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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
YAKIMA POLICE PATROLMEN'S ASSOCIATION, Appellant, v. PUBLISHED OPINION CITY OF YAKIMA, Respondent.

No. 37865-5-II

Van Deren, C.J. -- The Yakima Police Patrolmen's Association (Association) filed an unfair labor practice (ULP) complaint with the Public Employment Relations Commission (PERC) against the City of Yakima (City), arguing that the termination of Yakima Police Officer Michael Rummel constituted unlawful domination of the Association as well as discrimination and interference with protected union activities. The hearing examiner rejected the domination claim but found that the City discriminated against Rummel and committed a derivative interference with collective bargaining rights. The City appealed and PERC reversed the examiner and dismissed the complaint. The Association appealed that dismissal and the Thurston County Superior Court affirmed the PERC decision. The Association now appeals the superior court's order enforcing the PERC decision and dismissing its appeal. We affirm.

No. 37865-5-II FACTS I. Rummel Misconduct 2002-2004 In August 2002, Yakima police officers stopped Rummel for driving under the influence of alcohol while he was off duty. Rummel acted in a non-compliant manner and the officers escorted him home; they warned him not to operate a vehicle under his current state of intoxication. That same evening, Yakima officers again observed Rummel driving and he was charged with driving under the influence of alcohol. After an internal investigation determined that Rummel's actions violated several employer policies, Rummel signed a "Last Chance Employment Agreement" requiring him to abide by several conditions, including evaluation and treatment for substance abuse and an agreement to "comply with any and all Yakima Police Department Policy and Procedures and Yakima Police Civil Service Rules." Admin. Record (AR) at 631-32. The last chance agreement had a three year term and it stated in bold the consequences of its violation: It is expressly understood and agreed by the City, Employee, and the [Association] that should Employee fail to fully comply with any of the terms and conditions stated herein, his employment with the City of Yakima shall be terminated. AR at 632. In late 2004, Stacey Unglesby's supervisor filed a complaint alleging that Rummel had made several harassing phone calls to Unglesby at work. Unglesby worked for the City as a "911 call taker" and was dating Rummel. AR at 255. After Unglesby's supervisor listened to recordings of the calls, he felt that Rummel was potentially suicidal. Captain Greg Copeland, Rummel's immediate supervisor, took steps to have Rummel undergo a mental health evaluation.

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No. 37865-5-II "On October 31, 2004, Yakima police officers responded to reports of a domestic dispute at Rummel's apartment involving Rummel and Unglesby." AR at 927. The two had argued at a Halloween party and Rummel refused to allow Unglesby into his apartment to retrieve her keys. Police Lieutenant, then Police Sergeant, Nolan Wentz accompanied Unglesby into the apartment and observed Rummel loading a shotgun. Wentz and Unglesby left the apartment immediately and contacted Copeland. When Copeland arrived, he could tell that Rummel was intoxicated. During a meeting the next day, Copeland ordered Rummel not to have any contact with Unglesby. Copeland interviewed Unglesby on December 7 about a possible violation of that no-contact order and learned that Rummel had contacted her at work on December 6. Before the City could investigate that contact, Rummel's physician advised Copeland that Rummel was having difficulty eating and sleeping and needed leave time from work. After Copeland and Yakima Police Chief Samuel Granato met with Rummel on December 10, the City placed Rummel on administrative leave and ordered him to undergo a psychiatric evaluation. Dr. Kathleen Decker evaluated Rummel on December 20 and advised that he was not fit for duty because he suffered from major depression and alcohol abuse. She recommended that he remain on leave for 4-6 weeks, take medication and refrain from alcohol usage, and be reevaluated at the end of the leave period. When Dr. Decker reevaluated Rummel on February 17, 2005, she found him fit for duty but recommended that he undergo 90 days of random urinalysis testing. II. Dahl Complaint Meanwhile, on February 16, 2005, the Association filed a ULP complaint against the City regarding Yakima Police Officer Brian Dahl. Dahl had admitted an addiction to prescription drugs in the summer of 2004 and Dr. Decker recommended that he be subject to six months of 3

