Barnica v. Kenai Peninsula Borough School District

tablishes new Assembly districts: District equal right residents an to vote equal and an currently constituted, opportunity as to run.7 had no existence a year ago. Hayes's then, Under logic, short, § Charter 4.02 makes sense conclusion necessarily would follow that no- construed, if Judge as it, Michalski construed body has lived in the assembly current dis- require residency for at year least one long trict enough qualify for office. before the election within geographical boundaries of an election district as it In support Hayes's interpretation, drawn at the time of election. Municipality of Anchorage advances a some what argument, different ostensibly based on IV. CONCLUSION § Charter 4.02's underlying policy of main taining an informed electorate. The munici Because superior interpretation court's pality reasons that the voters of "District 5" disputed of the residency requirement finds need Whittle to live in that year district for a support law, in the comports pub- with sound so they have an "opportunity to know policy, lie sense, makes common we con- candidate"; conversely, reasons, Hayes's clude that Whit legal merit, has no tle year needs a AFFIRM superior in-district to have decision, oppor "an court's tunity peculiar to know the issues and factors REMAND with directions to enter a final affecting the election district." judgment dismissing the action.

But municipality's logic suffers from

the same Hayes's: flaw as it mistakenly fo-

cuses on District 5 as it existed before redis-

tricting, rather than the currently constituted

District § where places Charter 4.02

focus. When viewed from perspective district, the current the municipality's policy BARNICA, Appellant, Lavern argument raises a two-way problem. If we presumed that Whittle's lack opportunity acquaint himself with the voters and issues KENAI PENINSULA BOROUGH of former District 5 disqualify should him for Gladys SCHOOL DISTRICT and year office for a after redistricting, then Stalker, Appellees.

parity logic we presume would also have to No. S-9155. any Hayes, candidates like who resides within former boundaries, District 5's should Supreme Court of Alaska. disqualified likewise office; 3,May would similarly lack the opportunity to ac- quaint themselves with the voters and issues

in the areas of the current District 5 that formerly

were in another district. effect, then, municipality's argument

simply give preference seeks to to its own segment chosen electorate, while di-

senfranchising segment. another But An- chorage § Charter 4.02 unites all residents

within the district, boundaries of the current

leaving no presume reason to any resi-

dent's knowledge people of its and issues is other resident's. And the

Alaska gives Constitution all current district Emphasis omitted. State, Gilbert v. 526 P.2d 1131, 1135 Cf. 1974). supervi immediate his former

District and Stalker,1 sor, wrongfully construc Gladys for employment. discharging him from tively was discriminated that he Barnica claimed in violation of AS against of his sex because discriminatory 18.80.220, treat that this and intoler working conditions so "made ment involuntary into was foreed able that Plaintiff alleged that Stalker resignation." Barnica work to do less permitted women custodians do, required generally showed than he was custodians, re and partiality towards women was complaints that he against his taliated by giving him even being unfairly treated sought compensa do. Barnica more work to injunctive damages tory punitive but relief. pled a number answered and

The district including that Barnica affirmative defenses remedies contractual failed to exhaust bargaining by the collective prescribed subject.' he was Subse- agreement to which summary for moved quently, the district defense. It not- the exhaustion judgment on agreement bargaining collective ed that discriminatory treat- prohibited specifically sex, provided a that it ment on the basis culminating in procedure four-step grievance Barnica did not and that binding arbitration, argued The district procedures. use these exclusive, were grievance procedures failure to use unexcused that Barnica's maintaining the him from precluded them suit. He admitted opposed the motion.

Barnica asserting a that he was the extent claim, have been should his claim contract Robinson, & Beiswen- Robinson Arthur S. procedures. through grievance exhausted Soldotna, Appellant. ger, was also that his claim But he contended Jermain, Dunnagan public policy Trickey, & "for violation Howard S. tort claim stat- P.C., Appellees. Owens, Anchorage, for in Alaska's anti-discrimination contained independent of ute," this claim was and that EASTAUGH, MATTHEWS, Before: CARPENETI, BRYNER, Justices. to use the by his failure not barred therefore procedures. OPINION MATTHEWS,Justice. summary judg- granted superior court In a balanced the district. in favor of re- ment Lavern Barnica August On that authorities court noted opinion, the at the position as a custodian signed from his as to wheth- later he divided Eight months jurisdictions were High School. other Nikiski should remedies of contractual er exhaustion Borough School Kenai Peninsula sued the opinion district. as the Collectively to in this referred required gen- similar situations. Based there preemption under the federal La erally on our requiring decisions Management Act, exhaustion bor Relations which in of contractual or applicable administrative remedies political to states or their subdivi many contexts, court concluded that Bar- sions. The argues district the state nica Public Relations AS required 23.40.210(a), instead, to have applies exhausted his reme and that Employment Public bargaining agree

