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Ellison v. Plumbers and Steam Fitters Union Local 375 (08/19/2005) sp-5934
Ellison v. Plumbers and Steam Fitters Union Local 375 (08/19/2005) sp-5934
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
| LORI A. ELLISON,
| ) |
|
| ) Supreme Court
No. S-10849 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
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v. | ) 4FA-99-1171
CI |
|
| ) |
|
PLUMBERS AND STEAM FITTERS | ) O P I N I O
N |
|
UNION LOCAL 375; KIRK JACKSON; | ) |
|
JAMES BALLAM; and JOHN DOE NO. 1,
| ) |
|
| ) |
|
Appellees. | ) [No. 5934 -
August 19, 2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, Christian N. Bataille,
Law Offices of Christian N. Bataille,
Fairbanks, for Appellant. Lance Parrish,
Parrish Law Office, APC, William B. Schendel,
Winfree Law Office, APC, Fairbanks, for
Appellee Plumbers and Steam Fitters Union
Local 375. Aimee Anderson Oravec, Daniel E.
Winfree, Winfree Law Office, APC, Fairbanks,
for Appellees Kirk Jackson and James Ballam
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Lori Ellison sued her former union, Local 375, and the
unions stewards at her former work site, Kirk Jackson and James
Ballam, for sexual harassment and aiding and abetting
discrimination under AS 18.80.220 and 18.80.260. The superior
court ruled against her on these claims, and granted attorneys
fees to the union and stewards under both Civil Rules 68 and 82.
Ellison appeals. Because the union has no duty to investigate
sexual harassment on the part of the employer sua sponte and
because Ellison has not shown that she asked the union to file a
grievance or take other action, we affirm the judgment. However,
we reverse the superior courts award of Rule 82 fees because we
conclude that Rule 68 prohibits receiving fees under both rules.
II. FACTS AND PROCEEDINGS
Lori Ellison was a pipefitter dispatched to work in the
fabrication shop for H.C. Price on the Healy Clean Coal Project
(HCCP) in April 1996. Ellison, apparently the only female
pipefitter in the fabrication shop, was subjected to a number of
incidents that she perceived to be based on her gender during the
course of her employment.1 These included her male co-workers
complaints that Ellison was getting preferential treatment
because she was initially assigned to do paperwork, as well as
threatening and vulgar graffiti on welding screens, her work area
and in the mens outhouse. In addition, someone posted an altered
picture of her from the company newsletter with sexual profanity,
and created a display of a tampon and cramp pills that indicated
in case of a cranky mood, break the glass.
Ellison reported five incidents to the stewards, who
were on the job site but only occasionally in the fabrication
shop where Ellison worked. James Ballam was the union steward
until he left in about mid-March 1997, after which Kirk Jackson
became the steward.
First, Ellison reported a co-workers spreading lies in
the spring or summer of 1996; Ballam addressed this issue,
apparently to Ellisons satisfaction. Second, she reported the
fabrication shop foreman Doug Gyurisckos denial of her request to
leave early in October 1996; Ellison was still not permitted to
leave early, despite complaining to Ballam and Price supervisors.
Third, she told Ballam and Price supervisors that her safety
glasses were deliberately scratched and gouged in late January
1997. She was provided with new safety glasses. Apparently no
one investigated, although Ballam may have discussed the incident
with her co-workers. In addition to Ellisons three reports,
Ballam was aware of the mens preferential treatment complaints.
The fourth incident was reported to steward Jackson in
April 1997. Ellison told Jackson and the assistant general
foreman about a co-worker calling her bitch during a dispute.
The assistant general foreman, who was a union member, indicated
to Ellison that he wanted to keep the issue in house, which
Ellison interpreted as meaning within the union. Ellison agreed
to accept an apology from the co-worker and continue working with
him, although the fabrication shop crew openly supported her co-
worker. Lastly, Ellison showed Jackson and Gyuriscko threatening
graffiti on her welding screen and desk in early May 1997.
