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Barnica v. Kenai Peninsula School District (5/3/2002) sp-5562
Barnica v. Kenai Peninsula School District (5/3/2002) sp-5562
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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LAVERN BARNICA, )
) Supreme Court No. S-9155
Appellant, )
) Superior Court No.
v. ) 3KN-96-260 CI
)
KENAI PENINSULA BOROUGH )
SCHOOL DISTRICT and ) O P I N I O N
GLADYS STALKER, )
)
Appellees. ) [No.5562 - May 3, 2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Arthur S. Robinson, Robinson &
Beiswenger, Soldotna, for Appellant. Howard
S. Trickey, Jermain, Dunnagan & Owens, P.C.,
Anchorage, for Appellees.
Before: Matthews, Eastaugh, Bryner, and
Carpeneti, Justices. [Fabe, Chief Justice,
not participating.]
MATTHEWS, Justice.
BRYNER, Justice, with whom CARPENETI, Justice, joins,
dissenting.
On August 22, 1995, Lavern Barnica resigned from his
position as a custodian at the Nikiski High School. Eight months
later he sued the Kenai Peninsula Borough School District and his
former immediate supervisor, Gladys Stalker,1 for wrongfully
constructively discharging him from employment. Barnica claimed
that he was discriminated against because of his sex in violation
of AS 18.80.220, and that this discriminatory treatment "made
working conditions so intolerable that Plaintiff was forced into
involuntary resignation." Barnica alleged that Stalker permitted
women custodians to do less work than he was required to do,
generally showed partiality towards women custodians, and
retaliated against his complaints that he was being unfairly
treated by giving him even more work to do. Barnica sought
compensatory and punitive damages but not injunctive relief.
The district answered and pled a number of affirmative
defenses including that Barnica had failed to exhaust contractual
remedies prescribed by the collective bargaining agreement to
which he was subject. Subsequently, the district moved for
summary judgment on the exhaustion defense. It noted that the
collective bargaining agreement specifically prohibited
discriminatory treatment on the basis of sex, that it provided a
four-step grievance procedure culminating in binding arbitration,
and that Barnica did not use these procedures. The district
argued that the grievance procedures were exclusive, and that
Barnica's unexcused failure to use them precluded him from
maintaining the suit.
Barnica opposed the motion. He admitted that to the
extent that he was asserting a contract claim, his claim should
have been exhausted through the grievance procedures. But he
contended that his claim was also a tort claim "for violation of
the public policy contained in Alaska's anti-discrimination
statute," and that this claim was independent of the collective
bargaining agreement and therefore not barred by his failure to
use the grievance procedures.
The superior court granted summary judgment in favor of
the district. In a balanced opinion, the court noted that
authorities in other jurisdictions were divided as to whether
exhaustion of contractual remedies should be required in similar
situations. Based generally on our decisions requiring
exhaustion of contractual or administrative remedies in many
contexts, the court concluded that Barnica
was required to have exhausted his remedies
under the collective bargaining agreement.
Most wrongful discharges could be ascribed to
some violation of a public policy. If all
employees alleging tortious violations of
public policy were permitted to circumvent
the arbitral procedures set forth in their
contractual agreements, it would undermine
the doctrine of exhaustion and do violence to
the spirit and the letter of the Cozzen[2]
and Beard[3] decisions.
In his opening brief on appeal Barnica continues to
characterize his claim as a "statutory public policy tort." He
argues that the basis for this claim "is independent of any
understanding embodied" in the collective bargaining agreement,
and that Norcon, Inc. v. Kotowski4 indicates that he may proceed
without exhausting contractual remedies.
In response, the district recasts Barnica's claim as a
statutory claim and argues that public policy favoring
arbitration points to the application of the exhaustion doctrine
to this case. The district also contends that analogous federal
decisions have required arbitration of statutory civil rights
claims, relying on such cases as Gilmer v. Interstate/Johnson
Lane Corp.5 and Austin v. Owens-Brockway Glass Container, Inc.6
In response to Barnica's argument that Norcon should control this
case, the district argues that Norcon is distinguishable. The
issue there was preemption under the federal Labor Management
Relations Act, which is inapplicable to states or their political
subdivisions. The district argues that the state Public
Employment Relations Act, AS 23.40.210(a), applies instead, and
that the Public Employment Relations Act mandates that collective
bargaining agreements contain grievance procedures with binding
arbitration.
In reply Barnica accepts the district's
characterization of his claim as a statutory discrimination
claim. But he contends that the district's reliance on federal
authority is ill conceived. He notes that the 1974 case of
Alexander v. Gardner-Denver Co.,7 which arose in a collective
bargaining context and did not require exhaustion, was not
overruled by the 1991 Gilmer decision, which involved an
individual contract. He observes that most federal circuits have
continued to follow Gardner-Denver rather than Gilmer in
collective bargaining cases.
