FILED 

### COUi i OF AEP r' LS DIM10110M ii 2014 

### MAR 25 

### AN S: 50 IN THE COURT OF APPEALS OF THE STATE OF W. GI,. GN 

### DIVISION II CITY OF VANCOUVER, a municipality; Appellant,

STATE OF WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION; VANCOUVER POLICE OFFICERS GUILD, Res No. 43641 -8 -II PUBLISHED OPINION 11

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

### the city ofVancouver (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 thatthe Commission (1) improperly appliedjudicial precedent to the Guild' s discrimination complaint; (2) violated the Administrative Procedure Act 

### APA),_ chapter_ 34.05 RCW,_

by engaging_

in_ improper ml_

emaking;_

and (3) based its decision _ 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 improperburden of proof in determining the City' s liability, 

### butthat this errorwas harmless becausethe Commission' s findings show thatthe City

committed an unfair labor practice whenjudged under the proper burden of proof. We concludeNo. 43641 -8 -II



### furtherthat Martin suffered an adverse employment action when the City decided not to transfer him to the motorcycle unit. Finally, we conclude thatthe Commission' s orderwas not an 

### exercise of rule -

making authority and that the Commission' s findings offact are supported by substantial evidence. For these reasons, we uphold the Commission' s order. FACTS 

### In April 2007,the City hired Cookas its chiefofpolice. Cook is a devotee ofthe 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 

### ofpolice officers assigned to basic patrol ditties. To remedythese shortages, Cookeliminated 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 oftwo 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 - Ken : Suvada: - - -- -- - - - - - - -- — 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) 

### at467 - 68. In the months between Martin' s election to the Guild's presidency and the selection 

### ofthe officers forthe motorcycle unit, Martin challenged the police department' s leadership on behalf ofthe Guild' s members on several different occasions, filed grievances against the

2No. 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 

### ofMartin' 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 

### forthe 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 staffthe 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 andwho would serve as the supervisinge0- rpor9- inthereformedunit,preferredMartin. — — -- 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 underthe 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
3No. 43641 -8 -II



### explained that Martin' s skills would bestserve the reconstituted unit's primary mission oftraffic
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 thatthe 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 OfficerMartin, 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 ifthat' 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 laterbroughtup Martin's leave usage as apossible weakness forhis candidacy, noting that Martin took blocks offlex 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 - leave ha - bitsmig 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 ofhis 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 arrangementsQ 04 . GEW - ftl 

### that allowed him to workfull 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 detrimentto 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 afterthe interviews, Sutter contacted Pat Johns, who hadjust 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 forthe 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 afterCookhadmade the decisionto denythe positionto Martin.

### Sutter gave Cookthe panel' s recommendations, unanimously endorsing Neill for a position, but splitting two votes to one in recommending Davis over Martin forthe 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 ofMartin' s
Sutter and Foster both testified that Johns changed his recommendation to Davis after 

### becoming aware ofSutter' s concern over Martin' s leave. Johns denied this and the examiner credited Johns' s testimony. 5No. 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 againstthe 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 thatthe 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 visionfor thedepartment; ratherthan 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 ofthe 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 ofhis 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

nNo. 43641 -8 -II



### fulfill his other departmental duties a detriment to his candidacy, but did notfind Davis' s absences for identical reasons to be problematic.

While the examiner found animus on Sutter' s part, she found Cook possessed no animus ofhis 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 ofthe 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 ofthe 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 ofVancouver" through its "officers and agents" to " immediately ... remedy its unfair labor practices." AR at 1234. The remedial steps 

### included offering Martinapositionin themotorcycleunit. ---- - - -- -_- - - - - - -- - - - _ - - -- 

### The City appealed the examiner'sdecision and orderto 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" forthe animus of subordinates, using its interpretation ofthe subordinate bias theory of liabilityfound in Staub v. Proctor Hospital, U.S. _, 131 S. Ct. 1186, 179 L. Ed. 2d 144 (2011), which had issued after the examiner' s

7No. 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 Chapter41. 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 makerto say the decision was made independently. 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 ofthe 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 soughtjudicial review ofthe Commission' s decision and order, moving for direct review bythis court. The Clark County Superior Court certified the appeal and our 