Gyuriscko said he would alert Price management, although other
Price supervisors, at least one of whom was a union member,
apparently wanted to handle the matter within the union.
Jackson also heard about many of the other incidents
during two meetings held with Price management in May 1997.
Ellison gave notice she was quitting at the first meeting and all
those present, including Jackson, urged her not to leave. At the
end of the meeting, Jackson reasonably believed Price officials
were going to handle Ellisons complaints. At the second meeting,
Ellison still believed she should quit, although Prices general
superintendent at HCCP advised her that Price had taken steps to
educate people, cleaned up the graffiti, and would not allow her
to be harassed.
The only other union officials who may have known of
any of the incidents were business agent Jim Laiti and union
manager J.C. Wingfield. In April 1997 Ellison was denied
permission to leave a half-day early for her R&R period. Ellison
believed she was being discriminated against because of her
gender since two men had previously been allowed to leave early
for their R&R periods. Ellison sought relief from Price
supervisors, who contacted Laiti at the union hall. They decided
that Ellison could leave at 3 p.m., rather than her requested
time of noon.
Twice during her employment at HCCP, Ellison indicated
to union officials, Laiti and Wingfield, that she was considering
quitting or she made a request for information about other job
opportunities. She never asked the stewards or any other union
officials to file a grievance regarding any of these incidents.
She quit on May 17, 1997.
Ellison signed the out-of-work book at the union
several days later but did not accept any dispatches for more
than a year. In March 1998 Ellison wrote a letter to the union,
referring to the harassment and requesting a plan to ensure her
safety. On May 17, 1999, Ellison sued the union, Jackson,
Ballam, Price, and a number of Price supervisors and employees,
asserting discrimination and sexual harassment in violation of AS
18.80.220 and 18.80.260, and other claims.2
Ellison met with union officials in July 1999, after
which the unions attorney investigated her sexual harassment
complaint. Although he did not conclude that sexual harassment
occurred, he recommended a safety plan for Ellison. Ellison
eventually agreed to the unions plan, at least insofar as she
agreed to accept future work under the terms of the plan (and
without prejudice to her pending lawsuit), and accepted a
dispatch in September 1999. Although Ellison did not want to
work with any of the union members named in her lawsuit, Ballam
also was dispatched to the same job, apparently because the union
was contractually obligated to do so since Ballam was
specifically requested. Ballam was uncomfortable working with
Ellison and quit shortly after they were put on the same crew.
After the job ended, Ellison and the union disagreed
over the terms of her safety plan. Ellison did not accept any
other dispatches and eventually decided not to work through the
union, in part for family reasons.
On September 13, 1999, Jackson and Ballam provided
Ellison with separate offers of judgment for $500 each that she
did not accept. On November 2, 1999, the union, Jackson, and
Ballam provided a joint offer of judgment that Ellison also did
not accept.
Price and its employees settled before trial. Jackson
and Ballam successfully moved for summary judgment on all claims.
At trial, Superior Court Judge Mary E. Greene ruled in favor of
the union, concluding it was not liable under AS 18.80.220 or
.260. The court awarded the union, Jackson, and Ballam attorneys
fees under Rules 68 and 82. Ellison appeals.
III. STANDARD OF REVIEW
We review findings of fact under a clearly erroneous
standard. To reverse, we must have a definite and firm
conviction that a mistake has been made, giving due regard to the
trial courts opportunity to judge the credibility of the
witnesses.3
Statutory interpretation4 and a grant of summary
judgment5 present questions of law that we review de novo. The
independent standard of review also applies to considering
whether the trial court properly applied the law when awarding
attorneys fees6 and in determining a settlement offers compliance
with Rule 68.7 On questions of law, we do not defer to the lower
courts decision, but adopt the rule of law most persuasive in
light of precedent, reason, and policy.8
IV. DISCUSSION
A. Ellisons Claim for Discrimination Under AS 18.80.220
Ellison argues that the union discriminated against her
in violation of AS 18.80.220 by failing to respond to a sexually
hostile work environment at HCCP.9 Ellison does not assert that
the union created the discriminatory work environment but rather
that it had an affirmative duty to remedy harassment. The union,
on the other hand, contends that a union cannot be held liable
for passively acquiescing in an employers hostile work
environment under AS 18.80.
