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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Classified Employees Association v. Matanuska-Susitna Borough School District (04/03/2009) sp-6353
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
| CLASSIFIED EMPLOYEES | ) |
| ASSOCIATION, | ) Supreme Court No. S- 12606 |
| ) | |
| Appellant, | ) Superior Court No. 3PA-06- 1408 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MATANUSKA-SUSITNA BOROUGH | ) No. 6353 April 3, 2009 |
| SCHOOL DISTRICT, MATANUSKA- | ) |
| SUSITNA SCHOOL BOARD, and | ) |
| CHIEF SCHOOL ADMINISTRATOR | ) |
| ROBERT DOYLE, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Helene M. Antel, Palmer, for
Appellant. David M. Freeman, Scott M.
Kendall, Holmes Weddle & Barcott, P.C.,
Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
MATTHEWS, Justice.
FABE, Chief Justice, with whom CARPENETI, Justice,
joins, dissenting.
I. INTRODUCTION
The Matanuska-Susitna Borough School District decided
to provide custodial services for its schools through an
independent contractor rather than by employing custodial
workers. The main question in this case is whether the Districts
outsourcing decision is arbitrable under its collective
bargaining agreement with the Classified Employees Union. We
conclude that it is not, primarily because no reasonable argument
has been made that outsourcing is prohibited under the agreement.
We therefore affirm the superior courts decision.
II. FACTS AND PROCEEDINGS
A. The Parties and the Collective Bargaining Agreement
The Classified Employees Association (CEA) is a union
that represents between six hundred and seven hundred employees
in the Matanuska-Susitna Borough School District (District) in a
broad range of clerical, administrative, maintenance, special
education, and computer services positions. The CEA and the
District are parties to a collective bargaining agreement (CBA)
that defines the terms and conditions of employment applicable to
the CEAs members. The agreement at issue was in effect from July
1, 2005, to June 30, 2008. In the first article of the
agreement, the CEA and the District state their aim as
promot[ing] harmonious and cooperative relations between the
employer and the employees. The agreement also attempts to
provide a basis for the adjustment of matters of mutual interest
covered by this agreement by means of amicable discussion.
Article XI of the agreement outlines the procedures for
dealing with grievances made by employees. A grievance is
defined as
a claim by an employee based upon an event or
condition which affects the conditions or
circumstances under which an employee works
caused by misinterpretation or inequitable
application of District policies or
procedures on personnel matters directly
pertaining to these conditions or circum
stances, and/or the terms of this Agreement
and amendments thereof.
Article XI sets out the stages in the grievance process. The
fourth and final stage of the process allows for the parties to
submit the issue to arbitration if the issue has not been
resolved by the grievants department director or administrator,
the superintendent, or by mediation. Under the terms of Article
XI the decision of the arbitrator shall be final and binding upon
both parties. The arbitrator can add nothing to, nor subtract
anything from the Agreement between the parties or any policy of
the School Board.
Article XIII, the Savings Clause, indicates that the
Labor Agreement contains the full and complete agreement between
the parties on all subjects upon which the parties did bargain or
could have bargained. The article continues that the Agreement
terminates all prior agreements and understandings made between
the parties. The agreement contains no clause describing
specific powers that are reserved to management.
B. Bargaining History
In 1993 the District attempted to add a provision to
the collective bargaining agreement which stated that [t]he
parties expressly agree that nothing in this Agreement shall be
construed as prohibiting the District from contracting with
independent contractors for activity drivers. The CEA did not
agree to this language and the clause was not included in the
contract; however, the CEA consented to a change to the 1993
agreement that allowed for outsourcing bus drivers if an activity
bus driver resigns, transfers, or takes a long term leave of
absence.
The 2005-2008 agreement does not have any provision
dealing with the outsourcing of activity drivers (or any specific
provisions for outsourcing) because, according to the CEA, the
outsourcing of activity bus drivers was not successful. But
apparently the question of outsourcing was a much-discussed
subject during the negotiations for the 2005-2008 agreement.
Robert Johnson, who was a member of the Districts bargaining team
and the school board in 2004, stated that [o]utsourcing was [a] .
. . key issue[] for both the District and the CEA in the
negotiations. He said that the District wanted to be able to
outsource CEA work in the new agreement but the CEA members didnt
want to change the way things had been done in the past and asked
for the Districts assurances that bargaining unit work would not
be outsourced. Johnson claimed that the District gave assurances
that work would not be outsourced,1 although [t]he parties did
not come up with contract language to commemorate their
agreement.
C. The Districts Decision To Outsource and Initial Court
Proceedings
In December 2005 the District advertised that it would
consider proposals for Custodial Services and Light Duty School
maintenance for specified facilities within the School District.
NANA Management Services submitted a proposal, and the District
entered into a contract with NANA. In March 2006 the CEA filed a
grievance against the District under the CBA. CEA specified that
the nature of the grievance was that [t]he proposed contracting-
out of bargaining unit work constitutes a violation of the
parties[] written and express verbal agreement on the subject.
It also alleged that the District has violated its duty to
negotiate on mandatory subjects in good faith. Although the
Matanuska-Susitna School Board debated a motion to terminate the
contract with NANA, the motion failed. The District then went
ahead with the contract, replacing its custodial workers with
contract employees from NANA.
The parties, in anticipation of future arbitration,
selected an arbitrator and set a hearing date of October 25,
2006. But before the CEAs claim reached arbitration, the
District withdrew from the grievance process, claiming the
grievance issues [were] non-arbitrable and stating its intention
to take the matter to superior court for a declaratory judgment
that outsourcing was not arbitrable.
In response, the CEA filed suit to force the District
to participate in the grievance proceeding, including the
arbitration hearing . . . scheduled for October 25, 2006. The
CEA also alleged that state law, AS 14.14.060(f), prohibits the
outsourcing of school district custodial work and sought a
declaratory judgment to that effect. The District denied the
CEAs allegations and counterclaimed, asking for [a]n order
declaring as a matter of law that the grievance is based on a
managerial decision that is not a matter for arbitration under
the CBA. The District later moved for declaratory judgment: in
its memorandum in support of declaratory judgment, it argued that
the CBA did not include an agreement to arbitrate decisions
related to outsourcing and that such decisions were not a matter
of mandatory bargaining under Alaska law. In its opposition to
the Districts motion and cross-motion for declaratory judgment,
the CEA stressed [t]he presumption in favor of arbitration that
has been cited with favor by the Alaska Supreme Court on numerous
occasions. It argued that the grievance clause of the collective
bargaining agreement should be interpreted to encompass the
decision by the District to outsource custodial services. There
were further replies and responses by each party.
On October 24, 2006, Superior Court Judge Beverly W.
