*1 аssumption of for malicious the mistaken that the burden required a element cious is higher for than proof protective orders was prosecution claim.13 proof proceedings. for the burden of divorce complaint allege fails to a Caudle’s However, statute, by protective DV orders of claim. The tort cognizable process abuse restraining require civil orders process of of two elements: abuse of consists they preponderance of evidence before can act in purpose and a “willful ulterior be issued.18 proper regular in the process use of superior Because we cannot know the proceeding.”14 The of the second conduct finding court’s of bad faith and vexatiousness act requires overt done element “some understanding absent the same initiating of the suit.”15 Cau- addition to differing proof, of the burdens of vacate wе complaint alleges Mendel filed dle’s attorney’s award of fees and remand purposes of interim divorce motion superior back reconsid- issue court for family and evicting Caudle from the home attorney’s eration of the fees. attorney’s fa collecting fees from Debra’s of do not that either these ther. We believe V. CONCLUSION required by illegitimate in the sense aims is superior dismiss- We AFFIRM court’s process of tort. Eviction of an the abuse complaint. al of Caudle’s REMAND the objective acceptable is spouse abusive attorney’s findings. award fees further proceeding. an interim motion in a divorce obtaining payment, with the consent of And client, parent client’s ser rendered or related to the action
vices process.16
question not an invalid use for NIED also Caudle’s claim DEPARTMENT ANCHORAGE POLICE a NIED flawed. In order maintain claim ASSOCIATION, EMPLOYEES duty arising there must be breach of a out Petitioner, fiduciary relat pre-existing contractual or v. allege ionship.17 Caudle did not such a rela Eric “Frank” FEICHTINGER and Jac- tionship with Mendel. individually queline Feichtinger, A. parents as natural friends of next Attorney’s The Award Full Fees C. K.F., minors, Respondents. M.F. and Findings. Requires Additional No. S-8069. court awarded Mendel percent attorney’s one hundred her actual Supreme Court Alaska. fees, finding engaged Caudle “unrea Dec. sonable, bad faith vexatious conduct” in bringing “legally a case that was deficient had no chance of success.” legal deficiency finding
court based its Mackie, State, Kollodge 13. See 757 P.2d 17. See Chizmar (Alaska 1988). (Alaska 1995) (holding right plaintiffs that a neg recover mere emotional caused Daniels, (quoting 14. Id. Jenkins v. P.2d ligence to those defen is limited cases where the 1988)). (Alaska duty). plaintiff preexisting dant owes the 15. Id. 18.66.100(b) ("If 18. See AS finds the court Riedel, Docter 96 Wis. preponderance respondent of evidence that the (1897) (holding that the N.W. test is involving has a crime vio- committed domestic process been used accom- "whether petitioner, regardless lence wheth- end, compel plish some unlawful or to the defen- appears hearing, respondent er at the tiring do dant to some collateral which he could relief....”). order ... do”) legally compelled (emphasis not be add- ed). *2 charges against
criminal Based on him. Feichtinger’s into al- investigation internal conduct, department ter- leged criminal minated him.
