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University of Alaska Classified Employees Assoc. v. University of Alaska (9/24/99) sp-5184

     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          )
CLASSIFIED EMPLOYEES          )    Supreme Court No. S-8366
ASSOCIATION, APEA/AFT,        )
AFL-CIO,                      )
                              )    Superior Court Nos.
     and                      )    3AN-95-6574 CI and
                              )    3AN-95-7283 CI (Consolidated)
ALASKA COMMUNITY COLLEGES'    )    
FEDERATION OF TEACHERS,       )    
LOCAL 2404, AMERICAN          )    O P I N I O N
FEDERATION OF TEACHERS,       )
AFL-CIO,                      )    [No. 5184 - September 24, 1999]
                              )
               Appellants,    )
                              )    
     v.                       )    
                              )    
UNIVERSITY OF ALASKA, and     )    
STATE OF ALASKA,              )
                              )    
               Appellees.     )   
                              )    


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances:  William K. Jermain, Jermain,
Dunnagan & Owens, P.C., Anchorage, for Appellants.  Thomas P.
Owens, Jr., and Kimberly K. Geariety, Owens & Turner, P.C.,
Anchorage, for Appellee University of Alaska.  Kathleen Strasbaugh,
Assistant Attorney General, and Bruce M. Botelho, Attorney General,
Juneau, for Appellee State of Alaska.


          Before:  Matthews, Chief Justice, Eastaugh,
and Bryner, Justices.  [Fabe and Carpeneti, Justices, not
participating.]


          BRYNER, Justice.


