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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bernard v. Alaska Airlines, Inc. (2/12/2016) sp-7082

Bernard v. Alaska Airlines, Inc. (2/12/2016) sp-7082

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

PIERRE  BERNARD,                                             )  

                                                             )         Supreme  Court  No.  S-15592  

                              Appellant,                     )  


                                                             )         Superior Court No. 3AN-13-08887 CI  

                    v.	                                      )  


                                                                       O P I N I O N  


ALASKA AIRLINES, INC.,                                       )  


                                                                       No. 7082 - February 12, 2016  

                              Appellee.	                     )



                    Appeal from the Superior Court of the State of Alaska, Third  


                    Judicial District, Anchorage, Frank A. Pfiffner, Judge.  


                    Appearances:             Vikram         N.     Chaobal,         Anchorage,            and  


                    Frederick  W. Triem, Petersburg, for Appellant. Gregory  


                     S. Fisher and Elizabeth P. Hodes, Davis Wright Tremaine  


                    LLP, Anchorage, for Appellee.  


                    Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                    Bolger, Justices.  


                    MAASSEN, Justice.  



                    A  former  airline  employee  sued  his  former  employer  for  wrongful  


termination without  first attempting to  arbitrate his  claims under  the provisions  of a  


collective bargaining agreement subject to the federal Railway Labor Act.  The superior  


court dismissed the employee's complaint for failure to exhaust his contractual remedies.  


It also denied him leave to amend his complaint a second time - to add a claim against  

----------------------- Page 2-----------------------

his union for breaching its duty of fair representation - on the ground that the six-month                                                                                                                                                                                        

limitations period for such claims had expired.                                                                                                                            We hold that the employee's right to                                                                                               

bring  his  claims in state court was not clearly and unmistakably waived under the                                                                                                                                                                                                                      

collective bargaining agreement and he therefore should have been allowed to pursue                                                                                                                                                                                                          

them.  We agree with the superior court, however, that the employee's claim that the                                                                                                                                                                                                                      

union breached its duty of fair representation was time-barred.                                                                                                                                                                   We therefore affirm in                                                      

part and reverse in part the judgment of the superior court.                                                                                                                                 

II.                     FACTS AND PROCEEDINGS                                

                                                In   June   2011   Alaska   Airlines   charged   that   Pierre   Bernard,   one   of   its  

baggage handlers, had taken part in drafting and sending a threatening text message to                                                                                                                                                                                                                        

a   co-worker   and   had   then   deleted   a   recorded   conversation   relevant   to   the   ensuing  

investigation.   The company terminated Bernard's employment.                                                                                                                                                                           

                                                The employment's terms and conditions were governed by a collective                                                                                                                                                               

bargaining agreement (sometimes abbreviated "CBA") negotiated by Bernard's union,                                                                                                                                                                                                              

the International Association of Machinists and Aerospace Workers, pursuant to the                                                                                                                                                                                                                       

                                                                                                                               1       The collective bargaining agreement provided a  

federal Railway Labor Act (RLA).                                                                                                                                                                                                                                                                                 

three-stage process for grieving termination decisions.  The first two stages consisted of  


an "initial hearing" and a "secondary hearing," each presided over by a representative  


of Alaska Airlines, with a union representative in attendance to represent the employee.  


The result of a secondary hearing could be appealed to the System Board of Adjustment,  


a three-member arbitration panel consisting of "a Company member, a Union member[,]  


and a neutral referee."2  


                        1                       45 U.S.C.  151-188 (2012).                                                     



                                                See 45 U.S.C.  153(i) (2012) ("[F]ailing to reach an adjustment[,] . . .


disputes may be referred by petition of the parties or by either party to the appropriate



                                                                                                                                                    - 2 -                                                                                                                                           7082

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                                                                          Bernardinitiated                                                                             thegrievanceprocess                                                                                                   through his union, and over the next   

two months Alaska Airlines held two hearings, each time in the presence of a union                                                                                                                                                                                                                                                                                                                                                                   

representative.     The presiding company officers                                                                                                                                                                                                                                      issued  written decisions after both                                                                                                                                      

hearings upholding Bernard's termination - though the second decision, in August,                                                                                                                                                                                                                                                                                                                                                               

 offered him "the opportunity to resign in lieu of termination," an offer he did not accept.                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                          A few weeks after the August decision a union representative wrote to                                                                                                                                                                                                                                                                                                                                  

Bernard informing him that "[i]f the Union brings your case to an arbitration, there is                                                                                                                                                                                                                                                                                                                                                                                            

paperwork you must fill out," and advising him that he "may acquire a lawyer at any                                                                                                                                                                                                                                                                                                                                                                                      

time."  The union's written notice to Bernard that it had decided not to appeal is dated                                                                                                                                                                                                                                                                                                    

November 14, 2011, nearly two months after the 30-day appeal deadline had expired.                                                                                                                                                                                                                                                                                                                                                                                                               

 The union informed Bernard that it had thoroughly reviewed his case, concluded that                                                                                                                                                                                                                                                                                                                                                                                    

 "we could not sustain our position before the System Board of Adjustment," and closed                                                                                                                                                                                                                                                                                                                                                                    

 its file.                              