As Barnica states, "the essential issue in this appeal"
is whether the collective bargaining agreement "to arbitrate
statutory discrimination claims should be binding on individual
employees . . . ."8 We regard this as a close question. The
collective bargaining agreement explicitly prohibits
discrimination on the basis of sex.9 The Human Rights Act, AS
18.80.220(a), prohibits the same conduct. The Public Employment
Relations Act requires that collective bargaining agreements
include a grievance procedure "which shall have binding
arbitration as its final step."10 The collective bargaining
agreement complies with this requirement.11 A person aggrieved by
a violation of the Human Rights Act may bring an action in the
superior court;12 in addition, an aggrieved person may initiate an
administrative proceeding before the Commission for Human Rights.13
Grievance procedures in collective bargaining agreements, like
agreements to arbitrate generally, are mandatory in the sense
that they preclude the use of otherwise available judicial
remedies.14 But does this rule apply to a claim based on conduct
which is both a violation of a collective bargaining agreement
and a statute which affords a judicial remedy?
For the reasons that follow, our answer is that a claim
subject to an agreement to arbitrate for which an independent
statutory judicial remedy is also available must be arbitrated,
unless the history and structure of the statute in question
indicate that the legislature intended to preclude waiver of the
judicial remedy in favor of the arbitral forum. As there is no
such indication in the Human Rights Act, we affirm the judgment.
Central to our decision is the fact that the
legislature has mandated that all collective bargaining
agreements subject to the Public Employment Relations Act contain
grievance procedures and that all such procedures must have
binding arbitration as a final step.15 The legislature has
recognized that a "rational method for dealing with disputes"
between public employers and employees is one of the tools of
effective government,16 and it has chosen grievance procedures
with binding arbitration as the preferred method for the
achievement of this goal.17 The Public Employment Relations Act's
declaration of policy states:
The legislature finds that joint
decision_making is the modern way of
administering government. If public
employees have been granted the right to
share in the decision_making process
affecting wages and working conditions, they
have become more responsive and better able
to exchange ideas and information on
operations with their administrators.
Accordingly, government is made more
effective. The legislature further finds
that the enactment of positive legislation
establishing guidelines for public employment
relations is the best way to harness and
direct the energies of public employees eager
to have a voice in determining their
conditions of work, to provide a rational
method for dealing with disputes and work
stoppages, to strengthen the merit principle
where civil service is in effect, and to
maintain a favorable political and social
environment. The legislature declares that
it is the public policy of the state to
promote harmonious and cooperative relations
between government and its employees and to
protect the public by assuring effective and
orderly operations of government. These
policies are to be effectuated by
. . . .
(2) requiring public employers to
negotiate with and enter into written
agreements with employee organizations on
matters of wages, hours, and other terms and
conditions of employment[.][18]
The choice of grievance procedures with arbitration as
the final step seems well designed to promote harmonious and
cooperative government employer-employee relations. Such proce
dures encourage the early resolution of disputes by discussion
and conciliation before they escalate to unmanageable
proportions. Various practical remedies are then possible. By
contrast, once a case reaches the judicial litigation stage the
disputants' positions have typically hardened so that no
constructive solution is possible. To use modern terminology,
"win/win" results can be achieved with grievance and arbitration
procedures, whereas litigation is more likely to be a "zero sum"
process - either the employer or the employee will lose.
In addition, we have recognized that the "common law
and statutes of Alaska evince `a strong public policy in favor of
arbitration.' "19 Compared to litigation, arbitration is a rela
tively inexpensive and expeditious method of dispute resolution.20
This policy also supports giving primacy to contractual
grievance/arbitration clauses in cases like the present.21
In the one case in which we addressed a conflict
between a collective bargaining grievance/arbitration remedy and
a statutory judicial remedy we held that the judicial remedy
could be pursued. Public Safety Employees Ass'n v. State arose
out of a dispute over bush housing owned by the state and rented
to certain state employees.22 We held that some aspects of the
dispute fell within a collective bargaining agreement and thus
were potentially subject to arbitration.23 But we held that the
arbitration remedy was not exclusive and that the employees had
the right to sue as tenants under the Uniform Residential
Landlord and Tenant Act.24 We had "but little difficulty" in
reaching this conclusion because a section of the Uniform
Residential Landlord and Tenant Act contained a non-waiver
provision applicable not only to rights, but to remedies, under
the act.25 Referring to this non-waiver clause we stated "that
the right to sue under the act cannot be prospectively bargained
away. Hence, the contract remedy here cannot displace that which
is provided by the act."26
Unlike the Uniform Residential Landlord and Tenant Act,
the Human Rights Act does not contain a provision prohibiting the
waiver of judicial remedies. Thus the rationale underlying our
conclusion in Public Safety Employees Ass'n does not apply to the
present case.
One case that we cited in Public Safety Employees Ass'n
was Alexander v. Gardner-Denver Co.27 There the United States
Supreme Court held that an unfavorable arbitrator's decision
rendered under a collective bargaining agreement did not preclude
an employee from bringing a racial discrimination claim in
federal court based on Title VII of the Civil Rights Act of 1964.
