


        In spring 2009, the department revived the motorcycle unit in a smaller form consisting

of two officers and two supervisory personnel. To expedite the revival, departmental officials

limited the pool of candidates for the officer positions to those that had served in the unit


previously; offcerg-Martin,-JohriDavis; Scott Nei11;- arid - en :Suvada: - - -- -- - - - - - - -- —
                                                           K

        Shortly after Cook became police chief, Guild members elected Martin as the Guild' s

new president. Guild members " had perceived the Guild to be a little passive in the past, and


they wanted more of an aggressive stance" by their new president. Administrative Record ( AR)

at 467 -68. In the months between Martin' s election to the Guild' s presidency and the selection

of the officers for the motorcycle unit, Martin challenged the police department' s leadership on

behalf of the Guild' s members on several different occasions, filed grievances against the




                                                      2
No. 43641 -8 -II



department for Guild members, and exercised Guild members' rights under the collective


bargaining agreement ( CBA) to block Cook' s attempts to reorganize the department.

         The motorcycle unit selection panel interviewed the officer candidates just days after one


of Martin' s assertions of Guild rights to block one of Cook' s proposed policy changes. Three

panel members, Assistant Chief Chris Sutter, Lieutenant Amy Foster, and Corporal Robert

Schoene, met individually with Davis; Martin, Neill, and Suvada. The interviewers received the

applicants' letters of interest, resumes, performance evaluations, and a leave usage spreadsheet


for the previous two years, along with any letters of support from supervisors, The leave usage

spreadsheet included a field called " other" leave, which only Martin used. Exh. 27. This leave

included that granted to the Guild' s president for union business under the CBA.


         After the interviews, the panel was to recommend the best qualified candidates to Cook,


who retained the ultimate authority to staff the unit. The panel unanimously selected Neill and

rejected Suvada. The choice for the secotid position came down to Martin and Davis. Sutter and


Foster   preferred   Davis. Schoene, who had supervised the two men in the old motorcycle unit


and who would serve as the supervisinge0- por9-in the reformed unit, preferred Martin. — — --
                                        r

         In discussions Schoene explained that he preferred Martin because, given the small size

of   the new unit, "[ Martin] brought the most skills and ...        connections within the         City."   AR at


653. One factor for     determining   the best qualified candidates was "[    t]he employee' s ability to

perform    the specific technical skills   required"   for   the assignment. Exh.   56   at   1.   Schoene noted


that Martin had frequently testified in court, qualified as an expert witness in driving under the

influence cases, and had received certification as a drug recognition expert and a technical

collision investigator. None of the other candidates possessed these qualifications, and Schoen



                                                         3
No. 43641 -8 -II



explained that Martin' s skills would best serve the reconstituted unit' s primary mission of traffic

enforcement.



           Sutter responded that " the person with the most skills and qualifications is not always the

best fit for the   unit."   AR at 654. Instead, Sutter declared that the panel was " looking for

someone     that is- supports the      Chief' s   vision and   the Chief' s   direction." AR at 654. Schoene


replied that " at my level in dealing with Officer Martin, he' s always in his work, he has always
portrayed a positive        image   of the   Department."      AR at 654. Schoene added that he could


 understand if that' s an issue at [ Sutter' s] level in the decision -making but at my level, [Martin]

portrays that he supports the Chief in his everyday interaction with citizens as we perform our

duties."    AR at 654. Sutter did not respond.


           Schoene later brought up Martin' s leave usage as a possible weakness for his candidacy,

noting that Martin took blocks of flex time and vacation to visit his children in Arizona for

extended periods. Martin' s supervisors had noted this habit in his reviews, but each had also


stated that he was an extremely hard worker and recommended him for promotion. Schoene

admitted that, withthe smallerunit; M-
         -                           actin' s l-eave habits mig t present an issue. Schoene - - --
                                                       -

reiterated, however, that he would select Martin over Davis, although, under pressure from

Sutter, Schoen allowed that Davis would also be a good fit. Sutter, for his part, commented in


his notes about the interviews that Schoene recommended Neill, but did not note Schoene' s


recommendation of Martin.


           Neill had leave issues of his own. The spreadsheet providing the applicants' leave usages

showed that he used the most leave of any candidate in 2008. However, Schoene explained that

Neill had taken time        off   to care for a chronically ill   family member      and   had   made arrangements
Q   04   .
             GEWftl
                 -



that allowed him to work full time in 2009. The police department' s leadership was aware that

Neill' s leave usage would return to levels much higher than Martin' s if this alternate care

disappeared.


             Foster and Sutter considered Martin' s time away from his unit while performing other

departmental tasks as a detriment to his candidacy. However, neither Foster nor Sutter

considered Davis' s absence from his primary duties to fulfill his other roles in the department a

detriment to his application.


             The day after the interviews, Sutter contacted Pat Johns, who had just been chosen to fill

the sergeant' s position in the motorcycle snit, to discuss the choice between Davis and Martin.


Johns, like Schoene, had supervised both officers in the old motorcycle unit, and he


recommended Martin for the same reason given by Schoene, that Martin' s skills would provide a

    crucial component" of     a"   successful   team."   AR at 631. When Sutter asked about Martin' s


leave use, Johns acknowledged it could be an issue, but he assured Sutter that he could work


with     Martin to    minimize   any   problems and continued   to   recommend   Martin.'   No one told Cook

about Joohns' s recommendation until afterCook hadmade the decision to deny the positionto

Martin.


             Sutter gave Cook the panel' s recommendations, unanimously endorsing Neill for a

position, but splitting two votes to one in recommending Davis over Martin for the second

position. Sutter explained that he and Foster voted for Davis due to concerns about Martin' s


pattern of absences from his unit. Cook, though, was adamant that any consideration of Martin' s



    Sutter and Foster both testified that Johns changed his recommendation to Davis after
becoming aware of Sutter' s concern over Martin' s leave. Johns denied this and the examiner
credited Johns' s testimony.
                                                           5
No. 43641 -8 -II



absences exclude his union leave. Sutter Also passed along a warning from Schoene that a

decision not to select Martin would create problems. After reviewing the panel' s notes, Cook

met with Sutter and Foster and selected Neill and Davis for the motorcycle unit. Later, Cook


explained to Schoene that he simply counted votes: Neill had three, Davis had two, and Martin

had only one.

           After Cook' s decision, the Guild filed an unfair labor practice complaint against the City.

The complaint alleged that the City had " interfered with, restrained, coerced and discriminated

against    Officer Martin in   violation of   RCW 41. 56. 040   and   RCW 41. 56. 140( 1)"   by denying him

the motorcycle unit assignment. AR at 3. The Guild and the City contested these claims before

a hearing examiner.