dies under the collective Relations Act mandates bargaining agreements collective wrongful ment. Most discharges contain could be grievance procedures with public poli ascribed to some violation of arbitra binding tion. cy. If employees alleging all tortious vio public policy lations of permitted were reply In . accepts Barnica the district's < cireumvent procedures the arbitral set characterization of his claim as a statutory forth in agreements, their contractual discrimination claim. But he contends that would undermine the doctrine of exhaus the district's reliance authority on federal tion and do spirit violence to the and the ill conceived. He notes that the 1974 case of Cozzen[2] Beard[3] letter of the and deci Co.,7 Alexander v. Gardner-Denver which sions. arose in a bargaining collective context and opening exhaustion, his appeal require brief on did not Barnica was not overruled decision, continues to characterize his claim 1991 Gilmer as a which "stat involved utory public policy argues tort." He an individual that the contract. He observes basis for independent this claim most any "is circuits have continued to follow understanding embodied" Gardner-Denver rather collective than Gilmer in col bargaining agreement, and that lective bargaining Inc. cases. v. Kotowski4 indicates may proceed that he states, As Barnica "the essential issue exhausting without contractual remedies. appeal" this is whether the collective bar response, the district recasts gaining agreement Barnica's statutory arbitrate "to claim as a argues discrimination binding claims should be on

public policy favoring points employees individual ...." regard We this application of the exhaustion doctrine to question. as close The bargain collective this case. The district also ing agreement contends that explicitly prohibits discrimina analogous federal decisions required have ar tion on the basis of sex.9 The Human Rights claims, bitration of civil rely 18.80.220(a), prohibits AS the same con ing on such cases as Gilmer v. Inter duct. The Employment Public Relations Act Corp.5 Lane requires Austin v. state/Johnson bargaining collective agree Container, Owens-Brockway Glass Inc.6 In grievance ments include a procedure "which response to argument Barnica's that Norcon shall have binding arbitration as its final step." case, The should this bargaining agree collective control argues district complies distinguishable. issue ment that Norcon is requirement.11 with this A The Municipality Anchorage, Cozzen we must decide is whether (Alaska 1995). aspect agreement is enforceable. Baum, 1990). Beard v. 796 P.2d 1344 provides: Article of the 4. 971 P.2d 158 The District and Association shall not dis- against any criminate bargaining unit member 5. 500 U.S. 111 S.Ct. 114 L.Ed.2d 26 salaries, benefits, fringe in matters of similar (1991). employment, terms conditions . Agreement other conditions of this on the basis (4th Cir.1996). 6 78 F.3d 875 of ... sex .... 7. 415 U.S. 39 L.Ed.2d 147 23.40.210(a). 10. AS 8. Barnica thus concedes that under the terms of article of the collec- bargaining agreement the collective his bargaining agreement discrimi- tive provides for a four- subject nation claim was step grievance to arbitration process and that beginning resolution binding preferred Hu arbitration as the aggrieved a violation of the method person goal.17 for the achievementof this The Pub- may in the bring Act an action man court;12 addition, aggrieved lie Relations Act's declaration pro may initiate an administrative person policy states: for Human ceeding before the Commission legislature joint finds that decision- procedures in collective Rights.13 Grievance making way modern of administer- agreements bargaining agreements, like ing government. public employees If have mandatory in the generally, are arbitrate granted been to share in the they preclude the use of otherwise sense that decision-making process affecting wages But available remedies.14 does this conditions, working have become apply rule to a claim based on conduct which responsive more and better able to ex- is both a violation of change opera- ideas and information on and a which affords a statute with their tions administrators. Accord-

