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Wilson v. Anchorage Fire Department (4/30/99), 977 P 2d 713
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
TAWANA WILSON, Personal )
Representative of the Estate ) Supreme Court No. S-7406
of JESSE WILSON, Deceased, )
) Superior Court No.
Appellant, ) 3AN-95-696 CI
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
ANCHORAGE FIRE DEPARTMENT, ) [No. 5111 - April 30, 1999]
and INTERNATIONAL ASSOCIATION )
OF FIRE FIGHTERS, LOCAL 1264, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: M. Ashley Dickerson, Dickerson &
Gibbons, Inc., Anchorage, for Appellant. Leslie K. Schumacher,
Assistant Municipal Attorney, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellees Municipality of Anchorage and
Anchorage Fire Department. Charles A. Dunnagan, Jermain, Dunnagan
& Owens, P.C., Anchorage, for Appellee International Association of
Fire Fighters, Local 1264.
Before: Compton, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Fabe, Justice, not participating.]
Fire Inspector Jesse Wilson resigned his Municipality of
Anchorage (MOA) employment in July 1989. Per the terms of a
November 13, 1989 MOA letter approved by Wilson's union president,
MOA rehired Wilson, but as a Firefighter III, a lower position, and
did not promote him to his original position. The union grieved
(unsuccessfully) MOA's failure to promote Wilson, but did not
grieve MOA's failure to rehire him as an inspector. Wilson sued
MOA and his union. The superior court granted MOA and the union
complete summary judgment, dismissing Wilson's fair representation
claims against the union, his breach of contract claims against
MOA, and his racial discrimination claims against both defendants.
Because the union did not establish the absence of genuine fact
disputes, we reverse the summary judgment on the fair
representation claims. We affirm the dismissal of the claims
against MOA and the racial discrimination claims against the union.
We vacate the union's attorney's fees award and reverse MOA's
attorney's fees award against Wilson's counsel.
II. FACTS AND PROCEEDINGS
The Anchorage Fire Department (AFD) hired Jesse Wilson as
a firefighter in 1974. [Fn. 1] It promoted him in 1981 to Fire
Inspector, a position he held until he resigned July 7, 1989.
Wilson's resignation letter stated, "I am terminating my employment
with the Anchorage Fire Department because of a nonoccupational,
medical disability (hypertension)."
Shortly before resigning, Wilson filed a claim with MOA's
Police and Fire Retirement Board (Board) for benefits for
"permanent occupational disability." He amended his claim to
assert "permanent nonoccupational"disability. He also sought
workers' compensation benefits for his hypertension. The Board
denied Wilson's claim for permanent non-occupational disability
benefits in August. He appealed the denial, but in early November
withdrew his application for non-occupational disability benefits
and sought re-employment with AFD. Wilson affied that at about
this time he spoke to Anchorage Fire Chief Larry Langston, and
understood that he could return as a Fire Inspector and that there
were Fire Inspector positions open.
In a November 13, 1989 letter, Chief Langston informed
Wilson that he could request rehire as a Firefighter III, a
position lower in rank and pay than that of Fire Inspector. The
letter stated that Langston had discussed Wilson's rehire with Tim
Cornelius, President of the International Association of
Firefighters (IAFF), Local 1264. It also summarized the pertinent
discussions: Wilson's seniority date would be his new date of hire;
Wilson had to pass the firefighter physical ability test; and
Wilson would be "eligible to compete"for an inspector position
after becoming a member of AFD. Beneath the notation "CONCUR:",
Cornelius signed the letter as president of the union.
In February 1990 Wilson wrote Chief Langston "requesting
rehire . . . in accordance with your November 13, 1989, letter."
In response, Chief Langston advised Wilson of the steps required
before Wilson could be rehired as a Firefighter III. Wilson's
letter, another he wrote that month to Chief Langston, and Chief
Langston's written response said nothing of a Fire Inspector
Wilson satisfied the requirements, and AFD rehired him as
a Firefighter III on May 24, 1990. Two days before Wilson's
rehire, Chief Langston notified all AFD personnel that two AFD
employees had been promoted to Fire Inspector positions. Chief
Langston later affied that the two employees had been selected on
May 18, 1990.
In June Wilson asked to be promoted to the next available
Fire Inspector position. On July 5 Chief Langston responded that
he and Cornelius agreed that Wilson could not "leap frog"ahead of
department members on the current Fire Inspector promotional list
and that he could compete for a Fire Inspector position in the next
promotional period, per the November 13, 1989, "rehire agreement."
[Fn. 2] Wilson approached the union in July and September 1990 to
discuss AFD's failure to rehire him as a Fire Inspector. At an
October meeting, Wilson told the union that he had previously
terminated his employment due to a non-occupational illness. The
union's attorney then wrote Cornelius analyzing Wilson's
reemployment and promotion rights under the collective bargaining
agreement (CBA) and MOA's Personnel Rules. [Fn. 3] The attorney
assumed that Wilson was covered under Article 10.1.3 of the CBA
because Wilson had told him during their meeting that he had
terminated his employment due to a non-occupational illness. [Fn.
4] The letter stated that, because Wilson had terminated his
employment based on a "non-occupational illness,"he should have
been rehired as a Fire Inspector. The attorney noted that Wilson
could potentially claim that the union breached its duty of fair
representation because it had "signed off"on the November 13
rehire letter which allowed Wilson to return only as a Firefighter
III. Based on this information, the union asked Chief Langston to
give Wilson preferential promotion to the first available Fire
Inspector position. It did not ask that he be immediately rehired
as a Fire Inspector.