Based on a number of factors the Court concluded that the Title
VII judicial remedy was not meant to be waivable merely because a
claim raising the same underlying conduct was submitted to
arbitration:
In sum, Title VII's purpose and procedures
strongly suggest that an individual does not
forfeit his private cause of action if he
first pursues his grievance to final
arbitration under the nondiscrimination
clause of a collective-bargaining
agreement.[28]
Some years after our decision in Public Safety
Employees Ass'n, the United States Supreme Court decided Gilmer
v. Interstate/Johnson Lane Corp.,29 which held that an employee
was precluded by an arbitration agreement from pursuing a
judicial remedy on his claim of age discrimination. In Gilmer,
the Court established a rule of decision like that which we
believe should govern here. Agreements to arbitrate supercede
statutory judicial remedies "unless Congress itself has evinced
an intention to preclude a waiver of judicial remedies for the
statutory rights at issue."30 The Court observed that the burden
would be on the party opposing arbitration to show that a waiver
of the judicial forum was meant to be precluded and that such an
intention might be discoverable from the text of the act or its
legislative history or from an "inherent conflict" between
arbitration and the underlying purposes of the act.31 The Court
cautioned that this inquiry should be engaged in bearing in mind
that "questions of arbitrability must be addressed with a healthy
regard for the federal policy favoring arbitration."32
The Gilmer Court then turned to the question of whether
Congress, in enacting the Age Discrimination in Employment Act,
intended to bar waivers of the individual judicial remedy
provided in the act. In a discussion which is in many respects
relevant to the present case, the Court found there to be no such
intent.33 The Age Discrimination in Employment Act, like the
Human Rights Act, provides both for administrative and judicial
remedies and for administrative remedies to take precedence over
judicial remedies.34 In finding no inherent conflict between
arbitration and the purpose of the Age Discrimination in
Employment Act, the Court pointed to the act's flexible approach
to the administrative resolution of claims - informal efforts to
conciliate like those provided in the Human Rights Act35 - which
suggested that out-of-court dispute resolution methods like
arbitration were consistent with Congress's purpose.36 The Court
also noted that arbitration procedures under the Federal
Arbitration Act are fair37 and the arbitrators in the particular
controversy before the court could fashion both damage awards and
"other" relief, meaning equitable relief.38 Similar broad relief
is also authorized under the clause in this case: "The arbitrator
shall have complete authority to make any decision and provide
any remedy appropriate except as otherwise expressly prohibited
by law or this Agreement."39 The Gilmer Court also observed that
arbitration proceedings would not preclude the commission
administering the act from proceeding independently to seek class-
wide relief nor would a claimant be precluded from filing an
administrative charge even if he is precluded from filing suit.40
The same can be said with respect to the Human Rights Commission
and administrative remedies available under the Human Rights Act.41
Gilmer did not overrule Gardner-Denver. Instead, the
earlier case was distinguished primarily on grounds relating to
the fact that a collective bargaining agreement was involved in
Gardner-Denver while Gilmer involved an individual agreement.42
But the Court also noted that general attitudes toward
arbitration had changed in the intervening years:
The Court in Alexander v. Gardner-Denver
Co. also expressed the view that arbitration
was inferior to the judicial process for
resolving statutory claims. That "mistrust
of the arbitrable process," however, has been
undermined by our recent arbitration
decisions. "[W]e are well past the time when
judicial suspicion of the desirability of
arbitration and of the competence of arbitral
tribunals inhibited the development of
arbitration as an alternative means of
dispute resolution."[43]
The Fourth Circuit has applied the Gilmer rule to
collective bargaining agreements.44 But most of the other
circuits continue to follow Gardner-Denver in collective
bargaining cases.45 In 1998 the United States Supreme Court
indicated that "whether or not Gardner-Denver's seemingly
absolute prohibition of union waiver of employees' federal forum
rights survives Gilmer" is an open question.46
We deal here with a question of state law on which
neither Gardner-Denver, nor Gilmer, nor other federal authorities
supply binding precedent. These cases are discussed because they
deal with a similar controversy in more or less analogous
situations and lend history and context to the issue before us.
We are in general agreement with the Gilmer opinion and believe
that it more accurately reflects Alaska policy favoring
arbitration than does Gardner-Denver. And we do not believe that
the distinction between collective bargaining contracts and
individual contracts is necessarily meaningful with respect to
the treatment of arbitration clauses. Many individual contracts
in the employment area are essentially contracts of adhesion
offered to the prospective employee on a take-it-or-leave-it
basis.47 Collectively bargained contracts are typically the
product of bilateral negotiations and thus can be expected to be
at least as fair to employees as standard individual contracts
offered by employers.48 Thus there is little reason to enforce
arbitration clauses in individual contracts while declining to
enforce similar clauses in collective bargaining agreements.49
Barnica argues that our holding in Norcon, Inc. v.
Kotowski50 dictates that a judicial forum for statutory gender
discrimination claims cannot be waived. In Norcon, an employee
covered by a collective bargaining agreement sued for sexual
discrimination in violation of AS 18.80.220.51 The superior court
held that plaintiff's claim was preempted by 301 of the Labor
Management Relations Act,52 and that the claim was subject to the
grievance procedures of the contract.53 We reversed, explaining
that "if [an] employee's suit against her employer is based on
state law claims neither founded on rights created by a
[collective bargaining agreement] nor dependent on the analysis
or interpretation of the [collective bargaining agreement], the
[Labor Management Relations Act] does not preempt such claims."54
The question in Norcon was one of preemption; if the claim was
preempted, the suit was barred by the federal statute of
limitations, and if it was not, the employee could proceed with
her state statutory judicial remedy.55 The issue did not, as it
does here, involve choosing between a state arbitration remedy
and state judicial remedy.
