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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Baseden v. State (01/04/2008) sp-6219
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
| STEVE BASEDEN, | ) |
| ) Supreme Court No. S- 12380 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1JU-05-00809 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6219 - January 4, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Steve Baseden, pro se, Juneau.
William E. Milks, Assistant Attorney General,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Following his wrongful termination and the filing of a
formal grievance, a state employee refused the states unilateral
offer to grant his grievance through full back pay, benefits, and
reinstatement to a new position at the same classification, pay,
and duties as the former position. When the employee failed to
show up to work for reinstatement, the state terminated him a
second time. Later arbitration decisions concluded that the
employees unreasonable failure to return to work constituted just
cause for the second termination and that the employee was not
entitled to additional damages. The employee filed suit in the
superior court to vacate the arbitration decisions and attempted
to assert an allegedly new cause of action. After consolidating
the employees lawsuits, the superior court denied the motions to
strike the arbitration decisions and held that the employee
should take nothing beyond the compensation already awarded.
Because the employee did not demonstrate that the arbitration
decisions were arbitrary and capricious or gross error, and
because those decisions control the outcome of the new cause of
action, we affirm the superior courts decisions.
II. FACTS AND PROCEEDINGS
In March 1999 the Alaska Department of Transportation
and Public Facilities (DOT) hired Steve Baseden as an
Engineer/Architect III with a salary range of 22. Under the
terms of his original contract, and according to the Public
Employment Relations Act, Baseden was to have a one-year
probationary period. In February 2000 DOT sent Baseden notice
that he had to consent to an extension of his one-year
probationary period or be fired. Baseden had received no written
warnings or performance evaluations prior to this notice. In
late February DOT and the union representing Baseden, the Alaska
Public Employees Association (APEA), agreed to a six-month
extension of probation. In April 2000 DOT terminated Baseden.
In October 2000 Baseden filed suit against the state in
superior court for wrongful termination.1 In May 2001 Superior
Court Judge Larry R. Weeks held that the State Personnel Act
prohibited periods of probation exceeding one year, and that as a
result Baseden was not a probationary employee when he was fired.
But Judge Weeks also held that Baseden had failed to exhaust his
administrative remedies. Accordingly, Judge Weeks granted
summary judgment to the state but made the grant of summary
judgment contingent on the state accepting a grievance filed on
the subject of Basedens termination within fifteen days following
the order.
Within fifteen days, APEA, on behalf of Baseden, filed
grievance JSU-01-016 (first grievance) seeking reinstatement,
back pay, and benefits. This first grievance, pertaining to the
compensation owed to Baseden for his April 2000 termination, was
not finally resolved by arbitration until July 2005. (This July
2005 arbitration decision came after the filing in 2001 and
resolution by arbitration in 2002 of a later grievance,
discussed below in detail. Each of these resolutions is
challenged in this appeal.) Meanwhile, the state filed a motion
for reconsideration of Judge Weekss order, which was ultimately
denied.
On or about August 9, 2001, the states step three
response2 was due in Basedens first grievance. Under Article
10.2(B) of the Collective Bargaining Agreement (CBA), [i]f the
Employer fails to comply in rendering a decision in the allotted
time frame, the grievance shall advance without further delay to
the next step of the procedure. Allotted time frames may be
extended by mutual agreement . . . . Under the CBA the next
stage, step four, is arbitration.
The state did not file a timely step three response.
The state did file a late step three response on August 10, 2001,
denying the grievance as not arbitrable and noting that the
superior court was reconsidering its decision finding Baseden a
permanent employee. Later that same day, following the superior
courts reaffirmance of its earlier decision, the state rescinded
its response and wrote to APEA stating that it would send a new
response within five business days.3
On August 17, 2001, the state, apparently believing
that it could still file a step three response, notified APEA
that it would grant the grievance. The state declared that Mr.
Baseden shall be made whole from April 15, 2000, less mandatory
deductions and interim earnings. The state set a September 17,
2001 start date for Baseden to report for duty. It indicated
that Baseden would be paid at Salary Range 24, Step B, and that
he would occupy a new Position Control Number (PCN), but with the
same classification as his previous position, Engineer/Architect
III. The state also asserted: This decision is voidable in the
States sole discretion if the court order in 1JU-00-1731 CI is
vacated, whereupon the State reverts to its decision in denying
the grievance by letter of August 10, 2001.
