search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Ganz v. Alaska Airlines, Inc. (8/14/98), 963 P 2d 1015
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
GRETCHEN GANZ, BRUCE GRAHAM, )
VIRGINIA L. HORN, RITA F. ) Supreme Court No. S-8050
NEARY, and CANDIDA A. SZABO, )
individually and as class ) Superior Court No.
representatives, ) 3AN-95-8859 CI
Appellants, ) O P I N I O N
v. ) [No. 5020 - August 14, 1998]
ALASKA AIRLINES, INC., )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John E. Reese, Judge.
Appearances: Michael M. Holmes, Faulkner,
Banfield, Doogan & Holmes, Seattle, Washington, for Appellants.
Thomas M. Daniel and Katherine C. Tank, Perkins Coie, Anchorage,
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
This appeal arises from a dispute between Alaska Airlines
and several of its Prudhoe Bay employees over interpretation of
statutory exemptions from the overtime provision of the Alaska Wage
and Hour Act (AWHA). Under the terms of their collective
bargaining agreements, the employees work fourteen consecutive
twelve-hour days, followed by fourteen days off. They receive
overtime payments only for hours worked in excess of this schedule.
The employees sued Alaska Airlines, arguing that pursuant to
AWHA's overtime provision, they are entitled to overtime payments
for work in excess of forty hours a week or ten hours a day. The
superior court rejected this argument and granted summary judgment
in favor of Alaska Airlines. Because we conclude that the
employees' work schedule contained in their collective bargaining
agreements is exempt from AWHA's overtime provision, we affirm.
II. FACTS AND PROCEEDINGS
The employees currently work or have worked for Alaska
Airlines in Prudhoe Bay as customer service agents, mechanics, or
ramp workers. They are members of the International Association of
Machinists and Aerospace Workers Union and are employed under
collective bargaining agreements.
The union and Alaska Airlines have entered into side
letter agreements to provide for different work and pay schedules
for Prudhoe Bay employees. The agreements, which are incorporated
into the collective bargaining agreements, state that because the
"remote location of Prudhoe and the lack of normal living
facilities present unique working conditions not contemplated"by
the main collective bargaining agreements, the employees shall work
fourteen consecutive twelve-hour days followed by fourteen
consecutive days off duty away from the station at Prudhoe Bay.
The letter agreements provide that Alaska Airlines will pay
overtime compensation only for work in excess of twelve hours a
In October 1995 the employees filed a complaint in the
superior court alleging that Alaska Airlines's refusal to pay
overtime for work in excess of eight hours a day or forty hours a
week violated AWHA's overtime provision, AS 23.10.060. [Fn. 1]
Alaska Airlines replied that the employees' work schedule was
exempt from AWHA's overtime requirements. Both parties moved for
summary judgment on the issue. [Fn. 2]
In December 1996 Superior Court Judge John E. Reese
denied the employees' motion and granted Alaska Airlines's cross-
motion. The superior court concluded that the employees' work
schedule was exempt from the overtime requirements of AWHA based on
the plain meaning of AS 23.10.060 and its legislative history. The
A. Standard of Review
The standard of review for an appeal from summary
judgment is de novo. See Nielson v. Benton, 903 P.2d 1049, 1052
(Alaska 1995). We "will uphold a summary judgment only if the
record presents no genuine issues of material fact and 'the moving
party was entitled to judgment on the law applicable to the
established facts.'" Newton v. Magill, 872 P.2d 1213, 1215 (Alaska
1994) (citation omitted). If in reviewing a summary judgment we
must answer questions of law, we will "adopt the rule of law which
is most persuasive in light of precedent, reason and policy." Id.
(citation omitted). Questions of statutory interpretation are also
reviewed on a de novo basis. See Boone v. Gipson, 920 P.2d 746,
748 (Alaska 1996).
B. The Employees' Work Schedule Is Exempt from AWHA's
The parties dispute whether the employees' work schedule
is exempt from AWHA's overtime provision. Under the provision, an
employer must pay nonexempt employees at one and one-half times
their regular rate of pay for all hours worked in excess of eight
a day or forty a week. See AS 23.10.060(b). Included in the
provision, however, are express exemptions for certain work. See
AS 23.10.060(d)(1)-(16). At issue in this appeal is the exemption
for "work performed by an employee under a flexible work hour plan
if the plan is included as part of a collective bargaining
agreement." AS 23.10.060(d)(13).