judicial remedy? ingly, government is made more effective. legislature The en- further finds that follow, our For the reasons positive legislation establishing actment of subject agree answer is that a claim to guidelines public employment relations independent arbitrate for which an ment to way is the best to harness and direct the judicial remedy is also available energies public employees eager of to have arbitrated, history and must be unless determining a voice their of of the statute indicate structure conditions work, provide to a rational method for legislature intended to dealing disputes stoppages, with and work judicial remedy in waiver of the favor of the strengthen principle to the merit where there is no such indica arbitral forum. As Act, Rights effect, in the Human we affirm the tion a «civil is and to maintain service judgment. political favorable and social environment. legislature pub- The declares that it is the the fact that the Central to our decision is promote lie to policy the state harmoni- legislature has mandated that all collective cooperative gov- ous and relations between subject bargaining agreements to the Public employees protect ernment and its and to grievance Act contain Relations public by assuring effective and order- procedures and that all 'such ly government. poli- operations of These | binding final must have as a by cles are to be effectuated step.15 legislature recognized has that a dealing disputes" with "rational method for (2) requiring public employers negoti- to public employers employees is between agreements with and enter into written government,16 of effective ate one tools employee organizations grievance procedures with on matters has chosen thirty days jail by meeting employee's super- a of no more than with the immediate fine - visor, continuing through hearings before $500. See AS 18.80.270. board, and the school and culmi- superintendent nating binding impartial before an Fairbanks, Casey City 670 P.2d 14. See v. arbitrator selected the American Arbitration 1983); (Alaska Team International Bhd. of Association. A under the contract King, sters, v. 572 P.2d 1172 n. 9 Local 959 grievant "a that there has defined as 1977); see, e.g., Republic Corp. Steel alleged been an violation ... of the [collective Maddox, 13 L.Ed.2d bargaining] Agreement ...." (1965) (stating general rule in federal law wishing employees that "individual to assert con 22.10.020(i). availability 12. See AS of this grievances attempt tract must use of the contract remedy, remedy as well as the under the collec- by employer grievance procedure agreed upon bargaining agreement, separate tive makes a tort redress"). the mode of and union as remedy unnecessary we conclude that none State, is available. See Walt v. 23.40.210(a). 15. See AS & n. 16 16. See 23.40.070. AS Moreover, 13. See AS unlawful 18.80.100-135. discriminatory prohibited AS conduct under 23.40.210(a). by up punishable AS 18.80 is a misdemeanor to See wages, tions of employment[.]. hours, and other ^[18] terms and condi not exclusive and that the But we held that the arbitration employees remedy had the right to sue as under the Uniform tenants grievance procedures with The choice of Act.24 Residential Landlord and Tenant We step seems well de- arbitration as the final difficulty" reaching little "but coopera- signed promote harmonious and conclusion because section of Uniform employer-employee government rela- tive Residential Landlord and Tenant Act con carly procedures encourage the tions. Such provision applicable tained a non-waiver disputes by discussion and con- resolution of remedies, rights, but under unmanagea- ciliation before escalate Referring act."25 to this non-waiver clause we practical proportions. ble Various remedies stated "that to sue under the act contrast, possible. By are then once case away. prospectively bargained cannot be judicial litigation stage dispu- reaches the Hence, remedy the contract here cannot dis typically positions tants' have hardened so place provided by which is act." possible. no constructive To solution terminology, use modern results "win/win" Unlike the Uniform Residential Landlord grievance and arbitra- can be achieved with and Tenant the Human Act does litigation whereas is more procedures, tion prohibiting provision not contain a the waiver likely process-either to be a "zero sum" remedies. the rationale un Thus employer employee or the lose. will derlying Safety our conclusion Public Em addition, recognized In we have the ployees apply present Ass'n does not to the "commonlaw and statutes of Alaska evince 'a case. strong public policy in favor of 'arbitration" 9 Safety case that we cited in One Public Compared litigation, 1 arbitration EmployeesAss'n was Alexander v. Gardner-Denver relatively inexpensive expeditious is a and Co. There the United States Su dispute policy method of resolution.20 This that an Court held unfavorable arbi giving primacy supports also to contractual trator's decision rendered under a collective grievance/arbitration clauses in cases like the bargaining agreement preclude did not an present.21 bringing employee a racial discrimina from In the one case which we addressed a claimin tion federal court based on Title VII conflict a colléctive between Rights of the Civil a Act of 1964. Based on grievance/arbitration remedy statutory and a number of factors the Court concludedthat judicial remedy judicial we held judicial remedy the Title VII was not meant remedy pursued. Safety could be Public merely raising to be waivable because a claim Employees Ass'n v. State arose out of a underlying the same conduct was submitted dispute housing over bush owned to arbitration: employees.22 state and rented to certain state sum, aspects dispute purpose proce We held that some of the fell Title VII's and bargaining agreement strongly suggest within a collective dures that an individual potentially subject thus were to arbitration.23 private does not forfeit his cause of action money disputes concerning 18. AS 23.40.070. smaller sums of than ' commercial contracts." Department Safety Safety Pub. v. Public Em- Ass'n, (Alaska 1987) ployees 732 P.2d 1983). 22. 658 P.2d Constr., (quoting University Alaska v. Modern (Alaska 1974)). Id. at 774. 20. See id. Id. Supreme

21. As the Court of the United States Stores, recently City has observed in Circuit Inc. Adams, 121 S.Ct. Id. at 774-75. (2001): agreements L.Ed.2d 234 "Arbitration al- parties litigation, low to avoid the costs of may particular importance benefit be of 27. 415 U.S. L.Ed.2d 147 employment litigation, which often involves case, present pursues his to final Court found there to if he first Age be no such intent.33 Discrimination under nondiscrimination Act, Employment Rights like Human collective-bargaining agreeme clause of Act, nt.[28] provides both for administrative and judicial remedies and for administrative rem years in Public after our decision Some judicial precedence edies to take over remed Ass'n, the States Safety Employees United finding ies.34 In no inherent conflict be Supreme decided Gilmer v. Inter Court purpose Age tween arbitration and the of the Corp.,29 Lane which held that state/Johnson Discrimination employee precluded an arbitration an pointed approach Court to the act's flexible judicial remedy pursuing administrative resolution of claims- age his claim of discrimination. Gil on pro informal efforts to conciliate like those mer, a rule of decision the Court established vided in the Human Act 35-which govern believe should like that which we suggested dispute that out-of-court resolution supercede Agreements to arbitrate here. methods like were consistent with judicial Congress remedies "unless Congress's purpose.36 The Court also noted an intention to itself has evinced that arbitration under the Feder judicial remedies for the waiver of al Act are fair Arbitration arbitra rights at observed that issue." particular controversy tors before the party opposing the burden be on the would damage court could fashion awards and both arbitration to show a waiver relief, meaning equitable "other": relief.38 precluded forum was meant to be Similar broad relief is also authorized under might discoverable that such intention in this case: "The arbitrator shall legislative act from the text of the or its complete authority have to make decision history from an "inherent conflict" be provide any remedy appropriate except underlying pur tween arbitration and the expressly prohibited by as otherwise law or poses of the act.31 The Court cautioned that this The Gilmer Court Agreement." also inquiry engaged bearing in in should be proceedings would observed arbitration "questions arbitrability must mind be administering not commission healthy regard for the addressed with fed proceeding independently the act from 32 policyfavoring eral arbitration." seek class-wide relief nor would a claimant The GilmerCourt then turned to the precluded filing an administrative from question Congress, enacting in charge precluded filing whether even if he is respect can with suit.40 The same be said Age Discrimination Rights intended to bar waivers the individual the Human Commission and adminis judicial remedy provided in the act. In a the Human trative remedies available under Act.41 many respects is in relevant discussion which 29, 49, Gilmer,