Feichtinger had been of the member Anchorage Department Employees’ Police (the union) joining the de- Association since agree- partment. bargaining The collective (CBA) Municipality the ment between Anchorage permitted mu- and the union the just nicipality discharge an employee to for Feichtinger grievance cause. filed within Pettersen, Long D. Dil- and Kristen Mauri alleged a month of his termination. He that P.C., Findley, Anchorage, for Petition- lon & department him the had terminated without er. cause, just sought and and reinstatement Boyko Edgar Boyko, Edgar Paul pay. debating Paul and extensively back After the Associates, Thompson, merits, Law grievance’s and S. Brent Of- the union elected not to Thompson, Anchorage, for accept fice S. Brent grievance thfe for to referral arbitra- Respondents. Feichtinger tion. asked union to recon- the decision, sider its to do so. declined Justice, MATTHEWS, Chief Before pro- The CBA authorized an FABE, EASTAUGH, COMPTON, ceed without union arbitration BRYNER, Justices. griev- to accept tion the union refused the Feichtinger go ance. chose to to arbitration. OPINION agreed department He and the arbi- the that tration would await the of his resolution EASTAUGH, Justice. charges. criminal I. INTRODUCTION juryA acquitted Feichtinger on all crimi- municipal employee A sued charges January Following nal fair repre for of the Feichtinger’s acquittal, the union’s executive represent him sentation because refused board reconsider decision met to its earlier unsuccessfully he an arbitration which grievance. regarding Feichtinger’s It decid- challenged his termination. The change ed not to its decision. summary the for court denied union’s motion petitions began. judgment, and the union now Arbitration then At the start of hearing, Feichtinger hold if a of that denial. We the arbitration asked review representa proceedings the postponed of its be “until union’s breach seriously integrity bring legal undermines the of the such time as he would able process, the decision action finan- [union] arbitral for ... attorney.” conclude cial to hire an lose its effect. We resources genuine Feichtinger’s request, exists issue of material fact as to arbitrator denied not- seriously ing that whether union breach under arbitration is less formal than integrity рrocess proceeding non-lawyers court and that often mined case. affirm the well in arbitoation. We therefore denial themselves summary Feichtinger judgment the union’s motion. The arbitrator also told that he stay the hearing, and observe but that hearing partic- he or II. FACTS AND once left the declined to PROCEEDINGS ipate participate he could not further. petition This arises out of the review Feichtinger hearing did not re- left Feichtinger’s termination of “Frank” Eric turn. employment Anchorage with De- Police partment. department hearing, At the arbitrator In October 1988 the end of Feichtinger Feichtinger brought accepted pro se brief arrested and the state containing argument rulings and some motions. on the summary other defendants’ Nonetheless, the arbitrator determined that proposed motions. The order ex- department Feichtinger had terminated plained that, reviewing cases, whilе federal just cause. “[t]he became aware of authorities holding that a breach of the Union’s Although provided CBA the deci- representation may trump the effect res “binding sion of the arbitrator was to be judicata estoppel and collateral pre- thereto,” upon parties all sued cluding relitigation, respect with to both the union, department, municipality, employer.” Union The court invited state, Conant, arbitrator Eaton and four parties supplemental to submit briefs and (Kevin O’Leary, Joseph other individuals proposed orders before it entered a final Austin, Walker, Dwayne Thomas Following briefing, order. McConnell). He asserted several causes of *4 denied the union’s second motion for sum- action; the claims relevant to the case before mary judgment and reaffirmed its earlier wrongful discharge against us are the claim granting summary orders judgment municipality and the brеach of the other defendants. representation against claim the un- ion. petition The union filed a in this court seeking review of the denial of its second superior granted summary
The judg summary judgment motion. At the same ment to the arbitrator and dismissed all time, Feichtinger appealed grant of sum- against grounds claims him on of arbitral mary judgment to the non-union defendants. immunity. We affirmed decision in granted petition the union’s for review to Feichtinger v. Conant.1 Feichtinger consider whether should be “col- municipality, department, The laterally estopped relitigating O’Leary, Austin, and Walker also successful- wrongful termination claim the Un- ly summary judgment, relying moved ion,” so, and if summary whether “denial of judicata estoppel. res and collateral The su- judgment improper.” for the Union [was] perior separately granted summary request We denied the union’s that we decide judgment to the state and McConnell. Feichtinger whеther had raised “a material union, however, was unsuccessful in support issue of fact in of his claim that the attempts summary judgment. its to obtain Union breached its summary judgment Its initial motion for ar- tion.” gued that Feichtinger no owed granted petition, After we the union’s that, representation, if and even him owed Feichtinger and the non-union defendants duty, it had satisfied that and no agreed Feichtinger’s appeal to dismiss with genuine issue of material fact existed. The prejudice. opinion This therefore concerns motion, ap- court denied the union’s petition the union’s for review. parently finding genuine issues of material fact about whether breached its III. DISCUSSION duty. A. Standard Review summary
The union’s second motion for judgment relied on the Summary judgment proper effect of decision, argued pleadings, depositions, “the answers to inter file, rogatories, not recover from the union together and admissions on affidavits, hе department unless showed that with the show that there is no wrongfully discharged genuine him. The issue as to material fact and that proposed denying court issued a any party order is entitled to as a matter summary judg- grant second motion for of law.”2 We review the or denial of sponte reversing previous summary judgment ment and sua de novo.3 We resolve (Alaska 1995). Langdon Champion, 1. 893 P.2d 3.See (Alaska 1988). 56(c). 2. Alaska R. Civ. P. summary to an by requirements, is entitled
questions
law raised
remedy
employer9
by adopting
appropriate
“the rule of law
judgment motion
precedent,
union.10
light
and the
persuasive
that is most
reason,
policy.”
