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University of Alaska v. University of Alaska Classified Employees Association (2/6/98), 952 P 2d 1182
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.
THE SUPREME COURT OF THE STATE OF ALASKA
UNIVERSITY OF ALASKA, )
) Supreme Court No. S-7801
) Superior Court No.
v. ) 3AN-95-3909 CI
UNIVERSITY OF ALASKA CLASSIFIED )
EMPLOYEES ASSOCIATION, ALASKA ) O P I N I O N
PUBLIC EMPLOYEES ASSOCIATION/AFT )
AFL-CIO, ) [No. 4945 - February 6, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Thomas P. Owens, Jr., and
Kimberly K. Geariety, Owens & Turner, P.C., Anchorage, for
Appellant. James A. Gasper, Jermain, Dunnagan & Owens, P.C.,
Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe,
Justice, not participating.]
The question presented here is whether the University of
Alaska Classified Employees Association (Union) waived its right to
collectively bargain a restrictive smoking policy adopted by the
University of Alaska Fairbanks (UAF). When the Union filed an
unfair labor practice complaint asserting that the smoking policy
was a mandatory subject of collective bargaining, the Alaska Labor
Relations Agency (ALRA) concluded that the union had contractually
waived bargaining on the subject. The superior court held that
there was no waiver. We conclude that the union waived any right
to bargain on the smoking policy and reverse the decision of the
II. FACTS AND PROCEEDINGS
A. The Smoking Policy
In November 1988 the University Board of Regents adopted
the following smoking policy:
In order to protect university students,
employees and visitors from the hazards associated with secondary
smoke, smoking shall be prohibited in all university facilities
open to the public, except that reasonable smoking areas may be
designated by the cognizant Chancellor or his/her designee in
accordance with AS 18.35.320 unless such designation is prohibited
for the protection of the public safety or the protection and
preservation of the building and its contents.
Regents' Policy 06.02.03 (Nov. 17, 1988); [Fn. 1] see AS 18.35.320.
In accordance with this policy, UAF prohibited smoking in
most buildings and designated a limited number of inside smoking
areas. [Fn. 3] In May 1993, after receiving student, faculty, and
staff comments, the Chancellor prohibited smoking effective July
10, 1993, in all non-residential buildings and motor vehicles
owned, leased, or operated by the University. [Fn. 4]
In December 1994 the University Board of Regents adopted
a revised smoking policy providing that "[s]moking shall be
prohibited in all non-residential university facilities open to the
public and all public areas of all residential university
facilities." See Regents' Policy 05.12.04 (Dec. 8, 1994).
B. The Union Negotiations
In 1993 the ALRA certified the Union as the exclusive
bargaining representative for University of Alaska employees who
perform various trade, maintenance, and custodial functions. The
bargaining unit represented by the Union consists of over 200
employees throughout the University system, about 140 of whom work
On May 13, 1993, the Union formally requested bargaining
and asked that the University not change the employees' wages,
hours, and other terms and conditions of employment. The
University began negotiating with the Union in September 1993.
Gary Seaman, a Union member at UAF, had learned of the
revised smoking policy that became effective in July 1993, but had
continued to smoke in the vehicle assigned to him. In January 1994
he was censured at work for smoking in the vehicle and subsequently
authored a petition signed by thirty Union members asking the Union
to negotiate the July 1993 smoking policy.
On February 3, 1994, during collective bargaining
negotiations, the Union asked to negotiate the UAF smoking policy.
The University refused to bargain, claiming that because the
smoking policy was a permissive subject, there was no obligation to
The Union and UAF reached a tentative collective
bargaining agreement (CBA) in January 1995; the Union's members
ratified it shortly thereafter. The agreement provided that the
University would retain all managerial rights not modified by the
agreement. The agreement also provided that bargaining unit
members would follow the policies not specifically superseded by
the agreement, and reserved to the Board of Regents the right to
change University policy. Additionally, the agreement contained a
"zipper clause,"which provided:
This Agreement is the entire Agreement between
the Employer and the Union. The parties acknowledge that during
the negotiations which resulted in this Agreement, each fully
bargained with respect to terms and conditions of employment and
have settled them for the duration of this Agreement. This
Agreement terminates all prior understandings and supersedes any
contrary or inconsistent rules, regulations, past practices, or
institutional work practices and concludes all collective
bargaining for the duration of this Agreement.