                                                                          In August 2013, two years after the unappealed decision of the secondary                                                                                                                                                                                                                                                                                   

hearing, Bernard filed a complaint against Alaska Airlines in the superior court.                                                                                                                                                                                                                                                                                                                                                                                      He  

 alleged a background to his termination:                                                                                                                                                                                        that in 2009 he had filed a sexual harassment                                                                                                                                                 

 complaint against a supervisor and was ostracized as a result; that he was later unfairly                                                                                                                                                                                                                                                                                                                                                       

 disciplined after a co-worker imposed upon him with inappropriate personal demands;                                                                                                                                                                                                                                                                                                                                                    

 and that the allegedly threatening text message for which he was discharged in 2011 had                                                                                                                                                                                                                                                                                                                                                                                  

 actually been "sent in jest" in response to "a hostile and threatening text from another                                                                                                                                                                                                                                                                                                                                                         

 employee."   He alleged that his termination was in retaliation for his reports of sexual                                                                                                                                                                                                                                                                                                                                                               

harassment and therefore violated the covenant of good faith and fair dealing.                                                                                                                                                                                                                                                                                                                                                                   



 division of the Adjustment Board with a full statement of the facts and all supporting  


 data bearing upon the disputes.").  


                                                                                                                                                                                                                                     - 3 -                                                                                                                                                                                                                          7082

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                          AlaskaAirlines                 filed amotion to dismiss                        under AlaskaCivil Rule12(b)(1),                                     


arguing that (1) the RLA preempted Bernard's claim; and (2) even if not preempted, his  


claim was precluded because he had failed to exhaust available remedies under the  


collective bargaining agreement.  


                          Bernard  opposed  the  motion  and  filed  an  amended  complaint,  adding  



allegations that Alaska Airlines had violated a state employment discrimination statute 

and public policy.  Alaska Airlines renewed its motion to dismiss on the exhaustion-of- 


remedies theory, arguing that because the collective bargaining agreement incorporated  


the company's anti-discrimination policies, Bernard was required to seek relief through  


contractual remedies even for statutory claims, which he had not done.  


                          Bernard moved for leave to file a second amended complaint, this time to  


add a claim that the union had breached its duty of fair representation by failing to notify  


him of its decision not to pursue arbitration with the System Board of Adjustment until  


after the appeal deadline.  The superior court denied Bernard leave to add this claim,  



concluding that it was barred by the six-month statute of limitations for "hybrid claims."   


             3             "Every defense, in law or fact, to a claim for relief in any pleading, whether                                                   

a   claim,   counterclaim,   cross-claim,   or   third-party   claim,   shall   be   asserted   in   the  

responsive pleading thereto if one is required, except that the following defenses may at                                                                               

the option of the pleader be made by motion: (1) lack of jurisdiction over the subject                                                                        

matter . . . ."            Alaska R. Civ. P. 12(b)(1).         

             4            See  AS 18.80.220(a) ("[I]t is unlawful for . . . (4) an  employer, labor  


organization,  or  employment agency  to  discharge, expel,  or  otherwise discriminate  


against  a  person  because  the  person  has  opposed  any  practices  forbidden  under  


AS18.80.200-18.80.280or becausetheperson has filed acomplaint,testified, or assisted  


in a proceeding under this chapter.").  


             5            A "hybrid claim" in this context is one "in which an employee must prove  


both that the employer breached a provision of the collective bargaining agreement and  



                                                                                  - 4 -                                                                          7082


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                                             The superior court also dismissed Bernard's state law claims under Rule                                                                                                                                                          

  12(b)(1) for lack of subject matter jurisdiction.                                                                                                          It first decided that his state law claims                                                                  

 were "not pre-empted to the extent that they plead an independent state law claim for                                                                                                                                                                                              

 retaliatory discharge" but were preempted "[t]o the extent they rest on contractual rights                                                                                                                                                                                 

 that Mr. Bernard enjoyed under the CBA."                                                                                                         The court went on to conclude that to the                                                                                        

 extent   not   preempted,   Bernard's   state   law   claims   were   nonetheless  subject  to   the  

 mandatory arbitration provisions of the collective bargaining agreement because he had                                                                                                                                                                                           

 clearly and unmistakably waived his right to pursue judicial remedies instead. The court                                                                                                                                                                                    

 held   that   he   had   "a   personal   right   to   submit   his   claim   to   the   National   Railroad  

 Adjustment Board (NRAB)" but had not done so, and that his alleged ignorance of this                                                                                                                                                                                             

 avenue was not an excuse.                                                                

                                             Bernard appeals.                                          

 III.                  STANDARDS OF REVIEW                                               

                                             The superior court dismissed Bernard's action for lack of subject matter                                                                                                                                                   

jurisdiction pursuant to Rule 12(b)(1).                                                                                         "We review de novo a superior court's decision                                                                                     

                                                                                                                                                                                                                       6        "In exercising our  

 to dismiss a complaint for lack of subject matter jurisdiction."                                                                                                                                                                                                                



 that the union breached its duty of fair representation in order to prevail."  Schaub v.  


K&LDistribs., Inc., 115 P.3d 555, 564 (Alaska2005) (recognizing six-month limitations  


 period for such claims); see also 29 U.S.C.  160(b) (2006) ("[N]o complaint shall issue  


 based upon any unfair labor practice occurring more than six months prior to the filing  


 of the charge with the Board.").  A hybrid claim may be brought against the union, the  


 employer, or both.  Schaub, 115 P.3d at 565.  

                       6                    Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)  


 (quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1033 (Alaska 2004)).  


                                                                                                                                         - 5 -                                                                                                                                7082


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independent judgment, we will adopt the rule of law that is most persuasive in light of                                                                


precedent, reason, and policy."                              

                        This appeal also requires us to interpret a collective bargaining agreement.  