The test used to determine preemption is different from
the Gilmer test that we are following in this opinion. The
preemption test asks whether the worker's rights under state law
can be adjudicated without having to interpret the collective
bargaining agreement.56 That contrasts with Gilmer which asks
whether Congress intended that workers' judicial remedies not be
waivable.57 Answering as we did in Norcon that the employee's
right to be free from sex discrimination could be determined
independently of the collective bargaining agreement is fully
consistent with answering the Gilmer test by saying that the
legislature did not manifest an intent to preclude the waiver of
the Human Rights Act judicial remedy in favor of grievance/
arbitration procedures.
Barnica points to the statement in Norcon that "[t]he
right to a non-discriminatory workplace conferred . . . by AS
18.80.220 could not be waived by any contrary contractual
provision."58 On its face this statement speaks of a substantive
right and not remedies.59 It is not inconsistent with finding the
judicial remedy for a discriminatory workplace waivable in favor
of grievance/arbitration procedures. For these reasons we reject
Barnica's argument that our decision in this case is controlled
by Norcon.
One additional Alaska case should be mentioned. In
Storrs v. Municipality of Anchorage we held that an employee's
state constitutional right to a pretermination hearing could be
waived in a collective bargaining agreement so long as the remedy
substituted by the collective bargaining agreement was "fair,
reasonable and efficacious."60 This holding supports our
conclusion that statutory remedies can be waived by reason of
substitute remedies in collective bargaining agreements. If
constitutionally mandated remedies may be waived by alternative
grievance/arbitration procedures, statutory remedies likewise may
be subject to waiver because of such procedures.
For the reasons stated, the judgment is AFFIRMED.
BRYNER, Justice, with whom CARPENETI, Justice, joins, dissenting.
I dissent from the decision requiring Barnica to assert
his discrimination claim through binding arbitration under his
Collective Bargaining Agreement. Because this court is evenly
divided on this issue, the plurality opinion will affirm the
superior court's ruling but will have no precedential effect.61 I
nevertheless think it important to explain my reasons for
dissenting. In my view, the plurality's decision misinterprets
federal case law, underestimates our own precedent, and reaches a
conclusion at odds with the likely intent of the CBA's
arbitration clause.
To help resolve new questions concerning the scope and
effect of Alaska's Public Employment Relations Act,62 this court
has commonly looked to relevant federal case law for guidance.63
Today's plurality opinion breaks with this tradition by following
a federal ruling that happens to agree with the plurality's
policy views but does not apply in the present procedural
setting; at the same time, the plurality all but ignores a more
recent Supreme Court ruling that is squarely relevant and
directly contradicts the plurality's position.
Almost three decades ago in Alexander v. Gardner-Denver
Co., the United States Supreme Court categorically held that a
collective bargaining agreement's arbitration clause cannot
defeat a union worker's right to pursue a private, statutory
cause of action in court.64 Seventeen years later, in Gilmer v.
Interstate/Johnson Lane Corp., the Court reached the opposite
result in a non-union setting, ruling that a private employment
contract's arbitration clause may be presumed to have waived an
employee's right to pursue potentially arbitrable, employment-
related, statutory judicial remedies " `unless Congress itself
has evinced an intention to preclude a waiver[.]' "65 Although
this court has previously recognized and applied the rule
articulated in Gardner-Denver,66 today's plurality decision
discards that rule as outmoded, opting instead for the Gilmer
rule, which, it asserts, "more accurately reflects Alaska policy
favoring arbitration."67
But in its eagerness to embrace what it sees as
Gilmer's more contemporary policies, the plurality shortchanges
the Supreme Court's most recent pronouncement on the subject,
Wright v. Universal Maritime Service Corp.68 In Wright, an
opinion issued just four years ago, the Supreme Court granted
review of a ruling by the fourth circuit invoking the Gilmer rule
to bar a longshore worker from pursuing a claim in federal court
under the Americans with Disabilities Act.69 In reaching its
decision, the fourth circuit tacitly reasoned, in keeping with
its earlier decision in Austin v. Owens-Brockway Glass Container,
Inc.,70 that the Supreme Court had effectively overruled Gardner-
Denver in Gilmer and that, under Gilmer, the worker's statutory
claim had to be arbitrated under his CBA.71
In arguing this decision before the Supreme Court, the
parties and the amici curiae concentrated on what they saw as the
crucial question: whether the fourth circuit correctly decided
that Gilmer had superceded Gardner-Denver's unequivocal holding
that an arbitration clause in a CBA could not collectively
bargain away a worker's individual right to a statutory judicial
remedy.72 But the Supreme Court found it unnecessary to answer
this question, ruling instead that even if Gilmer might require
arbitration in some collective bargaining situations, Gardner-
Denver nonetheless governed the case at issue, since the
generalized arbitration clause of the CBA in Wright did not
incorporate a "clear and unmistakable" waiver of the statutory
remedy.73
Specifically, Wright emphasized, the rule of waiver
that it articulated in Gilmer depends largely on the presumption
of arbitrability; but in the collective bargaining context, this
presumption extends only as far as "the reach of the principal