Freight11 illus-
v. Anchor Motor
Hines
exception
general rule
trates
Decision
B.
Can
Arbitration
When
finality.
employees in
had
Hines
been
?
Deprived
Its Preclusive
Be
Effect
discharged
seeking
“reimbursement
bargaining
general-
agreements
Collective
expenses in
the actual
motel
excess оf
ly
procedures for
settlement of
contain
charges
Their union
sustained
them.”12
mutual
and arbi-
disputes through
discussion
arbitration,
grievance
their
carried
machinery
grievance
under
“[T]he
tration.
employer’s
in the
arbitration committee ruled
agreement
bargaining
is at
collective
indi-
evidence later surfaced
favor.13 When
system
very
self-
of industrial
heart
motel
in fact
cating that the
clerk was
disputes
government.
processing
... The
culprit,
employees
their
sued
actually
grievance machinery
through
asserting
their union.14
addition to
meaning and content
vehicle
which
discharge
wrongful
against their em-
claim
agree-
given
bargaining
the collective
their un-
ployer, the
claimed that
result,
gen-
ment.” As a
federal courts
no
ion “had made
effort to ascertain the
*5
dispute
to the
erally give effect
resolution
charges,
of the
that the Union
truth
and
had
procedures
employer
tо which union and
duty
representation by
of
its
fair
violated
judicial
agreed;
review of arbitration
have
arbitrarily
depriving
in bad
[them]
and
faith
exceedingly
Employees
narrow.6
awards
employment
permitting their
of their
must exhaust their contractual remedies
discharge
proof.”15
without sufficient
they
agree-
are bound
the results of the
Supreme
Court concluded that
dispute
procedures.7
ment’s
resolution
prevail
hybrid
in their
suit if
Nonetheless,
discharge
they proved
courts have
and if
federal
erroneous
exception
general
they proved
of
of
created an
to the
rule
union’s breach
relitigation
finality, allowing
of
deci
the arbitration
The Court
those
tainted
decision.16
(1)
reasoned,
blessing
employee proves:
“Congress
put
sions when the
that
its
(2)
erroneous;
dispute
arrangements pro-
discharge
private
was
settlement
agreements,
representa
its
fair
in collective
union’s breach of
of
vided
but
sure,
seriously
proc anticipated,
tion
undermined the arbitral
we
that the contractual
employee
machinery
operate
mini-
ess.8
If the
these two
within some
satisfies
Ha,
1281,
(Alaska
4.
of
v.
1284 n. 6
9. A union's breach
Guin
1979).
employ-
employee
does
shield the
liability.
charges
Having
er from
initiated the
5.
Steelworkers
v. Warrior &
United
Am.
employee
having wrongfully
against
ter-
Gulf
Co.,
574, 581,
1347,
Navigation
U.S.
363
80 S.Ct.
employee,
precipitated
employer
minated the
(1960).
vantage because his criminal ease had been fect, damages. he will be entitled to seek publicized widely and because rumors about briefly possi- given We address this issue rampant. Feichtinger him stated that were remand, bility ripe it will become on financially he unable to retain counsel to was given implicit argument the union’s that the give him substantive the arbi- assistance Feichtinger’s or dismissal settlement of He also claimed that his lack of tration. legal training employer prevents left him at a claims his him severe disadvan- arbitration, tage during he un- showing damages because from what union by the mu- familiar with the case law cited owe. Finally, nicipality. he without affied that hybrid wrongful In suits for dis- or union assistance he was unable to counsel charge of a union’s
produce
necessary
the evidence
to counter
representation,
apportion
the federal courts
municipality’s
case.
damages
between the
and union
negative
surrounding
publicity
Given
according
damages
each
caused
case,
representation might
his
defendant.35 Federal
control
law does not
credibility
been critical to lend
to the sub-
urges
But
this case.36
the union
us
look to
grievance. Although Feichting-'
of his
stance
damages.
assessing
the federal standard of
arbitrator,
proa
se
er filed
brief with the
Feichtinger,
hand,
argues
the other
questionable
present
whether he
was able
malpractice
attorney
we should follow the
fully
position
actually participat-
without
standard,
damages.
