You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Alaska Public Employees Association v State (12/27/96), 929 P 2d 662
NOTICE: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA PUBLIC EMPLOYEES )
ASSOCIATION and DAN LAWN, ) Supreme Court No. S-7195
)
Appellants, )
) Superior Court No.
v. ) 3AN-92-11287 CI
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF ENVIRONMENTAL CONSERVATION,)
)
Appellee. ) [No. 4452 - December 27, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Brian C. Shortell, Judge.
Appearances: William K. Jermain and Eugenia
R.G. Richardson, Jermain, Dunnagan & Owens,
Anchorage, for Appellants. Patrick J.
Gullufsen amd John B. Gaguine, Assistant
Attorneys General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh Justices. [Fabe,
Justice, not participating.]
RABINOWITZ, Justice.
I. FACTS AND PROCEEDINGS
In 1989 Daniel Lawn was head of the Prince William Sound
District Office in Valdez. This District Office was part of the
Southcentral Regional Office in the Division of Environmental
Quality of the Department of Environmental Conservation (DEC). In
May 1989, Lawn was involved in a confrontation regarding identity
badges with Exxon security personnel. As a result, Lawn received
a letter of reprimand and, later, was removed from his supervisory
role at the District Office, though his pay status was unchanged.
The Alaska Public Employees Association (APEA) filed a
grievance on Lawn's behalf. The grievance went to arbitration. A
hearing was held before arbitrator Edward Hales. In his decision,
Hales found that Lawn had been demoted because "being relieved of
the supervisory role does reasonably imply the movement to a þlower
position.þ" Hales additionally found that the altercation
constituted just cause for discipline. However, he concluded that
the demotion was improper because it constituted a second
disciplinary action for the same incident, since Lawn had already
been disciplined by a letter of reprimand.
In his award Hales ordered that "The Grievant shall be
reinstated to his former position with a supervisory role at the
Valdez District Office or to a mutually agreeable position." Prior
to Hales' award, DEC had placed Lawn in a position which
encompassed some supervisory responsibilities. As a consequence,
DEC argued that Lawn's assignment was already in compliance with
the award, "as it is an environmental engineer position in the
Valdez office with some supervisory duties."
APEA did not agree that Lawn's assignment was consistent
with the arbitrator's award because the position did not include
any oversight responsibilities for the Alyeska pipeline oil
terminal located in Valdez. In May 1992, APEA wrote to Hales,
complaining that DEC was not in compliance with the award, and
requesting a response. Hales responded to both parties, stating:
The award states in pertinent part that, "the
grievant shall be reinstated to his former
position with a supervisory role at the Valdez
District Office or to a mutually agreeable
position." Therefore, unless there is a
mutual agreement between Mr. Lawn and the
Department of Environmental Conservation
(Department) concerning his acceptance of a
position other than "his former position with
a supervisory role at the Valdez office,"the
Department is not in compliance with the
letter, intent, or spirit of the January 31,
1992 award issued in this matter.
DEC then answered Hales, explaining its position on the
issue of whether it had complied with the award. Hales did not
respond to DEC's letter. He later explained that he had assumed,
based on DEC's letter, that the dispute had been "amicably
settled."
In December 1992, APEA and Lawn sought enforcement of the
arbitrator's award in the superior court. The superior court
remanded the case to Hales for clarification of his award. On
remand, Hales clarified his remedy and ordered that "the State
shall reassign Lawn to his former oversight responsibility at the
Valdez Terminal."
After Hales issued his clarified award, both parties
renewed their motions for summary judgment. The superior court
granted DEC's motion, denied Lawn's motion, and declined to enforce
Hales' award on the grounds that Hales had exceeded the scope of
his authority as arbitrator. The superior court ruled in the
belief that Hales' award would require DEC to nullify some of the
structural reorganization it had undergone in 1991. (EN1) The
superior court held that, in regard to the amended award, Hales had
failed to consider the management rights of the state by engaging
in "transferring duties from one office to another in the context
of a major reorganization of a state agency." The superior court
thereafter entered final judgment.
APEA moved for reconsideration, which was subsequently
denied. This appeal followed.
II. DISCUSSION
1. The Meaning of Arbitrator Hales' Award
The primary issue in this case is the meaning of
Arbitrator Hales' award. (EN2) The parties interpret the award
differently. DEC argues that the award means that the
responsibility for oversight of the Alyeska pipeline oil terminal
in Valdez must be moved from the Pipeline Corridor Region Office
(PCRO) to the Valdez Field Office of the Mat-Su District of the
Southcentral Region. Thus, Lawn, in his capacity as head of the
Valdez Field Office, would have to be given additional duties --
i.e. oversight of the Alyeska pipeline terminal -- in addition to
the duties currently assigned him as head of the Valdez Field
Office.