On September 6, APEA declined to accept the states
proposed resolution of the grievance and, noting that the state
had failed to respond to step three in a timely manner, demanded
arbitration on the matter.
Baseden did not return to work on September 17 and the
following day the state offered to consider a request from the
union for a new return-to-work date. The state also notified
APEA that its offer of reinstatement was no longer conditional
because the state had decided not to appeal the court order. The
state elaborated: In other words, the State is no longer
reserving any rights with respect to the legal issues raised by
Judge Weeks order and Mr. Baseden can return to work without
concern of further action by the State in that case. The state
clarified that the class specifications, duties, and pay were the
same in the PCN Baseden had requested in his grievance and in the
new PCN that the state was offering. In a separate letter the
state wrote to APEA stating that in light of its decision to
grant Basedens grievance it did not see any controversy or
dispute remaining and thus it asked APEA to identify exactly what
controversy or dispute remains to be arbitrated.
APEA replied to the state on September 22 that it did
not agree that Baseden was made whole by its offer because the
state did not offer to cover attorneys fees or compensatory
damages and because the PCN of Basedens new position was
different than the one requested in the grievance. APEAs reply
ignored the states detailed September 18 response to the unions
concerns about the job offer. The state subsequently replied
that the CBA did not allow for recovery of attorneys fees or
compensatory damages beyond the type provided in the states make-
whole offer. The state also wrote: Regardless of the ultimate
resolution of these [two] issues, none of these matters interfere
with Mr. Basedens ability to return to work. The state proposed
a new return-to-work date of October 8, 2001.
On September 26, APEA requested that the state extend
Basedens return to work date to October 15, 2001. On September
28, the state granted APEAs request. The state also stated that
if Baseden did not report to work on October 15 the State will
consider Mr. Baseden to have voluntarily relinquished his
position.
Baseden did not report to work on October 15. In a
letter to APEA dated October 22, 2001, the state notified APEA
that because Baseden failed to report to work on October 15, and
because APEA did not offer any legitimate excuse for his failure
to do so, the state considers Mr. Baseden to have voluntarily
relinquished his position. The state then requested information
and documentation regarding Basedens mitigating income to be used
for calculating the proper amount of back pay and benefits owed
to Baseden. Later that month DOT sent out a personnel action
form to Baseden stating that Baseden voluntarily relinquished his
position on October 15.
In November 2001 APEA filed a new grievance, JSU-01-026
(second grievance), on Basedens behalf to appeal his alleged
voluntary relinquishment of employment on October 15. In August
2002 Arbitrator William Dorsey issued a nineteen-page decision
(Dorsey decision) denying the second grievance, finding that
Basedens refusal to report to work on October 15 was without any
legitimate reason, was deliberate, and constituted just cause for
dismissal.
In April 2003 the Alaska Labor Relations Agency (ALRA)
held that the first grievance could proceed to arbitration
because there was a dispute as to whether all the issues
regarding the April 2000 arbitration were resolved, including
issues of damages and attorneys fees. The ALRA found that the
state could not unilaterally impose a settlement despite
purporting to grant everything it believed the grievant was
entitled to. In a subsequent appeal the superior court affirmed
the ALRA decision.4
In July 2005 Arbitrator Janet Gaunt issued a thirty-
eight page decision (Gaunt decision) on the first grievance.
Arbitrator Gaunt found that in light of the States concession
that it violated Article 5 of the CBA when it terminated Baseden
on April 14, 2000, the grievance over that termination was not
settled when the state offered Baseden reinstatement and back
wages and benefits. Accordingly, Arbitrator Gaunt awarded Baseden
back wages and benefits, as well as interest on those amounts.
The arbitrator noted that although Basedens own failure to
provided documentation about his interim earnings had delayed his
receipt of payment, Baseden was due interest because of the
states greater misconduct. But Arbitrator Gaunt declined to
grant punitive damages, compensatory damages for emotional
distress, or attorneys fees and expert fees from Basedens October
2000 wrongful termination suit. Arbitrator Gaunt exercised her
discretion to defer to the Dorsey decision on matters pertaining
to Basedens October 15, 2001 termination, and declined to grant
any wages or benefits for the period following October 15, 2001.
Finally, Arbitrator Gaunt also found that the state unjustifiably
caused APEA to appear before the ALRA and the superior court on
the matter of the arbitrability of the first grievance.
Arbitrator Gaunt awarded APEA its attorneys fees as a remedy.
