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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Police Dept. Employees Ass'n. v. Feichtinger (12/30/99) sp-5224

Anchorage Police Dept. Employees Ass'n. v. Feichtinger (12/30/99) sp-5224

     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
                                 


ANCHORAGE POLICE DEPARTMENT   )
EMPLOYEES ASSOCIATION,        )    Supreme Court No. S-8069
                              )
             Petitioner,      )    Superior Court No.
                              )    3AN-91-10695 CI
     v.                       )
                              )
ERIC "FRANK"FEICHTINGER and  )    O P I N I O N
JACQUELINE A. FEICHTINGER,    )
individually and as natural   )    [No. 5224 - December 30, 1999]
parents and next friends of   )
M.F. and K.F., minors.        )
                              )
             Respondents.     )
______________________________)



          Petition for Review from the Superior Court of
the State of Alaska, Third Judicial District, Anchorage,
                     Jonathan H. Link, Judge.


          Appearances:  Mauri Long and Kristen D.
Pettersen, Dillon & Findley, P.C., Anchorage, for Petitioner. 
Edgar Paul Boyko, Edgar Paul Boyko and Associates, and S. Brent
Thompson, Law Office of S. Brent Thompson, Anchorage, for
Respondents.  


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          EASTAUGH, Justice.
          MATTHEWS, Chief Justice, dissenting.


I.   INTRODUCTION
          A municipal employee sued his union for breach of the
union's duty of fair representation because it refused to represent
him in an arbitration in which he unsuccessfully challenged his
termination.  The superior court denied the union's motion for
summary judgment, and the union now petitions for review of that
denial.  We hold that if a union's breach of its duty of fair
representation seriously undermines the integrity of the arbitral
process, the arbitration decision may lose its preclusive effect. 
We conclude that a genuine issue of material fact exists as to
whether any union breach seriously undermined the integrity of the
arbitral process in this case.  We therefore affirm the denial of
the union's summary judgment motion.  
II.  FACTS AND PROCEEDINGS
          This petition for review arises out of the termination of
Eric "Frank"Feichtinger's employment with the Anchorage Police
Department.  In October 1988 the department arrested Feichtinger
and the state brought criminal charges against him.  Based on an
internal investigation into Feichtinger's alleged criminal conduct,
the department terminated him.
          Feichtinger had been a member of the Anchorage Police
Department Employees' Association (the union) since joining the
department.  The collective bargaining agreement (CBA) between the
Municipality of Anchorage and the union permitted the municipality
to discharge an employee for just cause.  Feichtinger filed a
grievance within a month of his termination.  He alleged that the
department had terminated him without just cause, and sought
reinstatement and back pay.  After extensively debating the
grievance's merits, the union elected not to accept the grievance
for referral to arbitration.  Feichtinger asked the union to
reconsider its decision, but it declined to do so.
          The CBA authorized an employee to proceed to arbitration
without union representation if the union refused to accept the
grievance.  Feichtinger chose to go to arbitration.  He and the
department agreed that the arbitration would await the resolution
of his criminal charges.
          A jury acquitted Feichtinger on all criminal charges in
January 1990.  Following Feichtinger's acquittal, the union's
executive board met to reconsider its earlier decision regarding
Feichtinger's grievance.  It decided not to change its decision. 
          Arbitration then began.  At the start of the arbitration
hearing, Feichtinger asked that the proceedings be postponed "until
such time as he would be able to bring legal action against the
[union] for . . . the financial resources to hire an attorney."
The arbitrator denied Feichtinger's request, noting that
arbitration is less formal than a court proceeding and that non-
lawyers often represent themselves well in arbitration.  The