APEA, on the other hand, asserts that Hales did not order
any reshuffling of authority among DEC offices, but rather ordered
that Lawn himself be transferred to a position which already, under
DEC's own reorganized structure, has oversight authority over the
Alyeska pipeline terminal. (EN3)
DEC's entire argument on this point is as follows:
The last sentence of Hales' amended award
orders the state to "reassign Lawn to his
former oversight responsibility at the Valdez
Terminal.". . . This award says nothing
about giving Lawn a job in the Valdez office
of the PCRO, even though the amended award
indicates that Hales was aware of the
restructuring and of the fact that there was a
PCRO office in Valdez. It should therefore
not be interpreted in that way. Instead it
should be interpreted as requiring that Lawn,
in his capacity as head of the VFO [Valdez
Field Office], was to be given additional
duties relating to the terminal, in addition
to his ordinary duties as VFO head.
DEC's argument is unconvincing. DEC takes a single
sentence from the arbitrator's award, and, because that particular
sentence is, by DEC's own assessment, neutral in helping determine
whether DEC's or APEA's interpretation of the award is correct,
concludes that it should be interpreted as requiring DEC to rescind
part of its structural reorganization.
Even this isolated sentence which DEC quotes is not
neutral. Hales ordered that "the state shall reassign Lawn to his
former oversight duties at the Valdez Terminal,"not that DEC
"shall assign duties to Lawn." If anything is to be moved by this
text, it is Lawn, not the duties.
A complete reading of Hales' findings further supports
the position that Hales' decision focused on where Lawn will be
located, rather than where the duties will be. Hales distinguishes
between the PCRO Valdez District Office and the Valdez Field Office
of the Mat-Su District. (EN4) He points out that Lawn has been
assigned to the Valdez Field Office. Then, he goes on to state
that "the assertion made in the [DEC] letter . . . appears to be
contrary to the evidence when [DEC] suggests that no position is
available in Valdez similar to Lawn's former duties." We think it
is clear from this that Hales is addressing the issue of which of
the currently available positions best matches Lawn's pre-demotion
position, and that Hales is not synthesizing a new position out of
the Valdez Field Office head position supplemented by oversight
responsibilities for the Alyeska pipeline terminal shifted over
from PCRO.
2. Arbitrator Hales' Authority to Order that Lawn Be
Reinstated to the Position Most Closely Matching Pre-
Demotion Duties
DEC argues that, if Hales' award did contemplate that
Lawn be installed as the head of the Valdez office of the PCRO,
then Hales was exceeding his authority. Its argument is as
follows:
The job of head of the Valdez office of the
PCRO did not exist when Lawn was, according to
Hales, "demoted." It was a job created in
1991, as part of the reorganization. Staffing
new positions is a management right under
Article 5 of the collective bargaining agree-
ment, and Hales could not order Lawn placed in
this new job because it encompasses some of
the responsibilities that Lawn had as Prince
William Sound district office head prior to
the reorganization.
However, DEC's argument does not address the question of
whether an arbitrator has the power only to reinstate someone to
his previously held position title, or the power to reinstate
someone to the position which is most similar to the one he held
before the wrongful demotion. The duties, if not the title, of
"the job of head of the Valdez office of the PCRO"did exist when
Lawn was demoted. Lawn was performing those duties.
DEC assumes that an arbitrator is limited to returning
Lawn to the position which is the nominal successor of his previous
position, and may not inquire into which job is the true successor
of Lawn's previous job. Hales found that assignment to the Valdez
Field Office was not reinstatement, but that assignment to the
Valdez Office of the PCRO was reinstatement since that office was
assigned oversight responsibility for the Alyeska pipeline terminal
in Valdez. He based this factual finding on a functional analysis
of Lawn's former position and both new positions.
Hales possessed the authority to consider the content of
a job rather than just the position title. In Sea Star Stevedore
v. Local 302, 769 P.2d 428 (Alaska 1989), we held that it was
permissible for the superior court to remand a case to an
arbitrator for the purpose of clarifying whether by ordering a
worker reinstated as a "mechanic"the arbitrator meant simply that
the worker should be placed in a position with that title, (EN5)
or, instead, that the worker should be returned to the position
with the same duties and responsibilities he held before his
wrongful termination. Sea Star, 769 P.2d at 430. It follows that
the arbitrator had the authority to define the worker's former job
by function, not just by his former title.