28. Id. at S.Ct. 1011. 36. U.S. at S.Ct. 1647. 94 500 111 20, 1647, 29. 500 S.Ct. L.Ed.2d 26 U.S. 111 114 30, 37. Id. at 111 S.Ct. 1647. (1991). 32, 38. Id. at 111 S.Ct. 1647. 26, (quoting

30. Id. 111 S.Ct. 1647 Mitsubishi Inc., Motors v. Soler Corp. Chrysler-Plymouth, Here, Gilmer, "by agreeing 39. as in to arbitrate U.S. L.Ed.2 614, 628, 3346, 473 105 S.Ct. 87 claim, party forgo the sub- does (1985)). 444d statute; rights by afforded it stantive arbitral, submits to the resolution an rather 31. Id. judicial, forum." 500 U.S. at than (quoting S.Ct. Mitsubishi Motors Corp. 32. Id. Soler Chrysler-Plymouth, (1985)). 105 S.Ct. 87 L.Ed.2d 33. Id. at S.Ct. 27-29, 111 1647. 40. Id. § 29 U.S.C. AS 626; 18.80.145. 626; 18.80.060, § AS 29 U.S.C. AS 18.80.145. .100-.110. open forum survives Gilmer" is an did not overrule Gardner-Denver. Gilmer question.46 Instead, distinguished the earlier case was primarily grounds relating to the fact that on deal here with 'a of state law We in bargaining agreement was a collective Gardner-Denver, on which neither nor Gil in in Gardner-Denver while Gilmer

volved mer, supply nor other authorities agreement.42 But the an individual volved binding precedent. These cases are dis general attitudes to also noted that Court cussed because deal with a similar con changed in the inter ward arbitration troversy analogous in more or less situations vening years: history and lend and context issue The Court in Alexander v. Gardner- general agreement before us. are in We expressed the Denver Co. also view opinion the Gilmer and believe that with judicial pro inferior to the arbitration was accurately policy more reflects Alaska favor That resolving cess for claims. ing than arbitration does Gardner-Denver. process," how "mistrust of the arbitrable And we do not believe the distinction ever, been our recent has undermined between collective contracts and "[ past decisions. are well Wle necessarily meaningful individual contracts is judicial suspicion of the the time when respect to the treatment of desirability of arbitration and of the com Many clauses. individual contracts petence of arbitral tribunals inhibited essentially employment area contracts of are development of arbitration as alterna prospective employee adhesion offered to the ] resolution."[43 dispute tive means of Collectively on a basis. take-it-or-leave-it applied