### commissioner accepted the City's petition for discretionary review.

E: 3No. 43641 -8 -II ANALYSIS



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

### theory ofliabilityfound in Staub, improperly engaged in rulemaking with its order, and that three findings made by the examiner and adopted bythe 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. 56.040 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 employerto " interfere with or discriminate against" employees exercising the rights protected by 

### chapter41.56 RCW. City ofFederal Way V. Pub. Emp' tRelations Comm'n, 93 Wn.App. 509, 512, 970 P.2d 752 ( 1998) ( citing RCW 4. 56. 140( 1)). 2 

### The legislature "empowered and directed [the Commission] to prevent any unfair labor sion s - -- practice-

and - to - issueappropriateremedial - orders.- - -

RCW4156:160(1): - The Coiinirus 

### 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 thatthe 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 underthe Commission' s precedent the interference violation here 7s derivative ofthe discrimination violation and our decision to affirm or reverse the discrimination violation also determines the fate of the 

### interference violation. Yakima Police Patrolmen'sAss' n v. City ofYakima, 153 Wn.App. 541, 566, 222 P.3d 1217 (2009) (

### quoting Kozlowski v. Clark County, No. 18682 -U - 04 - 4748, 2007 WL 4111397, at * 

### 10 (Wash. Pub. Emp'tkelations Comm'n Oct. 10, 2007). 9No. 43641' - 8 -II 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 bythe APA. RCW41.56.165; City ofVancouverv. 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 orjudicial precedent, de novo. 

### City ofVancouver, 

### 107 Wn.App. at703. We may substitute ourinterpretation ofthe law forthe Commission' s, although we give the Commission' s interpretation of chapter 41. 56 RCW great weight and 

### substantial deference. City ofVancouver, 107 Wn.App. at703. We review the Commission's factual findings " for substantial evidence in light ofthe whole record, i.e., evidence sufficient to persuade a fair - minded person of their truth." 

### City ofVancouver, 107 Wn. App. at 703. When performing this review, we may "not substitute [our]judgment forthat ofthe 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-- 761- (2013). -

### Also,we consider- urielial 6iig—

d-findingstobeveritieson — 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 firstclaims that the Commission erroneously interpreted and applied the 

### subordinate bias theory ofliabilityfound in Staub tothe 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 ofliability on the City with a burden of

10No. 43641 -8 -II

proof inconsistent with Washington law.3 

### The City also contends thatthe Commission erred by applying Staub at all because Cooklacked knowledge ofanimus 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 laborpractices, but that the Commission' s order did not impose personal liability on Police Chief Cook. We hold also thatthe Commission applied an improper burden ofproof 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 ofunfair 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, benefitorstatus; and (3) there is a causal b- nnection betweenthose events." –Yakima Police - - - - -- - --- - - Patrolman' s Ass' n v. 

### City ofYakima, 153 Wn. 

### App. 541, 554, 222 P.3d 1217 (2009) (quoting 

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

### WL 1056978, at * 6 (Wash. Pub. Emp't Relations Comm'n Sept29, 1998)). Ifthe complaining party makes this prima facie case, the employer may articulate a

3 Amicus curiae Washington State Association of Municipal Attorneys devotes its briefto the same burden ofproofissue that the City makes.11100 . 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. ofReardan-Edwall, 1998 WL 1056978, at * 6). The employer bears the burden of production, not of persuasion, in 

### offering this permissible reason forthe averse employment decision. Wilmot, 118 Wn.2d at 68 citing Baldwin v. Sisters ofProvidence in Wash., Inc., 112 Wn.2d 127, 134, 769 P.2d 298 1989)); 

### Yakima Police, 153 Wn.App. at 554 (citing Bonds v. City ofTacoma, No. 8702 - U - 90- 1898, 1995 WL 854141, at * 

### 11 ( Wash. Pub. Emp't Relations Comm'n June 20, 1995)).. Ifthe employer meets its burden ofproduction for offering a permissiblejustification, the complaining party bears the burden ofpersuasion 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. ofReadanEdwall, 1998 WL 1056978, at * 6. The complainant may discharge this burden in one oftwo 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

12No. 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 powerto impose individual liability. 

### Whetherthe 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 ofEcology 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 afterthis 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 areartificial beingsthatcari oinlyactthroughtheiragents. 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 ofchapter41. 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." 13No. 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 argumentthat the Commission1may never impose liability on individual supervisors cannot carrythe field. 2. Cook' s individual liability under Staub. 