I.   INTRODUCTION
          Two unions contest the nonpayment and late payment of
salary increases due under the terms of their collective bargaining
agreements with the University of Alaska.  Because Alaska law
requires that the legislature appropriate the funds for these pay
increases in order for the university to be obligated to pay them,
and the legislature made no such appropriations, we affirm the
superior court's order granting summary judgment to the University
of Alaska and to the state.  We remand for the correction of an
error in the calculation of attorney's fees.
II.  FACTS AND PROCEEDINGS
          The history of the two unions' complaints proceeds
separately through the 1995 legislative session.  In 1996 the
legislature addressed the two union agreements in a joint action.
     A.   History of the Complaints
          1.   The ACCFT
          The Alaska Community Colleges' Federation of Teachers,
Local 2404, Alaska Federation of Teachers/AFL-CIO (ACCFT) and the
University of Alaska completed negotiations on a collective
bargaining agreement (CBA) on May 8, 1992, effective from that date
until June 30, 1994.  When this expiration date neared, ACCFT and
the university agreed that they would abide by the terms of that
contract until they established a new one.  
          The CBA dictated that the university would pay ACCFT
faculty pursuant to the university regulation in effect at the time
of signing.  This regulation called for an annual cost-of-living
salary increase of three percent.  The CBA further provided that
"any compensation increases shall be subject to legislative
appropriation in accordance with the provisions of AS 23.40.215 and
shall be requested separately from compensation increases requested
for other employees of the University."  Article 12.5 of the CBA,
titled "Legislative Appropriation,"required that the university
"request and actively support full funding of this Agreement"and
provided that "any provision of this Agreement requiring
legislative action to permit its implementation, by amendment of
law or by providing additional funds therefore, shall not become
effective until the appropriate legislative body has given
approval."
          In June 1993 the Regents Board suspended the compensation
policy in effect when the parties signed the collective bargaining
agreement, and the university refused to pay the raises.  ACCFT
took the matter to arbitration.  In an April 1995 decision the
arbitrator concluded that ACCFT was contractually entitled to its
three-percent salary increase.
          Soon after the ruling, the governor requested the
legislature to fund the university's negotiated pay increases for
fiscal years 1995 and 1996.  The legislature never took action on
this request.
          2.   The CEA
          The University of Alaska Classified Employees
Association, APEA/AFT, AFL-CIO (CEA) signed a collective bargaining
agreement with the university on February 20, 1995, effective from
that date until the end of 1997.  The agreement included a graded
wage schedule that called for an average pay raise of one and one-
half percent per year for CEA employees.  The CBA also contained a
$600 payment to each CEA member.  The university requested funding
for these provisions in a bill that went to the House on April 11,
1995.  But the legislature took no action on this measure.
     B.   1996 Legislative Action
          In August 1995 both unions filed superior court
complaints claiming that the university was obligated to pay their
raises out of its personnel-services budget.
          In November 1995 the university resubmitted its funding
request for the CEA raise, but not the ACCFT raise, [Fn. 1] for
fiscal year (FY) 1995.  As a "supplemental request,"it also sought
funding for both unions' FY 1996 raises.  The legislature took no
action on these measures until June 6, 1996, when it approved the
CEA raise for FY 1995 and both unions' raises for FY 1996 and
FY 1997.
          Meanwhile, the superior court consolidated the unions'
suits in March 1996.  After the 1996 session the unions proceeded
to litigate their claims to the unfunded ACCFT raise for FY 1995
and to the interest accrued on account of CEA's FY 1995 raise being
funded over a year and a half after it was supposed to go into
effect.  The superior court granted the university and the state's
joint cross-motion for summary judgment.  The unions appeal.
III. DISCUSSION
     A.   Standard of Review 
          We review a grant of summary judgment de novo, applying
our independent judgment. [Fn. 2]  The parties agree that there are
no material issues of fact before the court.  In reviewing issues
of law, the court will "adopt the rule of law that is most
persuasive in light of precedent, reason, and policy."[Fn. 3]
     B.   The Parties' Arguments
          Relying on the arbitrator's ruling, the unions argue that
ACCFT's members are entitled to their negotiated FY 1995 cost-of-
living increase.  They also argue that CEA's members are due
interest on their late-approved FY 1995 increase.  The university
and the state respond that no monetary term of a multi-year public-
sector collective bargaining agreement is enforceable unless the
legislature makes a specific appropriation for each year.  Because
the legislature did not specifically fund the cost-of-living raises
in dispute here, the university and the state argue, no contractual
obligation exists that the arbitrator, or this court, could
enforce. 
          The unions concede that the legislature maintains
exclusive control over appropriations and can refuse to fund a pay
raise.  But they distinguish between legislative rejection of a
request for funding and legislative inaction on that request --
contending that only the latter occurred with the ACCFT raise.  The
unions point out that when the legislature appropriated funds for
the university's FY 1995 budget, the university received
unrestricted funds in several budget categories that it could
properly have applied to pay the CBA's cost-of-living increases.
The unions argue that absent a specific vote by the legislature
refusing to fund these increases, they must be deemed to have been
appropriated when the legislature approved the university's budget.
The unions further argue that because the legislature specifically
appropriated funds for CEA's raise but did so after that raise was
due, the university should have to pay interest accruing from the
due date specified in the CBA and running to the time of actual
payment.
     C.   The Unions' FY 1995 Pay Raises and Interest Claim
          The Public Employment Relations Act (PERA) [Fn. 4]
governs collective bargaining agreements between public employees
and public employers in Alaska. [Fn. 5]  Alaska Statute
23.40.215(a) specifically  provides that "[t]he monetary terms of
any agreement entered into under [PERA] are subject to funding
through legislative appropriation."[Fn. 6]  The plain language of
this provision suggests that the monetary terms of ACCFT's CBA do
not become effective unless and until the legislature specifically
funds them.  The statute does not direct the legislature to take
action on a request for funding; nor does it provide for funding by
default in the event of legislative inaction.  Rather, it simply
hinges the effectiveness of the monetary terms of any public-sector
CBA on legislative funding. [Fn. 7]     
          Our decisions interpreting PERA have consistently upheld
the statute's plain meaning. [Fn. 8]  In Public Safety Employees
Association, Local 92 v. State (PSEA), [Fn. 9] for instance, the
state agreed to pay union members statutorily mandated geographic-
differential salary increases, but it withheld payment pending
legislative appropriation. [Fn. 10]  Because the CBA's deadline for
commencement of payment passed before the legislature funded the
agreement, an arbitrator penalized the state for late payment,
ruling that it could have paid the salary increases by the CBA's
deadline by drawing money from other sources in its existing
budget. [Fn. 11] 
          But we overruled the arbitrator's decision, expressly
disapproving the notion that a state agency can "circumvent the
requirement of legislative approval"[Fn. 12] by reallocating its
existing resources:
          The superficial appeal of this [position] is
undercut by understanding its practical effect.  Were the State
either free or required to reallocate its present appropriation and
resources in this manner, the appropriation power of the
legislature would be frustrated.[ [Fn. 13]]