arbitrator also told Feichtinger that he could stay and observe the
hearing, but that once he left the hearing or declined to
participate he could not participate further.  Feichtinger left the
hearing and did not return.  
          At the end of the hearing, the arbitrator accepted a pro
se brief from Feichtinger containing argument and some motions.
Nonetheless, the arbitrator determined that the department had
terminated Feichtinger for just cause. 
          Although the CBA provided that the decision of the
arbitrator was to be "binding upon all parties thereto,"
Feichtinger sued the union, the department, the municipality, the
state, arbitrator Eaton Conant, and four other individuals (Kevin
O'Leary, Joseph Austin, Thomas Walker, and Dwayne McConnell).  He
asserted several causes of action; the claims relevant to the case
before us are the wrongful discharge claim against the municipality
and the breach of the duty of fair representation claim against the
union. 
          The superior court granted summary judgment to the
arbitrator and dismissed all claims against him on grounds of
arbitral immunity.  We affirmed that decision in Feichtinger v.
Conant. [Fn. 1]   
          The municipality, the department, O'Leary, Austin, and
Walker also successfully moved for summary judgment, relying on res
judicata and collateral estoppel.  The superior court separately
granted summary judgment to the state and McConnell.
          The union, however, was unsuccessful in its attempts to
obtain summary judgment.  Its initial motion for summary judgment
argued that it owed Feichtinger no duty of fair representation, and
that, even if it owed him that duty, it had satisfied that duty and
no genuine issue of material fact existed.  The superior court
denied the union's motion, apparently finding genuine issues of
material fact about whether the union breached its duty.
          The union's second motion for summary judgment relied on
the preclusive effect of the arbitration decision, and argued that
Feichtinger could not recover from the union unless he showed that
the department wrongfully discharged him.  The superior court
issued a proposed order denying the union's second motion for
summary judgment and sua sponte reversing its previous rulings on
the other defendants' summary judgment motions.  The proposed order
explained that, while reviewing federal cases, "[t]he court became
aware of authorities holding that a breach of the Union's duty of
fair representation may trump the effect res judicata and
collateral estoppel have on precluding relitigation, with respect
to both the Union and the employer." The court invited the parties
to submit supplemental briefs and proposed orders before it entered
a final order.  Following briefing, the superior court denied the
union's second motion for summary judgment and reaffirmed its
earlier orders granting summary judgment to the other defendants.
          The union filed a petition in this court seeking review
of the denial of its second summary judgment motion.  At the same
time, Feichtinger appealed the grant of summary judgment to the
non-union defendants.  We granted the union's petition for review
to consider whether Feichtinger should be "collaterally estopped
from relitigating his wrongful termination claim against the
Union,"and if so, whether "denial of summary judgment for the
Union [was] improper." We denied the union's request that we
decide whether Feichtinger had raised "a material issue of fact in
support of his claim that the Union breached its duty of fair
representation."
          After we granted the union's petition, Feichtinger and
the non-union defendants agreed to dismiss Feichtinger's appeal
with prejudice.  This opinion therefore concerns only the union's
petition for review. 
III. DISCUSSION
     A.   Standard of Review
          Summary judgment is proper if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact and that any party is entitled to judgment
as a matter of law."[Fn. 2]  We review the grant or denial of
summary judgment de novo. [Fn. 3]  We resolve questions of law
raised by the summary judgment motion by adopting "the rule of law
that is most persuasive in light of precedent, reason, and policy."
[Fn. 4] 
     B.   When Can an Arbitration Decision Be Deprived of Its
Preclusive Effect?