The Fourth has the Gilmer Circuit typically product bargained contracts are bargaining agreements.44 of bilateral rule to collective negotiations can be ex thus pected employees as to be at least as fair to But most of the other circuits continue to emp bargain, followGardner-Denver collective standard individual contracts offered ing cases.45 1998 the United States Su loyers.48 there is little to en Thus reason indicated that "whether or not force arbitration clauses individual con seemingly prohi declining similar Gardner-Denver's absolute tracts while to enforce bargaining agreements.49 clauses employees' bition of union waiver of Gilmer, 42 111 S.Ct. 1647. U.S. Wright Co., v. Universal Maritime Serv. . U.S. 119 S.Ct 142 L.Ed.2d n.5, (quoting at 34 S.Ct. Mitsubi- 3346) Motors, 473 U.S. at 626-27, shi (internal omitted). citations Stores, Adams, Circuit Inc. v. 532 U.S. City Cf. (2001) 121 S.Ct 149 L.Ed.2d 234 105, 1302, Owens-Brockway 44. See Austin v. Glass Contain contract); (reviewing Mago er, Inc., 875, (4th .1996). individual v. Shear 78 880-82 F.3d Cir Hutton, Inc., (9th son Lehman 956 F.2d 932 Cir.1992) (same). Serv., 408, 45. See v. Parcel 128 F.3d United Penny (6th Cir.1997) (concluding employ 414 that "an only obligation ee whose to arbitrate is contained Further, individual member's claims under bargaining agreement ain retains the subject Alaska law are less control than union judicial right to obtain a determination of his under law. For if Barnica's example, ADA"); rights under a statute such as the Harri step union had refused to take his case to four Potash, Inc., 1437, son v. 112 F.3d 1453 Eddy arbitration, he could have sued the district for (10th Cir.1997), grounds, Eddy vacated on other bargaining agreement breach of the collective in Potash, Harrison, 947, Inc. v. need, court without as under superior (1998); Pryner L.Ed.2d 732 v. 141 Tractor law, to show that the union had breached Co., (7th Cir.1997) Supply 109 F.3d duty Casey City representation. its of fair See v. (holding that "the union cannot consent for the Fairbanks, of employee by signing bargaining a collective agreement consigns the of stat that enforcement procedures lack of fair or the absence of The utory rights grievance to the union-controlled unbiased arbitrators can serve as a reason not to machinery by agree and arbitration created ment"); require prefer that contract be used in Eng'g remedies v. Stone & Webster Brisentine Cir.1997); (11th judicial respect ence to remedies with to both Corp., F.3d 526-27 bargaining individual and collective contracts. Markets, Varner v. 94 F.3d National Super (8th Cir.1996); Tran, specific. v. 54 F.3d But such contentions are case Tran Cf. Cir.1995). (2d Anchorage, Municipality 32 P.3d 362 Bruns Norcon, holding answering with argues Barnica that our consistent Gilmer test judicial dictates that a by saying legislature Inc. v. Kotowski50 did not mani- statutory gender discrimination fest an intent to the waiver of the forum for cannot be waived. claims judicial remedy Human Act in favor by bargaining employee covered a collective grievance/arbitration procedures. agreement sued for sexual discrimination points Barnica to the statement Norcon violation of AS 18.80.220.51 The right non-diseriminatory "[the to a plaintiff's preempt court held that was workplace by conferred ... AS 18.80.220 by Management § of the Relations ed Labor Act, by any contrary subject could not be waived contrac that the claim was provision." tual its face On this statement of the contract.53 reversed, speaks right of a explaining employ "if substantive and not remed [an] We finding ies.59 It is not inconsistent against employer her is on ee's suit based rights neither founded on judicial state law claims remedy discriminatory for a work by bargaining agree [collective created place grievance/arbitra waivable favor of analysis dependent on the nor ment] procedures. tion For these reasons we re inter bargaining agree pretation [collective ject Barnica's our decision argument ment], Management Relations [Labor this case is controlled Norcon. by preempt such claims."54 Act] does not One additional Alaska case should be men preemption; one of if Norcon was Municipality tioned. Storrs v. Anchor preempted, the claim was the suit was barred age employee's held that an we state consti limitations, by if the federal statute of not, pretermination hearing tutional to a employee proceed was could with her statutory judicial remedy.55 state The issue bargaining could be waived in a collective not, here, choosing did as it does involve long remedy so as the substituted remedy by bargaining agreement a state arbitration and state between the collective judicial remedy. "fair, reasonable and efficacious." This holding supports our conclusionthat statuto preemption The test used to determine is ry can reason of remedies be waived different from the Gilmer test that we are substitute remedies in collective following opinion. preemption in this agreements. constitutionally If mandated test whether the worker's under asks griev-" may remedies alternative be waived adjudicated having state law can be without procedures, statutory reme ance/arbitration interpret bargaining agreeme the collective may subject dies be to waiver be likewise nt.56 That contrasts with Gilmer which procedures. cause of such Congress asks whether intended that work ers' remedies not be waivable.57 stated, judgment For reasons Answering as we did in Norcon that the em AFFIRMED. ployee's right free from sex discrimi independently nation could be determined FABE, Justice, participating. Chief bargaining agreement fully the collective at excuse of failure to 54.Id. 164-65. (Alaska 2001) (discussing exhaust administrative remedies "where admin-

istrative are ineffective because of 55. Id. meaningful access, bias, lack of or the futility, possibility irrepara- that the claimant could face 56. harm"). procedural ble No contentions of un- fairness or bias are made in this case. Gilmer, 26, 57. 500 U.S. at 111 S.Ct. 1647.

50. 971 P.2d 158 at 58. 971 P.2d 165. 51. Id. at 165. 59. The Gilmer Court stressed that sub- though statu- stantive are not waived even § 52. U.S.C. tory may supra 29 185. be. See note 39. remedies 1146, (1986). 60. P.2d 1150 53. at Norcon, 971 P.2d 164. later,