           The hearing examiner found that the City had " discriminated against Martin because of

his protected activities and interfered with employee rights in violation of RCW 41. 56. 140( 1)."


AR   at   1233.   The examiner found that Sutter offered pretextual reasons for selecting Davis over

Martin to cover his anti -
                         union bias based on three pieces of evidence. First, Sutter' s statement


about     selecting   someone who supported'      ook' s vision for the department; rather than
                                                                                              the most -


qualified, betrayed anti -
                         union animus. Sutter made this statement near in time to Martin' s


challenges to the department' s leadership on behalf of the Guild' s members and his assertion of

their CBA rights to thwart Cook' s plans fer the department. Given this context, the examiner

found that Sutter made the comment to suggest that the panel should reject Martin' s candidacy

because of his Guild activities. Second, Satter selectively used or disregarded statements of

support by Schoene and Johns to buttress the case for Davis, when both men, in truth, supported

Martin. Finally, the examiner noted that Sutter considered Martin' s absence from his unit to


                                                        n
No. 43641 -8 -II



fulfill his other departmental duties a detriment to his candidacy, but did not find Davis' s

absences for identical reasons to be problematic.


          While the examiner found animus on Sutter' s part, she found Cook possessed no animus


of his own. Nonetheless, the examiner found that Cook had made his decision by simply

counting the votes on the interview panel for each candidate. Sutter' s vote thus determined the

denial of the position to Martin. Because Cook used files shaped by Sutter to perform his own

review, the examiner found that Cook' s independent investigation had not broken the causal


chain between Sutter' s animus and the unfair labor practice. The examiner explained that


          t] he linchpin in this case is Cook' s reliance on the recommendation he received
          from Sutter.  Although Cook took steps to verify the information he was being
          provided, his ultimate decision was colored by Sutter' s representation of the facts.
          Thus, the decision       not   to offer   Martin   one of   the two [   m] otor[ cyclist] [   o] fficers
          positions was discriminatory.

AR at 1228 -29


          The    examiner' s order required "[      tlhe City of Vancouver" through its " officers and

agents"   to "   immediately ...    remedy its unfair labor      practices."   AR at 1234. The remedial steps


included offering Martina positionin themotorcycle unit. ---- - - -- -_- - - - - - -- - - - _ - - --

          The City appealed the examiner' s decision and order to the Commission. The

Commission affirmed the decision, adopting the examiner' s findings, conclusions and order as

its own, but it reversed the decision that Cook had no animus. The Commission declared that it


would hold decision makers like Cook " strictly liable" for the animus of subordinates, using its

interpretation of the subordinate bias theory of liability found in Staub v. Proctor Hospital,

U.S. _,      131 S. Ct. 1186, 179 L. Ed. 2d 144 ( 2011), which had issued after the examiner' s




                                                             7
No. 43641 -8 -II



decision   and order.        AR     at   1382, 1394 -97 -&    n. 6. Based on this interpretation, the Commission

declared that


        where an employment decision is influenced by the union animus of a subordinate
        or advisor to the decision maker, the decision will be found discriminatory, and a
       remedial order will be issued unless the respondent can demonstrate that the
        decision maker independently retched the same conclusion free from union
        animus.

                   In       cases   such    as   this,   a respondent will not be found in violation of
        Chapter 41. 56 RCW if it demonstrates that the decision was made completely free
        from the recommendation of the subordinates who displayed union animus.
        However, once a subordinate has made a recommendation to a decision maker
        that has been tainted by animus, it is not enough for the decision maker to say the
        decision            wasindependently.
                                    made        Credible evidence must exist that
        demonstrates that the decision maker purged from the decision making process
        the discriminatory recommendation.
                Applying these principles to the case before us, the record clearly
        demonstrates that Cook relied upon the tainted recommendation of Sutter when
        making his decision.               Although Cook testified that he considered selecting Davis
        over Martin, Schoen testified that-Cook stated he simply counted the votes of the
        members         of the      interview    panel   to   make   his final decision.   The Examiner found
        Schoene'        s   testimony      credible.     Furthermore, the record demonstrates that Cook
        reviewed the notes of the interview panel, but did not conduct an independent
        review of the applicants.
                   Because Cook relied upon the recommendation of Sutter and failed to
        conduct         an    independent        review    free from     union   animus,    Cook, as the final
        decision        maker,       is held liable tinder Chapter 41. 56 RCW.                The Examiner' s
        decision is affirmed.


AR at 1382, 1396 -97. However, because the Commission adopted the examiner' s order as its


own, it imposed no individual penalties on Cook.


        The City sought judicial review of the Commission' s decision and order, moving for

direct review by this court. The Clark County Superior Court certified the appeal and our

commissioner accepted the City' s petition for discretionary review.




                                                                 E:3
No. 43641 -8 -II



                                                          ANALYSIS


        In its appeal the City urges that the Commission erroneously applied the subordinate bias

theory of liability found in Staub, improperly engaged in rulemaking with its order, and that

three findings made by the examiner and adopted by the Commission are not supported by

substantial evidence in the record. Before turning to these contentions, we briefly review the

Commission' s authority and the standard of review on appeal.

                                 I. COMMISSION' S AUTHORITY AND STANDARD OF REVIEW


         RCW 41. 5 6. 040 protects public employees' rights found in chapter 41. 56 RCW from


    interfere[ ence]   ....     restrain[   t], coerc[ iohl, or discrimin[ ation]"        by their employer.

Implementing these protections, RCW 41: 56. 140( 1) makes it an unfair labor practice for an

employer to " interfere with or discriminate against" employees exercising the rights protected by

chapter 41. 56 RCW. City of Federal Way V. Pub. Emp' t Relations Comm' n, 93 Wn. App. 509,
                                                                            2
512, 970 P. 2d 752 ( 1998) ( citing RCW 4. 56. 140( 1)).


         The legislature " empowered and directed [ the Commission] to prevent any unfair labor

practice-and - o issue appropriate remedial -
             t -                            orders.-                   - RCW 4156:160( 1):
                                                                         -                       - The Coiinirus sion s - --


remedial powers include the ability to issue " cease and desist" orders to any " person [ that] has

engaged     in   or   is engaging in"       an unfair   labor   practice.       RCW 41. 56. 160( 1), (   2). The



2
    The Guild' s complaint alleged that the City both discriminated against Martin for his exercise
of protected rights and interfered with departmental employees' exercise of those rights. The
examiner determined the City had committed both violations, and the Commission adopted this
conclusion. The City only appeals the discrimination violation, but under the Commission' s
precedent the interference violation here 7s derivative of the discrimination violation and our
decision to affirm or reverse the discrimination violation also determines the fate of the
interference violation. Yakima Police Patrolmen' s Ass' n v. City of Yakima, 153 Wn. App. 541,
566, 222 P. 3d 1217 ( 2009) ( quoting Kozlowski v. Clark County, No. 18682 -U - 4 -4748, 2007
                                                                               0
WL 4111397,           at *    10 ( Wash. Pub. Emp' t kelations Comm' n Oct. 10, 2007).
                                                                   9
No. 43641' - -II
           8



Commission may      order other relief, " such        as the payment of damages and the reinstatement of


employees,"    where doing so " will effectuate the purposes and policy of [chapter 41. 56 RCW]."