          Collective bargaining agreements generally contain
procedures for the settlement of disputes through mutual discussion
and arbitration.  "[T]he grievance machinery under a collective
bargaining agreement is at the very heart of the system of
industrial self-government . . . .  The processing of disputes
through grievance machinery is actually a vehicle by which meaning
and content are given to the collective bargaining agreement."[Fn.
5]  As a result, the federal courts generally give effect to the
dispute resolution procedures to which a union and an employer have
agreed; judicial review of arbitration awards is exceedingly
narrow. [Fn. 6]  Employees must exhaust their contractual remedies
and they are bound by the results of the agreement's dispute
resolution procedures. [Fn. 7] 
          Nonetheless, the federal courts have created an exception
to the general rule of finality, allowing relitigation of those
decisions when the employee proves: (1) that the discharge was
erroneous; and (2) that the union's breach of its duty of fair
representation seriously undermined the arbitral process. [Fn. 8] 
If the employee satisfies these two requirements, the employee is
entitled to an appropriate remedy against the employer [Fn. 9] and
the union. [Fn. 10] 
          Hines v. Anchor Motor Freight [Fn. 11] illustrates this
exception to the general rule of finality.  The employees in Hines
had been discharged for seeking "reimbursement for motel expenses
in excess of the actual charges sustained by them."[Fn. 12]  Their
union carried their grievance to arbitration, and the arbitration
committee ruled in the employer's favor. [Fn. 13]  When evidence
later surfaced indicating that the motel clerk was in fact the
culprit, the employees sued their employer and their union. [Fn.
14]  In addition to asserting a  wrongful discharge claim against
their employer, the employees claimed that their union "had made no
effort to ascertain the truth of the charges, and that the Union
had violated its duty of fair representation by arbitrarily and in
bad faith depriving [them] of their employment and permitting their
discharge without sufficient proof."[Fn. 15] 
          The Supreme Court concluded that the employees could
prevail in their hybrid suit if they proved an erroneous discharge
and if they proved that the union's breach of duty tainted the
arbitration decision. [Fn. 16]  The Court reasoned, "Congress has
put its blessing on private dispute settlement arrangements
provided in collective agreements, but it was anticipated, we are
sure, that the contractual machinery would operate within some
minimum levels of integrity."[Fn. 17]  If the union's misconduct
caused a "fundamental [] malfunction"[Fn. 18] in the arbitration,
the arbitration decision need not stand, "for in that event error
and injustice of the grossest sort would multiply."[Fn. 19]
           Federal law does not necessarily govern this case.  The
Labor Management Relation Act (LMRA), which governs disputes
involving the interpretation of collective bargaining agreements,
[Fn. 20] expressly exempts state and municipal government employers
from coverage. [Fn. 21]  But because federal law in this area is
well-developed and we have applied federal law in cases in which
the state was the employer, [Fn. 22] we choose to look to federal
law in this case, subject to the exception we applied in Casey v.
City of Fairbanks. [Fn. 23]  We choose to look to federal
authorities because we conclude that they have appropriately
resolved the conflict inherent here.  That conflict arises out of
the tension between the desire for arbitral finality and the plight
of union members whose unions have undermined the integrity of the
arbitral process.  In our view, existing Alaska law does not
preclude our choice.  And today's case deals not with a claim that
a union was merely negligent in representing the employee, but that
a union altogether failed to represent him.   
          In applying this rule, we recognize at the outset that
its two requirements may overlap at times.  Sometimes, but not
always, a union's breach may so seriously undermine the integrity
of the arbitration process that an erroneous decision is made. [Fn.
24]  Moreover, employees are not entitled to relitigate their
terminations merely because they offer newly discovered exculpatory
evidence. [Fn. 25]  An erroneous decision is not necessarily proof
that the union breached its duty or that the breach seriously
undermined the arbitral process. [Fn. 26]  
          The union argues that Feichtinger cannot show that the
arbitration decision was erroneous because he dismissed his case
against his employer.  Therefore, the union contends that it is
entitled to summary judgment as a matter of law.
          We disagree.  The federal courts do not require that the
employer be joined in a lawsuit against a union for a breach of the
duty of fair representation. [Fn. 27]  "The employee may, if he
chooses, sue one defendant and not the other; but the case he must
prove is the same whether he sues one, the other or both."[Fn. 28] 
If Feichtinger successfully proves his allegations against the
union, the absence of his employer from his suit will only affect
his ability to recover damages flowing from his alleged wrongful
discharge. [Fn. 29]  The union is not entitled to summary judgment
as a matter of law on this basis.
     C.   Assuming the Union Breached Its Duty of Fair
Representation, a Genuine Issue of Material Fact Exists Regarding
Whether the Breach Seriously Undermined the Integrity of the
Arbitration.
          The union also argues that it deserves summary judgment 
because Feichtinger "failed to make any showing that the breach
seriously undermined the arbitral process, even assuming the Union
breached its duty of fair representation."[Fn. 30]  Feichtinger
disputes the union's argument.  Before addressing the merits of
this issue, we note that we are following the lead of the federal
courts by permitting resolution of this issue on summary judgment.
[Fn. 31] 
          To withstand a union's motion for summary judgment on the
question of whether a union's breach seriously undermined the
integrity of the arbitral process, an employee must present some
evidence of the nature of the breach and how the arbitration
outcome might have been different absent the breach. [Fn. 32] 
Hines provides a good example of a successful claim.  The
employees, who were accused of overstating the expenses they
incurred at a motel, insisted that they were innocent and that
their union did not investigate their case thoroughly. [Fn. 33] 
The employees alleged that, with minimal investigation, the union
would have uncovered evidence suggesting that the motel clerk was
at fault; if the arbitrator had considered that evidence, the
arbitration result might well have been different. [Fn. 34] 
          In this case, the union argues that its failure to
represent Feichtinger did not affect the outcome of the arbitration
because the CBA permitted him to arbitrate alone or with his own
attorney.  We disagree.  First, the union's argument suggests that
if a CBA allows employees to go to arbitration without union