In September 2005 Baseden appealed the Dorsey decision
to the superior court. On the same day, Baseden separately
appealed the Gaunt decision. In January 2006 Baseden filed a new
suit against the state seeking damages related to his April 2000
firing and subsequent dealings with the state (2006 case).
In March 2006 Superior Court Judge Patricia A. Collins
consolidated all three of Basedens pending cases, finding that
the cases involved questions pertaining to two arbitration awards
which themselves involve common questions of law or fact. In May
2006 Judge Collins denied Basedens motions to set aside the
Dorsey and Gaunt decisions. Baseden filed a motion for
reconsideration on May 9, which Judge Collins denied on May 18.
Baseden filed a motion dated May 23, 2006, for summary
judgment in the 2006 case. Judge Collins issued a judgment on
the consolidated cases on May 24 declining to provide Baseden any
further relief. Upon Basedens filing of a motion for amended
judgment to clarify that he was still entitled to such relief
awarded to him in the Gaunt decision that was not on appeal,
Judge Collins issued an order noting that [t]he final judgment
entered in the consolidated cases does not impact the arbitration
award. Accordingly, the back pay and benefits that Baseden
received for the period from April 14, 2000 through October 15,
2001, the date he failed to return to work, remained undisturbed.
Baseden, appearing pro se, appeals various decisions of
the superior court, both procedural and substantive.
III. STANDARD OF REVIEW
We review the superior courts review of an arbitration
award de novo to the extent that it involves questions of law and
contract interpretation.5
We give an arbitrators decision great deference.6 Both
the common law and Alaska statutes evince a strong public policy
in favor of arbitration. 7 In order to encourage parties to
pursue arbitration, Alaska courts have a policy of minimizing
their interference with arbitration decisions.8 We have
previously declined, however, to decide definitively the standard
of review of compulsory grievance arbitration awards.9
In general we have applied the highly deferential gross
error standard to review grievance arbitration awards,10 but we
have not decided whether the less deferential arbitrary and
capricious standard should apply where the grievance arbitration
is compulsory.11 We have defined gross error as being only those
mistakes which are both obvious and significant.12 Because the
arbitration decisions on review here withstand the less
deferential arbitrary and capricious standard, we decline to
decide precisely which standard of review applies.
We review the decision to order consolidation of cases
for an abuse of discretion.13 We also review for an abuse of
discretion the superior courts decision to treat a pro se
litigants untimely motion for summary judgment as a motion for
reconsideration.14 We will not overturn an order denying a motion
for reconsideration unless there has been an abuse of discretion.15
IV. DISCUSSION
A. We Uphold the Arbitrators Decisions.
1. Arbitrator Dorsey did not act in an arbitrary and
capricious manner in finding that Basedens
rejection of an offer of reinstatement was just
cause for his discharge.
Arbitrator William Dorsey conducted a full hearing and
issued a nineteen-page decision on the merits to decide the
following question:
Did the grievants failure to report for work
as scheduled on October 15, 2001 give the
employer just cause (as that phrase is used
in Article 5 of the parties 2000-2003
contract) to dismiss him?
This formulation of the issue was framed with the consent of the
parties.
The arbitrator considered Basedens arguments regarding
his legitimate reasons for not reporting to work on October 15,
2001, as scheduled, including that Baseden had cause to distrust
the employers representatives and that Baseden did not receive a
complete position description for the new position (PCN 25-2311)
which the state was offering him. Arbitrator Dorsey decided,
however, that Basedens concern over the change of PCN did not
warrant absenting himself from work because Baseden had been
notified that he would be returning to work as an
Engineer/Architect III, and it is this classification, not the
PCN, which determines an employees salary. Moreover, Arbitrator
Dorsey found that because the state had already hired someone
else to fill Basedens old PCN, and because Baseden knew that fact
prior to receiving notice of the reinstatement offer, Baseden
knew or should have known that he would be working as an
Engineer/Architect III under a different PCN whenever he returned
to the payroll. Arbitrator Dorsey also found that the duties and
tasks described on Basedens incomplete position description were
exactly the same as those he had under his former PCN. After
considering these factors, Arbitrator Dorsey concluded:
The grievant had no legitimate reason for his
failure to report for work at DOT&PF on
October 15, 2001 as scheduled, and therefore
his failure to return to work for the
employer on that day was deliberate.
. . . .