RCW 41. 56. 160( 2).


          We review a Commission decision concerning a violation of RCW 41. 56. 140 under the

standards prescribed by the APA. RCW 41. 56. 165; City of Vancouver v. Pub. Emp' t Relations

Comm' n, 107 Wn.        App.   694, 702, 33 P. 3d 74 ( 2001).        We review any questions of law, such as

the Commission' s interpretation          of a statute or   judicial   precedent,   de   novo.   City of Vancouver,

107 Wn. App. at 703. We may substitute our interpretation of the law for the Commission' s,

although we give the Commission' s interpretation of chapter 41. 56 RCW great weight and


substantial deference. City of Vancouver, 107 Wn. App. at 703. We review the Commission' s

factual findings " for substantial evidence in light of the whole record, i.e., evidence sufficient to

persuade a   fair -
                  minded      person of   their truth."     City of Vancouver, 107 Wn. App. at 703. When

performing this review, we may " not substitute [ our] judgment for that of the agency regarding

witness   credibility   or   the   weight of   the evidence."     Thomas v. Emp' t Sec. Dep' t, 176 Wn. App.

8091 813;- 309- P.3d-- 61- (2013). - Also, we consider-urielial 6iig— findings to beveritieson —
                     7                                               d-

appeal. Campbell v.Emp' t Sec. Dep' t, 174 Wn. App. 210, 215, 297 P.3d 757, review granted,

178 Wn.2d 1018, 311 P.3d 27 ( 2013).


                                         H. SuBOP-
                                                 DINATE BIAS LIABILITY


          The City first claims that the Commission erroneously interpreted and applied the

subordinate bias theory of liability found in Staub to the Guild' s complaint. Specifically, the

City contends that the Commission incorrectly read Staub as allowing the imposition of

individual liability on Cook and allowing the imposition of liability on the City with a burden of


                                                             10
No. 43641 -8 -II


                                                           3
proof   inconsistent       with     Washington law.            The City also contends that the Commission erred by

applying Staub at all because Cook lacked knowledge of animus on Sutter' s part and because

Martin was not terminated, but merely dented a beneficial transfer. We hold that governing

statutes allow the Commission to impose liability on individuals for unfair labor practices, but

that the Commission' s order did not impose personal liability on Police Chief Cook. We hold

also that the Commission applied an improper burden of proof in determining City liability, but

that this error was harmless.


         Washington adjudicates statutory'discrimination claims using the McDonnell Douglas

Corporation v. Green framework. See 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 ( 1973).

The complaining party first bears the burden of establishing a prima facie case of discrimination.

Wilmot     v.   Kaiser Aluminum & Chem.                 Core.,   118 Wn.2d 46, 67 -69, 821 P.2d 18 ( 1991).     Adapted


to the context of unfair labor practices, establishing a prima facie case requires the complaining

party to   show       that "(   1) the employee has participated in protected activity or communicated to

the   employer an        intent to do       so; (   2) the employee has been deprived of some ascertainable right,

benefit or status; and ( 3) there is a causal b-
                                               nnection between tho se                   events." – Yakima   Police - - - - -- - --- - -


Patrolman'       s   Ass' n   v.   City   of Yakima, 153 Wn.       App.   541, 554, 222 P. 3d 1217 ( 2009) ( quoting


Pub. Sch. Emps. of Readan -Edwall v. Re& dan- Edwall Sch. Dist., No. 12593 -U - -2997, 1998
                                                                              96

WL 1056978, at * 6 ( Wash. Pub. Emp' t Relations Comm' n Sept 29, 1998)).

           If the complaining party makes this prima facie case, the employer may articulate a




3
    Amicus curiae Washington State Association of Municipal Attorneys devotes its brief to the
same burden of proof issue that the City makes.
                                                                    11
100 .   el   I:   all



legitimate, nondiscriminatory              reason   for the   adverse employment   decision. Wilmot, 118 Wn.2d


at 70; Yakima Police, 153 Wn. App. at 554 (quoting Pub. Sch. Emps. of Reardan- Edwall, 1998

WL 1056978,         at *     6). The employer bears the burden of production, not of persuasion, in


offering this permissible reason for the averse employment decision. Wilmot, 118 Wn.2d at 68

 citing Baldwin         v.   Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 134, 769 P. 2d 298


 1989));     Yakima Police, 153 Wn. App. at 554 (citing Bonds v. City of Tacoma, No. 8702 -U - 0-
                                                                                             9

1898, 1995 WL 854141,              at *   11 ( Wash. Pub. Emp' t Relations Comm' n June 20, 1995))..

           If the employer meets its burden of production for offering a permissible justification, the

complaining party bears the burden of persuasion in showing that the employee' s exercise of

rights protected under chapter 41. 56 RCW triggered the adverse employment decision. Wilmot,


118 Wn.2d at 70; Yakima Police, 153 Wn. App. at 554 (citing Pub. Sch. Emps. of Readan-

Edwall, 1998 WL 1056978, at * 6. The complainant may discharge this burden in one of two

ways. First, the complainant may show that the employer' s stated reason was pretextual.

Yakima Police, 153 Wn.             App.    at   554 ( citing Wilmot, 118 Wn.2d   at   71 -73).   Second, the


complainant may show that, although the employer' s stated reason was legitimate, animus - - -

toward the employee' s union activity " was nevertheless a substantial motivating factor" behind

the employer' s action.           Yakima Police, 153 Wn. App. at 554 ( citing Wilmot, 118 Wn.2d at 71-

73).


A.         Cook' s Liability


           The City claims that the Commission erred with respect to Cook' s liability in two

different ways. First, the City maintains that the Commission lacks the power to impose liability




                                                                12
No. 43641 -8 -II



on individuals for an unfair labor practice because RCW 41. 56. 140 limits liability to employers.¢

Second, the City argues that the Commission misapplied Staub' s subordinate bias theory of

liability to impose on Cook. We find no error on the Commission' s part with regard to Cook' s

liability.

