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City of Vancouver v. The Public Employment Relations Commission

Court of Appeals of Washington, Division 2

March 25, 2014

The City of Vancouver, Petitioner ,
The Public Employment Relations Commission et al., Respondents

Oral Argument December 6, 2013.

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[Copyrighted Material Omitted]

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Appeal from Clark Superior Court. Docket No: 12-2-01821-2. Date filed: 06/15/2012. Judge signing: Honorable John P Wulle.

Theodore H. Gathe, City Attorney, and Jonathan J. Young, Assistant, for petitioner.

Robert W. Ferguson, Attorney General, and Mark S. Lyon, Assistant, for respondent Public Employment Relations Commission.

David A. Snyder (of Snyder & Hoag LLC ), for respondent Vancouver Police Officers' Guild.

Timothy J. Donaldson and J. Preston Frederickson on behalf of Washington State Association of Municipal Attorneys, amicus curiae.

AUTHOR: Thomas R Bjorgen, J. We concur: Jill M Johanson, A.C.J., Bradley A. Maxa, J.


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[180 Wn.App. 338] ¶ 1 Bjorgen, J. --

The Public Employment Relations Commission (Commission) found that the city of Vancouver [180 Wn.App. 339] (City) committed an unfair labor practice by discriminating against

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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 34.05 RCW, by engaging in improper rulemaking; and (3) based its decision on factual findings unsupported by the record.

¶ 2 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 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.


¶ 3 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 duties. 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.

[180 Wn.App. 340] ¶ 4 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, officers Martin, John Davis, Scott Neill, and Ken Suvada.

¶ 5 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 department for Guild members, and exercised Guild members' rights under the collective bargaining agreement (CBA) to block Cook's attempts to reorganize the department.

¶ 6 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. Ex. 27. This leave included that granted to the Guild's president for union business under the CBA.

¶ 7 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 second position came down to Martin and Davis. Sutter and [180 Wn.App. 341] Foster preferred Davis. Schoene, who had supervised the two men in the old motorcycle unit and who would serve as the supervising corporal in the reformed unit, preferred Martin.

¶ 8 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

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

¶ 9 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.

¶ 10 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 [180 Wn.App. 342] him for promotion. Schoene admitted that with the smaller unit, Martin's leave habits might present an issue. Schoene reiterated, however, that he would select Martin over Davis, although, under pressure from Sutter, Schoene 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.

¶ 11 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 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.

¶ 12 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.

¶ 13 The day after the interviews, Sutter contacted Pat Johns, who had just been chosen to fill the sergeant's position in the motorcycle unit, 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 [180 Wn.App. 343] recommend Martin.[1] No one told Cook about Johns's recommendation until after Cook had made the decision to deny the position to Martin.

¶ 14 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 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

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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.

¶ 15 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.

¶ 16 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 antiunion bias based on three pieces of evidence. First, Sutter's statement about selecting someone who supported Cook's vision for the department, rather than the most qualified, betrayed antiunion animus. Sutter made this statement near in time to Martin's challenges to [180 Wn.App. 344] the department's leadership on behalf of the Guild's members and his assertion of their CBA rights to thwart Cook's plans for 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, Sutter 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 fulfill his other departmental duties a detriment to his candidacy but did not find Davis's absences for identical reasons to be problematic.

¶ 17 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[cycle] [o]fficers positions was discriminatory.

AR at 1228-29.

¶ 18 The examiner's order required " [t]he City of Vancouver" through its " officers and agents" to " immediately ... remedy its unfair labor practices." AR at 1234. The remedial steps included offering Martin a position in the motorcycle unit.

¶ 19 The City appealed the examiner's decision and order to the Commission. The Commission affirmed the decision, [180 Wn.App. 345] 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 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 reached 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

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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 was made independently. Credible evidence must exist that demonstrates that the decision maker ...

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