1. Standard for union liability for an employers
discrimination
Alaska Statute 18.80.220(a)(2) establishes that it is
unlawful for . . . (2) a labor organization, because of a persons
sex . . . to discriminate in any way against one of its members
or an employer or an employee. We have not decided whether AS
18.80.220(a)(2) requires a union to investigate and remedy
discrimination by the employer without being requested to do so.
Since this is an unresolved question under Alaska law, we look to
similar federal cases under Title VII for guidance.10
Ellison bases her arguments for union liability
primarily on Goodman v. Lukens Steel Co.11 and Thomas v. Anchorage
Telephone Utility.12 However, in both these cases, the unions
were held liable for more than mere inaction in the face of an
employers discrimination. Although in Goodman the district court
held the union liable for mere passivity, the United States
Supreme Court did not address this rather abstract observation
because the unions actions involved far more than mere passivity.13
The union had refused to file proffered grievances based on
racially discriminatory discharges and racial harassment, and
refused to include assertions of racial discrimination in
grievances that asserted other contract violations.14 The Court
concluded that [a] union which intentionally avoids asserting
discrimination claims, either so as not to antagonize the
employer and thus improve its chances of success on other issues,
or in deference to the perceived desires of its white membership,
is liable under . . . Title VII.15
Similarly, in Thomas, we based a unions liability for
discrimination on its actions, rather than on mere passivity.16
Because the union participated in negotiating the collective
bargaining agreement, we held it could be liable for an allegedly
discriminatory provision, even though the employer proposed the
provision.17 Although we stated that a union may be liable . . .
for acquiescing in discriminatory noncontractual policies or
conduct on the part of the employer,18 this was unnecessary to our
holding in Thomas. Consequently, we did not define the
circumstances under which union acquiescence might be sufficient
to impose liability for an employers conduct, nor did we require
unions to take the initiative to remedy workplace discrimination.
Most federal courts that have addressed the issue have
not imposed liability on a union for failing to remedy a
discriminatory work environment.19 In EEOC v. Pipefitters Assn
Union Local 597, the Seventh Circuit explained that unions have
no duty to remedy racial or sexual harassment because they
typically do not control the workplace:
The employer is in a better position than the
union to prevent or eliminate harassment
because it can discipline its employees; the
union cannot. If a worker complains to the
union that he is being harassed, all the
union can do is file a grievance on his
behalf against the employer; the union cannot
eliminate the harassment itself that is the
companys responsibility. . . . A further
consideration is that members of different
unions, or union and nonunion workers, often
find themselves working at the same
site. . . . The pipefitters union had no
control over workers belonging to other
unions . . . .[20]
However, the court noted that its analysis might differ in cases
where a collective bargaining agreement delegates more power to a
union to control the workplace.21
In addition, the Seventh Circuit did not require a
union to take the initiative to address workplace harassment to
the limited extent that it can because inaction, unless
invidious, is not discrimination in any accepted sense of the
term.22 Imposing such an affirmative duty might force a union to
take sides in conflict with its statutory duty to fairly
represent all workers.23 The Seventh Circuit thus concluded that
[i]f [a union] discriminates in the performance of its agency
function, it violates Title VII, but not otherwise.24 Because no
one attempted to file a grievance or even complained to a union
official in his representative capacity in Local 597, the union
had no duty under Title VII to address the racial harassment at
the workplace.25
Ellison cites to a number of cases that she asserts
establish that a union may not sit idly by when it knows or
should know of workplace sexual discrimination. First, none of
these cases holds that constructive notice alone is enough to
impose liability on a union for an employers discrimination.26
Second, even though some of these cases ostensibly follow the
acquiescence theory, they base Title VII liability on the unions
own actions, not simply their inaction in the face of actual
knowledge of discrimination.27 The unions themselves were accused
of discriminating in these cases by denying members requests to
pursue grievances out of deference to the desires of the
harassers28 or because of policies not to assert sexual harassment-
based grievances.29
We are persuaded by the consensus view of the federal
authorities represented by such cases as Local 597,30 Thorn v.