model for
Under this
hearing.
apparently thought
in the
He
it,
Feichtinger desсribes
a union that breach-
hearing
would “extend
another
representation
es its
becomes
week,
respond
and he had wanted to
suffers,
liable for all
Municipality’s
during
case
hear-
that second
including
flowing
those
from the
ing week.”
discharge.
wrongful
Viewing
Feichtinger’s
the evidence in
favor
permissible
him
giving
the benefit of
reject
attorney malpractice
inferences,
he has
least raised
factual
damage
rep
model
assessment
unfair
counsel,
dispute about whether his lack of
hybrid
cases and
resentation
hold that
resources, time,
legal expertise kept
him
will follow
model of
suits we
the federal
presenting
his case and
undermined
apportioning damages
in Vaca v.
as set out
process.
subsequent
Sipes37 and
federal cases.
reasons,
For these
we conclude
there
Vaca,
Supreme
squarely
re-
Court
regarding
genuine
is a
issue of material fact
*8
jеcted
imposition
joint
of
and several
any
duty
breach of
of
whether
the union’s
liability
a
of
upon
union for its breach
its
seriously
representation
fair
undermined the
Rather,
duty
representation.38
it
process. Summary
of fair
re-
on this
appropriate.
quired
apportion damages
to
between
issue was
courts
Vaca,
197,
Tenn.,
386
at
903.
881 F.2d
35. See
U.S.
87 S.Ct.
Allied Plant Maintenance Co. of
291,
(6th Cir.1989)
joint
(applying
of
298-99
rule
supra note
36. See
21.
liability
indicated
and several
because evidence
firing
employer and
union colluded to effect
171,
903,
U.S.
87
L.Ed.2d 842
37. 386
S.Ct.
17
receiving
employee
prevented
of
him from
(1967).
arbitration);
Hawley,
impartial
807
Baskin v.
1120,
(2d Cir.1986)
joint
196-97,
(applying
F.2d
1132-33
38.
id. at
87
But
id. at
See
S.Ct. 903.
see
18,
liability
joint
participated
(observing
where union
197 n.
an to explained that award us. Supreme Court damages
against a union that ineludes attrib- employer impose too only to would utable E. the Arbitration Has Even Award If union, hardship even great a on May Effect, Feichtinger Preclusive right of indemnification union had Damages Recover Union. Although employer employer.40 only the discharge if a is union contends that responsible back-pay following for just or if merits the dis- for cause subsequent wrongful discharge, federal deci- reexamined, charge cannot be union cannot it clear that the union is sions have made duty repre- be liable for breach of the fair damages, responsible increases employee sentation because the has not been by the including wages, lost caused injured. correctly union that some *9 (D.Kan. 'g F.Supp. 869-70 720 aff 1989).
48. See id. at 297. (1st Sperling,
45. 9 F.3d 4 DiPinto Wood, 502; 49. See id. at 300. 1993); Cir. F.2d Jordan Auth., Washington Metro. Area Transit A.2d (D.C.App.1988). 50. See id. Applying may here this rule result in “[w]hile [the union] ion.51 It stated that has de damages Feichtinger minimus authority under what conditions because did to decide attorney grievant, to a retain an him in attorney supplied an will Nonetheless, Feichtinger the arbitration. is not a grievant fact that the member of the opportunity should an to seek recovera- play part in that decision.”52 union can no damages. ble reasoned that even The Fifth Circuit further if the was untainted arbitration award (because hired pilot his own coun IV. CONCLUSION
sel) in pilot still loss the form of “suffered summary The judg- denial of the paid privately fees to be to his retained attorn ment motion AFFIRMED. We RE- ey.”53 jury’s It affirmed the therefore proceedings MAND for further consistent (the $35,000 damages pilot’s award at opinion. with this fees) breach, torney’s despite for the union’s decision the fact that the arbitration was not MATTHEWS, Justice, dissenting. Chief relitigated or set aside.54 support for this view Additional is found I. concurring opinion in
Justice Stevens’s Unit May an loses an who arbitration Service, Mitchell,55 ed Parcel Inc. where against employer his and then sues em- “closely explained he that the two claims are ployer claiming and his union union breach of “conceptually related” distinct”:56 duty re-try against the issue underlying discharge The fact already which has been arbitrated? The ma- not have violated collective-bar jority “yes” permit- answers because this is necessarily gaining agreement does not My ab ted law. under federal labor answer is breach, liability law, solve for its contrary the union of “no” because this is Alaska although may the size adversary system, limit of the em inconsistent with the one- Thus, sided, ployee’s recovery against needlessly the union. interferes with arbitral finality. considering employee’s while a against
claim
a union will evaluate the
validity
employer’s underlying
con
II.