### The City next contends thatthe Commission erred in applying Staub to impose personal liability on Cookbecause Staub concerned agency liability and Sutter was not Cook' s agent. 

### While we agree with the City's characterization ofStaub, 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. ofLos Angeles, 450 F.3d 476, 484. (10th Cir. 2006). Subordinate bias liability recognizest at i'--( F( esnot matterw et er t esubordinate personally - pulls thetrigger "' onthe 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

14No. 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 Citythat 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,wefind no intent on the part ofthe Commission to impose liability on Cook. We interpret an agency order in the same manner we interpret statutes. Office ofPub. Util. Counsel v. Tex. -

NM Power Co., 344 S.W.3d 446, 450 - 51 ( Tex. 

### 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 ofthe statutory scheme as a whole, we interpret language in an order 

### in lightoftheorderasa whole.- - SeePhillip M&

r- ris; 176-N C.App at515; Cedar - RapidsSteel - - - 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 onlythe City to carryout any actions to remedy the unfair labor practice. AR
15No. 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 thatthe 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 fortwo reasons. First, we presume that the Commission knew the common law 

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

### Ct. at 1191 -92. Even assuming that the Commission hadthe powerto alterthe limits ofagency liability,we presume that it had no intent to do so without a clear, unambiguous statement ofthis 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 ordertherefore defeats any claim that it imposed individual liabilityon Cook. -Second;we must interpretthe - Com nssion s intentfrom - Whatitwtuallyd d;_- 

### notjustwhat it said. As noted,whateverlanguage 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 forthe 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

16No. 43641 -8 -II

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

### answers that it may find a causal linkwhere 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 errorwas 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 ofpretextual 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 ofpretext on Sutter's part does not address. Cook made the ultimate decision atissue, and We cannot infer ariftermissibTe motive on-hispart for the- decision - - 

### because the finding ofpretext related to Sutter, not Cook. As noted,the agencyprinciples 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 orderto 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

17No. 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 overthe ultimate decision, the Citybears liabilityfor 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 ofcontrol varies based on the language of the statutory provision proscribing the discriminatory act. 5 

### 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. - at1T91 =

95 (quot7rig38 US C - -§ 4311( c)): -- - -- 

### RCW 41.56. 140 does not prescribe any specific burden of prooffor 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 overthe requisite level of control, even when 

### interpreting the same statutory language. See BCI Coca - Cola Bottling Co., 450 F.3d at486 - 88 collecting cases and analyzing the issue). MNo. 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. SeeAllison v. Hous.Auth. ofSeattle, 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 ofprooffor 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 ofFederal 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 factortest is the 

### appropriate burden ofproofwhere multiple actors might have caused the complainant's injury. 118- Wn. 2dat93 =

94- ( quoting RobertBelton, - Causation iaEinpIoyineniDiscriminationLaw - , - 34 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 ofproof assigned to

19-No. 43641 -8 -II



### complainants seeking to prove a statutory discrimination case underWashington 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 ofthe 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 ofproving causation in 

### anytort-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 at405. To place the burden ofproving a lack ofanimus on the employereliminates 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 APAjudicial relief is 

### appropriate only ifthe "person seeking relief has been substantially prejudiced by the action complained of:"-RCW-34.05570( 1)( d). -

### 11ased onceexaminer'sfindingof- facf27 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 

### Examinerfound 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 PNo. 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
suffered no prejudice from the error, and we affirm.6 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 makerwas 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 ofthe subordinate' s
animus

### First,the City contends thatthe d' e'cisionmaker in Staub had notice ofthe discriminatory intent ofthe 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. 21No. 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. 

### Nordo any ofthe othersubordinate bias liability cases makethe decision maker's awareness of the supervisor' s bias determinative of liability. See, e.g., Shager, 913 F.2d 399 - 400. We 

### considerthe role ofthe decision maker only to see ifhe orshe acted as a supervening cause of the adverse action. If he or she makes an independent choice to take the adverse action substantially free ofthe subordinate' s animus, this supersedes the subordinate' s tainted act as the
cause ofthe 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 irrelevantto 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 [liabilityfor] 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 laborpractices. Tle argument offered bythe City allows public emp1oyerstosi estept _ e pu 

### ispolicy 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 ofthis sort offirewall by conditioning subordinate bias liability on notice to the decision maker. See Staub, 131 S. Ct. at 1193. 