          1..     The Commission' s power to impose individual liability.

          Whether the Commission may impose individual liability under RCW 41. 56. 140 is a

question of statutory interpretation. When interpreting a statute, we attempt to " ascertain and

carry   out     the Legislature' s intent."     Dep' t of Ecology v.     Campbell & Gwinn, LLC, 146 Wn.2d 1,


9 -10, 43 P. 3d 4 ( 2002).         To do so, we interpret the statute' s plain meaning, discerning this

meaning " from all that the Legislature has said in the statute and related statutes which disclose

legislative intent       about    the   provision   in question."     Campbell & Gwinn, 146 Wn. 2d       at   11.   Only

where the provision is susceptible to more than one reasonable meaning after this analysis may

we " resort to aids to construction" such as interpretative canons or other extrinsic evidence of

legislative intent. Campbell & Gwinn, 146 Wn.2d at 12.


          Municipalcorporations are artificial beings that cari oinlyactthroughtheir agents.

Broyles      v.   Thurston   County,      147 Wn.     App.   409, 428, 195 P. 3d 985 ( 2008).   Recognizing this, the

legislature defined a " public employer" within the meaning of chapter 41. 56 RCW as " any

officer; board, commission, council, or other person or body acting on behalf of any public body

governed          by [ chapter   41. 56 RCW],    or   any    subdivision of such public   body."   RCW


41. 56. 030( 12). A        related provision,       RCW 41. 56. 160( 2),   specifically allows the Commission to


4
    RCW 41. 56. 140        provides      that "[ i] t shall be an unfair labor practice for a public employer ...
    t] o interfere with, restrain, or coerce public employees in the exercise of their rights guaranteed
by this' chapter."
                                                                 13
No. 43641 -8 -II



direct various remedial orders against " any person" for unfair labor practices, and RCW 1. 16. 080

defines " person" to include individuals. ' Consequently, the plain text of RCW 41. 56.030( 12) and

RCW 41. 56. 160 shows a legislative intent to allow the Commission to impose liability on

individuals for    unfair   labor   practices.   The' City' s categorical argument that the Commission1may

never impose liability on individual supervisors cannot carry the field.

        2. Cook' s individual liability under Staub.

        The City next contends that the Commission erred in applying Staub to impose personal

liability on Cook because Staub concerned agency liability and Sutter was not Cook' s agent.

While we agree with the City' s characterization of Staub, we disagree that the Commission' s

order imposed liability on Cook and therefore reject the City' s contention.

        In   subordinate    bias    liability cases, " a biased subordinate, who lacks decision making

power, uses the formal decision maker as a dupe in a deliberate scheme to trigger a


discriminatory     employment action."           Equal Emp' t Opportunity Comm' n v. BCI Coca -Cola

Bottling   Co. of Los Angeles, 450 F.3d 476, 484. (10th Cir. 2006).             Subordinate bias liability

                   F(
recognizes t at i'--( esnot matterw et er t e subordinate personally - pulls the trigger "' on-


the adverse employment decision; the subordinate' s animus sets in motion the events that


culminate in the adverse employment action. Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d

1316, 1323 ( 8th Cir. 1994) ( quoting          Simpson v. Diversitech Gen., Inc., 945 F.2d 156, 160 ( 6th

Cir. 1991)).   Because the employer has delegated power or influence over employment decisions

to the subordinate, any wrongful conduct on the subordinate' s part occurs within the course and

scope of employment.         Long     v.   Eastfield   Coll., 88 F.3d 300, 306 -07 ( 5th Cir. 1996); Shrager v.

Upjohn Co., 913 F.2d 398, 405 ( 7th Cir. 1990). Because the wrongful conduct occurs in the



                                                             14
No. 43641 -8 -H



course and scope of employment, we impute the discriminatory act to the agent' s principal.

Thola   v.   Henschell, 140 Wn.           App.   70, 79,   164 P. 3d 524 ( 2007); Long, 88 F.3d at 306 -07;

Shrager, 913 F.2d at 404.


         We agree with the City that Staub would not allow the Commission to impose personal

liability on Cook. Sutter lacked any agency relationship with Cook; the City, not Cook, was his

principal.        See RESTATEMENT ( SECOND) OV AGENCY § 1 ( 1958) crats. b, d, e ( definitions of


 agency," "       principal," and " agent ").       Because the subordinate bias theory of liability rests on

agency principles, the lack of an agency relationship between Cook and Sutter would prevent the

imposition of liability on Cook under Staub.

         However, we find no intent on the part of the Commission to impose liability on Cook.

We interpret        an   agency   order   in the   same manner we       interpret   statutes.   Office of Pub. Util.

Counsel      v.        NM Power Co., 344 S. W. 3d 446, 450 - ( Tex.
                  Tex. -                                   51                        App.   2011);   see Phillip Morris

USA Inc.     v.    Tolson, 176 N.C.       App. 509, 515, 626 S. E.2d 853 ( 2006). Just as we interpret

statutory provisions in light of the statutory scheme as a whole, we interpret language in an order

in light of theorder asawhole.- See Phillip M& ris; 176-N C. App at 515; Cedar Rapids Steel - - -
                                -             r-                               -

Transp.,     Inc.   v.   Iowa State Commerce Cbrnm'           n,   160 N.W.2d 825, 838 ( Iowa 1968). Where an


order as a whole contains contradictory language, it is ambiguous. Phillip Morris, 176 N.C.

App. at 515 -16.

         The Commission' s decision and order contain contradictory language about Cook' s

liability, creating ambiguity. The Commission adopted the examiner' s order. See AR at 1397.

The examiner' s order concluded only that the employer, the City, had violated the statute, AR

1233, and required only the City to carryout any actions to remedy the unfair labor practice. AR


                                                                   15
No. 43641 -8 -II



1234 -35.   Contrary to this holding, the Commission' s order held, among other points, that

  b] ecause Cook relied upon the recommendation of Sutter and failed to conduct an independent


review free from union animus, Cook, as the final decision maker, is held liable under Chapter

41. 56 RCW." AR        at   1397 ( footnote   omitted).   This opposition is not reconciled by the

Commission' s footnote 6, which states that the examiner reached a substantially similar

conclusion without relying on Staub.

        Given this ambiguity, we must interpret the order to give effect to the Commission' s

intent. See Campbell & Gwinn, 146 Wn.2d at 9 -12. We find no intent to impose individual


liability on Cook for two reasons. First, we presume that the Commission knew the common law

of agency underlying subordinate bias liability and the limits of that liability. See Staub, 131 S.