As AWHA does not define "flexible work hour plan,"the
parties advance conflicting interpretations of its proper
construction. The employees argue that the term "flexible work
hour plan"should be defined narrowly to include only work
schedules that do not exceed forty hours a week or ten hours a day.
According to their analysis, any work beyond these limits is not
exempt from AWHA's overtime requirements. Thus, because they work
eighty-four hours a week and twelve hours a day, the employees
contend that their work schedule is not an exempt flexible work
hour plan as defined by AS 23.10.060(d)(13) and that they are
entitled to payment at the overtime rate for their work in excess
of four ten-hour days each week. Alaska Airlines responds that the
exemption for flexible work hour plans made pursuant to collective
bargaining agreements under subsection (d)(13) is not limited to
four ten-hour days a week.
This appeal requires us to interpret AS 23.10.060(d)(13).
"Statutory construction begins with an analysis of the language of
the statute construed in view of its purpose." Borg-Warner Corp.
v. Avco Corp., 850 P.2d 628, 633 n.12 (Alaska 1993) (citation
omitted). "The objective of statutory construction is to give
effect to the intent of the legislature, with due regard for the
meaning that the statutory language conveys to others." City of
Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271, 1276
(Alaska 1994) (citations omitted). "Though we give unambiguous
statutory language its ordinary and common meaning, we have
rejected the 'plain meaning' rule as an exclusionary rule, and we
may look to legislative history as a guide to construing a
statute's words." Id. at 1276 (citation omitted). In accordance
with this approach, we turn first to the purpose of AS
23.10.060(d)(13) as conveyed by its language and then proceed to
consider its legislative history.
The employees point to the purposes of AWHA's overtime
provision as supporting their interpretation of "flexible work hour
plan." In Janes v. Otis Engineering Corp., 757 P.2d 50 (Alaska
1988), we identified the purposes of AWHA's overtime provision as
compensating employees for the "wear and tear of extra work"and
"spread[ing] employment through inducing employers to shorten hours
because of the pressure of extra cost."[Fn. 3] Id. at 53
(quotations and citations omitted). The employees contend that
these legislative objectives are best served by a definition of
"flexible work hour plan"that limits the term to mean plans that
do not exceed forty hours a week or ten hours a day.
We reject this argument because it fails to address the
legislative objectives in enacting the exemptions to the overtime
provision, including the exemption for flexible work hour plans
made pursuant to collective bargaining agreements. See AS
23.10.060(d)(13). It is the proper construction of the (d)(13)
exemption -- not of the overtime provision generally -- that is at
issue in this appeal. [Fn. 4]
Interpretation of AS 23.10.060(d)(13) profits from
examination of its statutory context. Because the term "flexible
work hour plan"appears in both subsection (d)(13) and subsection
(d)(14), comparison of the two exemptions is particularly
illuminating. Subsection (d)(13) states that an employer is not
required to pay the overtime rate for work performed under a
flexible work hour plan if the plan is included as part of a
collective bargaining agreement. Subsection (d)(14) establishes a
separate and more limited exemption for work under a flexible work
hour plan if the plan is negotiated directly by an employee and an
employer, without union involvement. Under AS 23.10.060(d)(14),
AWHA's overtime requirements do not apply to
work performed by an employee under a
voluntary flexible work hour plan if
(A) the employee and the employer have signed
a written agreement and the written agreement
has been filed with the department; and
(B) the department has issued a certificate
approving the plan that states the work is for 40 hours a week and
not more than 10 hours a day; for work over 40 hours a week or 10
hours a day under a flexible work hour plan not included as part of
a collective bargaining agreement, compensation at the rate of one
and one-half times the regular rate of pay shall be paid for the
The exemption under subsection (d)(14) differs
significantly from that of subsection (d)(13). As an initial
matter, whereas subsection (d)(13) concerns plans negotiated by a
union and imposes no certification requirements or express time
limits, subsection (d)(14) refers to plans negotiated by an
employee and imposes such requirements and limits. Moreover, the
second part of subsection (d)(14)(B) expressly requires an employer
to pay at the overtime rate for work in excess of forty hours a
week or ten hours a day if the work is performed pursuant to a
flexible work hour plan not included as part of a collective
bargaining agreement. No such requirement appears in subsection
(d)(13). We read this absence in subsection (d)(13) as signaling
the legislature's intent not to restrict the exemption provided by
subsection (d)(13). Had the legislature intended to impose the
same restriction in subsection (d)(13) as it imposed in subsection
(d)(14), it presumably would have included similarly restrictive
language. See 2A Norman J. Singer, Sutherland Statutory
Construction sec. 46.06 (5th ed. Supp. 1998) ("While every word of
statute must be presumed to have been used for a purpose, it is
also the case that every word excluded from a statute must be
presumed to have been excluded for a purpose."); Homer Elec. Ass'n
v. Towsley, 841 P.2d 1042, 1044 (Alaska 1992) (observing that if
the legislature had intended a statute to provide the same
protection as a code provision "it probably would have copied the
code provision verbatim or used similarly clear language"). Review
of the language of subsection (d)(13) in its statutory context
therefore indicates that its exemption for a flexible work hour
plan included as part of a collective bargaining agreement is not
subject to the time limits set forth in subsection (d)(14).