BRYNER, Justice, years in in court.4 Seventeen Gilmer with whom CARPENETI, Justice, Corp., joins, dissenting. v. Lane the Court Interstate/Johnson opposite in a non-union reached the result requiring Bar- I dissent from the decision ruling employment setting, private that a nica to assert his discrimination may pre contract's binding through arbitration under his Collec employee's right sumed to have waived an to Bargaining Agreement. Because this tive arbitrable, employment- pursue potentially issue, evenly on this court divided " related, statutory judicial remedies 'unless plurality opinion affirm the will Congress evinced an to itself has intention ruling precedential will have no court's but "5 waiver[.]) Although preclude a this court important I nevertheless think it to effect.1 recognized previously applied has my dissenting. my explain In reasons Gardner-Denver,6 today's in rule articulated view, plurality's misinterprets decision plurality decision discards that rule as out law, federal case underestimates our own moded, rule, opting instead for the Gilmer precedent, and reaches a conclusion odds which, asserts, accurately it "more reflects likely with the intent of the CBA's arbitra policyfavoring Alaska arbitration." tion clause. help questions concerning To resolve new eagerness But in its embrace what scope Em and effect of Alaska's Public contemporary policies, sees as Gilmer's more Act,2 ployment court has com Relations plurality shortchanges Supreme monly looked to relevant federal case law for pronouncement recent on the Court's most guidance.3 Today's plurality opinion breaks subject, Wright v. Universal Maritime Ser by following with this tradition a federal just Corp.8 Wright, opinion an issued vice ruling happens agree plurali years ago, Supreme granted four Court ty's apply in policy views but does not ruling by of a the fourth circuit invok review time, present procedural setting; at the same longshore ing the Gilmer rule to bar a work ignores plurality all a more recent but pursuing er from a claim federal court Supreme ruling squarely Court that is rele Act.9 under the Americans with Disabilities directly plurality's vant and contradicts the decision, reaching circuit its the fourth position. reasoned, tacitly keeping with its carlier Owens-Brockway Alexander v. decision Austin v. Glass ago Almost three decades Co., Inc.,10 Container, Supreme Gardner-Denver the United States Su- Court categorically effectively held that a collec- overruled Gardner-Denver Gilmer, that, agreement's tive Gilmer and under the worker's clause cannot defeat a union worker's claim had be arbitrated under his CBA.11 private, statutory pursue action cause of "[a] Inc., 1. Our case law establishes decision Soler U.S. Chrysler-Plymouth, evenly (1985)). an divided court affir results an S.Ct. 3346, L.Ed.2d Hosps. mance." Ward v. Lutheran & Homes America, 1031, 963 P.2d 1037 n. 11 Soc'y Ass'n, Safety Employees 6. See Pub. 658 P.2d at (Alaska 1998) Hickel, (quoting Thoma 947 P.2d 816, Moreover, (Alaska 1997)). "an affir- equally prece divided mance court is not Op. 980-81. Burnett, City dent." Kenai v. (Alaska 1993) J., (Compton, 1239 n. 8. 525 U.S. 142 L.Ed.2d 361 concurring). 2. AS 23.40.070-.260. Id. at S.Ct. e.g., See, State, Pub. Ass'n v. Employees Safety 769, (4th Cir.1996). 10. 78 F.3d 875 36, 49, 4. 415 U.S. 94 S.Ct. 39 L.Ed.2d 147 75-76, (de- Wright, 11. 525 U.S. at 119 S.Ct. 391 scribing unpublished opinion in fourth circuit's Wright Corp., v. Universal Maritime Servs. 20, 26, 5. 500 U.S. 111 S.Ct. 114 L.Ed.2d (1991) (4th Cir.1997)). Corp. (quoting Mitsubishi Motors F.3d 702