. . . Under all of the facts and
circumstances of this case, the grievants
deliberate failure to report for work at
DOT&PF as scheduled on October 15, 2001
constituted an immediately dischargeable
offense under Article 5 of the parties
contract.
The Dorsey decision is further supported by the Gaunt
decision, in which Arbitrator Gaunt ruled that deference to
Arbitrator Dorseys decision was warranted under the circumstances
because Baseden received a full and fair prior hearing and
Arbitrator Dorsey issued a clear and well-reasoned opinion.
Basedens pro se briefing does not specifically
articulate any reasons why the Dorsey decision was either gross
error or arbitrary and capricious, and is instead directed
towards the superior courts failure to properly evaluate the
arbitrators decisions.16 Baseden argues that special
circumstances warranted his rejection of the offer of
reinstatement. Basedens special circumstances included the fact
that he was bound by statute to use a grievance procedure, that
he was an employee of the state of Alaska, and that he would have
lost his remaining rights in his first grievance by accepting the
position.17 Baseden does not make clear the legal relevance of
the first two factors, and he provides no factual or legal
support for the proposition that his return to work would have
terminated his remaining rights under his first grievance. To
the contrary, the state notified Baseden in its letter of
September 24, 2001, that [r]egardless of the ultimate resolution
of [Basedens claim to compensatory damages and attorneys fees],
none of these matters interfere with Mr. Basedens ability to
return to work.
Moreover, the record indicates that Arbitrator Dorsey
fully considered these facts and concluded that Baseden was not
justified in refusing to return to work. Because Basedens claims
are without support, and because the arbitrators decision was not
arbitrary or capricious, we affirm the arbitrators decision
regarding Basedens eligibility for wages and benefits subsequent
to October 15, 2001.
Baseden also argues that the chronological order of the
arbitration hearings somehow deprived him of his rights because
Arbitrator Dorsey made his decision without the benefit of
knowing that Arbitrator Gaunt would conclude two years later that
the state was not allowed to unilaterally settle the grievance
procedure. Basedens claim that he was prejudiced by the order of
the arbitration is without merit because Arbitrator Dorsey was
fully informed of the underlying circumstances, and because
Arbitrator Gaunts review of the Dorsey decision resulted in her
own decision to give it deference.
Because the Dorsey decision is well-reasoned and
legally supported, and because Baseden has not shown it to be
either arbitrary and capricious or gross error, we affirm the
superior courts decision not to vacate it.
2. Arbitrator Gaunt did not act in an arbitrary and
capricious manner in declining to grant additional
benefits or in deferring to the Dorsey decision on
the matter of wages and benefits following October
15, 2001.
Arbitrator Gaunt issued a thirty-eight-page decision
which likewise followed a full hearing. Arbitrator Gaunt decided
the following issues pertaining to the first grievance:
1. In light of the States concession that
it violated Article 5 of the collective
bargaining agreement when it terminated
Mr. Baseden on April 14, 2000, was the
grievance over that termination settled
when the State offered Mr. Baseden
reinstatement and restoration of back
wages and benefits?
2. If not, what is an appropriate remedy?
3. Did the State violate Article 10.2(B) of
the collective bargaining agreement when
processing the [first] Baseden
grievance?
4. If so, what is an appropriate remedy?
On issues one and three Arbitrator Gaunt ruled in Basedens favor,
finding that the first grievance was not settled when the state
offered reinstatement and back wages, and finding that the state
violated Article 10.2(B) when it refused to arbitrate the first
grievance following its offer of reinstatement. Those aspects of
the Gaunt decision are not on appeal here.
Baseden appears to request that the Gaunt decision be
vacated to the extent that Arbitrator Gaunt refused to overturn
the Dorsey decision and with respect to the appropriate remedies.
The Gaunt decision deferred to the Dorsey decision on the issue
of whether just cause existed for Basedens termination after
Baseden failed to report to work on October 15, 2001. Before
arriving at her conclusion, Arbitrator Gaunt heard arguments by
APEA as to why she should circumvent the Dorsey decision,
examined the fairness of the Dorsey hearing, and considered the
legal reasons and the contractual reasons for considering the
Dorsey decision final and binding. Based on our review of the
decision and record, we conclude that Arbitrator Gaunts decision
to defer to the Dorsey decision was well-reasoned and not
arbitrary or capricious.