Cutler decided in favor of the District as a matter of law,
treating the parties filings as motions for summary judgment
because the parties had stipulated that there are no genuine
issues of material fact in dispute. The court also concluded
that AS 14.14.060(f) does not prohibit the school board from
privatizing its custodial services. Accordingly, the superior
court declined to grant the declaration sought by the CEA.
D. The Superior Courts Decision and the Motion To
Reconsider
The superior courts memorandum of decision did not
attempt to address each and every point raised in the parties
briefing. After ruling that the question of arbitrability was a
question for the courts to resolve, the superior court declared
it was persuaded by the Districts reasoning. The court said that
the grievance clause of the CBA left no doubt that it was not
intended to apply to disputes over decisions to privatize the
custodial workforce. The court in particular found it
implausible that the decision to outsource could be considered a
dispute about the conditions under which employees work. The
court stated that [t]he plain language of the clause indicates
that the parties designed it to address grievances by employees
related to unfair treatment by the District relating to the
wages, hours and conditions of employment. It concluded that the
CEAs interpretation of the contract was overbroad and found the
power to outsource was within the Districts overarching power to
manage the economical well-being of the boroughs school system.
Accordingly, the superior court granted the Districts request to
vacate the scheduled October 26 arbitration.
The CEA filed a motion to reconsider, arguing that the
court failed to give weight to the presumption in favor of
arbitrability, that it too narrowly interpreted the CBA, and that
it ignored the bargaining history between the parties. The
superior court denied the motion for reconsideration.
The CEA appeals.
III. STANDARD OF REVIEW
The question of whether an issue is arbitrable is a
question of law subject to de novo review.2 We adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy.3 We will affirm a lower courts grant of summary judgment
if there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law.4 We draw all reasonable
inferences in favor of the non-moving party.5
IV. DISCUSSION
A. The Superior Courts Grant of Summary Judgment
In its Memorandum of Decision on Cross-Motions for
Summary Judgment, the superior court wrote that [t]he parties
have stipulated that there are no genuine issues of material fact
in dispute and that after careful consideration it appears that
the District is entitled to judgment as a matter of law. We have
been unable to find a stipulation in the record to the effect
that there are no genuine issues of material fact.6 The superior
court, however, in its Order Denying Reconsideration, stated that
[t]he court notes that the parties stipulated there were no
genuine issues of material fact by filing their respective
motions for summary judgment.
If the superior court assumed that there were no
genuine issues of material fact because both parties filed
respective motions for summary judgment, this assumption was not
necessarily correct. Each movant could believe that if the law
it advocated were accepted there would be no issues of material
fact standing in the way of a favorable judgment. At the same
time, each could believe that if the law were not as it
advocated, the opponent would not be entitled to summary judgment
because of the existence of material facts. Although the CEA
does not explicitly make this point, it asserts that there are
facts (especially those relating to bargaining history) that it
believes the court should have considered in its ruling. The
District, in its brief, disputes the significance and weight that
should be accorded to the facts which the CEA cites.
The superior court also remarked in its reconsideration
order that there are no genuine issues of material fact with
regard to the purely legal question of whether the grievance
clause of the parties CBA contemplates a dispute over
outsourcing. This statement provides a surer ground for the
courts grant of summary judgment. In this opinion we too deal
solely with the purely legal question of whether the Districts
decision to outsource is arbitrable as a matter of law.
B. The Presumption in Favor of Arbitrability
The CEA stresses the presumption in favor of
arbitrability in its briefs. The CEA writes that this
presumption means that the burden of proof is on the party
seeking to avoid arbitration and that the superior court erred in
not resolving its doubts about whether the issue was arbitrable
in favor of arbitration. However, the District replies that the
CEA has misread the presumption: it is not merely a blanket
presumption in favor of arbitration come what may, but a
presumption that only applies when the contract that provides for
arbitration is ambiguous. The District avers that the contract
in question in this case leaves no doubt that outsourcing is not
a matter for arbitration.
We have ruled that there is a presumption in favor of
arbitrability. In University of Alaska v. Modern Construction,
Inc., we noted that the common law and statutes of Alaska evince
a strong public policy in favor of arbitration.7 In the same
case, we observed that this presumption represented a change from
an earlier attitude that was mainly hostile [to arbitration]
until a change in judicial philosophy and the advent of
commercial arbitration statutes combined to change public policy
on the desirability of arbitration.8 As a result of the shift in
policy, we held in Modern Construction that ambiguous contract
terms should be construed in favor of arbitrability where such
construction is not obviously contrary to the parties intent.9
We have also endorsed the United States Supreme Courts standard
that [a]n order to arbitrate the particular grievance should not
be denied unless it may be said with positive assurance that the
arbitration clause is not susceptible to an interpretation that
covers the dispute. Doubts should be resolved in favor of
coverage.10 As we summed up the presumption in Ahtna, Inc. v.
Ebasco Constructors, Inc., [a]ny ambiguity with regard to
arbitrability is to be construed in favor of arbitration.11
But the presumption in favor of arbitration is limited.
Arbitration is a creature of contract, and if there are terms in
a contract that either exclude arbitration or indicate that an
issue should not be subject to arbitration, then requiring that
the matter be sent to arbitration would be inappropriate. As
this court put it in Lexington Marketing Group v. Goldbelt Eagle,
LLC, [b]ecause arbitration is a matter of contract, parties can
only be compelled to arbitrate a matter where they have agreed to
do so.12 Accordingly, if a dispute is not, under a plausible
interpretation, covered under the arbitration clause of a
collective bargaining agreement, it should not be arbitrated
because a party cannot be required to submit to arbitration any
dispute which he had not agreed so to submit.13
As this discussion implies, arbitrability is a
threshold question for the court, not the arbitrator.14 One
reason for this division of authority is [b]ecause arbitrators
have such broad discretion, it is often problematic for them to
decide their own jurisdiction, for if they are wrong, there may
be essentially no review. This is so because the superior court
reviews an arbitrators decision under a standard giving extreme
deference to the arbitrator.15 A court should determine that a
claim is arbitrable, if, as stated above, a plausible or
reasonably arguable case for arbitrability has been made.
Conversely, if there are no plausible or reasonably arguable
grounds supporting arbitrability, it is the duty of a court to
decline to order arbitration.
C. Interpreting the Grievance Clause
1. Outsourcing may be an event or condition which
affects the conditions or circumstances under
which an employee works.
Under the CBA only grievances may be arbitrated. The
grievance clause defines grievance as
a claim by an employee based upon an event or
condition which affects the conditions or
circumstances under which an employee works
caused by misinterpretation or inequitable
application of District policies or
procedures on personnel matters directly
pertaining to these conditions or
circumstances, and/or the terms of this
Agreement and amendments thereof.