"Contract interpretation presents a question of law that we review de novo."8   "When  

interpreting contracts, the goal is to 'give effect to the reasonable expectations of the  


parties.' "9  "In determining the intent of the parties the court looks to the written contract  


as well as extrinsic evidence regarding the parties' intent at the time the contract was  


made."10  "Where there is conflicting extrinsic evidence the court, rather than the jury,  


mustnonetheless decidethequestion ofmeaning exceptwherethewrittenlanguage, read  


in context, is reasonably susceptible to both asserted meanings."11  


                        Finally, this appeal requires us to interpret the RLA. "We decide questions  


of law, including statutory interpretation, using our independent judgment.                                                                 We will  


adopt the most persuasive rule of law in light of precedent, reason, and policy."12   "This  


            7           Id . (quoting         John v. Baker            , 982 P.2d 738, 744 (Alaska 1999)).                 



                        Larsenv. Municipalityof Anchorage, 993P.2d 428, 431 (Alaska1999); see  


also Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119 (Alaska 1997).  

            9           Larsen, 993 P.2d at 431 (quoting Stepanov v. Homer Elec. Ass'n, 814 P.2d  


731, 734 (Alaska 1991)).  


            10          Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996).  


            11          Johnson v. Schaub, 867 P.2d 812, 818 (Alaska 1994) (quoting Alaska  


Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska  



            12          Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (internal  


citations omitted).  


                                                                          - 6 -                                                                   7082


----------------------- Page 7-----------------------

requires us, when interpreting statutes, to 'look to the meaning of the language, the                                                                        

legislative history, and the purpose of the statute.' "                                          13  

 IV.         DISCUSSION  


             A.          Bernard's Claims Were Not Subject To Arbitration.  


                         Thesuperior court ruled that Bernard's claims werepreempted to theextent  


they relied on the contract and not preempted to the extent they existed independent of  


the contract.   Because it went on to hold that Bernard was required to exhaust his  


contractual remedies as to both kinds of claims, it did not need to differentiate further  


between the preempted claims and the non-preempted claims. But because we hold that  


Bernard was not required to exhaust his contractual remedies, we must begin by deciding  


whether any of his claims were preempted.  


                         1.           The RLA did not preempt Bernard's state law claims.  


                         The RLA provides a "mandatory arbitral mechanism for 'the prompt and  



orderly  settlement'  of  two  classes  of  disputes."                                              The  first  class,  deemed  "major"  



disputes, relates to "the formation of collective agreements or efforts to secure them." 


The second class, deemed "minor" disputes, includes "controversies over the meaning  



of an existing collective bargaining agreement in a particular fact situation." 


Airlines contends that the conflict over Bernard's firing is a minor dispute that may be  

             13          Id . (quoting            ASRC Energy Servs. Power & Commc'ns, LLC v. Golden                                                 

 Valley Elec. Ass'n                , 267 P.3d 1151, 1157 (Alaska 2011)).                      

             14          Hawaiian  Airlines,  Inc.  v.  Norris,  512  U.S.  246,  252  (1994)  (quoting  


45 U.S.C.  151a (1988)).  


             15          Consol. Rail Corp. v. Ry. Labor Execs.' Ass'n, 491 U.S. 299, 302 (1989)  


(quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945)).  


             16          Norris, 512 U.S. at 253 (quoting Bhd. of R.R. Trainmen v. Chicago River  


& Indiana R.R. Co., 353 U.S. 30, 33 (1957)).  


                                                                             - 7 -                                                                       7082


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resolved only through the mechanisms provided by the RLA, including the collective                                                                                                                             

bargaining agreement's internal grievance process culminating in arbitration before a                                                                                                                                                  

 System Board of Adjustment.                                                          We agree with the superior court, however, that "the                                                                                    

underlying   conduct   for   [Bernard's]   claims   [was]   that   Alaska   [Airlines]   allegedly  

retaliated against Mr. Bernard for reporting sexual harassment," and that these claims                                                                                                                                  

were   not   preempted   to   the   extent   they   pleaded   an   independent   state   law   claim for   

retaliatory discharge.   

                                    Asageneralrule,"theRLA's mechanismfor resolving                                                                                                  minor disputes does                      

not pre-empt causes of action to enforce rights that are independent of the CBA."                                                                                                                                            17  In  

the wrongful termination context, a state law claim may be "pre-empted, not because the  


  RLA broadly pre-empts state-law claims based on discharge or discipline, but because  


                                                                                                                                                                                               18     But when the  

the employee's claim was firmly rooted in a breach of the CBA itself."                                                                                                                                                            


collective bargaining agreement is not the "only source" of the right against wrongful  


termination -- for example, when an employer has a state law obligation not to fire an  


employee for retaliatory reasons or in violation of public policy -- the state law cause  


of action is not preempted.19  


                                    Alaska Airlines argues that "garden variety state-law claims for wrongful  


termination are absolutely preempted under the Railway Labor Act." Citing Andrews v.  


                  17                Id .   at   256;   see   also   Terminal   R.R.   Ass'n   of   St.   Louis   v.   Bhd.   of   R.R.  

 Trainmen, 318 U.S. 1, 7 (1943) ("[I]t cannot be that the minimum requirements laid                                                                                                                                            

down by state authority are all set aside.                                                                  We hold that the enactment by Congress of the                                                                         

 [RLA] was not a pre-emption of the field of regulating working conditions themselves                                                                                                                       

 . . . .").       

                  18                Norris, 512 U.S. at 257 (emphasis in original).  


                  19                See Andrews v. Louisville &Nashville R.R. Co., 406 U.S. 320, 324 (1972);  


Norris, 512 U.S. at 258.  


                                                                                                                - 8 -                                                                                                        7082


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Louisville &Nashville Railroad Co.                                                , it contends that federal law requires this conclusion                                       

and   that   subsequent   cases   have   applied   little   more   than   "gloss"   over   an   otherwise  



sweeping rule.                            But Andrews  did not broadly limit independent state law claims for  



                                                         In Andrews it was "conceded by all that the only source of [the  

wrongful termination. 


employee's] right not to be discharged, and therefore to treat an alleged discharge as a  


 'wrongful' one that entitles him to damages, is the collective-bargaining agreement  



between the employer and the union." 