C. The Proceedings
On May 17, 1994, the Union filed an unfair labor practice
charge against the University asserting that smoking policies are
a mandatory subject of bargaining and that the University could not
refuse to bargain under AS 23.40.110(a)(5). [Fn. 5] The University
argued that smoking policies are a permissive subject of bargaining
and that the Union had waived its right to bargain on the smoking
In April 1995 the ALRA concluded that the University's
smoking policy was a mandatory subject of bargaining and that the
Union had not waived its right to bargain by inaction after
receiving notice of the pending smoking policy. The ALRA, however,
ruled that the Union had contractually waived bargaining on the
smoking policy and found that the University had not violated AS
The Union appealed the ALRA's decision to the superior
court. The University responded and cross-appealed.
The superior court affirmed the ALRA's rulings that the
smoking policy was a mandatory subject of bargaining and that the
Union did not waive its right to bargain by failing to submit its
request for bargaining earlier. The superior court, however,
reversed the ALRA's decision that the Union, by executing the CBA,
had waived its right to bargain.
The University appeals all rulings of the superior court.
Did the Union Waive Its Right to Bargain on the Smoking
The University argues that the superior court erred in
reversing the ALRA's determination that the Union expressly waived
bargaining on the smoking policy. [Fn. 6] It argues that the Union
waived its right to bargain when it entered into the CBA because
the CBA contained (1) a promise to follow Board of Regents'
policies not specifically superseded by the agreement, and (2) a
"zipper"clause stating that the agreement was the complete
agreement. The University cites National Labor Relations Board
(NLRB) and labor arbitration precedent in support of its claim that
the Union expressly waived its right to bargain.
Citing a NLRB standard of whether the Union "consciously
yielded"its position, the University argues that the Union waived
bargaining on the smoking policy because it knew of the Board of
Regents' smoking policy when it agreed to abide by the Board of
Regents' policies and regulations in Section 1.8 of the agreement.
The University argues that the rule of construction known as
expressio unius est exclusio alterius (the expression of one thing
implies the exclusion of others) supports this conclusion.
The Union argues that it is "legally impossible for a
party to waive a right which is proposed for negotiation, but is
never actually negotiated because of the other party's refusal."
The Union claims that the agreement that was accepted did not
reveal any Union intent to waive its rights regarding the smoking
policy. The Union also argues that the content of the CBA is
irrelevant because the University had already committed an unfair
labor practice by not bargaining on a mandatory subject. It also
asserts that proceeding with the unfair labor practice charge is
evidence that the Union did not waive its right to bargain.
The Union factually distinguishes NLRB precedent cited by
the University and asserts that labor arbitration cases are
unpersuasive on this issue because the ALRA cannot consult them as
precedent and because arbitration is informal.
As a general rule, a waiver of a bargaining subject by
express agreement must be in clear and unmistakable language. See,
e.g., Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983);
Chicago Tribune Co. v. NLRB, 974 F.2d 933, 936-37 (7th Cir. 1992)
(questioning the meaning of the "clear and unmistakable
principle"); Juneau Educ. Ass'n v. City of Juneau, 539 P.2d 704,
707 (Alaska 1975) (finding clear and unmistakable modification of
bargaining agreement); see generally 1 Patrick Hardin, The
Developing Labor Law, 699-705 (3d ed. 1992).
In analyzing an alleged waiver, the NLRB examines "all
surrounding circumstances including but not limited to bargaining
history, the actual contract language, and the completeness of the
collective-bargaining agreement." Resthaven Corp., 322 N.L.R.B.
No. 128, 1997-1998 NLRB Dec. (CCH) 16,203 (Dec. 23, 1996)
(finding that union had not waived its rights under a management-
rights clause); Allied-Signal, Inc., 307 N.L.R.B. 752 (1992)
(ruling that union had waived its rights to bargain smoking policy
under CBA containing a safety and health clause and a zipper
clause); TCI of New York, Inc., 301 N.L.R.B. 822 (1991) (finding
that union had waived its rights to bargain under CBA).