The superior court determined that the CEAs claim was
not arbitrable because outsourcing could not plausibly be
characterized as an event or condition which affects the
condition and circumstance under which an employee works. In
the courts words, [t]he plain language of the clause indicates
that the parties designed it to address grievances by employees
related to unfair treatment by the District relating to the
wages, hours and conditions of employment.
We are not so sure that this reading is correct.
Outsourcing, which in this case involved laying off custodial
workers in order to replace them with services provided by a
contractor, is plausibly an event that affects the circumstances
under which employees work. When a custodial employees job is
outsourced, the conditions and circumstances under which he works
are affected because the worker is no longer employed. Something
may affect the conditions or circumstances under which an
employee works without itself being a condition or circumstance
under which the employee works.16
We therefore decline to rule that the Districts
decision to outsource is not arbitrable because it does not
affect the conditions or circumstances under which employees
work.
2. The Districts decision to outsource was not a
misinterpretation or inequitable application of a
term of the agreement.
The question presented is whether the arbitration
clause in the CBA between the District and the CEA can reasonably
be interpreted in such a way that allows the Districts decision
to be arbitrated. The grievance clause permits the arbitration
of claims based on an event or condition affecting the conditions
or circumstances under which an employee works in two situations:
first, where those events or conditions are caused by a
misinterpretation or inequitable application of District policies
and procedures on personnel matters, and second, where they are
caused by a misinterpretation or inequitable application of the
terms of the CBA. We conclude that the CEAs alleged grievance
does not fit either of these situations.
We address first the possibility that the CEAs claim is
based on the Districts misinterpretation or inequitable
application of the terms of the agreement. The CEA points to no
term in the contract that the District has misinterpreted or
inequitably applied. And indeed it is hard to see how it could.
There is no clause in the CBA discussing outsourcing, nor is
there a clause which specifies the rights of management, both of
which would be plausible candidates for misinterpretation or
inequitable application.17
The CEAs argument about a possible oral side contract
between the CEA and the District regarding outsourcing is
unavailing. Alaska Statute 23.40.210(a), a subsection of the
Public Employment Relations Act (PERA), requires that collective
bargaining agreements be in writing.18 We think the subsection
acts as a kind of specialized statute of frauds, under which oral
agreements are not permitted. Thus, if there was an oral
agreement between the parties it would be invalid under
subsection .210(a).
To the extent subsection .210(a) may be seen instead as
a sort of statutory parol evidence rule, it could be argued that
evidence of an oral agreement regarding outsourcing could be used
to interpret ambiguous terms of the CBA that are reasonably
susceptible to an interpretation that outsourcing is prohibited.19
Oral agreements can be so used with respect to integrated written
contracts that are subject to the parol evidence rule.20 But no
benefit to the CEA is gained from this possibility, because there
are no clauses in the CBA that even hint at a ban on outsourcing.
The District has referred us to a case which in some
respects resembles the present one. In Local Union No. 483,
International Brotherhood of Boilermakers v. Shell Oil Co., the
district court refused to require arbitration of complaints that
arose when an employer decided to contract out work on a refinery
renovation project.21 Under the collective bargaining agreement
arbitration was limited to complaints arising out of the
interpretation or application of the agreement.22 The district
court found that the agreement did not prohibit or limit the
practice of contracting out.23 On appeal the circuit court
affirmed, stating with reference both to a prior case24 and the
case before it:
[F]undamentally the question decided there,
and here, is that where arbitration is
limited in the bargaining agreement to
questions involving the application and
interpretation of the agreement, and the
agreement does not limit the freedom of the
employer to contract out work, a court should
not compel arbitration.[25]
As did the court in Local Union No. 483, we conclude
that arbitration may not be compelled here under the portion of
the grievance clause that permits arbitration of claims caused by
the misinterpretation or misapplication of the CBA because the
CBA does not forbid or limit outsourcing. The dissent offers
several other federal circuit opinions that are said to reach
contrary results.26 We believe that these cases mainly represent
differences in how settled principles should be applied because
most of them advert to the need for a threshold finding as to
whether a particular grievance raises a question concerning the
interpretation of the collective bargaining agreement.27 This is
not to say that all federal labor law cases decided by the
circuit courts are necessarily consistent either in principle or
in spirit with our opinion in the present case.28 But our opinion
is consistent with the United States Supreme Court case relied on
by the dissent, AT&T Technologies, Inc. v. Communications Workers
of America.29
In AT&T the collective bargaining agreement provided
that differences arising with respect to the interpretation of
this contract or the performance of any obligation hereunder
would be arbitrated but expressly excluded from arbitration
certain management prerogatives.30 One article provided that
subject to the limitations contained in the provisions of this
contract, but otherwise not subject to the provisions of the
arbitration clause, the employer could exercise such management
functions as hiring, placing, and terminating employees.31 Still
another section, Article 20, provided for layoffs [w]hen lack of
work necessitates layoff.32 The employer laid off its installers
at a particular location and the union sought arbitration,
claiming that because there was no lack of work at the location
the layoffs would violate Article 20.33 The district court
ordered arbitration, concluding that the unions interpretation of
Article 20 was at least arguable. 34 The circuit court affirmed,
noting that it understood the district court to have ordered the
arbitrator to decide the threshold issue of arbitrability.35 On
certiorari, the United States Supreme Court reversed.36
The Supreme Court began with familiar general
principles: arbitration is a matter of contract and only disputes
that the parties have agreed to submit to arbitration should be
arbitrated; questions of arbitrability are for the courts; in
deciding arbitrability courts should not rule on the merits of
the underlying controversy; and there is a presumption in favor
of arbitrability.37 The Court then turned to the policy reasons
underlying the need for courts to determine arbitrability:
The willingness of parties to enter into
agreements that provide for arbitration of
specified disputes would be drastically
reduced, however, if a labor arbitrator had
the power to determine his own jurisdiction
. . . . Were this the applicable rule, an
arbitrator would not be constrained to
resolve only those disputes that the parties
have agreed in advance to settle by
arbitration, but, instead, would be empowered
to impose obligations outside the contract
limited only by his understanding and
conscience.[38]
Based on these policy reasons the Court found that the lower
courts had erred in ordering the parties to arbitrate without
first determining arbitrability:
It is the courts duty to interpret the
agreement and to determine whether the
parties intended to arbitrate grievances
concerning layoffs predicated on a lack of
work determination by the Company. If the
court determines that the agreement so
provides, then it is for the arbitrator to
determine the relative merits of the parties
substantive interpretations of the agreement.