### Turning nextto whetherthe City had such notice, Sutter acted within the authority delegated to him bythe 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

22No. 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 ofthis 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, whythe City bothered giving Martin an interview because he would not be selected to the unit. Sutter alerted Cookto 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 liabilityby claiming that Cook, its decision maker, lacked notice ofthis animus. D. Termination Versus the Denial of a Benefit 

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

### benefit ratherthan terminating him. We disagree,because adverse employment actions are not confined to terminations, but also include loss of an ascertainable benefit. 

### TheCityfailed to assign errorto finding offact 6 making- itaverityonappeal 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 ofthe denial ofthe 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

23No. 43641 -8 -II

ofFederal 

### Way, 93 Wn. 

### App. at 513. 

### Retaliatory action encompasses the infliction of injury 

### more subtlethan termination. See, e.g., Francom v. Costco Wholesale Corp., 98 Wn.App. 845, 851, 861 -63, 991 P.2d 1182 (2000) (

### applying the Wilmot frameworkto 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 thatthe employer deprived the employee of "some ascertainable right, benefit, or status." 

### See, e.g., 

### Wash. Fed'n ofState Amps. v. Univ. ofWash., 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 ofVancouver, 107 Wn.App. at 703. Martin' s Imo thebenefits conferred byselection othe motorcycleunitwaspunishment forunion 

### activities,just as anytermination 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 thatthe 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.

FMNo. 43641 -8 -II 

### The APA sets out certain requirements for rule making. See RCW 34.05.310 -. 395. An 

### agency's failure to complywith these procedures in enacting a rule requires invalidation ofthe

rule. Failor' s Pharm. v. Dep' t ofSoc. & 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."' 

### BudgetRent -

a -Car Corp.v.Dep'tofLicensing, 144Wn.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 

### applicabilitythat 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 ofthe APA. Wash. 

### Court ofAppeals, City ofVancouverv. State ofWash. 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 25No. 43641 -8 -II



### not believe that the Commission' s order subjects Cookto individual liability orcreates a rule doing so. Instead, the Commission' s order is an exercise ofthe Commission's quasi-judicial powerfocusing on the Guild's proofof 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 errorto three findings made bythe examiner and adopted by 

### the Commission, claiming that they lackevidentiary 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 offact 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] Itselfto a conclusion that the employer's stated reason was pretextual. AR at 1232. The City argues thatthe 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 offact 22, 

### does not argue thatthe examiner erred byfinding thatthe selection ofNeill, despite his use of
more leave than Martin, led to a conclusion the leave issue was pretextual. This portion of the 

### finding is therefore averity on appeal. Although wefind that aportion offinding offact22 is not supported by substantial evidence, as discussed below,we sustain the finding ofpretext on the unchallenged portion, which is a verity on appeal.No. 43641 -8 -II



### We also note that the examinerfound Sutter lacked credibility. The examiner' s written opinion determined that "Sutter's memory and account ofevents 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 offact 22. The only evidence that Indicates the panel considered the Guild leavewas its inclusion into exhibit 27. No evidence from Fosteror 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, Cookwas adamant that Martin' s Guild leave was not factored into consideration. Given the absence of anyone 

### statingtheyconsidered Guild leave,the factthat itwas included in the interviewpacket 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 offact 24, which provides:

Sutte- r-asserted that hisonlyconcetn - 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 " vision." Sutter' s statement suggests that by 

### 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 Sutterdid not direct his statement about supporting the police

27No. 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 ofTacoma, 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 ofwhy 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 ofthe 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 ofhis comment on cross -

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

### presence in the communitythe police chief envisioned forthe 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 examinerfound Sutter lacked credibility, so the examiner could refuseto 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 theNo. 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 factfinder 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 

### ofthe 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, theirtiming, and 

### Sutter' s awareness ofthem, 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 errorunsupported by argument or authority." Nelson v. 

### Dep' t of Labor & Iyidus., 

### 175 Wn.App. 718, 728, 308 P.3d 686 (2013). Even ifwe were to reach the merits ofthe 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

29No. 43641 -8 -II



### meeting and stated that he discussed his decision making process with Schoenewhile 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 oftheir conclusion sections. Neitherthe 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 attorneyfees 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 

### errorharmless 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.
BJrriGEN, 14 We concur: F:r

JbHANSON, A.C.J. 

# J, MAXA, J.

30