Although our textual analysis suggests that subsection
(d)(13) unambiguously exempts the employees' work schedule from
AWHA's overtime requirements, this analysis does not conclude our
inquiry. As we have rejected the rigid application of the plain
meaning rule, we turn next to the legislative history of AS
23.10.060(d)(13). See City of Dillingham v. CH2M Hill Northwest,
Inc., 873 P.2d 1271, 1276 (Alaska 1994). We favor a "sliding scale
approach"under which "the plainer the language of the statute, the
more convincing contrary legislative history must be." Chokwak v.
Worley, 912 P.2d 1248, 1251 (Alaska 1996) (citations omitted).
Because the language of AS 23.10.060(d)(13) plainly exempts the
employees' work schedule from AWHA's overtime requirements, we must
determine whether the legislative history shows convincingly that
the legislature intended the exemption to apply only to work
schedules of forty hours a week and ten hours a day.
In support of their interpretation of subsection (d)(13),
the employees point to the earliest version of the bill that later
became AS 23.10.060(d)(13) and (14). House Bill 746 was introduced
by Representative Sam Cotten in 1980. See House Bill (H.B.) 746,
11th Leg., 2nd Sess. (1980). Representative Cotten's testimony at
the House State Affairs Committee hearings indicates that he
intended H.B. 746 to allow employees to work four days a week for
ten hours a day, instead of five days a week for eight hours a day,
without requiring employers to pay overtime for the extra two hours
a day. Hearing on H.B. 746 Before the House State Affairs Comm.,
11th Leg., 2nd Sess. (March 10, 1980) (statement of Rep. Sam
Cotten). In introducing the bill, Representative Cotten explained
What I'm interested in doing is allowing the
people that are working four-tens to do that on a legal basis.
Apparently it's not legal right now to work four-tens without the
employer paying overtime for those extra two hours [a day].
In response to the question of how H.B. 746 would relate
to union contracts, Representative Cotten responded:
Well, the union contracts are, you know,
something negotiated between the company and the employees. But
they are, you know, they have to go by the law. And the law right
now does not allow them to work four-tens without getting paid
Consistent with Representative Cotten's concerns, the
House passed a version of the bill that arguably exempted only work
schedules of four ten-hour days from AWHA's overtime provision
regardless of whether work was performed under a plan included in
a collective bargaining agreement. [Fn. 5] Had Representative
Cotten's version of the bill become law, the legislature's intent
might well have been understood as only exempting four ten-hour
days from the overtime requirements. [Fn. 6] But the House version
of the bill did not become law.
Instead, the Senate Labor and Management Committee
altered H.B. 746 substantially by creating two separate exemptions,
one for flexible work hour plans included in collective bargaining
agreements and one for voluntary flexible work hour plans agreed to
by individual, non-union employees. See Senate Committee
Substitute for Committee Substitute for H.B. 746, 11th Leg., 2nd
Sess. (1980). The Senate version of the bill was ultimately
adopted into law and is codified at AS 23.10.060(d)(13)-(14).