It was for the court, not the arbitrator, to
decide in the first instance whether the
dispute was to be resolved through
arbitration.[39]
The Court stated that the issue on remand
is whether, because of express exclusion or
other forceful evidence, the dispute over the
interpretation of Article 20 of the contract,
the layoff provision, is not subject to the
arbitration clause. That issue should have
been decided by the District Court and
reviewed by the Court of Appeals; it should
not have been referred to the arbitrator.[40]
As in AT&T, it is the duty of the judiciary in the
present case to interpret the CBA to determine whether the
parties intended to arbitrate the issue of outsourcing. We have
concluded that they did not, for the reasons already expressed.
In addition, PERAs limited provision for binding interest
arbitration arbitration that resolves impasses in contract
formation provides further forceful evidence that requiring
arbitration here would be improper.
PERA governs collective bargaining between units of
state and local government and their employees.41 Subsection
.200(a) of the act defines three classes of employees: (1) those
whose services are indispensable, (2) those whose services may be
briefly suspended, and (3) those whose services may be suspended
for long periods of time without adverse effects.42 The CEA
represents employees of the third class, (a)(3). PERA provides
that (a)(1) employees may not strike, but they may compel binding
arbitration of disputes that arise in negotiating collective
bargaining agreement terms. Employees in classes (a)(2) and
(a)(3) may strike.43 In Alaska Public Employees Assn v. City of
Fairbanks44 we explained that (a)(2) and (a)(3) employees lack the
ability to compel binding interest arbitration:
So, although the legislature has taken from
the (a)(1) employees their right to strike,
it has given, as a quid pro quo, the
statutory right to compulsory binding
arbitration. Since the class (a)(2) and
(a)(3) employees have the right to strike,
they do not have this arbitration right.[45]
Since interest arbitration for (a)(3) employees is
distinctly not state policy, care must be taken to distinguish
cases where grievances are sought to be arbitrated from cases
where the arbitration objective is to amend a collective
bargaining contract by adding a provision that it cannot fairly
be said to contain. Because the CBA simply does not speak to the
subject of outsourcing, the CEAs complaint is of the latter type.
In summary, there are a number of forceful indicators
pointing to the conclusion that the question whether outsourcing
is prohibited by the CBA should not be arbitrated. One is, as
indicated above, because interest arbitration for (a)(3)
employees is not provided by PERA. Two others are contained in
the collective bargaining agreement itself. Clause (4)(b) of the
arbitration clause provides that the arbitrator can add nothing
to, nor subtract anything from, the agreement between the parties
or any policy of the school board. The agreement goes on to
state that the written collective bargaining agreement is the
whole of the parties agreement, bargaining on new terms may not
be compelled during the term of the agreement, and no side
agreements survive. Article XIII.B provides:
It is agreed that this Labor Agreement
contains the full and complete agreement
between the parties on all subjects upon
which the parties did bargain or could have
bargained. Neither party shall be required,
during the term of this Agreement, to
negotiate or bargain upon any other issue.
This Agreement terminates all prior
agreements and understandings, and concludes
collective bargaining for this Agreement.
Finally, PERA itself makes clear that collective bargaining
agreements must be in writing, meaning that when we address the
question whether a dispute plausibly involves the interpretation
or application of a term of an agreement, we look to the written
agreement. Here, the written agreement is silent on the subject
of outsourcing.
3. The Districts decision to outsource was not a
misinterpretation or inequitable application of a
District policy or procedure.
The CEA points out that the language of the grievance
clause is broader than one that merely allows grievances based on
a violation or misinterpretation of specific terms of a contract.46
Under the CBA a claim based on an event or condition affecting
conditions of employment caused by misinterpretation or
inequitable application of District policies or procedures on
personnel matters is grievable and arbitrable. The CEA argues,
albeit briefly and in a conclusory fashion, that the Districts
decision to outsource is a policy that is being inequitably
applied to the workers who have lost their bargaining unit jobs
as a result of outsourcing.47 The CEAs argument is not that the
outsourcing policy is inequitable on a case-specific basis;
rather, the CEA argues that outsourcing is inherently
inequitable. But this amounts to an attack on the policy itself.
The CBA makes clear that the merits of any policy of the school
board may not be altered by the arbitrator. Clause IV(B) of the
grievance procedure of the CBA provides: The arbitrator shall
limit himself to the issue submitted to him and shall consider
nothing else. He can add nothing to, nor subtract anything from
the Agreement between the parties or any policy of the School
Board. The same conclusion is inherent in the grievance clause
itself. Only misinterpretations or inequitable applications of
policies may be grieved, not the policies themselves. Thus the
CEAs challenge to the outsourcing policy is not subject to
arbitration.48
If the Districts outsourcing policy were allegedly
applied inequitably, as for example by eliminating only the jobs
of politically disfavored employees, a claim so charging would be
arbitrable. But to the extent job loss is merely the result of
the outsourcing policy, no arbitrable claim is presented because
permitting arbitration for job losses that are the inherent
result of an outsourcing policy would be to allow a challenge to
the existence of the policy itself. This is not permitted under
the CBA.
For the above reasons we conclude that the outsourcing
question presented by the CEA is not arbitrable. To use the
language employed by the United States Supreme Court in AT&T, to
leave that question to the arbitrator under the facts and
circumstances of this case would be to empower the arbitrator to
impose obligations outside the contract limited only by his
understanding and conscience.49
D. There Is No Statutory Bar Against Outsourcing Custodial
Work.
The CEA sought a declaration from the superior court
that AS 14.14.060(f) prohibits the District from outsourcing
custodial services. The particular language relied on by the CEA
is contained in the first sentence of subsection (f): The
borough school board shall provide custodial services and routine
maintenance for school buildings and shall appoint, compensate,
and otherwise control personnel for these purposes. The CEA
interprets this statute to require school districts to provide
custodial services through employees of the school district
rather than by contracting for such services through independent
contractors.
The District argued in the superior court that
outsourcing of custodial services is consistent with the statute:
The statute does not mandate how the District can or should
provide the custodial services; it does not say the District must
directly employ members of CEA and that it cannot hire the
services to be accomplished by non-employees.50 The superior
court adopted the Districts reasoning.
The language of the sentence in subsection .060(f)
relied on by the CEA is ambiguous with respect to whether it is
meant to limit school districts to providing custodial services
through school district employees. If there were legislative
history indicating such an objective we might construe the
statute as prohibiting the outsourcing of custodial services.
But there is no such evidence.
The language of AS 14.14.060(f) on which the CEA relies
is part of a statute originally enacted in 1972.51 The objective
of the statute was to provide for the allocation of functions
between borough school boards and borough assemblies.52 The first
sentence of AS 14.14.060(f) taken in the context of the rest of
the language of that subsection, and the context of the whole of
AS 14.14.060, suggests that its objective was merely to make
clear that borough school boards rather than borough assemblies
would have the responsibility to provide, pay for, and control
the provision of custodial services for school buildings.