                               We discussed this issue in Norcon, Inc. v. Kotowski, in which we observed  



that the federal Labor Management Relations Act                                                                          does not preempt state law claims  


when they are "neither founded on rights created by a CBA nor  dependent on the  

                20             CompareAndrews                             ,406U.S.at324                        ("'[W]rongfuldischarge' implies some                                          

sort of statutory or contractual standard that modifies the traditional common-law rule                                                                                                         

that a contract of employment is terminable by either party at will. . . . [T]he only source                                                                                              

of petitioner's right not to be discharged . . . is the collective-bargaining agreement                                                                                         

between the employer and the union."),                                                      with Norris                 512 U.S. at 258 ("Here, in contrast                            

 [to  Andrews], the CBA is not the 'only source' of respondent's right not to be discharged                                                                                     


                21             Cf. Norris 512 U.S. at 258 (noting that RLA does not preempt all state law  


claims for wrongful termination); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21  


(1987) (noting that preemption of employment standards "should not be lightly inferred  


in this area, since the establishment of labor standards falls within the traditional police  


power of the State"); Atchison, Topeka & Santa Fe Ry. Co. v. Buell , 480 U.S. 557, 565  


(1987)  ("[N]otwithstanding  the  strong  policies  encouraging  arbitration,  'different  


considerations apply where the employee's claim is based on rights arising out of a  


statute designed to provide minimum substantive guarantees to individual workers.' "  


(quoting Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 737 (1981))).  


                22             Andrews , 406 U.S. at 324 (emphasis added).  


                23             29 U.S.C.  141-44, 167, & 171-87 (2012).  


                                                                                                - 9 -                                                                                        7082


----------------------- Page 10-----------------------


analysis or interpretation                       of the CBA."                    Norcon   involved the Labor Management               

Relations Act rather than the RLA, but the United States Supreme Court applies that                                                                    

                                                                                                  25  We concluded in Norcon that  

same preemption analysis to both, so we do the same.                                                                                     

"[s]tates are free to create and enforce causes of action that vest rights in workers, so  


long as these rights can be adjudicated without having to interpret collective bargaining  


agreements."26   We specifically addressed an employee's claim that her termination was  


due to sexual discrimination in the workplace in violation of AS 18.80.220, concluding  


that the claim was not preempted because "[t]he question of whether [the employee's]  


transfer and termination violated AS 18.80.220 'was a question of state law, entirely  


independent of any understanding embodied in the collective-bargaining agreement.' "27  


We  held  that  "[t]he  right  to  a  non-discriminatory  workplace  conferred  upon  [the  


employee] by AS 18.80.220 could not be waived by any contrary contractual provision"  


and therefore "no need exists to consult the CBA to determine [the right's] meaning."28  


We went on to conclude that our decision was "consistent with the Supreme Court's  


reasoning in Hawaiian Airlines, Inc. v. Norris," in which "the Court observed that purely  


factual questions about an employer's conduct and motives do not require interpretation  


of the CBA to answer."29  


            24          Norcon, Inc. v. Kotowski                      , 971 P.2d 158, 165 (Alaska 1999).

            25          Norris, 512 U.S. at 260.

         Norcon, 971 P.2d at 164.  


            27          Id. at 165 (quoting Livadas v. Bradshaw, 512 U.S. 107, 125 (1994)).  


            28          Id.  

            29          Id. at 166 (citing Norris, 512 U.S. at 261).  


                                                                          - 10 -                                                                    7082


----------------------- Page 11-----------------------

                         In   this   case,   Bernard's   first   amended   complaint  raised  three   state   law  

claims: (1) wrongful termination in violation of AS 18.80.220; (2) wrongful termination                                                    

in violation of public policy;30 and (3) wrongful termination in breach of the covenant  

                                                     31  Each claim, as the superior court noted, alleged the same  

of good faith and fair dealing.                                                                                                                        


underlying conduct:  that Alaska Airlines retaliated against Bernard for having reported  


sexual harassment. The first two claims depend on state law and the employer's motives  


-  not  the  terms  of  the  collective  bargaining  agreement  -                                                      and  are  therefore  not  


preempted by the RLA.   The third claim, for breach of the implied covenant, does  


depend in part on the parties' contractual relationship.32  But we held in Norcon that such  


claims are not preempted either, at least in the context of claims for retaliatory discharge.  


We held that "[n]othing in the CBA could have altered, circumscribed, or defined" the  


employee's  right  to  report  safety  violations,  drawn  from  state  public  policy,  and  


"[b]ecause the contours of this right are not defined through the bargaining process, they  



can be traced out without any reference to the CBA."                                                    


            30           We   note   that   Bernard's  public   policy-based   and   statutory   claims   are  

probably redundant.                    See Reust v. Alaska Petroleum Contractors, Inc.                                       , 127 P.3d 807, 813          

n.13  (Alaska 2005) (noting that "we have typically declined to recognize independent                                 

torts   based   on   contravention   of   public   policy   where   there   are   adequate   legal  


            31           Bernard also asserted a count for punitive damages based on allegedly  


outrageous conduct, but recovery of punitive damages depended on proof of one of his  


three substantive claims.  See DeNardo v. GCI Commc'n Corp., 983 P.2d 1288, 1292  


(Alaska 1999) ("A punitive damages claim cannot stand alone.").  


            32           See Castle Props., Inc. v. Wasilla Lake Church of the Nazarene, 347 P.3d  


990, 997 (Alaska 2015) ("Under Alaska law, every contract has an implied covenant of  


good faith and fair dealing . . . .").  