This is consistent with case law acknowledging an
arbitrator's broad discretion in fashioning a remedy. We have
stated: "There is ample authority for the proposition that
arbitrators generally have authority to fashion any remedy
necessary to the resolution of the dispute." Board of Educ. v.
Ewig, 609 P.2d 10, 12 (Alaska 1980). We therefore conclude that
Hales did not exceed his authority in ordering that Lawn be
reinstated to the Valdez District Office of the PCRO, rather than
to the Valdez Field Office of the Mat-Su District.
3. The Superior Court's Conclusion that Placing Lawn in the
PCRO Would Have the Effect of Negating the State's
Reorganization.
In its Decision and Order granting DEC's motion for
summary judgment, the superior court wrote: "Placing [Lawn] in the
PCRO would have the effect of reclassifying his job under the
reorganization, negating the State's attempt to reorganize the
operation for legitimate reasons."(EN6)
Arbitrator Hales, in his amended award following remand
from the superior court, stated: "[I]n spite of the reorganization
of the regional offices within DEC in the summer of 1991, the
oversight responsibility for the Alyeska Terminal in Valdez is
still being performed but by the PCRO district office in Valdez."
Then, after addressing the effects of the reorganization, Hales
found that
with Lawn's considerable experience in the
oversight activity in Valdez, it is clear that
the reassignment of him to his former
responsibility would be of benefit and in the
best interest of the State. Further, the
utilization of Lawn in the oversight
responsibility at Valdez does appear to be in
harmony with the reorganization of the DEC
regions.
APEA argues that the superior court's finding that
"Placing him in the PCRO would have the effect of . . . negating
the State's attempt to reorganize the operation"is in conflict
with Arbitrator Hales' finding that the placement of Lawn in the
Valdez office of the PCRO "does appear to be in harmony with the
reorganization of the DEC regions."(EN7)
DEC does not dispute APEA's contention that the superior
court's finding conflicts with Hales' finding. DEC states:
Hales concluded that "the utilization of Lawn
in the oversight responsibilities at Valdez
does appear to be in harmony with the
reorganization of the DEC regions."If this
nebulous statement is seen as a finding of
fact, the superior court did seem to disagree,
as evidenced by the statement quoted in
footnote 19 ["Placing (Lawn) in the PCRO would
have the effect of reclassifying his job under
the reorganization."].
Arbitrator Hales' statement is indeed a finding of fact.
Hales spent several pages of his amended award decision discussing
the DEC reorganization before coming to the conclusion that his
award would be in harmony with the reorganization. Thus, it
appears that the superior court did substitute its findings of fact
regarding the effect of the award on the DEC reorganization for the
findings of Hales. In a case arising out of a contract not subject
to the Uniform Arbitration Act, an arbitrator's findings of fact
are reviewed only for gross error. Breeze v. Sims, 778 P.2d 215,
217 (Alaska 1989); see Public Safety Employees Ass'n, Local 92 v.
State, 895 P.2d 980, 984 (Alaska 1995). Gross errors are "only
those mistakes which are both obvious and significant." Id.
Hales' finding was not gross error. Therefore, the superior
court's finding, contrary to Hales', that the assignment of Lawn to
the PCRO would negate DEC's reorganization, is reversed.
4. Possible Public Policy Violation in Hales' Award
DEC argues that Hales' award violates public policy in a
way which renders it unenforceable. However, DEC's argument that
the award commits such a violation is based entirely on the
violation of the "policy . . . that decisions as to how to organize
a department, what duties to assign the units within a department,
and what duties to assign to positions in a unit are executive
branch management prerogatives."
This policy is put at issue only if, as DEC asserts,
"Arbitrator Hales essentially ordered ADEC to transfer a duty back
to a position from which the duty had been removed pursuant to the
legitimate exercise of the executive's . . . authority to
reorganize departments and reassign duties." However, we have held
that Hales did not "order[] ADEC to transfer a duty . . . ."
Therefore, the public policy argument is irrelevant and need not be
addressed.
III. CONCLUSION
The question of primary importance in this appeal is what
Arbitrator Hales' award means. Hales found that to accomplish a
true reinstatement Lawn would have to be placed within a post
reorganization - existing position in the PCRO Valdez office. This
remedy did not constitute a negation of the DEC's reorganization
and was well within Hales' powers as arbitrator. The judgment of
the superior court is REVERSED. This case is REMANDED with
instructions to the superior court to enter an order granting
APEA's motion for summary judgment.