Ct. at 1191 -92. Even assuming that the Commission had the power to alter the limits of agency

liability, we presume that it had no intent to do so without a clear, unambiguous statement of this

intent. See In   re   Custody   of BMH, 179 Wh. 2d 224, 131, 315 P. 3d 470, 478 -79 ( 2013).         The very

ambiguity in the Commission' s order therefore defeats any claim that it imposed individual

liability on Cook. -Second; we must interpretthe Com nssion s intent from - hatit wtuallyd d;_-
                                                 -                        W

not just what it said. As noted, whatever language the Commission used about Cook' s liability,

it did not order any sanction on him in his individual capacity. Given this fact, it is difficult to

discern any intent on the Commission' s part to impose such individual liability. We read the

Commission' s order as properly limiting 'liability for the unfair labor practice to the City.

B. -    The City' s Liability

        The City next argues that the Commission erred by basing city liability on the showing

that Sutter' s union animus " influenced" Cook' s decision, claiming that this is incompatible with


                                                          16
No. 43641 -8 -II



the burden of proof required by Wilmot and similar cases. AR at 1396. The Commission

answers that it may find a causal link where the employer offers pretextual reasons for the

decision and notes that the examiner and the Commission found that the City did so here. We

agree that the Commission applied an improper burden of proof. We affirm nevertheless


because that error was harmless given the Commission' s findings, which show that the City

committed an unfair labor practice under the proper burden of proof


        We turn first to the Commission' s argument that it could find an unfair labor practice


because Sutter offered pretextual reasons for selecting Davis over Martin. We agree that Sutter' s

offering of pretextual reasons for recommending Davis satisfies the Guild' s burden of showing

that Sutter' s animus caused, in part, Cook' s decision. See Sims v. MVM, Inc., 704 F. 3d 1327,


1336 -37 00th Cir. 2013). Sutter had no need to resort to pretext unless his true reason for the


recommendation was impermissible. See Shrager, 913 F.2d at 401.

        However, the Guild' s and Commission' s use of subordinate liability injects new issues of

causation that the finding of pretext on Sutter' s part does not address. Cook made the ultimate

decision at issue, and We cannot infer ariftermissibTe motive on-his part for the-decision - -


because the finding of pretext related to Sutter, not Cook. As noted, the agency principles

underlying subordinate bias liability do not allow us to impute Sutter' s animus to Cook.

Therefore, we need to examine " the level of control a biased subordinate must exert over the


employment decision" in order to impose liability on the employer. BCI Coca -Cola Bottling
Co., 450 F. 3d at 486 -88. If Sutter' s recommendation had little or no effect on Cook' s ultimate


decision, either because Cook disregarded the recommendation or because he independently

reached his decision to deny Martin the position, we cannot say that Sutter' s animus caused


                                                 17
No. 43641 -8 -II



Cook' s decision, and the City is not liable for Sutter' s conduct. See Shrager, 913 F.2d at 405.

If, however, Sutter exercised the necessary control over the ultimate decision, the City bears

liability for a decision caused by his animas. BCI Coca -Cola Bottling Co., 450 F.3d at 486 -88.

               Federal courts have determined that the necessary level of control varies based on the
                                                                                                5
language         of   the statutory   provision     proscribing the     discriminatory   act.       See, e. g., Staub, 131 S.

Ct. at 1190 -91; Sims, 704 F.3d at 1334 -37; Simmons v. Sykes Enter., Inc., 647 F.3d 943, 949 -50


    10th Cir. 2011);        Lindsey   v.   Walgreen Co., 615 F.3d 873, 876 ( 7th Cir. 2010). Staub, for


example, addressed the requisite showing 'of control under the Uniformed Services Employment

and       Reemployment Rights Act,               which   specifically   provided   that "`[ a] n employer shall be


considered         to have    engaged      in   actions prohibited ...    under subsection ( a), if the person' s


membership [ in the            armed   forces] ...       is A motivating factor in the   employer' s action. "'       Staub,


131 S. Ct.         at   1190 -91 ( quoting 38 U.S. C. § 4311( c)).        The Supreme Court interpreted the phrase


     is   a   motivating factor "'    to mean that the employee must prove only that the subordinate' s

animus was a " causal factor" in the adverse employment decision, not necessarily a decisive

factor.---
         Stau7; 131 5: Ct. at 1T91 = ( quot7rig 38 US C - -§
                           -       95                       4311( c)): -- - --


               RCW 41. 56. 140 does not prescribe any specific burden of proof for showing an unfair

labor practice. This is not unusual. Our'Supreme Court has previously addressed statutes that

forbid discrimination without prescribing the appropriate burden for proving a causal link

between protected activity and the adverse decision. See, e. g., Wilmot, 118 Wn.2d at 55, 70 -73.

In these cases the Supreme Court turned to public policy considerations to choose the


5
    Admittedly, the federal courts have split over the requisite level of control, even when
interpreting the same statutory language. See BCI Coca -Cola Bottling Co., 450 F.3d at 486 -88
    collecting cases and analyzing the issue).
                                                                   M
No. 43641 -8 -H


complainant' s   burden      of proof   from three different       options:   a liberal " to any degree" standard,

an intermediate " substantial factor" standard, and a stringent " but -
                                                                      for" or " determinative factor"


standard. See Allison v. Hous. Auth. of Seattle, 118 Wn.2d 79, 85 -95, 821 P. 2d 34 ( 1991);

Wilmot, 118 Wn.2d at 69 -73. The Court selected the " substantial or important factor" as the


appropriate burden of proof for statutory discrimination cases. Allison, 118 Wn.2d at 85 -95;

Wilmot, 118 Wn.2d at 71 -73.


       Unfair labor practice complaints filed under RCW 41. 56. 140 are statutory discrimination

cases, and   Wilmot    and   Allison    govern   the   burden    of proof   for   such complaints.   City of Federal

Way, 93   Wn.   App.   at   512 -13.    Consequently, a complainant seeking to use the subordinate bias

theory of liability must show that the sub'ordinate' s animus was a substantial factor in the

decision resulting in the unfair labor practice. This recognizes that subordinate bias liability

cases are,   essentially,   cases with multiple        causes:    the subordinate' s animus and the decision


maker' s ultimate decision. The Allison Court noted that the substantial factor test is the


appropriate burden of proof where multiple actors might have caused the complainant' s injury.

118-Wn.2dat 93 = ( uoting Robert Belton, Causation iaEinpIoyineniDiscrimination Law -34-
                94- q                    -                                            ,

WAYNE L. REv. 1235, 1248 ( 1988)).