We therefore agree with the rationale accepted by the
superior court and affirm the superior courts refusal to issue a
declaratory judgment declaring that the outsourcing of custodial
services is prohibited by AS 14.14.060(f).53
V. CONCLUSION
For the above reasons, the decision of the superior
court is AFFIRMED.
FABE, Chief Justice, with whom CARPENETI, Justice, joins,
dissenting.
The courts decision today rests entirely on its
determination that, contrary to the contentions of the Classified
Employees Association (CEA), the parties collective bargaining
agreement (CBA) cannot plausibly be read to prohibit or limit
outsourcing by the Matanuska-Susitna Borough School District.
Because I believe that the determination whether CEAs
interpretation of the CBA is plausible should be made by the
arbitrator, not by the court, I disagree with the court and would
reverse the superior courts decision not to compel arbitration.
CEA claims that the Districts outsourcing decision
violated the parties CBA. Under the CBAs grievance arbitration
clause, employee grievances alleging misinterpretation or
inequitable application of the terms of the CBA are arbitrable.1
CEAs claim that outsourcing violates the terms of the CBA,
whether meritorious or wildly improbable, is a grievance
regarding the proper interpretation of the CBA and is thus the
type of grievance that the parties have agreed to arbitrate.
The court concludes otherwise first by determining that
the CBA cannot reasonably be interpreted to prohibit outsourcing,
then by reasoning that therefore CEAs complaint about outsourcing
does not actually involve interpretation of the CBA, and finally
by concluding that CEAs complaint is thus not actually
encompassed by the arbitration clause.2 But in doing so the
court directly hinges its decision regarding the arbitrability of
CEAs claim on its own view of the merits of CEAs claim something
that is not generally appropriate in the context of labor
arbitration.
The court is correct that the threshold question of
whether a claim is arbitrable is one for the courts, not for the
arbitrator.3 A court confronting this question must determine,
keeping in mind the presumption in favor of arbitrability,4
whether there is a plausible interpretation of the CBAs
arbitration clause (taking into account any exclusionary clauses)
that covers the type of claim presented. But in doing so the
court should not examine the plausibility of the claim itself.
Where, as here, the CBAs arbitration clause explicitly
covers all claims alleging misinterpretation or inequitable
application of the terms of the CBA, and there is no exclusionary
clause, the courts role is limited to deciding whether the claim,
on its face, concerns the proper interpretation of the CBA. The
court concludes here that CEAs grievance does not concern the
proper interpretation of the CBA.5 But CEA contends that the CBA
prohibits outsourcing asserting, among other things, that the
CBAs silence regarding outsourcing means that outsourcing is not
permitted. While perhaps practically or legally incorrect, this
claim inescapably involves interpretation of the CBA. Though the
court finds CEAs interpretation of the CBA untenable, it is
nonetheless an interpretation of the CBA. And choosing between
competing interpretations of the CBA is precisely the task the
parties have agreed to put in the hands of the arbitrator.
Because the instant case does not fall under the
National Labor Relations Act,6 we need not necessarily adopt the
reasoning of federal labor law cases; however, as the court
seemingly acknowledges,7 such cases are nonetheless instructive.
In AT & T Technologies, Inc. v. Communications Workers of
America, the United States Supreme Court reviewed and reaffirmed
various basic legal principles pertaining to the arbitrability of
labor disputes, including that in deciding whether the parties
have agreed to submit a particular grievance to arbitration, a
court is not to rule on the potential merits of the underlying
claims and that [w]hether arguable or not, indeed even if it
appears to the court to be frivolous, the unions claim that the
employer has violated the collective-bargaining agreement is to
be decided, not by the court asked to order arbitration, but as
the parties have agreed, by the arbitrator.8
The court notes that CEA points to no term in the
contract to support its position and that furthermore there is no
clause in the CBA discussing outsourcing.9 But the fact that
CEAs claim that outsourcing violates the CBA may not be plausible
and is not necessarily supported by any specific language in the
CBA does not mean that it is not arbitrable. In Building
Materials & Construction Teamsters Local No. 216 v. Granite Rock
Co., a case that we have recently cited,10 the Ninth Circuit
found that a unions claim that an employer violated an implied
term of a CBA was arbitrable under an arbitration clause that
covered only disputes arising under the CBA, regardless of
whether the unions claim was plausible or supported by any
language in the CBA.11 Though the employer argued that the CBA
could not be reasonably interpreted to contain the implied term
that provided the basis for the unions claim, the Ninth Circuit
reasoned that [t]he district court was not required to determine
whether the unions claim rested on a plausible reading of the
agreement12 and that once the court determines that the parties
dispute concerns the proper interpretation of the agreement, it
has no business weighing the merits of the grievance, considering
whether there is equity in a particular claim, or determining
whether there is particular language in the written instrument
which will support the claim. 13
Similarly, in International Brotherhood of Electrical
Workers, Local 1228 v. WNEV-TV, New England Television Corp., the
First Circuit concluded that a unions claim maintaining that an
employer had violated the parties CBA by eliminating an employee
lounge was arbitrable under an arbitration clause that
encompassed all complaints, disputes or questions as to the
interpretation, application or performance of the CBA.14 The
First Circuit came to this conclusion despite the fact that the
trial court found that there was no language in the CBA creating
a duty to provide or maintain such a lounge.15 The court in
WNEV-TV recognized that
[w]hat one man considers frivolous another
may find meritorious, and it is common
knowledge in industrial relations circles
that grievance arbitration often serves as a
safety valve for troublesome complaints.
Under these circumstances it seems proper to
read the typical arbitration clause as a
promise to arbitrate every claim, meritorious
or frivolous, which the complainant bases
upon the contract. The objection that equity
will not order a party to do a useless act is
outweighed by the cathartic value of
arbitrating even a frivolous grievance and by
the dangers of excessive judicial
intervention.[16]
The Second Circuit in Procter & Gamble Independent
Union of Port Ivory, N.Y. v. Procter & Gamble Manufacturing Co.
rejected a companys contention, similar to the Districts
contention in this case, that arbitration should be refused
because none of the alleged grievances were specifically covered
by any particular provision of the agreement and the arbitration
clause bound it only to the arbitration of grievances having to
do with the interpretation or application of any provision of the
CBA.17 The Second Circuit held that the unions grievances, which
included a complaint about outsourcing, were arbitrable,
reasoning that the interpretation or construction of the
agreement by the Board of Arbitration is the very thing the
parties bargained for.18 The Procter & Gamble Manufacturing
court did not examine whether or not the unions claims had merit
or were grounded in any specific language in the CBA.