duct, that
is not central
evaluation
argued
In the
court the union
duty-of-fair-representation
resolution of the
had
because the arbitrator
found that
im.[57]
cla
municipality
just
Feichting-
cause to
had
fire
to follow those
We choose
federal
er, the union
not have breached
that,
courts that reason
even
the arbitra
representation.
The union con-
employee’s
upholding
tion decision
dis
tended that it was therefore entitled to sum-
effect,
charge
preclusive
does not nec mary judgment.
proper-
essarily
suit
employee’s
bar the
ly rejected
noting
argument,
union. A union
is liable
union’s breach of its
damages flowing
its breach of
might
have caused
to lose
cases,
therefore,
representation.
and,
In most
such
arbitration
arbitration
will be limited to
decision should not have
effect on
attorney’s
expended
Feichtinger’s
the union.
fees and costs
claim
process.
trial court observed:
See Id. at
55. 451 U.S.
S.Ct.
If the of law Union’s finality union only were successful at ar- where a claim of employees who made, duty repre- fair pursue express of I feel bitration could is constrained to in my This result “the disagreement sentation claim. the merits. dog” effectively the neu- wagging
tail representation. duty the fair
ter III. Today’s aspect of the opinion affirms this Judge begin I with Link’s well-reasoned it To the extent that trial court’s decision. Judge Link decision. wrote: so, I it. agree with does pivotal duty case in federal opinion today’s not But real effect is the representation v. Sipes, is Vaca cases holding. unexceptional in found this 903, 17 U.S. L.Ed.2d 842 goes employ- rule that when an opinion on to (1967), the in which court held that a union that the Feichtinger claims union ee such represent has to the interests of the representation of fair has breached its members, including op- all the those who arbitration, only respect with does to pose membership. A breach of this preclusive the arbitration decision not have duty occurs whenever: union, respect with it also effect is union’s conduct toward member [the] binding respect to with the claim bargaining collective arbi- the unit is Moreover, in against employer. its dis- the trary, discriminatory, or in faith. bad concerning apportionment of dam- cussion Id. at 190 S.Ct. [101 1559].2 today’s employee that an ages, opinion states at can never be who has lost majority representation In the of fair simply proceeding against made whole cases, alleged has based misconduct been upon allegations of racial discrimination. rulings. disagree I with Their In the union.1 these 1900’s, early discrimination within the unions finality will effect be to eliminate origin upon quite based race national were employers arbitration decisions favorable fairly requiring rule common. The unions to relitigate the and create incentives to merits originally all members was established problem. to combat this This that an of such decisions. means em- arbitration, ployer, having again at must won In the Court Vaca held where defend the claim when the same adequately represent union has failed badly charges repre- grievances in their employ- members with union. sented er, employer cannot to hide be allowed behind the flawed In arbitration decision. Judge Link decided that the arbitration essence, in cases in which unions violate decision in this case would have representation, their duties the arbi- respect municipality. effect with It is void, tration decisions are rendered aspect with this of the decision below which subject to become collateral attack. See today’s opinion Feichtinger’s takes issue. As also, Fairbanks, City Casey v. P.2d appeal dismissing from the final 1983). (Alaska municipality has his claims now prejudice by stipulation, been with cases dismissed cites these question proposition judicata of whether union breach should that res and collateral vacating in estoppel result arbitration award cannot bar his civil suit longer squarely remaining employer favor of an is no defendants because he alleged repre- us. than on this before Rather rule issue a violation However, discretionary proceeding, part. would be sentation on Union’s better, me, distinguished Feichtinger’s seems until it case wait comes Casey way. before a case in which inter- Vaca and a fundamental presented Casey an employer ests of Vaca unions were сonsid- bringing grievances against eration. But since the has ruled conduits "[0]nly responsible for back- pay following wrongful discharge....” Op. *11 employers. In recognition this case inconsistent with Alaska’s aof bring grievance against scope employee could and did rights. broader arbitration, through Department albeit case, process, applies Due as it to this does without assistance from the Union. require provide aggrieved that the Union employers In in those cases which the employee attorney. require with an Nor does it that the just arbitrator reach correct and have not 'been insulated from collateral Rather, process requires, result. all due is that