Chief Langston denied the union's request for a
preferential promotion in November, and stated that under the CBA,
Wilson would have to wait two years until compilation of the next
promotional list before he could be eligible for promotion. [Fn. 5]
In late October the union's attorney also retracted his
recommendation for preferential promotion after discovering that
MOA regarded Wilson's termination as voluntary rather than non-
occupational. The union's attorney also recommended that Wilson be
asked to provide any information showing that his termination was
based upon a treating physician's medical advice.
Wilson continued to seek promotion to Fire Inspector, and
continued to ask the union to assist him. In March 1991 a member
of the union's executive board assisted Wilson in corresponding
with AFD to find out what parts of the CBA and MOA's personnel
rules applied to Wilson's rehire.
With this assistance and reasoning that his termination
was for non-occupational illness, in April 1991 Wilson asked the
union to grieve AFD's failure to rehire him as a Fire Inspector
pursuant to CBA Article 10.1.3. The union's attorney opined that
if the union did file the grievance, an arbitrator would probably
find it to be time-barred. [Fn. 6]
The union soon acknowledged that when Wilson was rehired,
he should have been placed on the promotional list for Fire
Inspectors as an "unranked eligible"pursuant to MOA Personnel Rule
5.2.b. [Fn. 7]
Citing Article 10.1.1.3, the union filed Wilson's
grievance on July 23, 1991, after AFD passed him over for promotion
to the first Fire Inspector position available following his
rehire. MOA denied the grievance, and the union took Wilson's case
The union presented two issues for arbitration: (1) "Was
[Jesse] Wilson's separation from the Fire Department on July 7,
1989, a termination due to illness? (Contract sec. 10.1.3)"and (2)
"If so, did the City violate his preferential promotion rights by
passing him over for promotion in July of 1991? (Contract sec.
10.1.1.3)." MOA described the main issue as follows: "Did the
Municipality of Anchorage violate Article 10.1.1.3 of the current
IAFF agreement when it did not promote grievant into the next
available fire inspector position?"
The arbitrator found on the first issue that Article
10.1.3 of the CBA applied to Wilson's termination because he quit
due in part to non-occupational illness. But the arbitrator stated
that he could not resolve a claim for rehire preference because no
such claim had not been presented in the original grievance. The
arbitrator found against Wilson on the second issue, ruling that
preferential promotion rights addressed in Article 10.1.1.3 of the
CBA were available only to employees who suffered occupational
illnesses or injuries.
Although neither party submitted the issue to
arbitration, the arbitrator also found that Wilson should have
filed a grievance when MOA refused to rehire him as a Fire
Inspector, but that the time for filing that grievance could not be
extended beyond December 30, 1990, and that his July 23, 1991,
grievance was untimely. The union refused to appeal the
In 1992 Wilson filed suit in superior court. His amended
complaint alleged that the union and MOA had racially discriminated
against him in violation of AS 18.80.210 and AS 18.80.220, Alaska
Constitution article I, section 1, and the Fourteenth Amendment to
the United States Constitution. He alleged that MOA breached the
CBA in failing to reinstate him as Fire Inspector. He alleged that
the union breached its duty of fair representation and violated his
civil rights. He also sued the union's attorneys, claiming that
they failed to represent him properly.
MOA removed the matter to the United States District
Court for the District of Alaska. Possessing federal question
jurisdiction over Wilson's 42 U.S.C. sec. 1983 claims, that court
exercised supplemental jurisdiction over Wilson's related state law
claims. All parties moved for summary judgment on all claims. The
court granted summary judgment to the attorneys, MOA, and the
union, and denied summary judgment to Wilson. It dismissed
Wilson's sec. 1983 claim with prejudice, and dismissed without
prejudice his state law claims, including his race discrimination
claim against MOA and the union.
When Wilson appealed, the Ninth Circuit affirmed the
summary judgment on Wilson's sec. 1983 claim. [Fn. 8] It held that
Wilson had offered only conclusory allegations of racial
discrimination without any supporting evidence to prove those
allegations. It did not consider the state law claims that had
been dismissed without prejudice. [Fn. 9]
Wilson refiled his state law claims against MOA and the
union in superior court in 1995. He alleged that MOA and the union
had racially discriminated against him, that the union had breached
its duty of fair representation, and that MOA had breached CBA
Article 10.1.3 and MOA Personnel Rule 5.2.b. Wilson moved for
partial summary judgment against both defendants. MOA and the
union cross-moved for complete summary judgment. The superior
court granted complete summary judgment to the defendants, and
denied Wilson's partial summary judgment motion. It also awarded
MOA full attorney's fees against Wilson's attorney, and awarded the
union partial attorney's fees against Wilson.
Wilson argues that the superior court erred in failing to
grant him partial summary judgment against the union and MOA and in
granting complete summary judgment to the defendants on his
discrimination, contract, and fair representation claims.
A. Standard of Review
We review a summary judgment de novo. [Fn. 10] 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.'"[Fn. 11]
The non-moving party is entitled to have all reasonable inferences
of fact drawn in its favor. [Fn. 12] "Mere assertions of facts in
pleadings and memoranda are insufficient for denial of a motion for
summary judgment."[Fn. 13]
B. Union's Duty of Fair Representation
A union has a duty to represent its members fairly. [Fn.