Amalgamated Transit Union,31 and Anjelino v. New York Times Co.32
Therefore, we conclude that under AS.18.80.220, a union may only
be liable on account of an employers discriminatory harassment
when (1) the harassed worker asks the union to take action within
its representative capacity, such as by filing a grievance, and
(2) the union decides not to pursue the complaint for
discriminatory reasons.
2. Ellison cannot meet this standard.
The superior court concluded that [w]hat the stewards
knew, without more, was insufficient to alert them that Price had
permitted a gender-based hostile work environment. Ellison
contests a number of the superior courts factual findings
underlying this conclusion and argues that the unions actions
amount to more than mere passivity because the stewards knew
about the harassment and did not report it to Price.33 However,
even considering the facts in the light most favorable to her,
Ellison has not described anything more than inaction in the face
of knowledge of discrimination, which we have concluded is
insufficient to establish union liability.
Even if the union knew of the discrimination, the
record does not reflect that she asked the union to do more than
it did. Although she told the union stewards about five
incidents and they were aware of others, she never requested that
the union file a grievance. Furthermore, the superior court
found that she was satisfied with the unions response to at least
two of these reports. In the spring or summer of 1996, she was
satisfied with Ballams response to a co-workers alleged spreading
of lies. In April 1997 she informed Jackson of a co-worker
calling her a bitch during a dispute but ultimately agreed to
accept an apology and to continue working with the co-worker.
Ellison claims that she did request that the union do
more and that union officials promised to investigate. But the
only evidence she points to is fabrication shop foreman
Gyurisckos deposition testimony that it seemed Lori wasnt
satisfied with what the stewards were doing for her. This single
statement is insufficient to establish that she asked the union
to do more. Moreover, there was evidence to suggest that the
union thought more was being done; the superior court found that
Jackson reasonably believed Price would investigate her
complaints following the first May 1997 meeting.
In addition, Ellison has not proven that the union
failed to pursue any of her reports of the harassment at HCCP for
discriminatory reasons. Ellison asserts the union purposefully
tried to keep information about the harassment from Price
officials. There is evidence that a few Price supervisors, who
were union members, indicated a desire to handle the incidents in-
house, which Ellison believed meant within the union. However,
although these people were union members, they were not agents of
the union, such that their statements could be imputed to the
union.34 Moreover, even if the union did want to try to resolve
incidents in-house before involving Price, Ellison has not
presented any evidence that the union was treating her reports
any differently than male members complaints or grievances not
based on unlawful harassment. Moreover, notwithstanding the in
house comments, Ellison was not intimidated into not involving
Price; in fact, she reported numerous incidents to her Price
supervisors. Thus, Ellison has not stated a claim for union
liability.
Lastly, Ellison describes the unions actions after she
left HCCP as evidence of the unions conduct that amounted to more
than mere acquiescence in Prices discrimination. Again, Ellison
does not point to any evidence that she asked the union to file a
grievance or pursue other action against Price. The superior
court noted Ellisons legal theory is not entirely clear, but
because the court found no duty to act before she left, the court
concluded that the union had no duty to act afterward either. If
Ellison is arguing that the union permitted a hostile environment
to exist at the job site affording her with no choice but to
quit, the unions actions after she left seem irrelevant. She has
not argued that persisting discrimination kept her from working
further union jobs. Since Ellison has not articulated her
argument in a manner that can be considered, the superior court
did not err in denying this aspect of her claim.