rationale that justifies it, which is that arbitrators are in a
better position than courts to interpret the terms of a CBA."74
Wright further concluded that neither the underlying rationale
nor the presumption of arbitrability applies when a union worker
seeks to assert a statutory remedy, since, when a claim arising
under a statutory remedy also might be covered by the general
terms of a CBA arbitration clause, the claim's resolution
"ultimately concerns not the application or interpretation of any
CBA, but the meaning of a federal statute."75 In the absence of
the presumption of arbitrability, then, Wright decided to apply a
strict rule disfavoring implied contractual waiver of statutory
rights: "[W]e will not infer from a general contractual provision
that the parties intended to waive a statutorily protected right
unless the undertaking is explicitly stated."76
Hence, although the Supreme Court's opinion in Wright
does not definitively resolve the tension between Gilmer and
Gardner-Denver, it reconfirms that Gardner-Denver survived Gilmer
and remains a vital precedent, at least to the extent that
Gardner-Denver continues to preclude a union from collectively
bargaining away a worker's individual right to a statutory
judicial remedy unless the CBA incorporates a "clear and
unmistakable" waiver of the statutory claim.77
Despite this unequivocal ruling, today's plurality
decision all but dismisses Wright, quoting only a snippet from
that decision for the proposition "that `whether or not Gardner-
Denver's seemingly absolute prohibition of union waiver of
employee's federal forum rights survives Gilmer' is an open
question."78 But while this narrow proposition is technically
true, it veils Wright's broader significance: the plurality
divorces the quoted snippet of language from its contextual
setting, inaccurately suggesting that Wright does nothing more
than leave an open question. What Wright actually says in the
passage that embodies the quoted language is this:
We think the same ["clear and
unmistakable waiver"] standard applicable to
a union-negotiated waiver of employees'
statutory right to a judicial forum for
claims of employment discrimination.
Although that is not a substantive right, and
whether or not Gardner-Denver's seemingly
absolute prohibition of union waiver of
employees' federal forum rights survives
Gilmer, Gardner-Denver at least stands for
the proposition that the right to a federal
judicial forum is of sufficient importance to
be protected against less-than-explicit union
waiver in a CBA.[79]
Wright goes on to disapprove of the fourth circuit's invocation
of Gilmer in unmistakable terms:
The Fourth Circuit relied upon the fact that
the equivalently broad arbitration clause in
Gilmer - applying to "any dispute, claim or
controversy"- was held to embrace federal
statutory claims. But Gilmer involved an
individual's waiver of his own rights, rather
than a union's waiver of the rights of
represented employees and hence the "clear
and unmistakable" standard was not
applicable.[80]
As these passages make clear, then, the Court in Wright pointedly
refused to declare Gardner-Denver dead and, instead, explicitly
confirmed that, despite Gilmer, Gardner-Denver remains vital in a
way that is crucially relevant here.
Post-Wright federal circuit opinions underscore that
Wright's requirement for waiver of a judicial remedy is not
easily met: these opinions generally recognize that a CBA will be
construed to incorporate a "clear and unmistakable" waiver of a
statutory antidiscrimination claim only if it contains an
arbitration clause that explicitly agrees "to submit all federal
causes of action arising out of . . . employment to arbitration"81
or, in the event of a more general arbitration clause, only if
the CBA contains an additional provision that includes an
"explicit incorporation of the statutory anti-discrimination
requirements."82
Barnica's CBA fails to meet these federal criteria for
a "clear and unmistakable" waiver: its arbitration clause does
not explicitly require submission of statutory claims to
arbitration; and while the CBA does include general
antidiscrimination language, that language does not explicitly
incorporate any statutory antidiscrimination requirements. In
similar cases, including Wright, federal courts have found CBA
grievance provisions to be too general to meet the "clear and
unmistakable" standard.83 Indeed, of all federal circuit cases
that have addressed the issue since Wright - including three from
the fourth circuit - apparently none has yet found a CBA that
satisfies Wright's "clear and unmistakable" waiver standard.84
Contrary to the plurality opinion's suggestion, then,
federal law unequivocally points to the conclusion that Barnica's
CBA cannot properly be construed to have waived his right to
pursue an independent court action on his statutory claim. Here,
as in Wright, the arbitration clause is "very general," and
"could be understood to mean matters in dispute under the
contract"; moreover, "the remainder of the contract contains no
explicit incorporation of the statutory antidiscrimination
requirements."85 Just as in Wright, then, "the CBA in this case
does not meet [the] standard."86
To be sure, the plurality opinion correctly observes
that Barnica's case presents "a question of state law on which
[federal authorities do not] supply binding precedent."87 Hence
we consider the Gilmer/Gardner-Denver/Wright line of cases only
because those cases are helpful. Yet as I emphasized earlier,
this court usually regards federal precedent in this field as
highly persuasive. Furthermore, the federal cases cited here
have applied the "clear and unmistakable" waiver standard to a
wide range of antidiscrimination statutes, both state and
federal.88 I see no sound reason, then, to deviate from the
federal cases.