14] The fair representation duty is breached when the union's
conduct toward a member is "'arbitrary, discriminatory or in bad
faith.'"[Fn. 15] We held in Kollodge v. State [Fn. 16] that a
union did not breach its fair representation duty merely by
refusing to bring an employee's grievance to arbitration when the
union believed that there was only a ten-percent chance of success
at arbitration. [Fn. 17] "A union acts arbitrarily if it acts
without any rational basis, 'if it simply ignores a meritorious
grievance or handles it in a perfunctory manner.'"[Fn. 18]
A union's mere negligence does not rise to the level of
a breach of the duty of fair representation. [Fn. 19] This
standard has generally been applied to cases involving the union's
exercise of judgment, i.e., when the union is interpreting the
collective bargaining agreement, evaluating the merits of a
grievance, or making decisions concerning presentation of a
grievance at arbitration. [Fn. 20] Nonetheless, where the union
has not made a decisional error but has failed to perform a
"ministerial"act, such as failing to file a grievance on time once
the union has decided to accept it, the union may be held liable
for conduct that is merely negligent. [Fn. 21]
When a union sued for negligent conduct establishes that
its action involved exercise of its judgment, it will be entitled
to summary judgment on a fair representation claim. [Fn. 22]
1. The November 13 rehire letter
Wilson claims that the union breached its duty of fair
representation when, by signing the November 13, 1989, rehire
letter, it agreed with MOA that Wilson could return as a new hire
firefighter, depriving him of preferential reemployment rights
guaranteed by CBA Article 10.1.3 and MOA Personnel Rule 5.2.b. [Fn.
In granting summary judgment to the union on the fair
representation claim, the superior court concluded that the union
had not breached its duty of fair representation because Wilson had
not asked it in a timely manner to grieve his rehire claim. It
also concluded that the union made a reasonable tactical choice to
file a grievance when Wilson was next rejected for an inspector
Wilson argues that he was entitled to partial summary
judgment on the fair representation claim because he supported his
motion with affidavits based on personal knowledge and because the
union did not present factual disputes. Wilson relies on two
affidavits he executed in 1992 (filed first in the federal court,
and later in state court). In his only affidavit addressing the
November 13, 1989 letter, Wilson stated that he had asked Cornelius
in 1990 why Cornelius had signed the letter, and that Cornelius
"told me that he did not mean to sign my rights away, but that
Langston and Koeniger had met on the matter and that Langston
called him in and told him that they were trying to get me back to
the department." This passage permits an inference that Cornelius
did not exercise his judgment before signing the letter and simply
deferred to MOA's wishes. But it does not compel that inference to
the exclusion of any other. It also permits a contrary inference,
that Cornelius exercised his judgment in order to help Wilson
return to some position, although his decision had unintended
consequences. Assuming Cornelius's comment amounts to an admission
that the union negligently assessed Wilson's rehire rights, it does
not compel a conclusion that the union's conduct was "arbitrary,
discriminatory or in bad faith."[Fn. 24] Cornelius's comment did
not entitle Wilson to partial summary judgment, because it did not
demonstrate the absence of a genuine, material fact dispute and was
susceptible to different inferences.
Wilson's verified state court complaint also asserted
that the union failed to advise him of his rights and to protect
those rights when he was rehired, and that the union "collaborated"
with MOA, injuring him. Tawana Wilson signed the verified
complaint in 1995 (after Jesse Wilson's death in 1993); she did not
aver any foundation for alleging facts based on personal knowledge.
These averments consequently cannot be a basis for summary judgment
in favor of Wilson. [Fn. 25]
Wilson argues that the union failed to investigate the
facts before signing the November 13 letter. Several documents
suggest that the union may have unquestioningly accepted MOA's
description of Wilson's medical condition and reason for
terminating. Assuming that a union may breach its fair
representation duty by failing to investigate such facts
independently before signing a letter restricting a member's rehire
rights, the record does not permit us to say that the union did or
did not investigate the facts or rely unduly on MOA
representations. Wilson's affidavit also discussed events he
claimed were evidence of a discriminatory conspiracy against him.
Wilson affied that it was "clear"to him there was a conspiracy to
prevent him from becoming an inspector again, and argued that the
union merely "followed the employer blindly." But he did not
demonstrate personal knowledge that a conspiracy in fact existed,
or make the required prima facie showing that no fact dispute
existed. The events he described may permit a circumstantial
inference that the union intentionally disfavored him, but they did
not entitle him to summary judgment.
On the other hand, the union did not support its summary
judgment motion with admissible evidence establishing that it did
not engage in arbitrary or bad faith conduct, or that it exercised
its judgment when it signed the November 13 letter. In support of
its motion, the union filed the 1992 Cornelius affidavit that it
originally filed in federal court. Cornelius there affied that
"[a]t no time"had the union acted in a racially discriminatory
manner towards Wilson, that the union initially supported Wilson's
grievance because it mistakenly believed he had been "disabled,"
that Wilson did not make a timely request that a rehire grievance
be filed, and that Wilson's "claim was complicated and unusual."
The affidavit squarely denies racial discrimination, but fails to
explain why the union signed the November 13 letter. Although the
affidavit denies discriminatory conduct, it does not expressly deny
that the union engaged in either arbitrary or bad faith conduct,
and does not assert that the union exercised its judgment before
Cornelius signed the November 13 letter.