            33          Norcon, 971 P.2d at 167.  


                                                                           - 11 -                                                                     7082


----------------------- Page 12-----------------------

                               An employee's right to report sexual harassment without fear of retaliation                                                                      

by the employer is grounded in the same public policy we discussed in                                                                                                Norcon, made   

                                                                                                 34    And state public policy provides the same  

explicit in the same statute, AS 18.80.220.                                                                                                                                                

remedy in the form of a claim for retaliatory discharge, a claim that depends largely on  


proof of the employer's actions and motivations rather than an interpretation of the  


collective bargaining agreement.35   Because the collective bargaining agreement is not  


the only source of the right against wrongful discharge at the base of Bernard's three  


claims, the RLA did not preempt them.36  


                34             AS 18.80.220(a)(4) provides that "it is unlawful for . . . an employer . . . to                                                                                   

discharge, expel, or otherwise discriminate against a person because the person has                                                                                                            

opposed any practices forbidden under AS 18.80.200 - 18.80.280." AS 18.80.220(a)(1)                                                                                

bars  workplace   discrimination   on   the   basis   of   sex;   it   applies   to   claims   of   sexual  

harassment.  French v. Jadon, Inc.                                                , 911 P.2d 20, 28 (Alaska 1996).                                                Discharging an   

 employee in retaliation for the reporting of sexual harassment is therefore a violation of                                                                                                        

AS 18.80.220(a)(4).   

                35             As  noted  above,  the  collective  bargaining  agreement  at  issue  here  


incorporated Alaska Airlines' policy against employment discrimination, and Bernard's  


discrimination claim could be characterized as being founded on the contract.  But the  


 fact that a claim involves a violation of a privately enforced policy is irrelevant to the  


 extent that a statute independently favors the same policy.  See Knight v. Am. Guard &  


Alert, Inc. , 714 P.2d 788, 792 (Alaska 1986); Pub. Safety Emps. Ass'n v. State, 658 P.2d  


 769, 774-75 (Alaska 1983).  


                36             See,  e.g.,  Owen  v.  Carpenters'  Dist.  Council,  161  F.3d  767,  775-76  


 (4th Cir. 1998) (predicting that Maryland law would recognize a claim for wrongful  


dischargebased on an employee's complaints ofsexual harassmentandholding that such  


a claim is not preempted by the LMRA because it "primarily concerns the conduct of the  


 employee and the conduct and motivation of the employer" rather than an interpretation  


of the collective bargaining agreement); Romero v. Mason & Hanger-Silas Mason Co.,  


 739 F. Supp. 1472, 1475-77 (D.N.M. 1990) (noting that New Mexico recognizes causes  


of action for wrongful and retaliatory termination based on "complaining about safety  

violations  and  about  sexual  harassment"  and  that  the  claim  is  independent  of  the  



                                                                                              - 12 -                                                                                       7082


----------------------- Page 13-----------------------

                          2            The CBA did not clearly and unmistakably waive the right to                                                                    

                                       sue in court.                

                          An employee may have the right to pursue a claim in state court - because                                                        

the claim is not preempted by the RLA - and still waive that right by agreeing to                                                                                     


arbitrate such claims instead.                                                                                                                        

                                                             Bernard argues that the collective bargaining agreement  


at issue here does not waive his right to pursue his state law claims in court, and we  



                          "We will not infer from a general contractual provision that the parties  


intended  to  waive a  statutorily  protected  right  unless  the  undertaking  is  'explicitly  



stated.'  More succinctly, the waiver must be clear and unmistakable."                                                                         In Hammond  


we adopted the two-pronged test used by the Second and Fourth Circuits, and later the  


United  States  Supreme  Court,  for  finding  a  "clear  and  unmistakable"  waiver:  The  


contract "must either (1) contain an arbitration clause including 'a provision whereby  


employees specifically agree to submit all federal causes of action arising out of their  



collective bargaining agreement, and holding that the claim is therefore not preempted  


by the LMRA); Foster v. Albertsons, Inc., 835 P.2d 720, 726-27 (Mont. 1992) (noting  


that "Montana has recognized a common law cause of action for retaliatory discharge  


related to sexual harassment" and that proving such a claim involves "purely factual  


questions"  that  "pertain[]  to  the  conduct  of  the  [employee]  and  the  conduct  and  


motivation of the [employer]" rather than "turn[ing] on the meaning of any term of the  


collective bargaining agreement," and holding that the claim is therefore not preempted  


by the LMRA).  

             37           Hammond v. State, Dep't of Transp. & Pub. Facilities, 107 P.3d 871, 877  


(Alaska 2005).  


             38           Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (emphasis added);  


see also Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79 (1998) ("[A]ny CBA  


requirement to arbitrate [a statutory claim] must be particularly clear.").  


                                                                                - 13 -                                                                          7082


----------------------- Page 14-----------------------

 employment to arbitration' or (2) contain 'an explicit incorporation of the statutory                                           

 anti-discriminationrequirementsin addition to abroad                                   andgeneral          arbitration clause.' "          39  

                      The collective bargaining agreement at issue here does not meet either  


prong of the Hammond test.  First, it lacks "a provision whereby employees specifically  


 agree to submit all . . . causes of action arising out of their employment to arbitration."  


 Grievances  that  may  "result[]  in  the  loss  of  pay  (suspension  and  discharge)"  are  


 addressed, as described above, through a two-stage hearing process followed by an  


 appealto arbitration before the SystemBoard of Adjustment. According tothecollective  


bargaining agreement, "[t]he Board shall have jurisdiction over disputes between any  


 employee or employees covered by this Agreement and the Company growing out of  


 grievances or out of interpretation or application of any of the terms of this Agreement."  