Indeed, if any good reasons exist to distinguish
Barnica's case from Wright and its progeny, they seem to favor
adopting an even more stringent state waiver requirement. First,
as the plurality's decision correctly points out, CBAs that fall
within the coverage of Alaska's Public Employment Relations Act
must incorporate binding arbitration as a final step of the
grievance procedure.89 Realistically, then, there seems little
reason to presume that a general arbitration clause will reflect
anything more than the parties "clear and unmistakable" intent to
comply with the statutory mandate to arbitrate those disputes
that arise exclusively under, and consequently depend upon an
interpretation of, the CBA.
A separate and equally compelling reason to enforce a
stringent state rule against waiver of statutory claims is that
our own precedent strongly counsels against allowing employers
and unions to collectively bargain for such waivers. In Public
Safety Employees Ass'n v. State, we unequivocally held that
public employees working under a CBA could not be required to
prospectively bargain away their right to sue under Alaska's
Landlord Tenant Act.90 And more recently, in Norcon, Inc. v.
Kotowski, we broadly emphasized that "[t]he right to a non-
discriminatory workplace conferred . . . by AS 18.80.220 could
not be waived by any contrary contractual provision. Because it
is a non-waivable state law right, no need exists to consult the
CBA to determine its meaning."91
The plurality tries to distance itself from these
precedents. But its attempts are unpersuasive.92 True, neither
PSEA nor Norcon directly controls the outcome here; yet the
plurality's retreat from their deliberately broad language hardly
seems consonant with their intent and spirit - particularly when
one considers that the plurality proposes to replace this broad
language discouraging waiver with a strong presumption of waiver
that originates in a federal judicial rule that federal courts
themselves would decline to apply to these facts.
In short, given our own case law and the rule
articulated by the United States Supreme Court in Wright, I would
hold that the CBA does not extinguish Barnica's right to a cause
of action under the Human Rights Act and that Barnica should
remain free to pursue his superior court action.
_______________________________
1 Collectively referred to in this opinion as the district.
2 Cozzen v. Municipality of Anchorage, 907 P.2d 473 (Alaska
1995).
3 Beard v. Baum, 796 P.2d 1344 (Alaska 1990).
4 971 P.2d 158 (Alaska 1999).
5 500 U.S. 20 (1991).
6 78 F.3d 875 (4th Cir. 1996).
7 415 U.S. 36 (1974).
8 Barnica thus concedes that under the terms of the collective
bargaining agreement his discrimination claim was subject to
arbitration and that the question we must decide is whether this
aspect of the agreement is enforceable.
9 Article 4 of the agreement provides:
The District and Association shall not
discriminate against any bargaining unit
member in matters of salaries, fringe
benefits, similar terms and conditions of
employment, or any other conditions of this
Agreement on the basis of . . . sex . . . .
10 AS 23.40.210(a).
11 The grievance procedures article of the collective
bargaining agreement provides for a four-step grievance
resolution process beginning with a meeting with the employee's
immediate supervisor, continuing through hearings before the
superintendent and the school board, and culminating in binding
arbitration before an impartial arbitrator selected by the
American Arbitration Association. A grievance under the contract
is defined as "a claim by a grievant that there has been an
alleged violation . . . of the [collective bargaining] Agreement
. . . ."
12 See AS 22.10.020(i). The availability of this remedy, as
well as the remedy under the collective bargaining agreement,
makes a separate tort remedy unnecessary and we conclude that
none is available. See Walt v. State, 751 P.2d 1345, 1353 & n.16
(Alaska 1988).
13 See AS 18.80.100-.135. Moreover, unlawful discriminatory
conduct prohibited under AS 18.80 is a misdemeanor punishable by
up to thirty days in jail and by a fine of no more than $500.
See AS 18.80.270.
14 See Casey v. City of Fairbanks, 670 P.2d 1133, 1137 (Alaska
1983); International Bhd. of Teamsters, Local 959 v. King, 572
P.2d 1168, 1172 n.9 (Alaska 1977); see, e.g., Republic Steel
Corp. v. Maddox, 379 U.S. 650 (1965) (stating general rule in
federal law that "individual employees wishing to assert contract
grievances must attempt use of the contract grievance procedure
agreed upon by employer and union as the mode of redress").
15 See AS 23.40.210(a).
16 See AS 23.40.070.
17 See AS 23.40.210(a).
18 AS 23.40.070.
19 Department of Pub. Safety v. Public Safety Employees Ass'n,
732 P.2d 1090, 1093 (Alaska 1987) (quoting University of Alaska
v. Modern Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974)).
20 See id.
21 As the Supreme Court of the United States has recently
observed in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123
(2001): "Arbitration agreements allow parties to avoid the costs
of litigation, a benefit that may be of particular importance in
employment litigation, which often involves smaller sums of money
than disputes concerning commercial contracts."
22 658 P.2d 769, 770 (Alaska 1983).
23 Id. at 774.
24 Id.
25 Id.
26 Id. at 774-75.
27 415 U.S. 36 (1974).
28 Id. at 49.
29 500 U.S. 20 (1991).
30 Id. at 26 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 628 (1985)).
31 Id.
32 Id.
33 Id. at 27-29.
34 29 U.S.C. 626; AS 18.80.145.
35 29 U.S.C. 626; AS 18.80.145.
