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, and the City appealed. In relevant part, the Court held that the Commission ?could ?impose ?liability? on individuals (the Police Chief, Cook) for unfair labor practices, but that the Commission in this case did not do so. ?The Court also ruled that the Commission applied an incorrect burden of proof for the City?s liability when it applied the theory of subordinate bias liability (cat?s paw) pursuant to Staub v. Proctor Hospital, ???????U.S. ???????, 131
- S. C 1186, 179 L. Ed. 2d 144 (2011). Applying the principles of Staub, the Commission ruled:
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 was made independently.?? Credible evidence must exist that demonstrates ?that ?the? decision maker purged from the decision making process the discriminatory recommendation. Slip Opinion at 8. In reference to the City?s liability, the Court found that the Commission did not find that the biased subordinate?s influence was a ?substantial factor? in the adverse decision, but rather that it influenced the decision ?to any degree? or was a ?motivating factor? and was therefore an incorrect application of Washington law.
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 Cook’s decision, and the City is not liable for Sutter’s conduct.? ?See Shrager, 913 F.2d at
- If, however, Sutter exercised the necessary control over the ultimate decision, the City bears liability for a decision caused by his animus. ?BCI Coca-Cola Bottling Co., 450 F.3d at 486-88. Slip Opinion at 17-18
The Court found that unfair labor practice complaints? ?filed? ?under?? RCW?? 41.56.140? ?are statutory discrimination cases, and the same standard applies.?? ?Consequently, a complainant seeking to use the subordinate bias theory of liability must show that the subordinate’s animus?added). ?Because the Commission’s order merely required that an agent with animus “influence” an adverse employment decision, it adopted the “to any degree” standard which has been rejected by Washington law; 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?? complainants seeking to prove a statutory discrimination case under ?Washington ?law.???? ?Id. ?at ?19.???? Citing Allison, 118 Wn.2d at 94. The Court found, however, that the error was harmless because the record was clear that the subordinate?s bias caused (was a substantial factor) the adverse employment action.
City of Vancouver v. State of Washington Public Employment Relations Commission; (3/25/14) (Bjorgen, Johanson, Maxa).