Baseden sought damages for his initial wrongful
termination and sought additional damages to compensate him for
the way the state had handled his grievances. Arbitrator Gaunt
had the ability to grant additional creative remedies where
warranted18 and considered several remedies including punitive
damages, front pay, and an award for emotional distress. After
reviewing in a full hearing the facts of Basedens grievance and
the states subsequent unilateral offer of judgment, Arbitrator
Gaunt determined that Basedens grievance was appropriately
remedied by the award of back wages and benefits that he would
have earned if he had remained employed by the state from April
14, 2000, through the date of his failure to return to work,
October 15, 2001. This was the same make-whole offer that the
state had attempted to unilaterally grant. Arbitrator Gaunt
awarded Baseden interest on that money, and awarded APEA certain
additional attorneys fees to compensate Basedens union for the
expense of extra litigation. Ultimately, Arbitrator Gaunt decided
not to grant Baseden additional compensation of the type that he
sought in his subsequent 2006 case. In light of the states offer
of back-pay and reinstatement and Basedens refusal to return to
work, we conclude that the decision not to award Baseden
additional compensation was not in gross error or arbitrary and
capricious.
Because Baseden fails to substantiate any allegation
that the Gaunt decision was either clearly erroneous or arbitrary
and capricious, and because our review of the record reveals no
such error, we affirm the superior courts decision not to vacate
the order.
3. Baseden is not entitled to bring a new claim or
receive an amended arbitration award based on the
theory that he was not an employee at the time of
his alleged second discharge.
Baseden argues that he was not an employee on October
15, 2001, when he was offered reinstatement. He argues that
regardless of the existence of just cause, a non-employee cannot
be terminated and therefore his rejection of the states
reinstatement offer cannot result in his termination. The
superior court held that this argument was waived because it was
not raised before the arbitrators. We agree that the argument
was not raised and was therefore waived.19 Moreover, it was APEA,
Basedens representative, that chose to frame the issue as a
termination. APEA explicitly noted in its step two
grievance filing in the Dorsey arbitration that because the
effect of Basedens alleged voluntary relinquishment of the
October 2001 job was the same as a termination, the state had
violated Article 5 by terminating Baseden for a second time
without just cause. In essence it appears that Basedens union
representatives framed the issue of Basedens refusal to return to
work within the part of the CBA that the situation most closely
approximated.
In his brief before this court, Baseden presents this
argument in a new light, arguing that the parties did not agree
to submit to arbitration the issue of offer rejection. As the
state notes in its brief, Basedens argument is without merit
because regardless of the label attached to Basedens situation in
October 2001, the parties did submit to arbitration the merits of
whether or not Baseden reasonably refused to go to work when
offered the position and what his entitlement was to any
subsequent wage and benefit accrual.
Baseden argues that he did not waive his argument that
he was not an employee because in step two of the grievance
process APEA also included the following paragraph:
APEA/AFT disagrees that Mr. Baseden
voluntarily relinquished his position. There
are several problems with the States action.
First, Mr. Baseden was non-retained by the
State on April 15, 2000 from PCN 25-3185.
Mr. Baseden has never been reinstated as a
permanent employee to PCN 25-3185 by the
State. How can he relinquish something that
he was already terminated from over a year
ago?
It was in this same letter, however, that the union chose to file
the new grievance and chose to frame the issue as a violation of
Article 5 of the CBA regarding termination without just cause.
It would be nonsensical to simultaneously allow the parties to
frame the question for arbitration and then allow the grievant to
complain that the central issue was not arbitrated. The merits
of this issue were reached in arbitration, and to the extent that
the argument was not addressed in arbitration it is waived.
Finally, as Judge Collins adroitly noted, there is
nothing in the CBA or in our case law that dissuades employers
from offering reinstatement, even prior to the completion of all
facets of a grievance dispute.20 After an employee unreasonably
refuses an offer of unconditional reinstatement, the employee is
not entitled to continued claims for lost wages and benefits.21
Arbitrator Dorsey found that Basedens refusal to return to work
was unreasonable, and thus Baseden is not entitled to lost wages
and benefits for the time period after October 15, 2001.
4. The arbitrators decisions are not invalid due to
fraud.
Baseden raises the issue of fraud before this court.