Although "disputes   . . . growing out of grievances" is a  very  broad  category, the  


 agreement further explains the purpose of the Board as "adjusting and deciding disputes  


 or  grievances  which  may  arise  under  the  terms  of  this  Agreement,  and  which  are  


properly submitted to it after exhausting the procedure for settling disputes." (Emphasis  


 added.) "Proper submission" is further defined: Describing the results of the secondary  


hearing,  the  agreement  provides  that  "[i]n  the  event  the  issue(s)  is  not  settled  


 satisfactorily, the General Chair may appeal to arbitration within thirty (30) calendar  


 days";  and  defining  the  duties  of  the  System Board  of  Adjustment,  the  agreement  


provides that "[t]he Board shall consider any dispute properly submitted to it  by the  


 General  Chair  of  the  Union  or  his/her  designee,  or  by  the  Representative  of  the  


 Company."  (Emphasis added.)  The agreement thus emphasizes repeatedly that, on the  


 employee side, only appeals to arbitration taken by the union or its representatives are  


 contemplated.  There is nothing in the agreement's plain language that would lead an  




                      Hammond, 107 P.3d at 877 (quoting Rogers v. N.Y. Univ., 220 F.3d 73, 76  


 (2d Cir. 2000)).  


                                                                   - 14 -                                                                  7082  

----------------------- Page 15-----------------------

 employee to believe that the Board was authorized to consider any appeals other than                                                                                                                                                                                          

those that were "properly submitted to it" by the union, the company, or their authorized                                                                                                                                                                   



                                            The contract's apparent foreclosure of a grievant's right to arbitrate if the  


union declines to do so on the grievant's behalf is inconsistent with the first prong of the  


Hammond test, which requires the employee's specific agreement to submit all claims  


to arbitration; it is also inconsistent with the second prong of the Hammond test, which  

                                                                                                                                                                          41         We emphasize that we are not  


requires "a broad and general arbitration clause." 

deciding here whether Bernard, regardless of the language of his collective bargaining  


 agreement, had an individual right to pursue arbitration that he failed to exercise, as  


Alaska Airlines urges and as the superior court held.  We have not decided whether the  


RLA provides a personal right to demand arbitration when the union fails to do so, and  


                      40                    Neither party argues that the employee himself could be the "designee" of                                                                                                                                                                  

the union's general chair for purposes of taking an appeal without union backing, and                                                                                                                                                                                             

the record in this case does not show that such a designation was considered.                                                                                                                                                                                       Alaska  

Airlines argues that Bernard's right to submit any claim to the Board is evident in the                                                                                                                                                                                             

 following language from the collective bargaining agreement: "Employees . . . may be                                                                                                                                                                                                 

represented   at   Board  hearings   by   such   person   or   persons   as   they   may   choose   and  

designate." AlaskaAirlines                                                                 suggests thatthislanguage,coupledwiththeunion's                                                                                                                           explicit  

notice to Bernard that he could "acquire a lawyer at any time," clarified Bernard's                                                                                                                                                                         

independent right and is consistent with the first prong of the                                                                                                                                                        Hammond   test.    But  

Bernard's right to                                         representationdoes                                              not clearly state that he may "properly submit" any                                                                                                     

 claim to the System Board of Adjustment on his own.  Notably, the agreement further     

provides that Bernard's chosen representative must be selected "in conformance with the                                                                                                                                                                                             

 constitution of the Union," and the union accordingly informed Bernard that it "must                                                                                                                                                                                     

give   its   blessing   to   have   an   attorney   represent   [him]   before   the   System   Board   of  


                      41                    Hammond, 107 P.3d at 877 (quoting Rogers, 220 F.3d at 76).  


                                                                                                                                       - 15 -                                                                                                                                 7082


----------------------- Page 16-----------------------


federal courts are divided.                                              But that issue is irrelevant to our resolution of Bernard's                                                              

case, which turns on the language of his collective bargaining agreement and whether it                                                                                                                                 

shows a "clear and unmistakable" waiver of his right to pursue state law claims in state                                                                                                                        


                                  The collective bargaining agreement at issue here also lacks the "explicit                                                                                

incorporation of the statutory anti-discrimination requirements" necessary to the second                                                                                                                   

                                                                            43       As  noted  above,  the  agreement  included  a  general  

prong   of   the   Hammond   test.                                                                                                                                                                      

provision incorporating Alaska Airlines' other rules and policies, stating that employees  


"shall be governed by the Company's General Policy and Operating Manuals, and the  


System Regulation and Customer Service Manuals and by all other applicable rules,  


regulations and orders issued by properly designated authorities of the Company, which  


are not in conflict with the terms of this Agreement." Among these incorporated policies  


is the company's Code of Conduct and Ethics, which includes this anti-discrimination  



                                  The Company is an equal opportunity employer. This means  


                                  the Company is committed to providing equal consideration  


                                  in   all   employment   decisions   (including,   for   example,  


                                  recruiting,   hiring,   training,   promotions,   pay   practices,  


                                  benefits,  disciplinary  actions  and  terminations)  without  


                                  regard to age, race, color, gender, national origin, religion,  


                                  marital status, sexual orientation, disability, veteran status or  


                                  any other classification protected by federal, state, or local  



                 42               Compare Martin v. Am. Airlines, Inc.                                                        , 390 F.3d 601, 608-09                                  (8th Cir. 2004)        

(holding that 45 U.S.C.  153(j) does not provide independent right to appeal to the                                                                                                                               

System Adjustment Board, but collective bargaining agreement may),                                                                                                                with Santiago v.                     