The union also submitted the affidavit of the union
attorney who assessed Wilson's rights in 1990. That affidavit does
not discuss why the union president signed the November 13, 1989
letter. It may imply that the union, in 1989, reasoned that the
Article 10.1.3 rehire provision did not apply to Wilson because the
union then interpreted that article to apply only to terminations
caused by disabilities. But that implication is weak and does not
rule out a reasonable contrary inference that the union simply did
not evaluate or recognize Wilson's Article 10.1.3 rights until
1990. The affidavit does not even assert that the affiant had
personal knowledge of why Cornelius signed the letter in 1989.
Wilson's opposition memorandum attached a letter
Cornelius wrote Langston in 1991. The letter implies that
Cornelius erred when he signed the November 13, 1989, letter and
indicates that he did not recall why he signed it. The 1991 letter
also may permit inferences favorable to the union.
The union's reply memorandum addressed Wilson's argument
that signing the November 13 letter violated the union's fair
representation duty; it argued that in 1989 no one, including
Wilson, thought Article 10 applied to a rehire situation. "The
Article 10 argument had not yet been thought of. In 1989,
preferential rehire for persons who voluntarily terminated (like
Wilson) was discretionary with the chief. As far as anyone knew at
the time, the department did not have to offer Wilson a job at
all." The union offered no new affidavit in support of that
argument; it did not dispute the authenticity of the 1991
Cornelius-Langston letter or try to explain it. The unsworn
averment contained in the union's reply memorandum did not satisfy
Alaska Civil Rule 56 for purposes of supporting the union's motion;
to the contrary, it permits an inference that the union did not
exercise its judgment before signing the November 13 letter.
Under Rule 56(c), summary judgment may be granted only
when "there is no genuine issue as to any material fact"and a
"party is entitled to a judgment as a matter of law." Well-
accepted principles govern the allocation of burdens on summary
Because a premature grant of summary judgment
forecloses a litigant's right to trial, . . . we must be mindful
that both on appeal and at the trial level, it is the moving party
that bears the initial burden of proving, through admissible
evidence, the absence of genuine factual disputes and its
entitlement to judgment. The non-moving party is given the benefit
of all reasonable inferences which can be drawn from the proffered
evidence. Moreover, although prudent counsel for the non-moving
party will always attempt to demonstrate a genuine issue for trial,
it is not obligated to do so until the moving party makes a prima
facie showing of its entitlement to judgment on established facts.
The union offered no admissible evidence demonstrating
that Cornelius's November 13 concurrence was an act of union
discretion performed for Wilson's benefit. It therefore failed to
meet its threshold burden of demonstrating the "absence of genuine
factual disputes and its entitlement to judgment"on the issue of
fair representation. [Fn. 27]
Absent a prima facie showing of fair representation -- by
admissible evidence demonstrating good faith exercise of union
judgment on Wilson's behalf -- Wilson was not obligated to offer
evidence creating a factual dispute to avoid adverse summary
judgment. [Fn. 28]
Wilson also argues that the union did not investigate his
rehire rights before signing the November 13 letter; he argued in
the lower court that the union merely "followed the employer
blindly." We examine this argument to determine whether there was
evidence permitting an inference the union made a ministerial,
nonjudgmental, error. The union contends that when it signed the
letter, its terms correctly stated Wilson's rights "as they were
understood at the time." When the union filed Wilson's grievance,
it informed the grievance committee that it only concurred in the
rehire letter because it had relied on facts obtained from Chief
Langston. Wilson points to several post-November 13 documents in
which the union admitted that it had erred in agreeing to the terms
of the rehire letter. Assuming that through greater investigative
effort the union might have learned facts -- e.g., that a non-
occupational disability caused Wilson to terminate -- that would
have justified rehiring him in his former position, we cannot say
that any such investigative lapse or that relying on information
provided by Chief Langston was merely ministerial. Further,
although Wilson stated in his July 7, 1989, resignation letter that
he was resigning because he had a non-occupational disability, the
retirement board ruled against his non-occupational disability
claim in August 1989, and shortly before the union signed the
rehire letter, Wilson withdrew his appeal from the Board's
decision. Given these circumstances, we cannot hold that either
Wilson or the union was entitled to summary judgment on the fair
2. Duty to assert a timely grievance
Wilson next argues that the union breached its fair
representation duty by failing to timely assert preferential
reemployment rights grievance under CBA Article 10.1.3 and MOA
Personnel Rule 5.2.b after he advised the union of his "rehire
MOA rehired Wilson as a Firefighter III on May 24, 1990.
He first approached the union about his "rehire problem"in July
1990, more than twenty days after MOA rehired him. In an October
1990 meeting, Wilson informed the union that he had quit because he
suffered a non-occupational medical disability. Resignation for
that reason, as the union's attorney recognized in an October 3,
1990, letter, would have justified Wilson's preferential rehire in
his former position of Fire Inspector, pursuant to Article 10.1.3.
Union counsel also opined, however, that a preferential
reemployment rights grievance was already time-barred by CBA
Articles 8.1.2 and 8.2.1 because more than twenty days had passed
since Wilson was rehired. Rather than grieve the time-barred
rehire issue, the union pursued the course of urging AFD to give
Wilson a "preferential promotion"under Article 10.1.1.3. [Fn. 29]
When MOA passed over Wilson for the next available Fire Inspector
position, the union grieved the promotion issue, but not the rehire
Although the union did not submit a rehire grievance to
the arbitrator, the arbitrator's 1991 decision stated that the time
for filing a rehire grievance should not be extended "beyond
December 30, 1990." Wilson takes this statement to be evidence
that Wilson's failure to request a grievance within twenty days
after he was rehired in the lower position did not time-bar a
rehire grievance, and that the union breached its duty of fair
representation by not filing a timely rehire grievance after Wilson
approached the union about his "rehire problem"in July 1990.