Alaska case law holds that arbitration decisions, though given
great deference, can be overturned where there has been gross
negligence, fraud, corruption, gross error or misbehavior on the
part of the arbitrator.22 However, Basedens allegations of fraud
seem to misunderstand our case law. Instead of alleging fraud on
the part of the arbitrator or fraud within either the Dorsey or
Gaunt arbitration proceedings, Basedens fraud allegations center
on the actions that the state took in offering reinstatement to
Baseden in October. Because all of the facts that Baseden
alleges were part of the record considered by the arbitrators,
there is no fraud-based reason for this court to overturn the
arbitration decisions.
B. The Superior Court Did Not Abuse Its Discretion in
Consolidating Basedens 2006 Case with His Other Two
Cases.
Under Alaska Civil Rule 42(a), judges are given clear
authority to consolidate cases. Rule 42(a) provides, in relevant
part:
When actions involving a common question of
law or fact are pending before the court, it
may order a joint hearing or trial of any or
all the matters in issue in the actions; it
may order all the actions consolidated; and
it may make such orders concerning
proceedings therein as may tend to avoid
costs or delays.
Alaska case law places the decision to consolidate
cases firmly within the discretion of the superior court judge.23
Nothing in Rule 42 suggests that the legal theories of
consolidated cases must be identical in order for a judge to
consolidate them.
Here, there was ample commonality in both the legal and
factual questions between Basedens 2006 case and his other two
cases to set aside the arbitrators decisions. Basedens factual
claims in his 2006 case were entirely based on facts intimately
intertwined with his other two cases. Additionally, Basedens
legal theories for recovery were based on the outcome of
Arbitrator Gaunts decision, the states alleged misrepresentation
in offering Baseden reinstatement, and the states subsequent
dismissal of Baseden. Judge Collins, in her order granting
consolidation, found that these cases involve questions
pertaining to two arbitration awards which themselves involve
common questions of law or fact, such as Basedens termination on
October 15, 2001. This finding was not clearly erroneous, and
hence the courts decision to consolidate Basedens cases was not
an abuse of discretion.
Baseden argues that his 2006 case claims could not have
any common questions of law with the review of arbitrator
decisions under the gross error standard . . . [because the
central complaint in the 2006 case] is that the Plaintiff was not
an employee and therefore could not be bound by the terms of the
CBA to which he was not a party at the time of the alleged
misrepresentation. The fact remains, however, that through his
2006 case Baseden was seeking compensation for the same dispute
for which he previously sought relief through arbitration.
Although Baseden may desire to file his complaint anew without
having to defer to the arbitrators decisions, he offers no legal
support for the assertion that he should be able to so circumvent
their authority. He therefore has not shown that the superior
court abused its discretion in consolidating the cases.
C. The Superior Court Did Not Err in Treating Basedens
Motion for Summary Judgment as an Untimely Motion for
Reconsideration and in Denying It.
Baseden asserts that the superior court erred in its
ruling that his motion for summary judgment was an untimely
motion for reconsideration. He argues that he did not receive
the consolidation notice and that as a result the pleadings used
by Judge Collins to rule on the consolidated cases did not
encompass his arguments for his 2006 case. Baseden overlooks the
fact that when the cases were consolidated, Judge Collins then
had access to the pleadings he entered in his 2006 case, and that
Judge Collins explicitly acknowledged his filings in the 2006
case, referring to it as his most recent lawsuit and placing it
within the procedural timeline. Moreover, the legal arguments of
his 2006 case, regarding lack of an employment contract, were
clearly addressed (and determined to be waived) by Judge Collins.
Baseden allegedly never received the March 28
consolidation order. It is apparent from Basedens motion for
reconsideration of the May 4 order and his subsequent motion for
summary judgment in his 2006 case that he did not understand that
courts May 4 decision applied to the 2006 case as well. Baseden
does not provide any briefing on the legal significance of his
failure to receive the courts consolidation order, and the state
did not address the issue. Because the issue is not adequately
briefed, it is waived.24
Baseden also argues that his motion for reconsideration
was not untimely because final judgment had not yet been issued.
However, Alaska Civil Rule 77(k) provides that motions for
reconsideration of a ruling must be made within ten days after
the date of notice of the ruling . . . unless good cause is shown
why a later filing should be accepted. The superior court
issued its ruling on May 4, 2006. Basedens motion came nineteen
days later, and thus was rightly considered untimely.
We conclude that the superior court did not abuse its
discretion in treating Basedens untimely motion for summary
judgment as an untimely motion for reconsideration.