 United Air Lines, Inc.                                  , 969 F. Supp. 2d 955, 966 (N.D. Ill. 2013) (holding that while                                                                         

section 153(j) does not provide independent right to appeal to the System Adjustment                                                                                     

Board, 45 U.S.C.  184 (2011) does).                                            

                 43               Hammond, 107 P.3d at 877 (quoting Rogers, 220 F.3d at 76).  


                                                                                                       - 16 -                                                                                                  7082


----------------------- Page 17-----------------------

The   provision   goes   on   to   say   that   the   company   "will   not   tolerate   any   form   of  

discrimination or harassment that encourages or could create an offensive, hostile or                                                                                                                                                                                                                            

intimidating work environment," and that "[a]cts of discrimination and harassment not                                                                                                                                                                                                                         

only violate our Company values and policies, but may also violate federal, state, and                                                                                                                                                                                                                      

local laws and are strictly prohibited."                                                                                                           Other "System Regulations" set out general                                                                                                 

standards of expected conduct.                                                                                     None of the incorporated provisions to which Alaska                                                                                                                          

Airlines directs us expressly cites Alaska law.                                                                                                        

                                                More importantly, the collective bargaining agreement expressly retains                                                                                                                                                                          

AlaskaAirlines' right to modify the referenced policies and codes ofconductunilaterally                                                                                                                                                                                          

"during the term of the Agreement."                                                                                                 Even assuming that the agreement contains, by its                                                                                                                            

reference to general policies and codes of conduct, "an explicit incorporation of the                                                                                                                                                                                                                        

                                                                                                                                                                                                                    44  we could not find a "clear  

statutory anti-discrimination requirements" of Alaska law,                                                                                                                                                                                                                                      

and unmistakable" waiver of the employee's right to pursue state law claims in state  


court when the employer retains a unilateral right to modify or eliminate the language  


on which the waiver is based.  


                                                We  hold  that  the  collective  bargaining  agreement  did  not  clearly  and  


unmistakably waive Bernard's right to pursue his state law claims in state court.  He  


therefore had that right and did not need to exhaust his contractual remedies before  


bringing suit. It was error to dismiss Bernard's claims as either preempted by federal law  


or barred by the exhaustion doctrine.45  


                        44                      Id.  

                        45                      Alaska Airlines also asks us to affirm the dismissal of Bernard's claims on                                                                                                                                                                                      

alternate grounds. First,                                                              it contends that the 20-month time between Bernard's allegation  

of sexual harassment in 2009 and his termination in 2011 is too long as a matter of law                                                                                                                                                                                                                     

to support a finding of retaliatory discharge.                                                                                                                        But Bernard's first amended complaint                                                                         

allegedacourseofconduct commencing in                                                                                                                    2009 andcontinuingthrough histermination.                                                                                                                           



                                                                                                                                                   - 17 -                                                                                                                                               7082

----------------------- Page 18-----------------------

                 B.	              Bernard's    Hybrid    Claim    For    Breach    Of    The    Duty    Of    Fair  

                                  Representation Was Time-Barred.                         

                                  Inhisproposedsecond                                     amended complaint Bernardincludedahybrid claim                                                                      

for breach of the duty of fair representation, based on the union's alleged failure to notify                                                                                                               

him of its decision not to pursue arbitration until after the filing deadline.                                                                                                           The superior   

court dismissed the hybrid claim as time-barred.                                                                           It found that Bernard "had notice that                                                

the grievance process had terminated to his disadvantage" when he received the union's                                                                                                                  

notice "that it would not appeal his case on November 14, 2011," and that his complaint                                                                                                           

in state court, filed August 16, 2013, "was well outside the six-month window for hybrid                                                                                                                  

claims."   We agree with the superior court's decision of this claim.                                                                                     

                                  Employee   claims   for   violation   of   the   duty   of   fair   representation   are  

exceptions to the exclusive jurisdiction of the RLA.                                                                               46  Like other courts, we recognize  



And the lack of factual findings in a case decided on motions to dismiss precludes us  


from deciding the case on fact-based grounds.  Alaska Airlines also argues conclusorily  


that Bernard's policy-based claim is barred by the two-year tort statute of limitations,  


AS 09.10.070.  Bernard was discharged on June 24, 2011, the decision of the secondary  


hearing  is  dated  August  17,  and  Bernard  filed  his  complaint  two  years  later  on  


August 16, 2013.  His two-month pursuit of the grievance process equitably tolled the  


 statute of limitations.  See Richardson v. Municipality of Anchorage, 360 P.3d 79, 89  


(Alaska 2015) (describing elements of equitable tolling where a plaintiff pursues one  


available course of legal redress, fails to obtain relief, and is allowed to pursue the other  


course); Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines,  


Inc., 790 F.2d 727, 738 (9th Cir. 1986) (holding that it would be inconsistent with the  


underlying policies of federal labor law to deny equitable tolling to parties who have  


engaged in good faith in a contractual grievance process).  

                 46               See Sisco  v.  Consol.  Rail Corp.,  732  F.2d  1188,  1190 (3d  Cir.  1984)  


("Three exceptions to the exhaustion requirement in actions against employers calling  


for  the resolution  of minor  disputes have  been  recognized: (1)  when  the employer  


repudiates the private grievance machinery; (2) when resort to administrative remedies  


would be futile; (3) when the employer is joined in a [duty of fair representation] claim  



                                                                                                       - 18 -	                                                                                                7082


----------------------- Page 19-----------------------

that in rare instances "the statutorily-created arbitration scheme is simply insufficient to                                                      

accomplish the very ends it was designed to further."47                                                   

                                                                                                 One such instance is "[w]here  


the employee's failure to personally resort to the Board [for arbitration of an employment  


dispute] arises solely out of reliance on the union's expertise and is a function of his or  

                                               48    In that event, "failure to afford the employee a judicial  


her own lack of the same." 

remedy is tantamount to a denial of the right to be a party to a legally enforceable  


collective bargaining agreement."49                            In wrongful discharge cases, in order to avoid the  


RLA's arbitration requirement, the employee must "demonstrate both that his discharge  


violated the collective bargaining agreement and that his union breached its duty of fair  


representation."50  This makes the claim a hybrid, even when the employee chooses to  




against the union."). Bernard raises only the futility exception in his appeal. See Czosek  


v. O'Mara, 397 U.S. 25, 27-28 (1970) ("[I]t is beyond cavil that a suit against the union  


for breach of its duty of fair representation is not within the jurisdiction of the National  


Railroad Adjustment Board or subject to the ordinary rule that administrative remedies  


should be exhausted before resort to the courts.").  