Unions are not required to provide error-free
representation to their members. [Fn. 30] In Kollodge, we stated
that unions must be given a reasonable amount of discretion in
handling their members' grievances. [Fn. 31] In Vaca v. Sipes,
[Fn. 32] the Supreme Court explained that "a union may not
arbitrarily ignore a meritorious grievance or process it in
perfunctory fashion."[Fn. 33]
Furthermore, as we noted above, a union's mere negligence
does not rise to the level of a breach of the duty of fair
representation when the union is exercising its judgment as to the
merits of a particular grievance. [Fn. 34]
The union alleged that it did not pursue a grievance for
Wilson on a rehire rights theory because, after reviewing the CBA
and receiving advice from union counsel, it concluded that Wilson's
rehire claim was likely to be time-barred and that it would be
fruitless to pursue it. The union persuasively argues on appeal
that, when its counsel reasoned in October 1990 that Wilson's
grievance was already time-barred, it could not have known that in
late 1991 an arbitrator might state that the time for filing a
rehire grievance extended more than twenty days after Wilson's May
24, 1990, rehire and impliedly extended until December 30, 1990.
[Fn. 35] We conclude that Wilson did not establish the existence
of a genuine issue of material fact about whether the union made an
actionable error in failing to timely grieve a rehire claim. The
superior court did not err in granting summary judgment to the
union on this claim.
In affirming, we acknowledge that Wilson alleged facts
that permit an inference that the union actionably erred in signing
the November 13 rehire letter. We conclude that the failure to
file a rehire grievance is not independently actionable because the
union exercised its judgment in deciding that such a grievance
would be untimely and in deciding that Wilson's best hope lay in a
promotion grievance. On remand, however, Wilson may be able to
establish that the union's actions in 1989 proximately contributed
to his failure to timely request a rehire grievance if, for
example, the November 13 letter discouraged Wilson from timely
requesting a grievance following rehire. In such case, Wilson's
remedy for the claim based on the November 13 letter potentially
encompasses whatever remedy would have been appropriate had the
union breached its duty of fair representation by failing to file
a rehire grievance.
C. Whether MOA Breached the CBA and the Personnel Rules by
Failing to Rehire Wilson as a Fire Inspector
Wilson contends that MOA breached CBA Article 10.1.3 and
MOA Personnel Rule 5.2.b by failing to rehire him as a Fire
Inspector, failing to place him on a rehire list for that position,
and requiring him to "compete"for that position. Wilson argues
that the superior court erred in failing to grant him partial
summary judgment against MOA and in granting MOA complete summary
1. Arbitration and award
The superior court granted summary judgment to MOA on the
arbitrator's theory that Wilson's breach of contract claim was
time-barred, precluding relitigation of that issue absent gross
negligence, fraud, or misbehavior by the arbitrator.
In City of Fairbanks Municipal Utility System v. Lees,
[Fn. 36] we stated that arbitration should be a "final and binding
means of dispute resolution, not a mere prelude to litigation."
[Fn. 37] We held that the merits of an action decided in binding
arbitration should not be subject to judicial review absent the
arbitrator's "gross negligence, fraud, corruption, gross error or
The question before us is whether MOA breached CBA
Article 10.1.3 or MOA Personnel Rule 5.2.b by failing to give
Wilson a preferential rehire in the Fire Inspector position. There
was a dispute between MOA and the union (acting for Wilson) about
what issues were properly before the arbitrator. The arbitrator
concluded that he could not decide whether Wilson was denied a
rehire preference (under CBA Article 10.1.3), because that claim
had not been presented in the pre-arbitration stages. The
arbitrator then discussed the untimeliness of Wilson's grievance.
An arbitrator does not have the authority to reach the
merits of a grievance not submitted by the parties. [Fn. 39] The
arbitrator expressly noted his inability to resolve a claim that
Wilson was wrongfully denied the opportunity to be rehired as a
Fire Inspector under CBA Article 10.1.3 because "that claim [was]
not presented in the pre-arbitration stages." CBA Article 8.4 also
states that while the "decision of the arbitrator shall be final
and binding on all parties,"the arbitrator "shall only rule on the
issues presented in the grievance."
Under these circumstances, the arbitrator's decision does
not bar Wilson's contract claim against MOA.
2. Exhaustion of administrative remedies under the CBA
MOA alternatively asserts that Wilson waived any rehire
claim by failing to file a grievance, as required by CBA Article
8.2.1, within twenty days of the date he was harmed. MOA contends
that Wilson was "harmed"for purposes of his rehire preference
claim on May 24, 1990 when he was rehired as a Firefighter III.
Wilson does not dispute that he did not contact MOA or the union
about a rehire grievance within twenty days of his rehire; it was
only after Wilson was passed over for a promotion to Fire Inspector
in July 1990 that he approached the union about his "rehire
problem." Thus, MOA contends that Wilson should not be excused
from exhausting his contractual remedies and should not be allowed
to maintain an independent action against MOA.