attack, accepted the unions have either employee given the terminated be notice and an responsibility bringing grievances for opportunity present to his case in front of assistance, provided inadequate party. Feichtinger neutral provided third opportunities these in the context of the arbitra or bring the unions have refused to hearing. tion grievances, employees and the were unable public A policy arguments number of bring grievances approv- to without union denying favor the Union’s Second Motion al. In each these scenarios the arbitra- Summary Judgment sustaining tion was either flawed or did not occur. summary judgment remaining fairly had no chance to First, policies judicial defendants. ef- litigate the issues on the merits. ficiency require enforcement of the doc- here, In although contrast the Union did judicata trines of res and collateral es- provide Feichtinger, counsel for he was toppel. litigant To the extent that a opportunity bring afforded the to try multiple allowed to his case in tribu- grievance represented and could have been nals, inviting the court shоp- forum by counsel. ping litigation. and nuisance pol- Such a provides public employees Alaska law icy employee would invite an loses scope rights with a broader and reme- suit, novo, to file de in su- Casey City dies than does federal law. perior alleging a breach of the Fairbanks, supra. recog- Alaska law representation. This would persons employed nizes in situations destroy finality binding arbitra- other than at will: tion. ... property have sufficient in interest It would also discredit entire arbitra- continuing employment, just their absent system. Employers would be far less removal, cause for their require to likely arbitration, to submit issues to they given opportunity notice and an knowing simply that the arbitration would process to be heard under the due clause expense be an additional might to what of the Alaska Constitution. eventually superior become a case court. Casey at 1138. Plaсing the financial burden for failure public employee A in Alaska has the fairly represent fully its members on the option advantage to either take refusing Union will deter unions from grievance procedure provided potentially their members in bargaining agreement collective or to sue grievance meritorious actions. Union ad- wrongful discharge. court for likely will ministrators be far less to allow Id. prejudice against one of them members to case, plaintiffs pursue elected equation enter rep- into the of whether to directly arbitration and not sue member, they resent the know that the general court. The rule is that the arbi union will monetary be held liable for binding trator’s decision is pre- and has a losses attributable to their refusal to fulfill Borg-Warner clusive effect. See Corp. v. their duties. Avco, (Alaska 1993). This effect insulates the Judge remain Link’s observation that an liability.3 defendants from furthеr who loses an arbitration will have little rea- However, Alaska law does not foreclose son not to in superior file suit under opportunity collaterally ruling today’s establish like bears elaboration. The that a rep union breached its suit will include the union one contrary holding resentation. A would be allege defendant. The will *12 termined, regard they duty represen- without to how were breached its union has by the resolved arbitrator. the em- and that the breach caused tation But the em- ployee to lose the arbitration. above, today’s ruling what As noted under employer usually name the as ployee also will employee prove in to set an has to order employer, (1) the the re- Without defendant. aside an arbitration decision is breach employer part duty as to the sult of the arbitration on the the union its (2) pro- that representation and the breach today’s aрpor- not be set aside. Given an in the arbitration which duced outcome ruling, damages employee the tionment of what resulted was different from would have by an be made whole award cannot had there been no breach. This is a devia- alone, never union since the union is the respect from our current case law with tion up pay wages to the time required lost finality of labor arbitration decisions. hypothetical that a arbitration award should law, existing can Under labor arbitration the ob- employee’s made.2 have been Since only has be set aside when arbitrator jective will be full reimbursement for fraud, “gross negligence, corrup- committed losses, join employ- him to expect we can the tion, gross error or misbehavior” or “when er as a defendant. are the arbitrator’s mistakes both obvious significant.”5 The standard reflected First, will the issues in the suit be? What today’s opinion affecting error the re- prove union employee the must that the —union existing considerably broadens stan- fairly employee the sult — dards. breached its Second, employee him. the must “seriously unfairly the The new standard seems one-sid- show that breach undermined employer poorly represented