B. Ellisons Aiding and Abetting Discrimination Claims
Ellison also argues that the union, Jackson, and Ballam
aided and abetted discrimination in violation of AS 18.80.260.
Ellisons argument as to the union and the stewards is essentially
the same argument she makes for liability under AS 18.80.220,
asserting that the union and stewards knew about the
discrimination and deliberately kept such knowledge from Price
officials.
We have not defined the elements for an aiding and
abetting discrimination claim. Alaska Statute 18.80.260
provides: It is unlawful for a person to aid, abet, incite,
compel, or coerce the doing of an act forbidden under this
chapter or to attempt to do so. We look to the Restatement
(Second) of Torts for guidance, which other courts have adopted
in interpreting state statutes on aiding and abetting
discrimination.35 Section 876(b) concludes that aiding and
abetting liability occurs when the actor knows that the others
conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other.36
Ellison has made no attempt to satisfy this standard.
She points out that the stewards had knowledge of discriminatory
actions and did not report them, but this does not amount to
substantial encouragement or assistance. Therefore, the superior
court did not err in finding that the union was not liable for
aiding and abetting discrimination against Ellison.
For the same reasons, the evidence is insufficient for
Ellison to assert claims for aiding and abetting discrimination
against the stewards Jackson and Ballam. Although Ellison asserts
that the stewards wanted to obstruct any inquiry, she provides
little evidence, other than a purported desire to keep her
concerns within the union. Because we conclude the evidence is
insufficient, we do not decide whether AS 18.80.260 imposes
individual liability on co-workers. Thus, the superior court
properly granted summary judgment in favor of Jackson and Ballam.
C. Attorneys Fee Awards
Ellison makes a number of arguments seeking to reverse
or reduce the attorneys fees granted to the union and stewards.
The superior court awarded the stewards Civil Rule 82 fees of
$200 for work performed before their September 13, 1999
settlement offers and Civil Rule 68(b)(1) fees of $142,500 for
worked performed after their offers. The union was awarded
$4,625.25 in Rule 82 fees for work before its November 2, 1999
offer and $227,272.12 in Rule 68 fees for work after its offer.
We agree with Ellisons contention that the union and stewards
could not receive fees under both Civil Rule 82 and Civil Rule
68, but reject her other arguments on the applicability of Rule
68 to her case.
1. Attorneys fees cannot be awarded under both Rule
68 and Rule 82.
Ellison argues that awarding attorneys fees to the
union and stewards under both Rules 68 and 82 was improper.
However, Jackson and Ballam argue that a prevailing party may
receive attorneys fees under both Rules 68 and 82 when the rules
are applied to different time periods for work performed before
and after an offer.
Rule 68(c) (in the version in effect prior to April 15,
2005) provides that the party may receive the greater of Rule 82
or Rule 68 fees, but not both:
If an offeror receives costs and
reasonable actual attorney fees under
paragraph (b), that offeror shall be
considered the prevailing party for purposes
of an award of attorney fees under Civil Rule
82. Notwithstanding paragraph (b), if the
amount awarded an offeror for attorney fees
under Civil Rule 82 is greater than a party
would receive under paragraph (b), the
offeree shall pay to the offeror attorney
fees specified under Civil Rule 82 and is not
required to pay reasonable actual attorney
fees under paragraph (b). A party who
receives attorney fees under this rule may
not also receive attorney fees under Civil
Rule 82.
The plain language of the rule prohibits receiving fees under
both rules. Therefore, granting fees under both rules was error.
The stewards did not argue that their fee award calculated under
Rule 82 would be higher than under Rule 68(b)(1), and the
superior court concluded that the union could not get higher fees
under Rule 82 than under Rule 68. Therefore, we strike the fees
awarded under Rule 82 and uphold the fees awarded under Rule 68.