Similarly, in International Union of Electrical, Radio
& Machine Workers v. General Electric Co., the Second Circuit
held that a unions complaint about an employers subcontracting of
work was arbitrable under an arbitration clause encompassing
disputes about the interpretation or application of a provision
of the CBA, despite the employers argument that the CBA contained
no express provisions regarding subcontracting and the fact that
the union had unsuccessfully attempted to negotiate for
provisions limiting subcontracting.19 The Second Circuit
remarked:
What the company has done . . . is to attempt
to persuade us to decide that the grievance
is not arbitrable because the grievance is
groundless inasmuch as [no] substantive
provision of the collective bargaining
agreement, according to the company, forbids
or restricts subcontracting. But whether a
certain brand of company conduct is
prohibited by a provision of a collective
bargaining agreement will always be the
ultimate question which the grievance itself
will present . . . . For us to yield to the
urgings of the company and decide it
ourselves would be to ignore the admonition
contained in the Warrior & Gulf case that
courts should not become entangled in the
construction of the substantive provisions of
a labor agreement.[20]
As the court points out, the above-cited cases do
indeed advert to the need for a threshold finding as to whether a
particular grievance raises a question concerning the
interpretation of the collective bargaining agreement.21 But the
court here goes beyond simply making a threshold determination as
to whether CEAs claim involves interpretation of the CBA the
court examines the merits of CEAs interpretation and then
concludes that because CEAs interpretation is not reasonable, it
is not actually an interpretation. Such reasoning puts the cart
before the horse and thus is not in line with the predominant
federal approach.
The court cites two Seventh Circuit cases in support of
its decision: Local Union No. 483, International Brotherhood of
Boilermakers v. Shell Oil Co. and Independent Petroleum Workers
of America, Inc. v. American Oil Co.,22 on which Local Union No.
483 relies.23 Each of these cases held that where a CBA was
silent with regard to outsourcing, arbitration of an outsourcing
dispute could not be compelled under an arbitration clause that
limited arbitration to questions arising from CBA
interpretation.24 However, Local Union No. 483 and Independent
Petroleum Workers appear to be outliers, and the continued
validity of their approach has been questioned.25 Moreover, the
court in Independent Petroleum Workers, on which Local Union No.
483 relies, held that the unions claims were foreclosed by
collateral estoppel, making it unclear whether its discussion of
their arbitrability was simply dicta.26
Additionally, in both Local Union No. 483 and
Independent Petroleum Workers the Seventh Circuit actually
considered the bargaining history between the parties in the
course of concluding that the CBAs did not prohibit outsourcing
(and thus that outsourcing disputes were not arbitrable)27
something the court here seems unwilling to do despite CEAs
entreaties.28 And in both of these cases the bargaining history
between the parties was the opposite of the bargaining history in
the instant case that is, in both of these cases the unions
repeatedly tried and failed to negotiate for CBA provisions
specifically prohibiting outsourcing,29 whereas in the instant
case there is evidence that the employer tried and failed to
negotiate for CBA provisions specifically permitting
outsourcing.30 Accordingly, to the extent that these two cases
relied on bargaining history to interpret the CBAs silence
regarding outsourcing, they are importantly distinguishable from
the instant case.31
Coupled with the strong presumption in favor of
arbitrability, which is accurately set forth in the courts
opinion,32 the many cases admonishing against delving into the
merits of a unions claim in order to determine its arbitrability
suggest that the court has chosen to take a distinctly minority
approach by resting its decision on a preliminary determination
that CEAs interpretation of the CBA is implausible.
The court attempts to bolster its decision to take this
minority approach by pointing out that the Public Employment
Relations Act (PERA)33 does not give CEAs employees the power to
compel binding interest arbitration. But this is irrelevant.
CEA seeks only grievance arbitration, which the parties have
specifically contracted for, not interest arbitration. CEA
claims that the Districts outsourcing violates the parties
existing CBA it does not seek to compel arbitration for the
purpose of renegotiating the terms of the CBA. The court thinks
that CEAs interpretation of the CBA is implausible and thus
characterizes CEAs claim not as a dispute about the
interpretation of the CBA but as an effort to amend a collective
bargaining contract by adding a provision that it cannot fairly
be said to contain.34 But the fact that CEAs grievance involves
a potentially implausible interpretation of a CBA does not mean
that its request for grievance arbitration under the CBAs
arbitration clause should be viewed as if it is a request for
interest arbitration under PERA. And moreover, as discussed
above, the question whether or not CEAs interpretation of the CBA
is plausible is a question for the arbitrator, not for the courts
our decision regarding the arbitrability of CEAs claim simply
should not turn on our assessment of its relative merits.
As the court points out, under the CBAs arbitration
clause the arbitrator can add nothing to, nor subtract anything
from the CBA.35 Accordingly, an arbitrator evaluating CEAs
outsourcing grievance would be limited to examination and
interpretation of the parties existing CBA and would not have the
power to modify the CBA. Thus limited, an arbitrator might well
conclude, as the court has concluded, that CEAs interpretation of
the CBA is implausible and that the CBA simply does not speak to
the subject of outsourcing.36 But that determination would be
one for the arbitrator to make because the interpretation or
construction of the [CBA] by the [arbitrator] is the very thing
the parties bargained for.37
Therefore, I respectfully dissent.
_______________________________
1 The District disputes this assertion.
2 Lexington Mktg. Group v. Goldbelt Eagle, LLC, 157 P.3d
470, 472 (Alaska 2007).
3 Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).
4 Id. (quoting Alakayak v. British Columbia Packers,
Ltd., 48 P.3d 432, 447 (Alaska 2002).
5 Id. (quoting Alakayak, 48 P.3d at 447).
6 The District alludes to a stipulation in its brief, but
provides no citation to the record.
7 522 P.2d 1132, 1138 (Alaska 1974) (citation omitted);
accord Dept of Pub. Safety v. Pub. Safety Employees Assn, 732
P.2d 1090, 1093 (Alaska 1987) (common law and statutes of Alaska
support presumption in favor of arbitration).
8 Modern Construction, 522 P.2d at 1138 n.19 (collecting
earlier cases and scholarly articles).
9 Id. at 1138; accord Lexington Mktg., 157 P.3d at 476.
10 Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657,
662 n.7 (Alaska 1995) (quoting United Steelworkers v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)).
11 894 P.2d at 662.
12 157 P.3d 470, 477 (Alaska 2007) (citing AT&T Techs.,
Inc. v. Commcns Workers of Am., 475 U.S. 643, 648 (1986)).
13 AT&T Techs., 475 U.S. at 648 (quoting Warrior & Gulf
Navigation, 363 U.S. at 582); accord Lexington Mktg., 157 P.3d at
477.
14 See State v. Pub. Safety Employees Assn, 798 P.2d 1281,
1285 (Alaska 1990). An exception to this rule applies when the
contract clearly provides that the determination of arbitrability
is for the arbitrator. Id. The CBA in this case does not so
provide. Where a petition to enforce a CBA is filed with the
Alaska Labor Relations Agency, the agency has jurisdiction to
decide arbitrability, subject to judicial review. See Fairbanks
Fire Fighters Assn, Local 1324 v. City of Fairbanks, 48 P.3d
1165, 1169-70 (Alaska 2002).