Q83 Hence, although Supreme Court's the Su arguing this decision before Court, amici curi parties opinion Wright definitively and the does not re they saw as the on what ae concentrated solve the tension between Gilmer and Gard- cireuit question: whether the fourth crucial mer-Denver, reconfirms Gardner- superced-ed correctly decided that Gilmer had Denver survived Gilmer and remains a vital unequivocal holding G ardner-Denver's precedent, at least to the extent that Gard could not an arbitration clause a CBA ner-Denwver a continues union collectively bargain away a worker's individu collectively bargaining away a worker's judicial remedy.12 right But statutory al to a judicial right statutory individual to a reme unnecessary Supreme found it dy incorporates a unless the CBA "clear and question, ruling that even this instead answer statutory unmistakable" waiver of might require in some if Gilmer claim."17 situations, Gardner governed the case at is Despite unequivocal ruling, today's Denver nonetheless this sue, generalized since plurality Wright, all decision but dismisses Wright incorporate not a quoting only snippet did a from that decisionfor CBA statutory and unmistakable" waiver of the "clear proposition "that 'whether or not Gard- edy.13 rem seemingly prohibition mer-Denver's absolute employee's of forum union waiver of Specifically, Wright emphasized, the rule of that it articulated Gilmer de rights open question." waiver survives Gilmer' is an largely presumption arbitra- pends proposition on the of 18 But while this narrow bility; bargaining con but in the collective true, technically Wright's sig it veils broader text, presumption extends as far as plurality quoted nificance: divorcees the principal "the: reach of the rationale that snippet language of from its contextual set it, justifies is that arbitrators are a which ting, inaccurately suggesting Wright position interpret than courts to better nothing open ques does more than leave 14Wright terms a CBA." further concluded actually says pas Wright tion. What underlying nor the that neither the rationale sage quoted language is that embodies the arbitrability applies presumption of when this: union seeks to assert a worker ["clear We think the same and unmistak since, remedy, arising when a claim under a waiver") applicable un able standard to a remedy might also be covered ion-negotiated employees' statu waiver of general terms of a CBA arbitration tory right forum for claims of clause, "ultimately resolution con claim's Although employment discrimination. interpretation application cerns not the or right, is not substantive whether CBA, meaning but the of a federal statute." seemingly absolute not Gardner-Denwver's presumption of 15 In the absence of the prohibition employees' union waiver of then, arbitrability, Wright apply decided forum survives Gilmer, disfavoring implied strict rule contractual at least stands for the Gardner-Denwer statutory rights: "[We waiver of will judi proposition that the to a federal general provision infer from a contractual importance to be cial forum is sufficient parties that the intended to a statutori waive less-than-explicit protected against union ly protected right undertaking unless the CBA.[19] explicitly in a stated."1 waiver 76-77, (1983)) (internal quotations 12. at 119 Silt. 75 L.Ed.2d 387 omit- Id. 391. ted). 77, 80-81, 13. Id. at 119 S.Ct. 391. 80-81, 391. 17. Id. at 119 S.Ct. 391; Id. at 119 S.Ct. -- at 80, Wright, Op. (quoting U.S. ) 78-79, Id. at 119 S.Ct. 391. . S.Ct. 391 (quoting Metro Id. at 119 S.Ct. 391 Edison (citations omitted). NLRB, S.Ct. 391 Co. v. "explicit sion that includes an incorporation disapprove the fourth Wright goes on to statutory requireme in unmistakable of the anti-discrimination circuit's invocation of Gilmer nts."2 terms: upon the fact The Fourth Cireuit relied Barnica's CBA fails to meet these federal equivalently broad arbitration for a "clear and unmistakable" waiv criteria "any ilmer-applying dis clause in explicitly er: its arbitration does not controversy"-was held to pute, claim or require statutory ar submission claims to statutory claims. But Gil- embrace bitration; and while the CBA does include an individual's waiver of his mer general language, involved antidiserimination that lan rights, rather than a union's waiver of own guage explicitly incorporate any does not represented employees and rights of statutory requirements. antidiscrimination hence the "clear unmistakable" stan cases, including Wright, In similar applicable.[20] dard was not grievance provisions have found courts CBA general to meet the "clear and to be too clear, then, passages As make these Indeed, unmistakable" standard.23 of all fed Wright pointedly refused to declare that have eral cireuit cases addressed: and, instead, explicitly dead Gardner-Denver Wright-including three from the Gilmer, issue since that, despite confirmed Gardner- yet cireuit-apparently none has fourth way Denver remains vital in a that is crucial- Wright's found a CBA that satisfies "clear ly relevant here. waiver standard.24 unmistakable" opinions Post-Wright federal cireuit under- Wright's requirement Contrary plurality opinion's sugges- for waiver of to the seore that tion, then, judicial remedy easily unequivocally points is not met: these federal law the conclusion that Barnica's CBA cannot generally recognize opinions that a CBA will incorporate properly construed to have be construed to "clear and waived his statutory pursue independent waiver of a antidis- an court action unmistakable" Here, only Wright, if crimination claim it contains an arbi on his claim. as agrees "very explicitly general," tration clause that "to sub the arbitration clause is arising mit all of action out of "could be mean federal causes understood to matters 21 or, contract"; moreover, dispute . employment to arbitration" in the under the "the clause, event of a more general explic- remainder of the contract contains no provi- if an contains incorporation additional antidiscrimi- the CBA 80-81, plication Agreement, 20. Id. at or violation of policy."), Wright, official Board U.S. at (2d Rogers Univ., v. New York 220 F.3d ("Any dispute concerning S.Ct. 391 or Inc., Cir.2000); Food, accord Carson v. Giant arising out of the terms conditions of this and/or (4th Cir.1999). F.3d Agreement, dispute involving interpreta or application Agreement, dispute or of this or tion added); Rogers, (emphasis 220 F.3d at 76 ac- arising adopted implemen out of rule for its Hence, cord F.3d at 332. even when Carson, 175 tation, [arbitration]"); shall be Kenne referred prohibit sections of the CBA other discrimination dy, ("any controversy dispute or 215 F.3d statutory protection, in terms similar to the arising interpretation applica from the remedy requires explicit and/or waiver of a incorporated, Rogers tion of the and work conditions under this mention of the statute See terms (stating agree specific "[clourts at 76 agreement"); Bratten, labor 185 F.3d at 631 requires incorporation identifying the anti-dis- ("[a]nuygrievance arising under the terms of this citation"); by statutes name or Ken- crimination thereof"); alleged Rog contract or an violation Co., nedy Superior Printing v. 215 F.3d ers, ("[alny dispute concerning 220 F.3d at 76 (6th Cir.2000) (disapproving aof non-discrimina- interpretation, application, claimed or viola tion clause to mention the ADA failed specific provision Agree tion of a term or of this name); Servs., Inc., Bratten v. SSI 185 F.3d ment"). Cir.1999) (6th (ruling that since antidiscrimi- provision separate nation was in section of CBA Healthtex, Inc., 215 F.3d 1321 See Robinson require procedure, it did not ar- (4th Cir.2000); Carson, 332; 175 F.3d at Brown claims). bitration of such (4th Freight Sys., v. ABF 183 F.3d 319 ("A Cir.1999). Compare 'grievance' CBA Article 35 shall grievant mean a that there has been alleged violation, misinterpretation, misap- Wright, requirements."25 Just as presume general a nation reason to anything will reflect more than the then, case does not meet "the CBA intent to [the] standard." parties "clear and unmistakable" comply with the mandate to arbi- sure, correctly plurality opinion beTo exclusively disputes those that arise trate presents "a Barnica's case observes under, consequently depend upon an in- on "which au [federal of state law of, 27 terpretation the CBA. binding precedent." supply not] thorities do we consider the separate equally compelling Hence A reason Gilmer/Gardner- stringent against only to enforce a state rule waiv line of cases 'because Denver/Wright prece emphasized I er of claims is that our own helpful. are Yet as those cases earlier, usually regards this court strongly against allowing counsels em dent collectively bargain persuasive. ployers and unions to highly as precedent in this field Safety Furthermore, Employees here such waivers. Public the federal cases cited State, unequivocally held that and unmistakable" Ass'n v. we applied the "clear have public employeesworkingunder a CBA could range a wide of antidis- standard to waiver statutes, state and federal.28 not be both required prospectively bargain crimination reason, then, away right their to sue under Alaska's Land to deviate from I see no sound recently, lord Tenant Act.30 And more the federal cases. Norcon, Kotowski, broadly empha Inc. v. we Indeed, any to distin good if reasons exist non-discriminatory right "[t]he sized that Wright case from and its guish Barnica's workplace conferred AS 18.80.220 adopting an they seem to favor progeny, contrary waived contrac could not be require stringent state waiver even more provision. tual Because non-waivable First, plurality's as the decision cor ment. right, state law no need exists consult out, rectly points CBAs that fall within meaning." CBA to determine its Employment Re coverage of Alaska's Public binding plurality tries to distance itself from incorporate Act must arbitra lations unp precedents. attempts these But its are grievance procedu step final tion as a True, then, Realistically, neither PSEA nor Nor- there seems little re.29 ersuasive.32 (empha- Wright, 525U.S.at 119S.Ct.391 distinguishes Safety plurality Em- 32. The Public that, added). ployees by noting Ass'n v. unlike sis State Rights here, Human Act at issue the Uniform at S.Ct.391. at Landlord and Tenant Act issue Residential express against provision PSEA contained an Op. at980. Op.at 978-79. But waiver of remedies. several factors that we this was one of Wright, U.S. at 119 S.Ct. 391 28. See deciding Notably, another mentioned in PSEA. others, considering, among (citing claims cases body we was the existence of factor considered VII the Civil Act of 1964 under Title them, decisions-among Gardner-Den- of federal 1938); also, Standards Act of see and Fair Labor that, "(in holding we described as ver-which e.g., Rogers, (considering 220 F.3d at circumstances coincident arbitral involving Act, claims under the Americans Disabilities relief, statutory avenues of ... arbitration does and Medical Leave and state Family PSEA, 658 not afford an exclusive remedy." laws). rights local human express at 774-75. Our reliance on Gard- P.2d analogous federal cases ner-Denver and other 23.40.210(a):, 29. See AS language was not establishes that PSEA's broad (a) completion negotiations Upon be- exclusively express the URLTA's anti- based on organization public employer, and a tween an provision. waiver reached, employer if a settlement shall writing agree- in the form of an reduce it to explain plurality attempts also Norcon griev- agreement ment.... The shall include a Op. preemption simply case. as procedure binding ance shall have arbi- which pre- But discussion of federal 980-81. Norcon's party step. tration as its final Either to the emption broad and cate- cannot account for its has a of action to enforce language holding gorical Kotowski's agreement by petition to the labor relations by any "could not be waived under AS 18.80.220 agency. provision" and that AS 18.80.220 contractual right." state law was "a non-waivable P.2d 774-75 30. 658 course, Strictly speaking, 1999). certainly do are dicta. But these statements 31. 971 P.2d here; directly yet con controls the outcome plurality's deliberately retreat from their language hardly