We therefore concluded that the state had no obligation to pay the
agreed geographic salary differentials -- even though they were
statutorily mandated -- until the legislature actually appropriated
the necessary funding. [Fn. 14] 
          PSEA thus directly conflicts with the unions' argument
here that the ACCFT's FY 1995 salary increases, which the
legislature never specifically funded, should nonetheless be deemed
"appropriated"because the university could have paid them out of
its general budget. [Fn. 15]  PSEA likewise undermines the unions'
argument that the university owes interest on CEA's late-funded FY
1995 raise.  In recognizing that monetary terms do not become
effective until the legislature funds them, PSEA expressly held
that "penalties for nonpayment [do] not accrue until the date when
legislative approval is obtained."[Fn. 16]
          Our decision in Public Employees' Local 71 v. State of
Alaska [Fn. 17] also upheld AS 23.40.215(a)'s plain meaning.  We
ruled that a legislative appropriation funding monetary terms in
one year of a multi-year collective bargaining agreement does not
oblige a public employer to pay according to those terms in
subsequent years. [Fn. 18]  By making it clear that only a specific
vote of approval will satisfy AS 23.40.215(a)'s requirement of
"funding through legislative appropriation,"Local 71 confirms our
conclusion that the university need not pay ACCFT's FY 1995
increases because the legislature never funded them and that it
need not pay interest on CEA's late-funded FY 1995 increases
because they fell due only when the legislature funded them. [Fn.
19]
     D.   Attorney's Fees [Fn. 20]
          The parties agree that the trial court erred in
calculating attorney's fees.  The state concedes that when it
adjusted its fees in response to the unions' claim of improper
billing, it neglected to submit an amended order, and the superior
court did not notice the mistake.  This error, though small from a
financial standpoint, should be corrected. [Fn. 21]
IV.  CONCLUSION
          We AFFIRM the judgment of the superior court on all
counts except for its attorney's fees award.  On that count, we
REMAND for a recalculation of the award.


                            FOOTNOTES


Footnote 1:

     The university's failure to request funding for the ACCFT
fiscal year 1995 raise at this time was apparently based on
communication from legislative leadership that the legislature had
already rejected the measure and would not reconsider it.  The
university's request for a CEA raise, however, was embodied in a
bill still pending from the prior legislative session.


Footnote 2:

     See Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).


Footnote 3:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 4:

     AS 23.40.070-.260.


Footnote 5:

     The parties do not dispute that the CBAs at issue here cover
public employees and are thus governed by this statute.


Footnote 6:

     AS 23.40.215 provides: 

          (a) The monetary terms of any agreement entered into
under AS 23.40.070 - 23.40.260 are subject to funding through
legislative appropriation.

          (b) The Department of Administration shall submit
the monetary terms of an agreement to the legislature within 10
legislative days after the agreement of the parties, if the
legislature is in session, or within 10 legislative days after the
convening of the next regular session.  The legislature shall
advise the parties by concurrent resolution if it approves or
disapproves of the monetary terms within 60 legislative days after
the agreement is submitted to the legislature.  The approval of the
monetary terms of an agreement under this subsection is a
nonbinding, advisory expression of legislative intent.  If within
60 legislative days after the agreement is submitted the
legislature advises the parties by concurrent resolution that it
disapproves the monetary terms of the agreement, the parties may
resume negotiations.