Some federal appellate courts have followed the NLRB and
have found that a CBA is not governed by the same principles of
interpretation applicable to private contracts. See, e.g.,
Operating Eng'rs Pension Trusts v. B & E Backhoe, Inc., 911 F.2d
1347, 1352 (9th Cir. 1990). Other courts have heavily relied on
the principles of contract law. See, e.g., Chicago Tribune Co.,
974 F.2d at 937 (ruling that where the contract defines the
parties' rights as to mandatory subjects of bargaining, the
contract will control); Local Union No. 47, Int'l Bhd. Of Elec.
Workers v. NLRB, 927 F.2d 635, 641 (D.C. Cir. 1991) (same).
In analyzing an alleged waiver in a CBA, we follow NLRB
precedent. Neither party has argued that we should strictly limit
our analysis to contract law.
The CBA, dated January 20, 1995, contains three sections
that arguably affect the Union's right to bargain the smoking
policy. Section 1.8, entitled "University Policy and Regulation,"
states that "[u]nless superseded by a specific provision of this
Agreement, the Board of Regents Policy and Regulations, as amended
from time to time, shall apply to all Bargaining Unit Members
without any obligation to bargain over such changes." On December
3, 1994, the Board of Regents adopted a no-smoking policy in "all
non-residential university facilities open to the public." Because
the agreement contains no "specific provision"superseding this no-
smoking policy, the December 3, 1994 policy appears to apply to
bargaining unit members. [Fn. 7]
The agreement also contains a management-rights section,
in which the University retains managerial prerogatives "to issue,
amend and revise policies, rules, regulations, and practices,"and
the zipper clause, which states that "[t]his Agreement is the
entire Agreement between the Employer and the Union." The zipper
clause also specifies procedures the University is to use when
enacting a change in any mandatory subject of bargaining.
The parties' bargaining history is also relevant. The
negotiations lasted approximately eighteen months. Although the
Union was newly certified, the Union was represented by an
experienced labor negotiator, Bruce Ludwig, who had negotiated
several hundred labor agreements. Ludwig testified that the
parties agreed to Section 1.8 during the course of mediation with
a federal mediator. Ludwig either knew or reasonably should have
known of the Board of Regents' policies and regulations before
agreeing that they will apply to the bargaining unit members unless
specifically superseded by the agreement. [Fn. 8]
In holding that the Union had waived its right to bargain
the smoking policy, the ALRA determined that the Union had
contractually waived its rights by agreeing in Section 1.8 to
follow the Board of Regents' policies and regulations. The clear
and unmistakable language in Section 1.8, bolstered by the
bargaining history, supports this determination.
Although the Board of Regents did not explicitly prohibit
smoking in vehicles, UAF Chancellor Wadlow explicitly prohibited
smoking in University vehicles, and thus the Union could be deemed
to have waived its right to bargain on this subissue by agreeing to
the management-rights section. Resolving a question whether a
management-rights section waives bargaining on a particular topic
is highly fact specific, and other cases finding that there was no
waiver are factually distinguishable. See NLRB v. Katz, 369 U.S.
736, 742-43 (1962) (employer violated its duty to bargain
collectively); Klein Tools, Inc., 319 N.L.R.B. 674 (1995) (union
did not waive smoking policy changes by accepting management-rights
clause partly because employer delayed in advancing its waiver
argument). The ALRA's decision is supported by NLRB and federal
circuit precedent. In Allied-Signal, the NLRB relied on a safety
and health clause in the CBA and the bargaining history of the
parties in finding that the union had waived its right to bargain
changes in the smoking policy. 307 N.L.R.B. 752. In Chicago
Tribune Co., the Seventh Circuit found that the management rights
clause in the parties' CBA permitted the employer to unilaterally
impose an alcohol and drug standard on employees because the new
standard was a regulation relating to employee conduct. 974 F.2d
Here, the Union agreed to Section 1.8, the management-
rights section, and the other parts of the agreement as the "entire
Agreement between the Employer and the Union." The Union took the
proposal seriously and accepted the section after mediation.