broad consonant seems with spirit-particularly

their intent and when one plurality proposes

considers that to re-

place language discouraging this broad waiv- strong presumption

er with a of waiver that

originates in a federal rule that fed- apply eral would decline to courts themselves

to these facts. short, given our own case law

rule articulated the United States Su- Wright, Court in I would that the hold extinguish CBA does not Barnica's to a

cause of action under the Human Act

and that Barnica pur- should remain free to

sue his court action. A., Appellant,

E. Alaska,

STATE of DIVISION

OF FAMILY AND YOUTH

SERVICES, Appellee.

No. S-10200.

Supreme Court of Alaska.

May preemption. not deal Wright's Nor determining can Norcon's overlooks test for preemption explain focus on its presumption arbitrability citation to PSEA attaches whether (which nothing that, preemp- given very do with federal in a case-the determination tion) as "a according Wright, justifies similar situation" which we substituting estab- analysis lished that "the existence of the arbitration reme- mer for Gardner-Derwver's "clear and un- dy did not requirement-is exactly exercise of the mistakable" waiver Norcon, remedy." finally, 971 P.2d at. 165. And preemption: same as the test for federal whether plurality correctly while the dispute hinges observes that the test necessarily at issue on an preemption interpretation issue in Norcon differs Compare of the CBA. proposes adopt 77-79, the Gilmer test that it Wright, as the P.2d at 164-65 with 525 U.S. at Alaska, law Op. begs this observation preemption analysis 119 S.Ct. 391. Norcon's properly the threshold prescribed whether Gilmer analysis thus accords with the applies By gloss- to the facts in Wright strongly against Barnica's case. counsels reliance on ing preliminary question, plurality over this Gilmer.

Case Details

Case Name: Barnica v. Kenai Peninsula Borough School District

Court Name: Alaska Supreme Court

Date Published: May 3, 2002

Citation: 46 P.3d 974

Docket Number: S-9155

Court Abbreviation: Alaska