Employees must exhaust their contractual or
administrative remedies, or demonstrate that they are excused from
doing so, before pursuing direct judicial actions against their
employers. [Fn. 40]
Although he did not exhaust his contractual remedies on
a rehire claim by following the steps outlined in CBA Article 8.2,
Wilson contends that his failure to exhaust should be excused. He
cites Casey v. City of Fairbanks [Fn. 41] in support. Under
federal law, an employee who has not exhausted contract remedies
must show that the union breached its duty of fair representation
by engaging in some form of wrongful conduct before the employee
can bring an independent judicial action against the employer. [Fn.
42] In Alaska, however, a municipal employee's failure to exhaust
contractual remedies may be excused by showing that the union
refused to participate in the grievance process whether or not the
union's refusal was wrongful. [Fn. 43]
Casey sued his employer for wrongful discharge. The
superior court granted the employer summary judgment because Casey
had failed to exhaust his administrative remedies. [Fn. 44] We
reversed on appeal because Casey could not have pursued his
grievance without the union's assistance, and the union had refused
to help. [Fn. 45] We did not require Casey to show that the
union's refusal was wrongful, i.e., "arbitrary, discriminatory or
in bad faith."[Fn. 46]
Wilson argues that his situation is like Casey's because
he could not pursue even the initial steps of the CBA Article 8.2
grievance process without the union's cooperation. MOA claims that
Casey does not apply because the union processed Wilson's
grievance, which the arbitrator then decided against him. As seen
above, the rehire issue was not before the arbitrator. That does
not mean, however, that Wilson's failure to exhaust his
administrative remedies is necessarily excused. In Casey, the
union refused to assist the employee when asked. [Fn. 47] That is
not the situation here. Even though the union chose not to proceed
with the rehire grievance based on a tactical decision that the
grievance was time-barred, it did grieve the promotion preference
issue when Wilson did not receive the next promotion to Fire
Inspector. Although the arbitrator later implied that the deadline
for filing a rehire grievance was December 30, 1990, that finding
had no bearing on the rehire issue, which the arbitrator declined
to decide because it was not presented in the original grievance.
Most importantly, when it decided not to grieve the rehire issue,
the union could not have known that the arbitrator would opine that
a later deadline might apply to a rehire grievance. The union did
not unreasonably conclude that the rehire grievance was time-
Our review of the record, which includes a detailed
chronology prepared by Wilson, several pages of his deposition
transcripts, and two affidavits executed by Wilson, does not reveal
that Wilson ever demanded, prior to October 1990, that the union
process a rehire grievance when MOA refused to rehire him as a Fire
Inspector and instead hired him as a Firefighter III. The record
instead reveals that Wilson acceded to rehire as a Firefighter III
and that it was not until more than twenty days after his rehire in
that position that he first informed the union that the failure to
rehire him as a Fire Inspector should be the basis for a grievance.
The union asserted that Wilson's own chronology establishes that it
was not until June 29 that Wilson met with AFD officials, and even
then he was not challenging his rehire but was simply asking for a
promotion. By that time, the twenty-day deadline had already
passed. Further, as of July 5, 1990, Chief Langston informed
Wilson in writing that he could not "leap frog"onto the
promotional list, and could only compete for a Fire Inspector
position per the November 13 "agreement." That statement
unequivocally harmed Wilson by denying him a Fire Inspector
position on a rehire preference basis.
Thus, Wilson made no timely demand. Under these
circumstances, Wilson's failure to exhaust his administrative
remedy is unexcused. If Wilson could rely on Casey to overcome the
exhaustion requirement, any employee could simply wait until the
CBA deadline for filing a grievance had expired, and then, after
the union declined on timeliness grounds to process a claim, bring
an independent action against the employer on a breach of contract
theory. By denying employers the opportunity to correct their own
errors and increasing judicial intervention, such tactics would
undermine the purposes of the exhaustion requirement. [Fn. 48]
We also conclude that the evidence does not permit a
reasonable inference that the union's concurrence in the November
13 rehire letter would have made it futile for Wilson to have made
a timely request that the union process a rehire grievance. The
concurring signature does not imply that the union had committed
itself to an irrevocable course that would have led it to reject a
timely rehire grievance request. There is no indication the letter
would have prevented the union from reassessing Wilson's position
upon development of additional facts or following further research,
and indeed, the union did grieve MOA's failure to give Wilson a
Because there was no timely rehire grievance request,
Wilson could avoid MOA's summary judgment motion on the exhaustion
issue only by demonstrating a factual basis for finding that he was
excused from exhausting his contractual remedies. He did not do
so. His contract claim was correctly dismissed. We therefore need
not reach the merits of his contractual claim.
D. Race Discrimination Claims
Wilson claims that the union and MOA racially
discriminated against him in violation of AS 18.80.210 [Fn. 49] and
AS 18.80.220. [Fn. 50] The superior court granted summary judgment
to the union and MOA after concluding that res judicata or claim
preclusion barred these claims. That court found that Wilson's
state race discrimination claims arose out of the same nucleus of
operative facts as his federal sec. 1983 race discrimination claim
which the federal court resolved against him.