        The Commission'         s order   merely   required that an agent with animus "         influence[]'   an



adverse employment decision. AR at 1396. This standard appears equivalent to the rejected " to


any degree" standard because an agent with animus could influence the ultimate decision by

having a trivial, but not remotely important, effect on the decision maker' s choice. The standard

adopted by the Commission is thus incompatible with the burden of proof assigned to




                                                             19-
No. 43641 -8 -II



complainants seeking to prove a statutory discrimination case under Washington law. See

Allison, 118 Wn.2d at 94.


            Further, the Commission appears to have compounded its initial, burden -lowering error

by requiring the employer to show that " the decision was made completely free from.the

recommendation of the subordinates who displayed union animus" to escape liability. AR at

1396. This is contrary to the " substantial motivating factor" test and reverses the burden of

proof. Under Washington law, the complainant always bears the burden of proving causation in

any tort-like action. Baldwin, 112 Wn.2d at 135. This remains true in statutory discrimination

cases, which are, at root, intentional tort claims. Baldwin, 112 Wn.2d at 133 -36; Shrager, 913


F.2d at 405. To place the burden of proving a lack of animus on the employer eliminates the

complainant' s        burden     of   proving   causation   in   contravention of    the Wilmot framework. 118


Wn.2d at 68 ( citing Baldwin, 112 Wn.2d at 134).

            However, we find the Commission' s error harmless. Under the APA judicial relief is


appropriate only if the " person seeking relief has been substantially prejudiced by the action

complained of:"- RCW-34. 05570( 1)( d). -                 11ased once examiner's findingof-facf 27 which it -- - - -- -

adopted, the Commission stated:


            the record clearly demonstrates that Cook relied upon the tainted recommendation
            of   Sutter   when    making his decision.           Although Cook testified that he considered
            selecting Davis over Martin, Schoene testified that Cook stated he simply counted
            the votes of the       members of      the   interview    panel   to   make   his final decision.   The

            Examiner found Schoene' s testimony credible.

AR     at   1397.     The use of " relied" in this finding means that the Commission found that Cook

depended         on   Sutter'   s recommendation         to make his selection.      BLACK' S LAw DICTIONARY 1404


 9th   ed.   2009) ( " Reliance"        means "[   d] epetidence or trust by a person, esp. when combined with


                                                                  P
No. 43641 -8 -II



an action   based   on that      dependence       or   trust. — rely,       vb. ").
                                                                                      This is essentially a finding of but -
                                                                                                                           for

causation and necessarily satisfies the lesser burden of proving that Sutter' s recommendation was

a    substantial   factor in Cook' s decision to                select      Davis.      See Wilmot, 118 Wn.2d at 71 -73


showing needed to prove impermissible motive was a substantial factor is a lesser showing than

the   one needed    to   prove    it   was a   but -
                                                   for cause    of an adverse employment action).             The City
                                                                      6
suffered no prejudice          from the      error, and   we   affirm.



C.        Notice


          The City next argues that this case differs from Staub because Cook had no notice of

Sutter' s anti -union animus and therefore had no reason to perform an independent investigation.


The City also claims the Commission should not have found liability unless Cook knew, or

should have known, of Sutter' s animus based on Washington precedent. We disagree, because


notice to the decision maker was not a prerequisite to the holding in Staub, and, even if it were,

under both the case law and the record before us, the City had knowledge of the subordinate' s

animus




          First, the City contends that the d'e'cisionmaker in Staub had notice of the discriminatory

intent of the supervisors recommending the employee' s termination. The City misreads Staub.


6
    Amicus curiae quote language from the examiner' s opinion stating that the evidence " did not
tip  the scales" toward a finding that Cook' s decision was based on union animus. Br. of Amicus
Curiae Wash. State Ass' n               of   Mun. Attorneys       at   8.     Other language in the examiner' s opinion .
states that   Cook'      s   decision   was " not      substantially base[ d] ...          on union animus."    AR at 1228.
Amicus curiae and the City rely on this type of language to suggest Sutter' s tainted
recommendation was not a substantial   factor in Cook' s decision. But both of these passages,
read in light of the examiner' s full decision, mean that Cook' s    decision was not based
substantially on his own union animus.   The examiner found that Cook " relied [ o] n" Sutter' s
recommendation, which was tainted by anion animus, in reaching his decision. AR at 1233. The
Commission adopted this finding. As discussed below, substantial evidence supports this finding
as meaning that Sutter' s recommendation was a substantial factor in Cook' s decision.
                                                                 21
No. 43641 -8 -II



No notice to the decision maker of any subordinate animus before the decision to terminate the

employee appears in the Supreme Court' s recitation of the facts of Staub. See 131 S. Ct. at 1189.


Nor do any of the other subordinate bias liability cases make the decision maker' s awareness of

the supervisor' s bias determinative of liability. See, e. g., Shager, 913 F.2d 399 -400. We

consider the role of the decision maker only to see if he or she acted as a supervening cause of

the adverse action. If he or she makes an independent choice to take the adverse action


substantially free of the subordinate' s animus, this supersedes the subordinate' s tainted act as the

cause of the adverse employment action, and the employer is not liable for the supervisor' s


animus. Staub, 131 S. Ct. at 1193. Notice to the decision maker is irrelevant to this inquiry.

       More importantly, the City' s argument invites an abuse which Staub warned against. If

an employer   may   avoid   liability by insulating   a   decision   maker   from   notice, "   then the employer



will be effectively shielded from [liability for] discriminatory acts" done by its agents. Staub,

131 S. Ct. at 1193. RCW 41. 56. 140( 1) reflects the legislature' s intent to hold employers


accountable for unfair labor practices. Tle argument offered by the City allows public

emp 1 oyersto si estep t    _
                            e pu   ispo licy againstdiscriminationfor union activity liysimply -

creating some kind of notice " firewall" between a decision maker and others in the employer

entity. We decline to encourage the erection of this sort of firewall by conditioning subordinate

bias liability on notice to the decision maker. See Staub, 131 S. Ct. at 1193.

        Turning next to whether the City had such notice, Sutter acted within the authority

delegated to him by the City. The City eilipowered him to supervise and make recommendations

about the assignments of its other employees. Where the subordinate with animus acts within his


or her delegated powers over other employees, we charge the employer principal with



                                                          22
No. 43641 -8 -II



constructive knowledge of the wrongful conduct to provide an incentive to prevent it. See


Shrager, 913 F.2d at 405.


          In addition, the facts of this case s'u'ggest Cook had notice of concerns about anti -
                                                                                               union


animus affecting his decision. Schoene rioted that numerous people asked him, even before the

interviews, why the City bothered giving Martin an interview because he would not be selected

to the unit. Sutter alerted Cook to Schoenb' s concerns. When Schoen talked to him about the


selection process, Cook immediately, and Without prompting, declared that Martin' s union

activities had no effect on the decision. Cook' s statement shows his alertness to possible anti-


union animus in the decision making process. Thus, the City cannot avoid liability by claiming

that Cook, its decision maker, lacked notice of this animus.