ENDNOTES:
1. In 1991, in order to improve oversight of oil spill problems,
DEC reorganized. The part of the reorganization relevant to this
case involved the creation of a new region within the Department.
Previously, the Southcentral Regional Office had included the
districts of Mat-Su Borough, Kenai Peninsula, Anchorage/Western,
and Prince William Sound, where Lawn worked. The Prince William
Sound District Office, which was in Valdez, was responsible, among
other things, for oversight of the Alyeska pipeline terminal in
Valdez.
The 1991 reorganization created a new region -- the Pipeline
Corridor Region -- designed to deal with large-scale oil spill
issues. The Pipeline Corridor Region covered the pipeline corridor
from Prudhoe Bay (including the production facilities) down to the
Alyeska terminal in Valdez. The Pipeline Corridor Region has
several district offices, including one in Valdez, which now has
the oversight responsibility for the Valdez pipeline terminal.
The Prince William Sound District Office became the Valdez
Field Office in the Mat-Su Borough District of the Southcentral
region. It no longer had responsibility for the pipeline terminal,
though most of its other duties apparently remained the same.
Thus, there are now two Valdez offices: The Valdez District
Office of the Pipeline Corridor Region, and the Valdez Field Office
of the Mat-Su Borough District of the Southcentral Region. Lawn is
assigned to the latter.
2. Where the meaning of an arbitrator's award is in dispute,
remand is appropriate only where the award is
patently ambiguous. "Where the parties dis-
pute the meaning of an award the court's role
is to examine the award and determine whether
remanding it to the [arbitrator] þis necessary
to clarify precisely what the Court is being
asked to enforce.þ" Zephyros Maritime
Agencies, Inc. v. Mexicana de Cobre, S.A., 662
F. Supp. 892, 895 (S.D.N.Y. 1987) (quoting
Oil, Chemical and Atomic Workers Int'l Union,
Local 4-367 v. Rohm & Hass, Texas, Inc., 93
Lab. Cas. p. 13,278, 1981 WL 2362 (S.D. Tex.
1981), aff'd per curiam, 677 F.2d 492 (5th
Cir. 1982)). Where the true intent of an
arbitrator is apparent, an allegedly ambiguous
award should not be resubmitted to the arbi-
trator for clarification. United Steelworkers
of America, Local 12886 v. ICI Americas Inc.,
545 F. Supp. 152, 154 (D. Del. 1982).
International Bhd. of Elec. Workers, Local 1547 v. City of
Ketchikan, 805 P.2d 340, 344 (Alaska 1991) (alteration in
original).
The superior court's grant of summary judgment is reviewed de
novo. Dayhoff v. TEMSCO Helicopters, 848 P.2d 1367, 1369 (Alaska
1993).
3. DEC acknowledges that APEA's position is, and has been, that
Hales' award assigned Lawn to the PCRO. In characterizing APEA's
position, DEC quotes from, and then correctly explains, an earlier
APEA/Lawn brief: "þArbitrator Hales has reassigned Mr. Lawn to his
former responsibilities of overseeing the Valdez Terminal. The
position is presently held by Steve Provant.þ As noted above,
Provant at the time was the head of the Valdez office of the PCRO."
4. It should be noted that in his original award, Hales ordered
that Lawn be placed in the "Valdez district office." When this
award was issued, DEC had already reorganized, and the only "Valdez
District Office"was the Valdez District Office of the PCRO. There
was no Valdez District Office in the Southcentral Region, just a
Valdez Field Office of the Mat-Su District Office. This too
indicates that the Valdez District Office of the PCRO is the office
where Lawn was placed by Hales' award.
5. Sea Star had two types of "mechanic,"with the same title but
different assignments and responsibilities.
6. In this order the superior court did discuss, in another
context, whether it substituted its findings of fact for the
arbitrator's findings regarding whether the award has the effect of
dismantling, to some extent, the DEC reorganization. This
discussion is entirely in the context of whether moving oversight
authority of the Alyeska terminal to the Valdez Field Office is
beyond Hales' power, and has nothing to do with moving Lawn to the
Valdez office of the PCRO. Since we hold that the arbitrator's
award did not attempt to shift authority or duties among offices,
this portion of the superior court's order is not relevant.
7. The superior court appears to have based its finding, at least
partially, on its belief that "there is no . . . discussion of the
reorganization issue"in the arbitrator's award. The superior
court was incorrect in this belief. Hales spent most of four pages
out of his seven page amended award discussing the reorganization.
The portion of his award quoted above illustrates that he made
specific findings on this issue.