If an is meaning, ed. process”3 I under- the arbitral representative commits a breach it, the stand breach caused an erroneous result, the which affects arbitration employer Thus arbitration decision.4 stands. arbitration decision nonetheless (and also) may union defend the suit Why more should an be treated by discharge of the the basis favorably than an when a similar justified, justification employer was employ- by act or omission is committed by mean that union did would representative? ee’s cause an erroneous decision. not Further, arbitration, litigation, like court is Judge description Link’s wоuld what adversary process. by par- A mistake system adopted if a like the happen one ty’s representative may party result in the today apt. employ- were effect seems The so, losing the case. If a matter redress is er, having convinced the arbitrator party representative. and his between justified, discharge quickly it- will find party a claim for litigating in the self the identi- representative. And he is entitled to be observed, again. Judge cal issue As Link by whole full loss made for the caused finality binding arbitration representative. breach of destroyed, system but dis- representative’s ground breach is simply credited. Arbitration becomes setting litigation. today, aside the Until stepping-stone view, my court where is the model we have followed.6 In litigated finally it. identical issues are de- we should continue to follow 6.See, Co., Op. at 414-15. Sauer v. Home Indem. 841 P.2d (Alaska 1992) (holding where the company obligation Op. аt 412. insurance has an to defend it, its insured and breaches it is liable to the judgment); Op. v. at 412. insured the cost of Bohna Gantz, Brundin, Thorsness, Hughes, Powell & 1992) (Alaska Lees, Sys. (noting City P.2d that if an Mun. Fairbanks Util. 1985). (Alaska attorney's malpractice causes incur a client to P.2d 459-60 In Butler (Alaska 1997), liability, attorney Dunlap, then can for that 931 P.2d we be liable amount); judicial Bayless applied Ins. Co. & Rob- described review standard Continental error, erts, Inc., (Alaska (hold- 1980) labor-management “gross arbitration as legal.” either factual or that an insurer who undertakes a defense and true, analogy expect one particularly exists where would A close members by by employee grievances decided not arbi- victimized union breaches of in ad- hearing.7 In adjudications litiga- an administrative ministrative or in tration aggrieved cases have the such be entitled to have also decisions right to counsel. If an attor- of those forums set aside. But this is not рrivately case, ney Representational be either selected or nor should be. fail- —who employee’s union —in an supplied ad- ings adversary system in an can be redressed *13 hearing ministrative breaches which by an action the victim between lose, the decision of causes the representative. is no need There to disturb is not set the administrative tribunal aside. origi- finality of the between decision employee’s remedy is attor- parties. nal This is as true in as arbitration may ney and the obtain a full adjudication in is administrative recovery. why I no the result see reason litigation. be different similar breach is
should where Since I believe that we should continue in the context arbitration. made of an finality, adhere to Alaska norms of arbitral I dissent. IV. today’s opinion can be said for is that
What
it is consistent with federal labor law. But governed by
this case is not federal labor system strengths One of the our
law. sovereignties
parallel federal and state is areas, are, states some free to do
things differently govern- than the federal Sometimes a method is better.8
ment. state ACEVEDO, Appellant, Gustavo keeping aspect In with of our federal this justifica- I system do not think is sufficient say tion that we will function a certain BURLEY, Denise Denise N/K/A merely way.
way because it the federal Liberty, Appellee. case, I show have tried to that there are S-8079. No. duplicate good reasons not to federal law. law, Alaska Under labor arbitration deci- Supreme Alaska. Court sions have been at least as difficult to set Dec. adjudications as aside administrative and tri- Today’s changes al court decisions. decision
this and holds that in cases where a union is
guilty representing of a breach of
union member and the affected the result, arbitration decision needed, according
must be set aside.' This majority, because interests of deci- finality way give
sional must to the interests
of union
have been
members who
victimized
duty.
their
If
union’s breach of
this were
pressed
impose uniformity
good
ordinary
fails to exercise
faith and
care
reluctance to
judgment).
be held liable for the
suppression
states where
would risk
of "ef-
programs”
quoting
fective and creative
Jus-
Dist.,
Anchorage
Romulus v.
Sch.
description
tice Brandeis’s
classic
states
(Alaska 1996);
P.2d
v. Bai
Pederson-Szafran
experimenta-
laboratories of
and economic
social
1992).
(Alaska
ly,