D.        Termination Versus the Denial of a Benefit


          Finally, the City contends that Staub is inapplicable because the City denied Martin a

benefit rather than terminating him. We disagree, because adverse employment actions are not

confined to terminations, but also include loss of an ascertainable benefit.

          TheCity failed to assign error to finding offact 6 making-itaverity onappeal The - - - _ --

finding states that the motorcycle unit assignment, although not accompanied by a " pay

premium,"     did carry certain benefits. Ali at 1230. These include, among others, serving as a

positive factor in promotional decisions, desirable shifts, and providing the possibility of

overtime. The City may not argue that Martin suffered no harm because of the denial of the

transfer. He lost the benefits the transfer would have given him.


          RCW 41. 56. 140 embodies a legislative choice to protect workers from " retaliatory

action"   for " exercis[ ing] their   rights   to engage in   protected collective   bargaining   activity."   City


                                                         23
No. 43641 -8 -II



of Federal      Way,   93 Wn.     App.   at   513.   Retaliatory action encompasses the infliction of injury

more subtle than termination. See, e. g., Francom v. Costco Wholesale Corp., 98 Wn. App. 845,
851, 861 -63, 991 P. 2d 1182 ( 2000) ( applying             the Wilmot framework to analyze claims asserting

the   worker received      less desirable      work   shifts in   retaliation   for asserting statutory      rights).   The


Commission' s application of Wilmot recognizes this, requiring the complainant to show that the

employer       deprived the     employee of "some ascertainable right,              benefit,   or status."
                                                                                                             See, e.g.,

Wash. Fed' n of State Amps. v. Univ. of Wash., No. 23649 -U -10 -6033, 2013 WL 1796444, at * 2-

6 ( Wash. Pub.       Emp' t Relations      Comm' n, Apr. 23, 2013) (         finding an adverse employment

decision based on a discipline letter, which could lead to consequences other than termination).


             Because the legislature has charged the Commission with " administering [ the] special

field   of   law"   of unfair   labor   practices, and   has "   endowed [   it]   with quasi-judicial   functions," it has


substantial expertise in the area, and weive substantial deference to its determination that unfair


practices include adverse events other than termination. Safeco Ins. Cos. v. Meyering, 102

Wn.2d 385, 391, 687 P. 2d 195 ( 1984);               see City of Vancouver, 107 Wn. App. at 703. Martin' s

Imo the benefits conferred byselection othe motorcycle unit waspunishment forunion

activities, just as any termination would have been. We see no reason to disagree with the

Commission' s conclusion to this effect.


                 III. THE COMMISSION DID NOT ENGAGE IN RULE MAKING WITH ITS ORDER


             The City next contends that the Commission' s decision creates a new rule by subjecting

supervisors in their individual capacity, rather than the employer itself, to liability for an unfair

labor practice. Because the Commission' s order did not hold Cook personally liable, it did not

constitute rule making.



                                                                 FM
No. 43641 -8 -II



         The APA sets out certain requirements for rule making. See RCW 34.05. 310 -.395. An

agency' s failure to comply with these procedures in enacting a rule requires invalidation of the

rule.   Failor' s Pharm.   v.   Dep' t   of Soc. & Health Servs., 125 Wn.2d 488, 497, 886 P. 2d 147


 1994); RCW 34. 05. 570( 2)( c).         But,   as the   Supreme Court has              noted, "   it is   axiomatic   that `[   f]or


rule making procedures to apply, an agency action or inaction must fall into the APA definition

of a rule."'     Budget Rent -a -Car Corp. v. Dep' t ofLicensing, 144 Wn.2d 889, 895, 31 P.3d 1174
 2001) ( quoting Failor' s Pharm., 125 Wn.2d at 493).


         The APA defines both rules, the products of agency rule making, and orders, the products

of adjudicatory proceedings. A rule is

         any agency order, directive, or regulation of general applicability (a) the violation
         of which     subjects    a    person   to a penalty         or administrative           sanction; (    b) which
         establishes, alters, or revokes any procedure, practice, or requirement relating to
         agency hearings; (       c)   which establishes, alters, or revokes any qualification or
         requirement relating to the enjoyment of benefits or privileges conferred by law;
          d) which establishes, alters, or 'revokes any qualifications or standards for the
         issuance, suspension, or revocation of licenses to pursue any commercial activity,
         trade, or profession, or ( e) which establishes, alters, or revokes any mandatory
         standards for any product or material which must be met before distribution or
         sale.



RCW 34. 05. 010( 16).      An order, on the other hand, is " a written statement of particular


applicability that finally determines the legal rights, duties, privileges, immunities, or other legal

interests   of a specific person or persons."            kCW 34.05. 010( 11)( a).

         At oral argument the City conceded that, absent the imposition of individual liability on

Cook, the Commission did not circumvent the rule making requirements of the APA. Wash.

Court of Appeals, City of Vancouver v. State of Wash. Pub. Emp' t Relations Comm' n, No.

43641 -8,   oral argument ( Dec.        6, 2013),   at   4   min.,   5   sec. ( on   file   with court).    Under the APA


definitions immediately above, the City' s concession is well offered. As discussed above, we do

                                                                25
No. 43641 -8 -II



not believe that the Commission' s order subjects Cook to individual liability or creates a rule

doing so. Instead, the Commission' s order is an exercise of the Commission' s quasi-judicial

power focusing on the Guild' s proof of a causal link between Sutter' s animus and the denial of

the motorcycle position to Martin.


               IV. SUBSTANTIAL EVIDENCP-SUPPORTS THE COMMISSION' S FINDINGS


         Finally, the City also assigns error to three findings made by the examiner and adopted by

the Commission, claiming that they lack evidentiary support. We disagree.

A.       Finding of Fact 22 Is Supported .b'y Substantial Evidence As Is Necessary to Affirm the
         Commission' s Order


         The City first assigns error to finding of fact 22, which reads,

          t] he employer asserted that it did not select Martin for the motors officer position
         because   of the amount of      leave time he      used.   The inclusion of union leave in
         consideration, as well as the fact that the panel' s unanimous choice used more
         leave than any candidate, lend[ s] Itself to a conclusion that the employer' s stated
         reason was pretextual.



AR at 1232.


         The City argues that the examiner erred in finding that the selection panel considered

Martin' s union leave. It contends that uncontroverted testimony from Sutter and Cook

demonstrates that Martin' s union leave was not considered.