No. 37865-5-II random urinalysis as a condition of returning to duty. The drug policy then in place only allowed mandatory random testing based on a reasonable suspicion of drug abuse. The City met with Dahl and some Association representatives to go over the reinstatement order incorporating Dr. Decker's conditions; but the Association did not want to set a precedent regarding random drug testing and wanted to negotiate a policy for future situations. Granato told the Association it was not his intention to use the Dahl reinstatement order as precedent to implement random drug testing and that he understood that the parties would be addressing the issue during upcoming contract negotiations. In its ULP complaint, the Association charged that the City had "unilaterally changed its drug testing policy, without providing the union with an opportunity to bargain." AR at 779. It also alleged that the City engaged in improper direct dealing with Dahl.1 III. Rummel Negotiations and 2005 Misconduct After the City received Dr. Decker's conditions for Rummel's return to work, it discussed with the Association how to put her recommendations into effect. The City did not want to face a second ULP charge in following Dr. Decker's instructions regarding random alcohol testing for Rummel. An Association representative, Yakima Police Office Shawn Boyle, proposed that if the City agreed not to use the individual reinstatement agreements against the Association as some kind of precedent in bargaining, the Association would drop its ULP charge based on the Dahl case. The Association agreed to develop a proposal that would allow Rummel to be tested.

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PERC ultimately held that the City did not circumvent the Association when it discussed the terms of the reinstatement order with Dahl and that the City did not refuse to bargain the terms of the order. But PERC also concluded that, as soon as the City expressed a desire for a random drug testing policy that covered all bargaining unit employees and the Association responded with a proposal, the City was obligated to bargain. Yakima Police Patrolmen's Ass'n v. City of Yakima, No. 19206-U-05-4822, 2008 WL 2002002 (Wash. Pub. Employment Relations Comm'n Apr. 25, 2008). 4

No. 37865-5-II While the City was waiting for the Association's proposal, Copeland finished his investigation into Rummel's alleged violation of his no-contact order in December 2004 and sustained the insubordination charge. Association President Robert Hester delivered a proposed agreement regarding Rummel's random urinalysis testing to Copeland on April 4. The proposal agreed that Rummel's reinstatement would be subject to 90 days of random alcohol testing, reiterated that this testing did not create a department-wide policy or establish any precedent, and stated that the agreement would have no effect on the Dahl complaint. Although Granato felt the agreement was inconsistent with what the parties had discussed, he forwarded it to the City's legal office for review. At that time, Granato was trying to get Rummel back to work. Rummel injured his hand in March, which further delayed his return to work, and "[o]n April 1, 2005, [he] was accused of using his police badge to enter a bar without paying the cover charge, a violation of the Yakima Police Code of conduct which prohibits officers from using their badge for monetary gain." AR at 929. After an investigation, the City concluded that Rummel violated an employer policy. Copeland reviewed Rummel's investigative file in early May and recommended termination in a document signed on May 2, 2005. Granato signed the document on the same day with the same recommendation, but asked for further investigation before he made a final decision. On May 27, Granato met with three Association members for a labor/management meeting.2 During that meeting, Hester inquired about the status of pending internal investigations, including Rummel's case. The parties offer differing versions of Granato's response.
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Granato was the only management representative present; the three Association members were Hester, Michael Lindgren, and Jay Seely. 5

No. 37865-5-II Granato testified that he attempted to explain the delay in addressing Rummel's status by reminding the Association that it had promised to propose language incorporating Dr. Decker's recommendation for alcohol testing without triggering another ULP charge as well as language addressing the Dahl charge. Granato explained that he had done his best to keep Rummel on while waiting for the proposed language and that the proposal he received in April did not reflect the resolution the Association initially offered. He reminded the Association that Rummel had hurt his hand and again gotten into trouble. He explained that he had been sticking his neck out for Rummel and was "not going to keep sticking it out there." AR at 436. Granato did not disclose that he was leaning toward recommending termination, but he did say it was not looking good for Rummel based on the information Granato had at that point. Hester and Association Vice President Michael Lindgren, who also attended the May 27 meeting, testified that Granato said he was going to fire Rummel because the Association had not dropped the Dahl ULP charge. IV. Rummel Termination and Appeals The City provided Rummel with notice of its intent to terminate his employment on June 2 and held a pre-termination hearing on June 16, 2005.3 Based on points the Association raised about the April 1 incident at that meeting, Granato directed the investigator to conduct further interviews. That investigation did not change the City's assessment and the City terminated Rummel on July 5, 2005 based on his violation of the last chance agreement. The Association filed an ULP charge with PERC as well as a grievance on Rummel's

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The administrative record provides two different dates for the pre-determination hearing, June 10, 2005, and June 16, 2005. We use the June 16, 2005 date because that is the date of the Yakima police detail report. 6