15 Fairbanks Fire Fighters Assn, Local 1324, 48 P.3d at
1169.
16 The District seems tacitly to accept this possibility
when it writes in its brief that, [i]n fact, the Agreement
specifically includes procedures for transfers, demotions, job
sharing, layoff and rehire, reductions in force and other
negotiated subjects affecting the conditions or circumstances
under which an employee works. (Emphasis added.)
17 As the CEA notes, [t]he agreement does not contain a
clause which expressly vests the District with broad authority to
contract for services, nor does it reserve to the District all
rights not specifically limited by the agreement; there is no
management rights clause.
18 AS 23.40.210(a) provides in part: 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.
19 Even without the statutory requirement that collective
bargaining agreements be in writing, the parol evidence rule
would apply to the integrated agreement before the court. See
Air Line Pilots Assn v. Midwest Express Airlines, 279 F.3d 553,
557-58 (7th Cir. 2002) (parol evidence rule applies to collective
bargaining agreements).
20 See Alaska Diversified Contractors, Inc. v. Lower
Kuskokwim Sch. Dist., 778 P.2d 581, 583-84 (Alaska 1989).
21 369 F.2d 526, 527 (7th Cir. 1966).
22 Id.
23 Id.
24 Indep. Petroleum Workers of Am., Inc. v. Am. Oil Co.,
324 F.2d 903, 906 (7th Cir. 1963) (holding that where collective
bargaining agreement is silent on employers right to contract out
work arbitration may not be compelled under arbitration clause
limited to questions arising from the application or
interpretation of the agreement), affd per curiam by an equally
divided court, 379 U.S. 130 (1964).
25 Local Union No. 483, 369 F.2d at 528-29.
26 Dissent, Slip Op. at 26-30.
27 For example, in Building Materials & Construction
Teamsters, Local 216 v. Granite Rock Co., 851 F.2d 1190 (9th Cir.
1988), the court stated that once the court determines that the
parties dispute concerns the proper interpretation of the
agreement, it has no business weighing the merits of the
grievance. Id. at 1194 (quoting United Steelworkers of Am. v.
Am. Mfg. Co., 363 U.S. 564, 568 (1960)). This statement is not
inconsistent with our decision because we have determined that
the parties dispute does not concern the proper interpretation of
the agreement. Here, as we have noted, the CEA points to no term
in the contract that the District has misinterpreted. Supra page
12. Similarly, in International Union of Electrical, Radio &
Machine Workers v. General Electric Co., 332 F.2d 485 (2d Cir.
1964), although the collective bargaining agreement contained no
express provisions regarding outsourcing, the court observed that
the union had claimed that the subcontracting proposed there
violated several provisions of the collective bargaining
agreement: the union certainly called into question the proper
interpretation to be accorded several provisions of this
collective bargaining agreement. Id. at 487-90. In the present
case CEA has not, by contrast, called to our attention any
clauses of the collective bargaining agreement that might
reasonably be interpreted to prohibit outsourcing. Likewise, in
International Brotherhood of Electrical Workers, Local 1228 v.
WNEV-TV, New England Television Corp., 778 F.2d 46 (1st Cir.
1985), the court observed: Once the district court made the
threshold finding that plaintiffs claims appear[ed] to create an
issue sufficiently substantial to require submission to an
arbitrator, its judicial function was at an end. Id. at 48. We
decide here that no sufficiently substantial issue concerning the
CBAs meaning has been presented.
28 We do not agree that a claim becomes arbitrable merely
based on a general allegation that a policy of a public employer
violates the terms of a collective bargaining agreement without
any plausible reference to the terms of the agreement, express or
implied, said to be violated. Were we to rule otherwise,
virtually any policy, even if clearly within the province of a
democratically elected board or assembly, could be made subject
to the jurisdiction of an appointed labor arbitrator merely as a
matter of pleading.
29 475 U.S. 643 (1986).
30 Id. at 645.
31 Id.
32 Id.
33 Id. at 645-46.
34 Id. at 646-47.
35 Id. at 647.
36 Id. at 648.
37 Id. at 648-50.
38 Id. at 651 (quoting Archibald Cox, Reflecting Upon
Labor Arbitration, 72 Harv. L. Rev. 1482, 1509 (1959)).
39 Id.
40 Id. at 652.
41 See generally AS 23.40.070 et seq. Because the
District is a unit of local government, the CBA is governed by
Alaska state law and not federal labor law. See 29 U.S.C. 152(2)
(2000); Casey v. City of Fairbanks, 670 P.2d 1133, 1138 (Alaska
1983).
42 AS 23.40.200(a).
43 AS 23.40.200(b)-(d).
44 753 P.2d 725 (Alaska 1988).
45 Id. at 727.
46 The standard form of arbitration clause has been said
to be one that provides for the arbitration of any disputes,
misunderstandings, differences or grievances arising between the
parties as to the meaning, interpretation and application of . .
. this agreement. United Steelworkers of Am. v. Am. Mfg. Co.,
363 U.S. 564, 571 (1960) (Brennan, J., concurring) (emphasis
added).
47 CEAs entire argument on this point in its initial brief
is as follows:
The Superior Courts decision thus is not
plausible. Even if the grievance does not
raise a contractual question, which it does,
certainly the Districts decision to eliminate
bargaining unit jobs as a consequence of
outsourcing raises a policy question whether
the District has inequitably affected their
economic interests and the conditions or
circumstances under which employees work.
Since the clause at issue in this case is
broad and far reaching, encompassing both
alleged violations of the agreement and
inequitable policy decisions affecting
employee working conditions, the Superior
Court erred in concluding that accepting CEAs
argument would require the court to
unreasonably interpret the language in the
grievance clause.
CEA adds the following observation on this point in its reply
brief: On the other hand, Article XI (A)(3) [defining a
grievance] is readily capable of being interpreted to cover a
dispute about an outsourcing policy decision that eliminated the
jobs of 112 employees.
48 The CEA also argues that the superior court erred in
concluding that outsourcing was not a mandatory subject of
bargaining. In light of our decision in this case we have no
need to address this question.
49 AT&T Techs., Inc. v. Commcns Workers of Am., 475 U.S.
643, 651 (1986) (quoting Cox, supra note 38, at 1509).
50 The District makes the same argument on appeal.
51 Ch. 118, 8, SLA 1972.
52 Thus the full text of AS 14.14.060(f) reads:
The borough school board shall provide
custodial services and routine maintenance
for school buildings and shall appoint,
compensate, and otherwise control personnel
for these purposes. The borough assembly
through the borough administrator, shall
provide for all major rehabilitation, all
construction and major repair of school
buildings. The recommendations of the school
board shall be considered in carrying out the
provisions of this section.