         Initially, we note that the City, although generally assigning error to finding of fact 22,

does not argue that the examiner erred by finding that the selection of Neill, despite his use of

more leave than Martin, led to a conclusion the leave issue was pretextual. This portion of the


finding is therefore a verity on appeal. Although we find that a portion of finding of fact 22 is

not supported by substantial evidence, as discussed below, we sustain the finding of pretext on

the   unchallenged portion, which   is   a   verity   on appeal.
No. 43641 -8 -II



          We also note that the examiner found Sutter lacked credibility. The examiner' s written

opinion determined that " Sutter' s memory and account of events are unreliable and contradictory

to the   testimony   of other witnesses."    AR at 1226. We defer to this credibility determination.

          Nonetheless, we hold that substantial evidence does not support the challenged portion of


finding of fact 22. The only evidence that Indicates the panel considered the Guild leave was its

inclusion into exhibit 27. No evidence from Foster or Schoene stated that they considered the

 other" leave column, and Sutter explicitly denied doing so. While we must discount Sutter' s

statement somewhat given the examiner' s finding that he lacked credibility, Cook was adamant

that Martin' s Guild leave was not factored into consideration. Given the absence of anyone


stating they considered Guild leave, the fact that it was included in the interview packet does not

rise to the level of substantial evidence.


B.        Substantial Evidence Supports Fii - ing of Fact 24


          The City next argues that the evidence does not support finding of fact 24, which

provides:



          Sutte- -asserted that hisonlyconcetn -
               r                               with- se          ecting   artin to-
                                                                                  the motors position
          was his leave use. However, Sutter testified that he wanted someone for the
          position who    shared   the   Chief' s "   Sutter' s statement suggests that by
                                                      vision."

          looking for someone who shared the Chief' s vision, he wanted someone who did
          not make statements or engage in activities in opposition to the Chief, as Martin
          did in his capacity as union president.

AR at 1232 -33.


          The City argues that Sutter' s comment was an " isolated statement" that cannot give rise

to an inference that his recommendation of Davis was pretextual. Br. of Appellant at 43.


Specifically, the City contends that Sutter did not direct his statement about supporting the police



                                                          27
No. 43641 -8 -II



chief' s vision at Martin and that the comment therefore cannot provide evidence of anti -union


animus.



          We have, on at least two occasions, held that an offhand comment not directed at the


complainant does not suffice to show an employer took discriminatory action. Scrivener v. Clark

Coll., 176 Wn.        App.   405, 414 -16, 309 P. 3d 613 ( 2013), review granted, 316 P. 3d 495 ( 2014);


Kirby    v.   City   of Tacoma, 124 Wn.    App. 454,          467   n.   10, 98 P. 3d 827 ( 2004).   However, the City' s

argument cannot survive a review of the record. The comment at issue came in the context of


Schoene' s summary of why Martin' s skills made him the most qualified for a position in the

unit. While Sutter did not utter Martin' s name when stating that the best fit for the unit would be

someone supportive of the police chief' s vision, the other panel members viewed the statement


as a specific reference to Martin. Schoene immediately answered that he understood that Martin

had difficulties with upper management, abut, at his level in the department, Martin had always

seemed supportive of the chief' s vision. Sutter did not reply that Schoene misunderstood him,

indicating that Schoene correctly understood the comment targeted at Martin. In context, this

was   not an o         an - comment.


          The City also argues that the examiner disregarded Sutter' s explanation of his comment

on cross -examination, which was that he meant that Martin' s absences would undercut the


presence in the community the police chief envisioned for the unit. The examiner can refuse to

credit   testimony,      and we will not upset       these determinations.          Thomas, 176 Wn. App. at 813. As

discussed above, the examiner found Sutter lacked credibility, so the examiner could refuse to

consider Sutter' s explanation as truthful. Further, Sutter did not offer this explanation to correct

Schoene       at   the time, offering it only   at   trial,   which allowed      the examiner to conclude the
No. 43641 -8 -H



explanation was pretextual and unworthy of credence. Emmel v. Coca -Cola Bottling Co. of

Chicago, 95 F. 3d 627, 634 ( 7th Cir. 1996) ,(the        fact finder may determine an explanation is

pretextual when offered only at trial despite earlier opportunities to do so).

        The record contains evidence of the numerous ways Martin, as Guild president, used the


CBA to block Cook' s realization of his vision for the department. One of Martin' s invocations


of the CBA to impede Cook' s reforms to the department occurred contemporaneously with the

panel' s interviews. See Wilmot, 118 Wn.2d at 69 ( temporal proximity between event and alleged

retaliatory   action   important in establishing     pretext).      Given these activities, their timing, and

Sutter' s awareness of them, substantial evidence supported the examiner' s finding that Sutter' s

statement betrayed his animus towards Martin for Martin' s protected activities and that his

concerns about Martin' s leave use were pretextual.


C.      Substantial Evidence Supports Finding of Fact 27


        Finally, the City       assigns error to   fending   of   fact 27,   which reads, "   Although Cook' s


decision not to select Martin was not substantially based on union animus, he relied in making

that decision on a tainted recommendati6h             rom     utter."    AR at 1233.


        The City, although assigning error to this finding, makes no argument as to why the

finding is erroneous. We decline to " consider assignments of error unsupported by argument or

authority." Nelson       v.   Dep' t of Labor & Iyidus., 175 Wn. App. 718, 728, 308 P.3d 686 ( 2013).

Even if we were to reach the merits of the City' s argument, substantial supporting evidence

exists in the record. Schoene testified about his meeting with Cook and stated that Cook had

described how he made the decision by simply counting votes. Cook himself acknowledged the




                                                             29
No. 43641 -8 -II



meeting and stated that he discussed his decision making process with Schoene while they

talked. We affirm the finding.

                                           V. ATTORNEY FEES


        The City and the Guild both request attorney fees. Both make this request in the final

sentence of their conclusion sections. Neither the City nor the Guild provides argument or

citation to authority showing their entitlement to attorney fees. Because they fail to comply with

the requirements of RAP 18. 1, we reject their " bald request[ s] for attorney fees on appeal."

Wilson Court Ltd. P' ship   v.   Tony Maroni' s, Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 ( 1998).

                                             CONCLUSION

        Although we find the Commission applied an erroneous burden of proof, we find the


error harmless and affirm its decision that the City committed an unfair labor practice by denying

Martin the position in the motorcycle unit. We affirm the Commission' s order requiring the City

to remedy its unfair labor practices by offering Martin a position in that unit as well as taking

other measures.

                                                          ag.




                                                      BJrr iGEN, 14
We   concur:                                                    F: r




JbHANSON, A.C. J.




MAXA, J.
                            J,
                                                    30