No. 37865-5-II behalf. An arbitrator initially sustained the grievance, but the City appealed, and the trial court set aside the arbitrator's decision and held that the City acted within its rights in terminating Rummel's employment. Division III recently affirmed and upheld the City's termination decision under the terms of the last chance agreement.4 City of Yakima v. Yakima Police Patrolman's Ass'n, 148 Wn. App. 186, 199 P.3d 484 (2009). The PERC hearing examiner rejected the Association's contention that the City attempted to dominate the union but found that the City had discriminated against Rummel and committed a derivative interference with collective bargaining rights in violation of RCW 41.56.140(1) and (3). Yakima Police Patrolmen's Ass'n v. City of Yakima, No. 19741-U-05-4998, 2006 WL 3289254 (Wash. Pub. Employment Relations Comm'n Oct. 20, 2006) (corrected findings of fact, conclusions of law, order). The examiner ordered the City to cease and desist from discriminating against its employees in reprisal for their union's filing of ULP complaints, to refrain from interfering with its employees in the exercise of their collective bargaining rights, and to reinstate Rummel with back pay and benefits due from the date of the unlawful discharge. Yakima Police Patrolmen's Ass'n, 2006 WL 3289254, at * 9. The City appealed and PERC reversed, finding insufficient evidence to support the Association's charges. Yakima Police Patrolmen's Ass'n v. City of Yakima, No. 19741-U-054998, 2007 WL 1666668, at *1 (Wash. Pub. Employment Relations Comm'n May 9, 2007) (decision of commission). PERC adopted all but two of the examiner's findings of fact. Yakima

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Division III found that the arbitrator's factual determination that Rummel had not misused his position on April 1 was not reviewable, but it also found that the arbitrator's determination that Rummel violated the no-contact order by calling Unglesby constituted violation of the last chance agreement and was grounds for termination. City of Yakima v. Yakima Police Patrolman's Ass'n, 148 Wn. App. 186, 196-97, 199 P.3d 484 (2009). 7

No. 37865-5-II Police Patrolmen's Ass'n, 2007 WL 1666668, at *1. PERC concluded that the City did not retaliate for the union's filing of an ULP complaint when it implemented Rummel's last chance agreement and it dismissed the complaint. Yakima Police Patrolmen's Ass'n, 2007 WL 1666668, at *4. The Association filed a petition for review and the Thurston County Superior Court entered an order enforcing PERC's decision. The Association then appealed to this court. After the opening briefs were filed, Rummel committed suicide. ANALYSIS I. Mootness The Association argues in its reply brief that this case is not moot, despite Rummel's recent death, because the labor discrimination issues involving Chief Granato are too important to ignore. It acknowledges that any relief in the form of reinstatement is futile but contends that a resolution on the merits is needed because of Granato's continued potential for serious workplace discrimination. A case is moot if we can no longer provide meaningful relief. BBG Group, LLC v. City of Monroe, 96 Wn. App. 517, 521, 982 P.2d 1176 (1999). The Association is the complainant in the ULP complaint and, although the hearing examiner granted relief specific to Rummel in ordering his reinstatement, the examiner also granted the Association relief by ordering the City to cease discriminating against and interfering with the labor rights of its employees. Furthermore, in granting Rummel reinstatement, the examiner also ordered the City to pay him back pay and benefits. This compensation could pass to his estate if the Association were to prevail. Because meaningful relief is possible despite Rummel's death, this case is not moot. II. The Association's Discrimination Claim 8

No. 37865-5-II A. Standard of Review Judicial review of a final administrative decision is governed by the Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW. Chandler v. Office of Ins. Comm'r, 141 Wn. App. 639, 647, 173 P.3d 275 (2007), review denied, 163 Wn.2d 1056 (2008). In reviewing administrative action, "this court sits in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency." Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). This court applies a substantial evidence standard to an agency's findings of fact but reviews de novo its conclusions of law. Premera v. Kreidler, 133 Wn. App. 23, 31, 131 P.3d 930 (2006). Because PERC is entitled to substitute its findings for those of the hearing examiner, it is the PERC findings that are relevant on appeal. City of Federal Way v. Public Employment Relations Comm'n, 93 Wn. App. 509, 511-12, 970 P.2d 752 (1998). This court "review[s] challenges to the 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 Federal Way, 93 Wn. App. at 512. The substantial evidence standard is deferential; it does not permit a reviewing court to substitute its view of the facts for that of the agency if substantial evidence is found. Washington Administrative Law Practice Manual

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