The doctrine of collateral estoppel "'bars relitigation,
even in an action on a different claim, of all issues of fact or
law that were actually litigated and necessarily decided in [a]
prior proceeding.'"[Fn. 51] Whether collateral estoppel or issue
preclusion applies to a particular set of facts is a question of
law which we review using our independent judgment. [Fn. 52]
Collateral estoppel or issue preclusion prohibits a party
from relitigating an issue where: (1) the party against whom the
preclusion is employed was a party to or in privity with a party to
the first action; (2) the issue precluded from relitigation is
identical to the issue decided in the first action; (3) the issue
was resolved in the first action by a final judgment on the merits;
and (4) the determination of the issue was essential to the final
judgment. [Fn. 53]
The first requirement is satisfied because Tawana Wilson
is "in privity with"Jesse Wilson for purposes of collateral
estoppel. The second requirement is satisfied because the issue to
be determined in federal court was identical to that to be
determined in state court -- whether the union and MOA
discriminated against Wilson on the basis of his race. The third
requirement is satisfied because the federal court decided the sec.
1983 race discrimination claim on the merits by granting summary
judgment on that claim in favor of MOA and the union.
In granting summary judgment on the sec. 1983 claim, the
federal court stated, "beyond the bare fact that Wilson is black,
there appears to be no support for his claim that the allegedly
unfair treatment he received was racially motivated." The federal
court's determination that any error by the union and MOA in
interpreting Wilson's contractual rights was not racially motivated
determination was essential to the federal final judgment, thereby
satisfying the fourth requirement. Because all four requirements
for collateral estoppel are present, the superior court did not err
in granting summary judgment to the union and MOA as to these
claims. [Fn. 54]
E. Attorney's Fees
The superior court awarded full attorney's fees of
$4,773.60 to MOA, and ordered Wilson's counsel to pay those fees
personally. The superior court found:
[T]hat the MOA was reasonable and expeditious
in obtaining dismissal, that plaintiff's claims were not reasonable
in light of the prior litigation and arbitration and award, and
that the filing of the action constituted vexatious and bad faith
conduct, which counsel, not the client should have recognized.
Thus, the fees are to be paid by the attorneys for plaintiff, and
judgment to that effect should be prepared.
The court cited no authority for the award. MOA relied
on Alaska Civil Rule 82(b)(3) in seeking an award greater than the
twenty-percent award presumptively appropriate under Rule 82(b)(2).
It cited no other basis for a fees award. It did not request that
the award be assessed personally against Wilson's attorney,
although it noted that the Ninth Circuit, after affirming the
judgment against Wilson on his 42 U.S.C. sec. 1983 claims, awarded
fees to MOA and held Wilson's attorney jointly and severally liable
for that award.
The award of full fees lay in the court's discretion,
given its findings of vexatious and bad faith conduct. But Rule 82
is not authority for assessing the award against counsel.
Alaska Civil Rule 95(a) allows trial courts to award fees
against counsel. Fees and costs may be imposed upon attorneys
"[f]or any infraction of these rules . . . as the circumstances of
the case and discouragement of like conduct in the future may
require."[Fn. 55] But assessment under Rule 95(a) requires a
showing that counsel has violated "these rules." The order
awarding fees here did not identify what rules counsel violated, if
any. MOA does not cite Rule 95(a), or argue that any rule other
than Rule 82 authorized this award. We consequently decline to
decide whether Rule 95(a) might be authority for the award against
counsel. We also note that it appears counsel was given no advance
notice that the court would consider assessing fees against counsel
personally. We need not decide now whether such notice would be
required before fees could be assessed under Rule 95(a). [Fn. 56]
We therefore reverse the award of fees against Wilson's
counsel and remand for further proceedings on MOA's motion for an
award of fees against Wilson.
Wilson also argues that the superior court erred in
awarding fees to the union. Because we reverse the union's summary
judgment and remand for further proceedings on Wilson's fair
representation claim, the union is no longer the prevailing party.
We consequently vacate the union's attorney's fees award against
We AFFIRM MOA's summary judgment. We AFFIRM the union's
summary judgment on the racial discrimination claim and the claim
the union breached its fair representation duty by failing to file
a timely rehire grievance. We REVERSE the union's summary judgment
on the claim the union breached its fair representation duty by
signing the November 13, 1989 letter, and REMAND for further
proceedings on that claim. We REVERSE MOA's attorney's fees award
and REMAND for further consideration of MOA's motion for a fees
award against Wilson. We VACATE the union's award of attorney's
Jesse Wilson died July 11, 1993. Tawana Wilson is his
estate's personal representative. Except when context requires
specific identification, we refer to both Jesse Wilson and Tawana
Wilson as "Wilson."
Candidates for a Fire Inspector's position must have worked
for at least two years with AFD as a Firefighter II or above, or
have served five years with an organized fire department, and must
also satisfy testing requirements.
Candidates meeting these initial requirements must also
complete a series of tests to be placed on a promotional
eligibility list. All candidates are promoted from this list. The
MOA personnel director affied that the union and MOA agreed in the
collective bargaining agreement that the list remain in effect for
two years, during which no new names were to be added.
Pursuant to Article 2.3 of the CBA, the Municipal Personnel
Rules apply to any personnel matters not covered by the CBA.
The attorney's letter cites CBA Article 10.1.1.3 (dealing with
occupational illness or injury), but it appears that the attorney
meant to cite Article 10.1.3, given his discussion of "non-
occupational"injuries or illnesses.
Chief Langston stated that the promotional list had been
compiled prior to Wilson's rehire and would extend for two years
before the fire department would open the list again for testing.
CBA Article 8.2.1 requires that grievances be presented within
twenty days "of the date the grievant was harmed." Failure to meet
the time limits "defined in this Article shall result in the
resolution of the grievance in favor of the other party, but
without precedent." Article 8.1.2.