Considering the language and bargaining history of the contract, we
conclude that the Union contractually waived its right to bargain
the smoking policy. We therefore affirm ALRA's ruling that the
union waived bargaining on the smoking policy by accepting the CBA.
For these reasons, we REVERSE the decision of the
superior court with instructions to affirm the decision of the ALRA
which concluded that the Union waived bargaining on the University
of Alaska smoking policy. The ALRA consequently did not err in
dismissing the unfair labor practice complaint under AS
In 1984 certain areas on University property were designated
non-smoking areas. Prior to 1984, students could smoke in the
classroom with the consent of the instructor, and smoking by
employees was not regulated.
AS 18.35.300 declares smoking "a nuisance and a public health
hazard"and prohibits it in a "public . . . postsecondary
educational institution." AS 18.35.300(3). A person in charge of
an indoor place, however, may designate an indoor smoking section
making "reasonable accommodations to protect the health of the
nonsmokers who use the place." AS 18.35.320.
In 1989 both the University of Alaska Southeast and the
University of Alaska Anchorage prohibited smoking in all University
This revised policy prohibited smoking in eight previously
designated smoking areas in campus buildings. It did not prevent
smoking in residential apartments, houses, or rooms in dormitories.
AS 23.40.110(a)(5) provides:
A public employer or an agent of a public
employer may not refuse to bargain collectively in good faith with
an organization which is the exclusive representative of employees
in an appropriate unit, including but not limited to the discussing
of grievances with the exclusive representative.
We independently review the merits of an administrative
determination. Handley v. State, Dep't of Revenue, 838 P.2d 1231,
1233 (Alaska 1992). No deference is given to the superior court's
decision when that court acts as an intermediate court of appeal.
The determination of whether by entering into the CBA the
Union contractually waived its right to bargain involves
interpretation of the CBA, and therefore a question of law.
Northern Timber Corp. v. State, Dep't of Transp. & Pub. Facilities,
927 P.2d 1281, 1284 n.10 (Alaska 1996). Where it appears that the
agency has invoked its expertise in deciding questions of law, we
review the agency's decision applying the rational basis standard.
Id. Under this standard, we defer to the agency determination as
long as it is supported by the facts and has a reasonable basis in
law. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d
896, 903 (Alaska 1987). Where it appears that the agency has not
invoked its expertise, we apply the substitution of judgment
standard and review questions of law independently. Northern
Timber Corp., 927 P.2d at 1284 n.10. However, "where
'interpretation of a written instrument turns on the acceptance of
extrinsic evidence, the process of weighing such evidence should be
for the trier of fact.'" Southwest Marine, Inc. v. State, Dep't of
Transp. & Pub. Facilities, 941 P.2d 166, 172 (Alaska 1997) (quoting
Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767, 771 n.2
(Alaska 1982)). We review the agency's findings of fact under the
substantial evidence standard. Id.
Although this policy does not prohibit smoking in University
vehicles, the Regents have the power under the agreement to change
policies which Union members must follow unless they are
specifically superseded by the agreement. Also, as discussed infra
at pages 11-12, management, which did issue the smoking policy for
University vehicles, also has the right to issue policies under the
There is evidence that Ludwig specifically knew of the changes
in the smoking policy. The ALRA found that:
[Union] chief negotiator Bruce Ludwig was
aware of the smoking rules in September of 1993 during
negotiations. . . . Ludwig was not aware, however, that there had
been any changes to the smoking rules. The changes were first
brought to his attention by [Union] member Gary Seaman. . . .
Seaman authored a petition dated January 30, 1994, signed by 30
members of the [Union] unit asking the [Union] negotiating team to
negotiate the smoking ban of July 10, 1993.
Substantial evidence supports this finding.
The University also argues that (1) the smoking policy is not
a mandatory subject for bargaining, but is instead a permissive
subject which the University is not required to negotiate, and (2)
the Union waived its right to bargain when it failed to make a
timely request for bargaining. Both the ALRA and the superior
court concluded that the smoking policy is a mandatory subject of
negotiation and that the Union did not waive its right to bargain
by failing to submit its request earlier.
We decline to decide these issues because our holding
that the Union expressly waived bargaining renders these issues