In the stewards case, the superior court determined that award
was $142,500; in the unions case, $227,272.12.
2. The post-1997 version of Rule 68 applies to
Ellisons case.
Ellison also argues that any attorneys fees should be
calculated based on the pre-August 1997 version of AS 09.30.065.
She notes that because the legislature indicated that the amended
version of AS 09.30.065 would apply only to causes of action
accruing on or after August 7, 1997,37 her claim should be
considered under the old version because it accrued before this
date.
Upon the passage of the amended AS 09.30.065, which was
meant to change Civil Rule 68, we altered the rule so that the
legislative changes applied to all cases filed on or after August
7, 1997.38 As the superior court correctly observed, we extended
the coverage of the amendment, rather than substantively changing
what the legislature had done. This extension of coverage was
permissible because we have procedural rule-making authority
through the Alaska Constitution.39 Because Ellison filed her case
in 1999, the superior court was correct to apply the post-August
7, 1997 version of Rule 68.
3. Rule 68(b)(1) applies to settlement offers made
before Rule 26 initial disclosures.
Ellison next contends that because the 1999 settlement
offers were served before the Rule 26 initial disclosures were
made, those offers should not be considered for Rule 68 attorneys
fees purposes. She claims that the legislature intended the
timing of any offer to occur after the initial disclosures so
that the parties would have sufficient information to value their
claims and evaluate any settlement offers. She further alleges
that because she could not properly evaluate the settlement
offers made before the initial disclosures, she rejected the
offers and then somehow the defendants were able to use her
rejection as a means of later conspiring and leveraging attorneys
fees against her.
Ellisons arguments are without merit. We recently held
that the rate specified in Rule 68(b)(1) applies to offers made
before Rule 26 disclosures.40 Such offers are timely because, in
the language of the rule, they are served no later than 60 days
after both parties made the disclosures required by Civil Rule
26.41 Additionally, Ellisons claim that the defendants exploited
Rules 26 and 68 by acting in concert to leverage their case
against her is highly speculative. She provides no support for
her allegations other than the stewards and unions hiring of
separate defense counsel and their subsequent rejection of her
later settlement offers. Thus, the superior court properly
awarded fees under Rule 68(b)(1).
4. Rejecting the joint offer triggered Rule 68 for
purposes of awarding fees to the union.
Ellisons final argument is that the joint offer by the
union and stewards should not trigger Rule 68 for purposes of the
unions fee award.42 Ellison argues that this joint offer raised
apportionment problems.
In Johns Heating Service v. Lamb, we noted that in the
context of an offer by joint offerors to a single offeree, a
rejection of that offer triggers Rule 68 if two factors are
satisfied.43 First, the settlement offer must sufficiently
indicate that all claims between the parties would be resolved if
the offer were accepted.44 Second, the offer must present no
apportionment difficulties by forcing multiple offerees to decide
how to divide the proceeds or allocate responsibility for
payment.45 We found that the offer in Johns Heating Service
presented no apportionment problem, not because the defendant was
a single entity as Ellison claims, but because the offeree was a
single entity.46 Because the offer made to Ellison proposed
settlement of all of her claims, and because Ellison as the
offeree was a single entity, her rejection of the joint offer was
sufficient to trigger Rule 68.
V. CONCLUSION
We AFFIRM the superior courts judgment in favor of the
union, Jackson, and Ballam on Ellisons AS 18.80.220 and 18.80.260
claims. Because we conclude that Ellison has not stated a claim
under state law, we need not reach the unions arguments that her
claim is outside the statute of limitations or is preempted by
the federal Labor Management Relations Act.
We also AFFIRM the superior courts awards of Rule 68
attorneys fees in favor of the union, Ballam, and Jackson, but
REVERSE the awards of Rule 82 attorneys fees.