          (c) Notwithstanding (b) of this section, the
monetary terms of an agreement entered into between a school
district or regional educational attendance area and its employees
are not subject to approval by the legislature.  

     The parties do not dispute that the terms of the CBAs at issue
in this case are "monetary terms"falling under subsections (a) and
(b) of this provision. 


Footnote 7:

     AS 23.40.215(b) does establish a procedure allowing the
legislature to approve or reject by concurrent resolution the
monetary terms of newly-negotiated public-sector collective
bargaining agreements.  But this procedure does not call on the
legislature to approve or reject funding; instead it enables the
legislature to approve or reject newly-negotiated monetary terms in
substance, providing that if the legislature disapproves, "the
parties may resume negotiations."  Morever, any action that the
legislature takes under this procedure is merely "a nonbinding,
advisory expression of legislative intent."  AS 23.40.215(b); see 
supra note 6.


Footnote 8:

     In this respect Alaska law differs from that of other states. 
See Steven F. Befort, Public Sector Bargaining: Fiscal Crisis and
Unilateral Change, 69 Minn. L. Rev. 1221 (1985) (comparing how laws
of different states allocate responsibilities between the
legislature and the executive in the administration of public-
sector union contracts).


Footnote 9:

     895 P.2d 980 (Alaska 1995).


Footnote 10:

     See id. at 983.


Footnote 11:

     See id.


Footnote 12:

     Id. at 985-86.


Footnote 13:

     Id. at 986.


Footnote 14:

     See id.


Footnote 15:

     The unions also argue that the arbitrator's decision in
ACCFT's favor obligated the university to pay the raise and that
the superior court erred in failing to confirm the arbitration
award, as required under AS 09.43.110.  But on this score Alaska
law is well settled that arbitration awards are subject to
legislative appropriation under PERA.  See Fairbanks Police Dep't
v. City of Fairbanks, 920 P.2d 273, 274-75 (Alaska 1996); PSEA, 895
P.2d at 986; State v. Public Safety Employees Ass'n, 798 P.2d 1281,
1285 n.7 (Alaska 1990).  Thus, even assuming that AS 09.43.110
required the superior court to confirm the arbitrator's award, any
error was harmless, since there is no enforceable remedy.


Footnote 16:

     PSEA, 895 P.2d at 986.


Footnote 17:

     775 P.2d 1062 (Alaska 1989).


Footnote 18:

     See id. at 1064; see also Fairbanks Police Dep't, 920 P.2d at
275 n.2 (ruling that "[s]ubsection 215(a) . . . allows the
legislature to make that choice [of whether to fund an agreement]
in several stages, as each item of a negotiated result requires
funding").


Footnote 19:

     We find no merit in the unions' claims that the denial of
their pay raises violates the federal and state Equal Protection
Clauses or the First Amendment right to freedom of association. 
The unions provide nothing to indicate that the university or state
denied them raises as a result of specific disadvantages inflicted
on them as organized labor or as a penalty for organizing as
unions.  And we decline to address the unions' impairment-of-
contracts claim, because we find they have inadequately briefed it. 
"[W]here a point is given only cursory statement in the argument
portion of a brief, the point will not be considered on appeal." 
A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (internal quotations
omitted) (quoting Adamson v. University of Alaska, 819 P.2d 886,
889 n.3 (Alaska 1991)).


Footnote 20:

     We review a trial court's award of attorney's fees for abuse
of discretion.  See Municipality of Anchorage v. Gallion, 944 P.2d
436, 446 n.19 (Alaska 1997).


Footnote 21:

     See Alaska R. Civ. P. 60(a) (permitting a trial court to
correct a clerical mistake on remand).