Significantly, the Senate version of the bill removed the four ten-
hour days limit from the exemption dealing with collective
Had the legislature intended the time limits to apply to
work plans included in collective bargaining agreements, it
presumably would have left the House version intact. [Fn. 7] That
the Senate stripped the restrictive language from the collective
bargaining provision is strong support for Alaska Airlines's
argument that the four days a week, ten hours a day limit does not
apply to flexible work hour plans adopted pursuant to collective
Valid policy concerns justify the differential treatment
of a flexible work hour plan negotiated between a union and an
employer and a flexible work hour plan negotiated between an
individual employee and an employer. As the employees and Alaska
Airlines both acknowledge, the distinction can be traced to the
comparative bargaining powers of unions and individual employees.
An individual employee generally has a weaker negotiating position
than a union. Thus, subsection (d)(14) protects the employee by
imposing mandatory limits on the amount of time an employer may
require an employee to work without payment of overtime
compensation, and by requiring certification procedures to monitor
the negotiation process. Conversely, because a union bargains from
a position of greater strength, the statute allows it to negotiate
a work schedule without restrictions. See AS 23.10.060(d)(13).
In sum, although the bill's sponsor in the House may have
originally intended a forty hours a week, ten hours a day
limitation to apply to work plans included in collective bargaining
agreements, the bill was modified so that the limitation does not
apply to such plans. The legislative history of AS
23.10.060(d)(13) therefore demonstrates that the legislature did
not intend the exemption for flexible work hour plans included in
collective bargaining agreements to be limited to forty hours a
week and ten hours a day.
Neither our textual analysis of subsection (d)(13) nor
our review of its legislative history supports the employees'
construction of the exemption for flexible work hour plans.
Because the employees' work schedule is included as part of a
collective bargaining agreement, subsection (d)(13) exempts it from
AWHA's overtime requirements. Because we dispose of the employees'
appeal on the ground that their work schedule is exempt from AWHA's
overtime requirements, we need not address their argument that
AWHA's overtime provision is not preempted by the federal Railway
In light of the unambiguous language and the legislative
history of AS 23.10.060(d)(13), we hold that the employees' work
schedule is exempt from AWHA's overtime requirements. Therefore,
the order of the superior court granting summary judgment in favor
of Alaska Airlines is AFFIRMED.
In their briefs to this court, however, the employees argue
that they are entitled to overtime compensation for work performed
in excess of ten hours a day and forty hours a week.
The employees also moved for partial summary judgment on the
ground that the federal Railway Labor Act, 45 U.S.C. sec.sec. 151-
63, 181-88 (1986), did not preempt AWHA. The superior court denied
motion. The employees appeal this issue as well.
The general purposes of AWHA, as distinguished from the
specific purposes of the overtime provision, are identified in its
public policy provision:
(1) establish minimum wage and overtime
compensation standards for workers at levels consistent with their
health, efficiency, and general well-being, and
(2) safeguard existing minimum wage and
overtime compensation standards that are adequate to maintain the
health, efficiency, and general well-being of workers against the
unfair competition of wage and hour standards that do not provide
adequate standards of living.
We also note that the employees' work schedule may not be
inconsistent with the objectives of the overtime provision. Over
the course of a four-week month, the employees work 168 hours,
rather than the 160 hours worked under a schedule of five eight-
hour days a week. Despite the greater number of hours worked, the
employees enjoy the benefit of 14 consecutive days off duty away
from Prudhoe. This schedule is not necessarily contrary to the
objectives of reducing wear and tear on employees and spreading
The House version of the bill read:
(17) [The AWHA's overtime provision does not
apply with respect to] work performed by an employee under a
voluntary flexible work hour plan (A) if the plan is included as
part of a collective bargaining agreement; or (B) if the plan has
been submitted to the Department of Labor with a certification from
the employer that a majority of the employees affected have agreed
to the plan and the Department of Labor has issued a certificate
approving the plan; and (C) the work is for 40 hours a week and not
for more than 10 hours a day; for work over 40 hours a week or 10
hours a day under a flexible work hour plan compensation at the
rate of one and one-half times the regular rate of pay shall be
paid for the overtime.
Committee Substitute for H.B. 746, 11th Leg., 2nd Sess. (1980).
Such an understanding would require section C of the bill to
be construed as modifying section A.
No legislative history exists from the Senate Labor and
Management Committee for 1980.