           47          Kaschak v. Consol. Rail Corp., 707 F.2d 902, 907 (6th Cir. 1983); see also  


Childs v. Pa. Fed'n Bhd. of Maint. Way Emps., 831 F.2d 429, 437-41 (3d Cir. 1987)  


(recognizing the three Sisco exceptions but holding that the fourth exception in Kaschak  


excused the employee from exhausting administrative remedies).  


           48          Kaschak, 707 F.2d at 910 (emphasis in original).  


           49          Id .  

           50          Schaub v. K & L Distribs., Inc., 115 P.3d 555, 564 (Alaska 2005); see also  


 Vaca v. Sipes, 386 U.S. 171, 186 (1967); United Parcel Serv., Inc., v. Mitchell, 451 U.S.  


56, 62 (1981).  


                                                                      - 19 -                                                                7082


----------------------- Page 20-----------------------


sue only the employer or only the union.                                                           Bernard sought to bring such a claim when                                               

he asked for leave to file his second amended complaint.                                                                            

                               But federal law subjects all such claims to the six-month limitations period                                                                              

                                                                                                                                                52  governing complaints  

found in  160(b) of the National Labor Relations Act (NLRA),                                                                                                                 

of unfair labor practices.  In DelCostello v. International Brotherhood of Teamsters the  


United States Supreme Court applied the six-month limitations period to hybrid claims  


brought under the NLRA.53                                         We followed DelCostello when we applied the six-month  


limitations period to hybrid claims brought under the Labor Management Relations Act  


(LMRA).54                   Most federal circuit courts have applied the six-month limitation to hybrid  


suits brought under the RLA,55  and we see no reason not to do the same. Bernard's claim  


               51             DelCostello v. Int'l Bhd. of Teamsters                                                    , 462 U.S. 151, 165 (1983) ("The                                 

employee may, if he chooses, sue one defendant and not the other;                                                                                        but the case he must               

prove is the same whether                                         he   sues one,                  the other,               or   both.     The suit is thus not a                                    

straightforward breach of contract suit . . . , but a hybrid []fair representation claim,                                                                                               

amounting   to   a   'direct   challenge   to   "the   private   settlement   of   disputes   under   [the  

collective-bargaining agreement]."' "(third                                                         alterationinoriginal)(quoting                                        Mitchell,451   

U.S.  at   66 (Stewart, J., concurring))).             

               52              29 U.S.C.  160(b) (2012).  


               53              462 U.S. at 172.  


               54              See Schaub, 115 P.3d at 564 ("Because Schaub's claim is hybrid [under the  


LMRA], we conclude that it is subject to the six-month statute of limitations . . . .").  


               55              See Brock v. Republic Airlines, Inc., 776 F.2d 523, 525-26 (5th Cir. 1985)  


("Because the duty of fair representation under the Railway Labor Act is identical to the  


duty of fair representation under  the National  Labor Relations Act,  and because the  


federal policies  and interests articulated in DelCostello  are present  in hybrid  actions  


under the Railway Labor Act, . . . the six-month statute of limitations in  10(b) of the  


National Labor Relations Act also controls duty of fair representation claims and hybrid  


actions brought under the Railway Labor Act.");  Dozier v. Trans World Airlines, Inc.,  



                                                                                             - 20 -                                                                                        7082


----------------------- Page 21-----------------------

was brought 21 months after the union declined to appeal his grievance to arbitration,                                                                                                 

and it is barred by the six-month limitations period.                                                                           

V.              CONCLUSION  

                                We AFFIRM the superior court's order dismissing Bernard's hybrid claim                                                                                               

for   breach   of the duty                                of fair            representation.     We   REVERSE the order                                                                dismissing  

Bernard's other claims as either preempted or subject to the arbitration provisions of the                                                                                                                 

collective bargaining agreement, and we REMAND for further proceedings consistent                                                                          

with this opinion.     



760 F.2d 849, 851 (7th Cir. 1985) ("The same policies that led the Court to adopt a  


federal limitations statute for hybrid claims brought under the LMRA apply with equal  


force to actions brought under the RLA, which similarly governs labor-management  


disputes although only in common-carrier industries. Thus, the reasoning and analysis  


of DelCostello control in the instant case."); Barnett v. United Air Lines, Inc., 738 F.2d  


358, 363-64 (10th Cir. 1984) (applying the limitations period recognized in DelCostello  


to  a  hybrid  action);  Welyczko  v.  U.S.  Air,  Inc.,  733  F.2d  239,  241  (2d  Cir.  1984)  


(applying the limitations period recognized in DelCostello to a hybrid action); Sisco v.  


Consol. Rail Corp., 732 F.2d 1188, 1191-94 (3rd Cir. 1984) (applying the NLRA statute  


of  limitations  period  to  an  action  against  a  union  for  breach  of  the  duty  of  fair  


representation); Hunt v. Mo. Pac. R.R., 729 F.2d 578, 581 (8th Cir. 1984) (applying the  


NLRA statute of limitations period to an action against a union for breach of the duty of  


fair representation).  


                                                                                                  - 21 -                                                                                              7082

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