36 Gilmer, 500 U.S. at 29.
37 Id. at 30.
38 Id. at 32.
39 Here, as in Gilmer, "by agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded by
the statute; it only submits to the resolution in an arbitral,
rather than a judicial, forum." 500 U.S. at 26 (quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 628 (1985)).
40 Id.
41 AS 18.80.060, .100-.110.
42 Gilmer, 500 U.S. at 35.
43 Id. at 34 n.5 (quoting Mitsubishi Motors, 473 U.S. at 626-
27) (internal citations omitted).
44 See Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d
875, 880-82 (4th Cir. 1996).
45 See Penny v. United Parcel Serv., 128 F.3d 408, 414 (6th
Cir. 1997) (concluding that "an employee whose only obligation to
arbitrate is contained in a collective bargaining agreement
retains the right to obtain a judicial determination of his
rights under a statute such as the ADA"); Harrison v. Eddy
Potash, Inc., 112 F.3d 1437, 1453 (10th Cir. 1997), vacated on
other grounds, Eddy Potash, Inc. v. Harrison, 524 U.S. 947
(1998); Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.
1997) (holding that "the union cannot consent for the employee by
signing a collective bargaining agreement that consigns the
enforcement of statutory rights to the union-controlled grievance
and arbitration machinery created by the agreement"); Brisentine
v. Stone & Webster Eng'g Corp., 117 F.3d 519, 526-27 (11th Cir.
1997); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213
(8th Cir. 1996); Tran v. Tran, 54 F.3d 115, 118 (2d Cir. 1995).
46 Wright v. Universal Maritime Serv. Co., 525 U.S. 70, 80
(1998).
47 Cf. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)
(reviewing individual contract); Mago v. Shearson Lehman Hutton,
Inc., 956 F.2d 932 (9th Cir. 1992) (same).
48 Further, individual member's claims under Alaska law are
less subject to union control than under federal law. For
example, if Barnica's union had refused to take his case to step
four arbitration, he could have sued the district for breach of
the collective bargaining agreement in the superior court without
the need, as under federal law, to show that the union had
breached its duty of fair representation. See Casey v. City of
Fairbanks, 670 P.2d 1133, 1138 (Alaska 1983).
49 The lack of fair procedures or the absence of unbiased
arbitrators can serve as a reason not to require that contract
remedies be used in preference to judicial remedies with respect
to both individual and collective bargaining contracts. But such
contentions are case specific. Cf. Bruns v. Municipality of
Anchorage, 32 P.3d 362 (Alaska 2001) (discussing excuse of
failure to exhaust administrative remedies "where administrative
procedures are ineffective because of lack of meaningful access,
bias, futility, or the possibility that the claimant could face
irreparable harm"). No contentions of procedural unfairness or
bias are made in this case.
50 971 P.2d 158 (Alaska 1999).
51 Id. at 165.
52 29 U.S.C. 185.
53 Norcon, 971 P.2d at 164.
54 Id. at 164-65.
55 Id.
56 Id.
57 Gilmer, 500 U.S. at 26.
58 Norcon, 971 P.2d at 165.
59 The Gilmer Court stressed that statutory substantive rights
are not waived even though statutory remedies may be. See supra
note 39.
60 721 P.2d 1146, 1150 (1986).
61 Our case law establishes that "[a] decision by an evenly
divided court results in an affirmance." Ward v. Lutheran Hosps.
& Homes Soc'y of America, Inc., 963 P.2d 1031, 1037 n.11 (Alaska
1998) (quoting Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997).
Moreover, "an affirmance by an equally divided court is not
precedent." City of Kenai v. Burnett, 860 P.2d 1233, 1239 n.11,
1246 (Alaska 1993) (Compton, J., concurring).
62 AS 23.40.070-.260.
63 See, e.g., Pub. Safety Employees Ass'n v. State, 658 P.2d
769, 775 (Alaska 1983).
64 415 U.S. 36, 49 (1974).
65 500 U.S. 20, 26 (1991) (quoting Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
66 See Pub. Safety Employees Ass'n, 658 P.2d at 775.
67 Slip Op. at 13-14.
68 525 U.S. 70 (1998).
69 Id. at 72, 75.
70 78 F.3d 875 (4th Cir. 1996).
71 Wright, 525 U.S. at 75-76 (describing fourth circuit's
unpublished opinion in Wright v. Universal Maritime Servs. Corp.,
121 F.3d 702 (4th Cir. 1997)).
72 Id. at 76-77.
73 Id. at 77, 80-81.
74 Id. at 78.
75 Id. at 78-79.
76 Id. at 80 (quoting Metro Edison Co. v. NLRB, 460 U.S. 693,
708 (1983)) (internal quotations omitted).
77 Id. at 80-81.
78 Slip Op. at 13 (quoting Wright, 525 U.S. at 80).
79 Id. at 80 (citations omitted).
80 Id. at 80-81.
81 Rogers v. New York Univ., 220 F.3d 73, 76 (2d Cir. 2000);
accord Carson v. Giant Food, Inc., 175 F.3d 325, 331 (4th Cir.
1999).