53 Although only the possible application of AS
14.14.060(f) to outsourcing is at issue in the present case, we
note that in Moore v. State, Department of Transportation &
Public Facilities, 875 P.2d 765 (Alaska 1994), we held that
outsourcing was not categorically prohibited by the merit system
provision in the Alaska Constitution, article XII, section 6, or
by the state statutes that were arguably applicable to the Moore
case. Id. at 770-71. Noting the possibility that abuses of
privatization might occur, we observed that these should be
addressed through existing contractual, administrative, and
judicial channels for case-by-case review of agency action. Id.
at 773. Moore is thus consistent with the conclusions we reach
in this opinion that outsourcing is not prohibited by law and
inequitable applications of outsourcing are arbitrable on a case-
by-case basis.
1 The CBAs grievance arbitration clause is quoted in full
at Slip Op. at 11.
2 Slip Op. at 12-20.
3 Slip Op. at 10.
4 Slip Op. at 8-10.
5 Slip Op. at 15 n.27.
6 See 29 U.S.C. 152(2) (2000).
7 See Slip Op. at 14-15 (citing Local Union No. 483, Intl
Bhd. of Boilermakers v. Shell Oil Co., 369 F.2d 526 (7th Cir.
1966)).
8 475 U.S. 643, 649-50 (1986). AT & T, though it
eloquently summarizes these important basic principles, is
factually distinguishable from the instant case in that AT & T
involved competing interpretations of an exclusionary clause in
the CBA asserted by the employer to preclude arbitration of a
particular dispute. Id. at 644-46. Because the threshold
question of arbitrability must be decided by the court, the
AT & T Court held that it was improper for the trial court to
submit to the arbitrator the issue of the proper interpretation
of the CBAs arbitration and exclusionary clauses. Id. at 651.
In this case, by contrast, it is not competing interpretations of
the CBAs arbitration clause or of an exclusionary clause that are
at issue, but competing substantive interpretations of the CBA.
Indeed, the AT & T Court acknowledged that if the arbitration
provisions were interpreted to cover the type of dispute at issue
it would be for the arbitrator to determine the relative merits
of the parties substantive interpretations of the agreement. Id.
9 Slip Op. at 12.
10 Lexington Mktg. Group, Inc. v. Goldbelt Eagle, LLC, 157
P.3d 470 n.46 (Alaska 2007) (citing and quoting Granite Rock for
the proposition that [b]y providing that [a]ll disputes arising
under this agreement shall be resolved through arbitration, the
parties agreed to submit all grievances to arbitration, not
merely those which the court will deem meritorious (second
alteration in original)).
11 851 F.2d 1190, 1193-95 (9th Cir. 1988).
12 Id. at 1194.
13 Id. (quoting United Steelworkers of Am. v. Am. Mfg.
Co., 363 U.S. 564, 568 (1960)).
14 778 F.2d 46, 46-48 (1st Cir. 1985).
15 Id. at 48.
16 Id.
17 298 F.2d 644, 645 (2d Cir. 1962).
18 Id. at 645-47.
19 332 F.2d 485, 487-90 (2d Cir. 1964).
20 Id. at 489-90 (quoting United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 585 (1960)).
21 Slip Op. at 15.
22 Slip Op. at 14 (citing Local Union No. 483, Intl Bhd.
of Boilermakers v. Shell Oil Co., 369 F.2d 526 (7th Cir. 1966);
Indep. Petroleum Workers of Am., Inc. v. Am. Oil Co., 324 F.2d
903 (7th Cir. 1964), affd per curiam by an equally divided court,
379 U.S. 130 (1964)).
23 369 F.2d at 528-29.
24 Local Union No. 483, 369 F.2d at 527-29; Indep.
Petroleum Workers, 324 F.2d at 906-07.
25 See Intl Bhd. of Elec. Workers, Local 21 v. Ill. Bell
Tel. Co., 491 F.3d 685, 689-90 (7th Cir. 2007) (narrowing and
limiting Independent Petroleum Workers, stating that Supreme
Court precedent constrains a broad reading of Indep[endent]
Petroleum Workers, which centered around parties with a unique
bargaining history and CBA); Mobil Oil Corp. v. Local 8-766, Oil,
Chem. & Atomic Workers Intl Union, 600 F.2d 322, 328-29 (1st Cir.
1979) (discussing Independent Petroleum Workers as limited to its
specific facts and its arbitrability reasoning as potentially
dicta); Local 710, Intl Bhd. of Teamsters v. Montgomery Ward &
Co., 708 F. Supp. 209, 212 (N.D. Ill. 1989) (questioning and
limiting Independent Petroleum Workers).
26 Indep. Petroleum Workers, 324 F.2d at 909.
27 Local Union No. 483, 369 F.2d at 528 (The district
court found that the bargaining history between Shell and the
Union shows that the Union had sought without success to have
Shell agree to a provision in the agreement specifically
prohibiting or limiting Shells right to contract out work, and
that each proposal was rejected by Shell and none included in the
agreement. This finding has substantial support in the record.);
Indep. Petroleum Workers, 324 F.2d at 907 (The bargaining history
between plaintiff and defendant relative to the right of the
latter to contract out work is much discussed in the briefs.
Plaintiff urges that such history is irrelevant. We think,
however, it has some significance and may properly be
considered.).
28 Slip Op. at 13-14.
29 Local Union No. 483, 369 F.2d at 528 (Shells
consistent refusal, in three bargaining agreements, to agree to
limit its freedom to contract out the work, the settlement of the
strike and that issue without acceding to the Union demand, and
the Unions tacit acceptance of Shells position in its December,
1962, letter distinguish contracting out cases in which courts
have compelled arbitration.); Indep. Petroleum Workers, 324 F.2d
at 907 ([P]laintiff for many years had sought the inclusion of a
clause in the collective bargaining agreement specifically
prohibiting or limiting the right of the defendant to contract
out work. On each occasion the proposal was rejected. This
bargaining history while of course not controlling fortifies the
conclusion which we have reached that plaintiffs claim is without
merit.).
30 Slip Op. at 3-4.
31 See 20 Richard A. Lord, Williston on Contracts 56:46
(4th ed. 2001) (discussing the importance of the parties specific
bargaining history to the courts decision in Local Union No.
483).
32 Slip Op. at 8-10.
33 AS 23.40.070.
34 Slip Op. at 18-19.
35 Id.
36 Id.
37 Procter & Gamble Indep. Union of Port Ivory, N.Y. v.
Procter & Gamble Mfg. Co., 298 F.2d 644, 646 (2d Cir. 1962).
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