_______________________________
1 The superior court found that a number of the specific
incidents were either not gender-based or not directed at
Ellison, concluding that the unfortunate harassment to which
Ellison was subjected and which was known to the stewards was not
directed at her because she was a woman. It was based on
personal reasons, personality conflicts, and on Ellisons conduct
at work and in camp. Although Ellison contests these findings,
we do not decide the issue because even if the union knew that
Ellison was subjected to sexual harassment, she has not stated a
claim for union liability.
2 Ellison amended her complaint in December 2000, adding
more claims.
3 Municipality of Anchorage v. Gregg, 101 P.3d 181, 186
(Alaska 2004) (internal quotation marks omitted).
4 VECO, Inc. v. Rosebrock, 970 P.2d 906, 921 n.32 (Alaska
1999).
5 Grant v. Anchorage Police Dept, 20 P.3d 553, 555
(Alaska 2001).
6 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).
7 Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004).
8 Norcon, Inc. v. Kotowski, 971 P.2d 158, 164 n.3 (Alaska
1999).
9 Under AS 18.80.220, a hostile work environment exists
when there is discriminatory behavior sufficiently severe or
pervasive to alter the conditions of the victims employment.
French v. Jadon, Inc., 911 P.2d 20, 28 (Alaska 1996).
10 E.g., Alaska State Commn for Human Rights v. Yellow
Cab, 611 P.2d 487, 490 (Alaska 1980).
11 482 U.S. 656 (1987).
12 741 P.2d 618 (Alaska 1987).
13 482 U.S. at 666 (internal quotations marks omitted).
14 Id.
15 Id. at 669 (quotation marks and brackets omitted).
16 741 P.2d at 630-31.
17 Id. at 631.
18 Id. (emphasis added) (citation omitted).
19 See EEOC v. Pipefitters Assn Local Union 597, 334 F.3d
656, 660 (7th Cir. 2003) (rejecting argument that union has
affirmative duty to investigate and rectify discrimination);
Thorn v. Amalgamated Transit Union, 305 F.3d 826, 832-33 (8th
Cir. 2002) (holding that because employee did not ask union to
file a grievance, union had no duty to remedy sexual harassment);
Anjelino v. New York Times Co., 200 F.3d 73, 95-96 (3d Cir. 1999)
(holding union was not liable because it did not instigate or
actively support the discrimination and the employer was
responsible for assigning work and ensuring a discrimination-free
workplace); cf. York v. American Tel. & Tel. Co., 95 F.3d 948,
956-57 (10th Cir. 1996) (adopting so-called acquiescence theory
but noting mere inaction does not constitute acquiescence and
requiring (1) knowledge that prohibited discrimination may have
occurred and (2) a decision not to assert the discrimination
claim). Contra Howard v. Intl Molders & Allied Workers Union,
779 F.2d 1546, 1548, 1553 (11th Cir. 1986) (holding union liable
for failing to use all reasonable efforts to end employers use of
racially discriminatory test for promotion, although no members
had asked union to pursue grievances).
20 Local 597, 334 F.3d at 659.
21 Id. at 661.
22 Id. at 660.
23 Id. at 661.
24 Id. at 659.
25 Id. at 658, 660-61. Although one worker complained to
his supervisor/union steward about the racially hostile
environment, his complaint was limited to graffiti that addressed
him specifically and was apparently directed to the union
steward/supervisor in his supervisory capacity because the
supervisor ordered it painted over. Id. at 660.
26 Because the union and employers have different roles in
the workplace, Ellisons citations to cases laying out the
standards for employer liability for wrongful termination or
discriminatory harassment are inapposite. E.g., Charles v.
Interior Regl Hous. Auth., 55 P.3d 57, 61 (Alaska 2002); Norcon,
Inc. v. Kotowksi, 971 P.2d 158, 172 (Alaska 1999); cf. Woods v.