82 Rogers, 220 F.3d at 76 (emphasis added); accord Carson, 175
F.3d at 332. Hence, even when other sections of the CBA prohibit
discrimination in terms similar to the statutory protection, the
waiver of a judicial remedy requires explicit mention of the
statute incorporated. See Rogers at 76 (stating that "[c]ourts
agree that specific incorporation requires identifying the anti-
discrimination statutes by name or citation"); Kennedy v.
Superior Printing Co., 215 F.3d 650, 654 (6th Cir. 2000)
(disapproving of a non-discrimination clause that failed to
mention the ADA by name); Bratten v. SSI Servs., Inc., 185 F.3d
625, 631 (6th Cir. 1999) (ruling that since antidiscrimination
provision was in separate section of CBA from grievance
procedure, it did not require arbitration of such claims).
83 Compare CBA Article 35 ("A `grievance' shall mean a claim by
a grievant that there has been an alleged violation,
misinterpretation, or misapplication of the Agreement, or a
violation of official Board policy."), with Wright, 525 U.S. at
73 ("Any dispute concerning or arising out of the terms and/or
conditions of this Agreement, or dispute involving the
interpretation or application of this Agreement, or dispute
arising out of any rule adopted for its implementation, shall be
referred to [arbitration]"); Kennedy, 215 F. 3d at 654 ("any
controversy or dispute arising from the interpretation and/or
application of the terms and work conditions under this labor
agreement"); Bratten, 185 F.3d at 631 ("[a]ny grievance arising
under the terms of this contract or an alleged violation
thereof"); Rogers, 220 F.3d at 76 ("[a]ny dispute concerning the
interpretation, application, or claimed violation of a specific
term or provision of this Agreement").
84 See Robinson v. Healthtex, Inc., 215 F.3d 1321 (4th Cir.
2000); Carson, 175 F.3d at 332; Brown v. ABF Freight Sys., Inc.,
183 F.3d 319 (4th Cir. 1999).
85 Wright, 525 U.S. at 80 (emphasis added).
86 Id. at 80.
87 Slip Op. at 13.
88 See Wright, 525 U.S. at 76 (citing cases considering, among
others, claims under Title VII of the Civil Rights Act of 1964
and Fair Labor Standards Act of 1938); see also, e.g., Rogers,
220 F.3d at 74, 76 (considering claims under the Americans with
Disabilities Act, Family and Medical Leave Act, and state and
local human rights laws).
89 See AS 23.40.210(a):
(a) Upon the completion of
negotiations between an organization and a
public employer, if a settlement is reached,
the employer shall reduce it to writing in
the form of an agreement. . . . The agreement
shall include a grievance procedure which
shall have binding arbitration as its final
step. Either party to the agreement has a
right of action to enforce the agreement by
petition to the labor relations agency.
90 658 P.2d 769, 770, 774-75 (Alaska 1983).
91 971 P.2d 158, 165 (Alaska 1999).
92 The plurality distinguishes Public Safety Employees Ass'n v.
State by noting that, unlike the Human Rights Act at issue here,
the Uniform Residential Landlord and Tenant Act at issue in PSEA
contained an express provision against waiver of judicial
remedies. Slip Op. at 8-9. But this was only one of several
factors that we mentioned in deciding PSEA. Notably, another
factor we considered was the existence of a body of federal
decisions - among them, Gardner-Denver - which we described as
holding that, "[i]n circumstances involving coincident arbitral
and statutory avenues of relief, . . . arbitration does not
afford an exclusive remedy." PSEA, 658 P.2d at 774-75. Our
express reliance on Gardner-Denver and other analogous federal
cases establishes that PSEA's broad language was not exclusively
based on the URLTA's express anti-waiver provision.
The plurality also attempts to explain Norcon as simply
a federal preemption case. Slip Op. at 14-15. But Norcon's
discussion of federal preemption cannot account for its broad and
categorical language holding that Kotowski's rights under AS
18.80.220 "could not be waived by any contractual provision" and
that AS 18.80.220 was "a non-waivable state law right." Norcon,
971 P.2d at 165. Strictly speaking, of course, these statements
are dicta. But they certainly do not deal with preemption. Nor
can Norcon's focus on preemption explain its citation to PSEA
(which had nothing to do with federal preemption) as "a similar
situation" in which we established that "the existence of the
arbitration remedy did not preclude the exercise of the statutory
remedy." Norcon, 971 P.2d at 165. And finally, while the
plurality correctly observes that the test for preemption at
issue in Norcon differs from the Gilmer test that it proposes to
adopt as the law of Alaska, Slip Op. at 15, this observation begs
the threshold question whether Gilmer properly applies to the
facts in Barnica's case. By glossing over this preliminary
question, the plurality overlooks that Wright's test for
determining whether the presumption of arbitrability attaches in
a given case - the very determination that, according to Wright,
justifies substituting the Gilmer analysis for Gardner-Denver's
"clear and unmistakable" waiver requirement - is exactly the same
as the test for federal preemption: whether the dispute at issue
necessarily hinges on an interpretation of the CBA. Compare
Norcon, 971 P.2d at 164-65 with Wright, 525 U.S. 77-79. Norcon's
preemption analysis thus accords with the prescribed analysis in
Wright and strongly counsels against reliance on Gilmer.