V. CONCLUSION
Because the arbitrators decisions were not arbitrary
and capricious and were not the result of fraud, and because the
superior court did not abuse its discretion in consolidating
Basedens three claims, we AFFIRM the superior courts judgment in
all respects.
_______________________________
1 Baseden v. State, Case No. 1JU-00-1731 (Alaska Super.
May 31, 2001). This case is erroneously labeled as 1JU-01-1731 on
the May 31, 2001 decision in the case, as well as in the superior
court decision on review.
2 Under the Collective Bargaining Agreement, grievances
are addressed using a four-step process. Because of the
circumstances in this case, the grievance procedures began at
step three.
3 Thus, even if the August 10, 2001 response would have
been considered timely (the exact deadline depended on when the
state received the APEA grievance letter), the states ultimate
step three response was untimely because it did not obtain APEAs
consent to an extension of time.
4 State v. Alaska Pub. Employees Assn, No. 1JU-03-379
(Alaska Super. March 24, 2004).
5 Univ. of Alaska v. Alaska Cmty. Colleges Fedn of
Teachers, Local 2404, 64 P.3d 823, 825 (Alaska 2003).
6 Alaska State Employees Assn/AFSCME Local 52 v. State,
74 P.3d 881, 882 (Alaska 2003).
7 Dept of Pub. Safety v. Pub. Safety Employees Assn, 732
P.2d 1090, 1093 (Alaska 1987) (quoting Univ. of Alaska v. Modern
Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974)).
8 Id.
9 Alaska State Employees Assn, 74 P.3d at 882.
10 Id. (citing Pub. Safety Employees Assn. Local 92 v.
State, 902 P.2d 1334, 1336 (Alaska 1995)).
11 Univ. of Alaska v. Alaska Cmty. Colleges Fedn of
Teachers, Local 2404, 64 P.3d 823, 826 (Alaska 2003).
12 City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska
1981).
13 See Brown v. Hawkins, 418 P.2d 28, 31 (Alaska 1966).
14 See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d
996, 1001 (Alaska 2005) (reviewing for abuse of discretion trial
courts decision on guidance to pro se litigant).
15 Magden v. Alaska USA Fed. Credit Union, 36 P.3d 659,
661 (Alaska 2001).
16 The section of Basedens brief arguing Arbitrators Gaunt
and Dorsey Erred is only two sentences long and purports to
incorporate, without elaboration, seventy pages of the excerpt.
Where possible, and in light of Basedens pro se status, we have
gleaned his arguments disputing the decisions from the other
forty-six pages of briefing.
17 Basedens alleged special circumstances appear to be
slightly different than those presented to the arbitrator, which
emphasized the different PCN. To the extent the issues now
raised were not raised below, they are waived. See Brandon v.
Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (concluding
that argument not raised below was waived).
18 Alaska Pub. Employees Assn v. State, Dept of Envtl.
Conservation, 929 P.2d 662, 666 (Alaska 1996) (holding that
arbitrators have broad discretion in fashioning remedies).
19 See New Chicago Newspaper Guild v. Field Enters., Inc.,
747 F.2d 1153, 1158 (7th Cir. 1984) (precluding party from
challenging arbitration remedy with argument not presented below
[i]n order to preserve the efficiency and integrity of the
arbitral process); United Steelworkers of Am. v. Smoke-Craft,
Inc., 652 F.2d 1356, 1360 (9th Cir. 1981) (Parties to arbitration
proceedings cannot sit idle while an arbitration decision is
rendered and then, if the decision is adverse, seek to attack the
award collaterally on grounds not raised before the arbitrator.).
20 Cf. Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982)
(holding that employers unconditional offer of reinstatement
tolls further accrual of back pay liability).
21 Id. at 231-32. The situation is different where the
employee reasonably refuses an offer of reinstatement. See
Pyramid Printing Co. v. Alaska State Commn for Human Rights, 153
P.3d 994 (Alaska 2007) (holding that employee who had been
sexually harassed reasonably refused offer of re-employment
because she reasonably believed intolerable conditions had not
changed).
22 Nizinski v. Golden Valley Elec. Assn, Inc., 509 P.2d
280, 283 (Alaska 1973).
23 Brown v. Hawkins, 418 P.2d 28, 31 (Alaska 1966).
24 See Brady v. State, 965 P.2d 1, 20 (Alaska 1998)
(holding inadequately briefed argument is waived despite courts
solicitude for pro se litigants).
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