Graphic Communications, 925 F.2d 1195, 1201 (9th Cir. 1991)
(discussing unions liability for creation of hostile work
environment by its stewards).
27 Marquart v. Lodge 837, Intl Assn of Machinists &
Aerospace Workers, 26 F.3d 842, 853 (8th Cir. 1994); Woods, 925
F.2d at 1201; Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991);
Rainey v. Town of Warren, 80 F. Supp. 2d 5, 18-19 (D. R.I. 2000);
EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260, 269
(D. Conn. 1995).
28 Marquart, 26 F.3d at 845, 853 (holding plaintiffs
complaint made out prima facie case where she alleged union would
not process her grievance because alleged perpetrators were
favored union members); Woods, 925 F.2d at 1198, 1201 (holding
unions actions amounted to more than mere passivity where shop
stewards engaged in harassment and union repeatedly ignored
requests to file grievance because it did not want employer to
discipline any union member for racial harassment) (internal
quotation marks omitted); Regency Architectural Metals, 896 F.
Supp. at 269 (holding union liable for not pursuing sexual
harassment grievance in deference to perceived desires of male
membership).
29 Johnson, 931 F.2d at 209 (holding union unlawfully
retaliates under Title VII when it chooses not to grieve
discrimination complaint because of employers desire that it not
do so when the claim is pending before the state Division of
Human Rights); Rainey, 80 F. Supp. 2d at 10, 18-19 (denying
summary judgment to union under deliberate acquiescence theory
because plaintiff alleged union repeatedly refused to file
grievance, telling plaintiff it was not grievable).
30 334 F.3d at 661.
31 305 F.3d at 832-33.
32 200 F.3d at 95-96.
33 Ellison challenges the superior courts conclusion that
imputing what the stewards knew to the union was impossible
because of federal preemption under the Labor Management
Relations Act since the task would necessarily involve
interpreting the unions internal documents and the collective
bargaining agreement. We do not reach this argument because even
if the stewards knowledge is imputed to the union, Ellison has
not stated a claim for union liability under state law.
34 See Alaska Pulp Corp. v. United Paperworkers Intl
Union, 791 P.2d 1008, 1012 (Alaska 1990) (Moore, J., concurring)
(Workers are not the agents of their union.).
35 E.g., Failla v. City of Passaic, 146 F.3d 149, 157-58
(3d Cir. 1998) (predicting New Jersey would adopt the Restatement
view); Fiol v. Doellstedt, 58 Cal. Rptr. 2d 308, 312-13 (Cal.
App. 1996) (adopting the Restatement view, at least in part).
36 Restatement (Second) of Torts 876 (1979) describes
liability for people acting in concert:
For harm resulting to a third person
from the tortious conduct of another, one is
subject to liability if he
(a) does a tortious act in concert with
the other or pursuant to a common design with
him, or
(b) knows that the others conduct
constitutes a breach of duty and gives
substantial assistance or encouragement to
the other so to conduct himself, or
(c) gives substantial assistance to the
other in accomplishing a tortious result and
his own conduct, separately considered,
constitutes a breach of duty to the third
person.
37 Ch. 26, 55, SLA 1997.
38 Alaska Supreme Court Order No. 1281 17 (August 7,
1997) (emphasis added).
39 Alaska Const. art. IV, 15.
40 Cook Schuhmann & Groseclose, Inc. v. Brown & Root,
Inc., Op. No. 5921 ___ P.3d ___ (Alaska, July 8, 2005).
41 Alaska R. Civ. P. 68(b)(1).
42 This argument does not apply to the stewards Rule 68
fee awards because their Rule 68 awards were not based on this
joint offer but rather on their separate settlement offers made
on September 13, 1999.
43 46 P.3d 1024, 1042 (Alaska 2002) (citing Taylor Constr.
Servs., Inc. v. URS Co., 758 P.2d 99, 102 (Alaska 1988)).
44 Id.
45 Id.
46 Id.