Rule 5.2.b of MOA's Personnel Rules states:
An employee who separated in good standing may
have his name placed on a rehire list for the same class of
position, or a lower class in the same or a parallel series with
the advance approval of the Director, provided he so requests in
writing within one year from date of separation. Names of
employees eligible for rehire shall be certified as additional,
unranked, eligibles on promotional and open-competitive eligible
lists. Eligibility to remain on the rehire list expires one year
from date of separation.
See Wilson v. Municipality of Anchorage, Nos. 92-36885, 93-
35344, 93-35345, 1994 WL 41112, at *2 (9th Cir. Feb. 11, 1994).
See id. at *1
See Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994) (citation
omitted); see also Alaska R. Civ. P. 56(c).
See Newton, 872 P.2d at 1215 (citation omitted).
State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32
(Alaska 1978) (citations omitted).
See Kollodge v. State, 757 P.2d 1028, 1034 (Alaska 1988)
(citing Vaca v. Sipes, 386 U.S. 171, 177 (1967)).
Id. (quoting Vaca, 386 U.S. at 190).
See id. at 1036.
Id. at 1034 (quoting Peterson v. Kennedy, 771 F.2d 1244, 1254
(9th Cir. 1985)).
See United Steelworkers v. Rawson, 495 U.S. 362, 372-73
See Peters v. Burlington N. R.R. Co., 931 F.2d 534, 539 (9th
See Patterson v. International Bhd. of Teamsters, 121 F.3d
1345, 1349-50 (9th Cir. 1997) (affirming union's summary judgment,
and stating that "[i]f the union provides a reasoned explanation
for not pursuing a potential defense, we may not second guess its
decision."); Conkle v. Jeong, 73 F.3d 909, 916 (9th Cir. 1995)
(affirming union's summary judgment because evidence proved that
union's action involved judgment, and stating that, "[a] union's
decision to pursue a grievance based on its merits or lack thereof
is an exercise of its judgment. A union's decision is arbitrary
only if it lacks a rational basis.") (citations omitted).
The union does not argue that it owed Wilson no duty on a
theory that Wilson was not an employee when its president signed
the letter. Cf. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S.
65, 77 (1991) (holding that Vaca standard also applies to
challenges leveled at union's contract negotiation activities).
Vaca v. Sipes, 386 U.S. 171, 190 (1967).
See Alaska R. Civ. P. 56(c) (requiring that fact averments be
made "upon personal knowledge").
Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437
(Alaska 1995) (citations omitted).
The union's attorney, apparently to encourage AFD to give
Wilson a preferential Fire Inspector promotion, suggested that the
union inform AFD that a claim by Wilson that the union had breached
its duty of fair representation would excuse Wilson's failure to
grieve MOA's failure to rehire him as a Fire Inspector. Excusing
Wilson's failure to request a grievance potentially exposed MOA to
a breach of contract claim; MOA inferentially was to be encouraged
to avoid that exposure by giving Wilson a preferential promotion.
See Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985).
See 757 P.2d at 1034 (citing Johnson v. United States Postal
Serv., 756 F.2d 1461, 1465 (9th Cir. 1982); see also Tenorio v.
N.L.R.B., 680 F.2d 598 (9th Cir. 1982)).
386 U.S. 171 (1967).
Id. at 191.
See Peters, 931 F.2d at 538-39.
Given the CBA's twenty-day grievance deadline, it is not
obvious from the record why the arbitrator thought that Wilson had
until December 30, 1990 to grieve the May 1990 denial of his
preferential rehire request.
705 P.2d 457 (Alaska 1985).
Id. at 460.
See Sea Star Stevedore Co. v. International Union of Operating
Eng'rs, 769 P.2d 428, 431 (Alaska 1989).
See State v. Beard, 948 P.2d 1376, 1379 (Alaska 1997);
Pederson-Szafran v. Baily, 837 P.2d 124, 128 (Alaska 1992); see
also Municipality of Anchorage v. Higgins, 754 P.2d 745, 747
(Alaska 1988); Eidelson v. Archer, 645 P.2d 171, 175-79 (Alaska
670 P.2d 1133 (Alaska 1983).
See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-67
(1976); Vaca, 386 U.S. at 184-86.
See Casey, 670 P.2d at 1136-37.
See id. at 1135.
See id. at 1136-37.
Id. at 1138.
See id. at 1136-37.
Cf. Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982)
(noting that exhaustion of remedies rule promotes judicial economy
by affording institutions opportunities to correct their own
errors, so as to render judicial action unnecessary).
AS 18.80.210 states, in pertinent part, "[t]he opportunity to
obtain employment . . . without discrimination because of . . .
race . . . is a civil right."
AS 18.80.220 states, in pertinent part:
(a) It is unlawful for
(1) an employer to refuse employment to
a person, or to bar a person from employment, or to discriminate
against a person in compensation or in a term, condition, or
privilege of employment because of the person's race . . .
(2) a labor organization, because of a
person's . . . race, . . . to discriminate in any way against one
of its members . . . .
Campion v. State, Dep't of Community and Reg'l Affairs, 876
P.2d 1096, 1098 (Alaska 1994) (citation omitted).
See State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 950
See Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995).
Given this conclusion, we need not consider whether res
judicata also bars Wilson's state race discrimination claims.
Alaska R. Civ. P. 95(a).
Cf. Rule 95(b)(expressly requiring notice).