representation, a union's decision not to arbitrate could never
undermine the arbitral process seriously enough to sustain a hybrid
suit.  We decline to hold that the employee's contractual right to
grieve without union assistance necessarily establishes, as a
matter of law, that the union's breach did not undermine the
arbitral process. 
          Second, to establish that the arbitral process was
seriously undermined, Feichtinger does not rely only on the fact
that it was difficult to arbitrate alone.  He also argues that in
this case the lack of union representation was fatal.  His case
involved special facts -- e.g., publicity, resource imbalance, and
access to information -- that made assistance of counsel and the
union crucial to preserving the integrity of the process.
       Feichtinger alleges that he faced "political and personal
animosity"during the arbitration process.  In an affidavit
supporting his opposition to summary judgment, he suggested that he
stood at an immediate disadvantage because his criminal case had
been widely publicized and because rumors about him were rampant.
Feichtinger stated that he was financially unable to retain counsel
to give him substantive assistance in the arbitration.  He also
claimed that his lack of legal training left him at a severe
disadvantage during arbitration, because he was unfamiliar with the
case law cited by the municipality.  Finally, he affied that
without counsel or union assistance he was unable to produce the
evidence necessary to counter the municipality's case.
          Given the negative publicity surrounding his case, union
representation might have been critical to lend credibility to the
substance of his grievance.  Although Feichtinger filed a pro se
brief with the arbitrator, it is questionable whether he was able
to present his position fully without actually participating in the
hearing.  He apparently thought that the hearing would "extend for
another week, and he had wanted to respond to the Municipality's
case during that second hearing week."
          Viewing the evidence in Feichtinger's favor and giving
him the benefit of permissible inferences, he has at least raised
a factual dispute about whether his lack of counsel, resources,
time, and legal expertise kept him from presenting his case and
undermined the arbitral process.
          For these reasons, we conclude that there is a genuine
issue of material fact regarding whether any breach of the union's
duty of fair representation seriously undermined the arbitral
process.  Summary judgment on this issue was not appropriate.
     D.   How Are Damages Against the Union to Be Measured?
          Assuming that Feichtinger makes the requisite showing on
remand so as to deprive the arbitration decision of its preclusive
effect, he will be entitled to seek damages.  We briefly address
this issue given the possibility that it will become ripe on
remand, and given the union's implicit argument that the dismissal
or settlement of Feichtinger's claims against his employer prevents
him from showing what damages the union may owe.
          In employee hybrid suits for wrongful discharge and
breach of a union's duty of fair representation, the federal courts
apportion damages between the employer and union according to the
damages caused by each defendant. [Fn. 35]  Federal law does not
control this case. [Fn. 36]  But the union urges us to look to the
federal standard of assessing damages.  Feichtinger, on the other
hand, argues that we should follow the attorney malpractice model
for damages.  Under this standard, as Feichtinger describes it, a
union that breaches its duty of fair representation becomes liable
for all damages the employee suffers, including those flowing from
the employee's wrongful discharge. 
          We reject the attorney malpractice model of damage
assessment for unfair representation cases and hold that in hybrid
suits we will follow the federal model of apportioning damages as
set out in Vaca v. Sipes [Fn. 37] and subsequent federal cases.
          In Vaca, the Supreme Court squarely rejected the
imposition of joint and several liability upon a union for its
breach of its duty of fair representation. [Fn. 38]  Rather, it
required courts to apportion damages between an employer and union
based on fault. [Fn. 39]  The Supreme Court explained that an award
against a union that includes damages attributable only to the
employer would impose too great a hardship on the union, even if
the union had a right of indemnification against the employer. [Fn.
40]  Although only the employer is responsible for back-pay
following a wrongful discharge, subsequent federal decisions have
made it clear that the union is responsible for any increases in
damages, including lost wages, caused by the union's breach. [Fn.
41]  
          The federal courts have not agreed upon a precise method
of apportionment.  Two models currently exist.  One bases
apportionment on the hypothetical date upon which the employee
would have been reinstated had the union fulfilled its duty of fair
representation. [Fn. 42]  The employer is liable for losses
incurred before that date; the union is liable for losses incurred
after that date. [Fn. 43]  The other model apportions damages on a
percentage basis, similar to comparative fault. [Fn. 44] 
          We need not decide now which of the two federal models
Alaska should follow.  Because the superior court has not yet had
an opportunity to consider whether one is particularly appropriate
to these facts and because the parties' briefs do not squarely
address this question, we do not address this issue and await an
appeal directly presenting it to us.  
     E.   Even If the Arbitration Award Has Preclusive Effect, 
          Feichtinger May Recover Damages from the Union.

          The union contends that if a discharge is for just cause
or if the merits of the discharge cannot be reexamined, a union
cannot be liable for breach of the duty of fair representation
because the employee has not been injured.  The union correctly
notes that some case law supports this position. [Fn. 45]  But
contrary authority also exists; it indicates that an employee may
recover some damages (usually attorney's fees) from the union even
absent a wrongful discharge. [Fn. 46] 
          An example of this latter line of authority is Del Casal
v. Eastern Airlines, Inc. [Fn. 47]  A pilot there sought to set
aside the arbitration decision upholding his discharge by suing his
employer for wrongful discharge and the pilots' union for breach of
the duty of fair representation. [Fn. 48]  He claimed that the
union refused to represent him because he was not a union member.
[Fn. 49]  Although the Fifth Circuit found no justification for
setting aside the arbitration decision in favor of the employer,
[Fn. 50] it held that the union breached its duty of fair
representation by discriminatorily refusing to represent the pilot
in arbitration. [Fn. 51]  It stated that "[w]hile [the union] has
the authority to decide under what conditions an attorney will be
supplied to a grievant, the fact that the grievant is not a member
of the union can play no part in that decision."[Fn. 52]  The
Fifth Circuit further reasoned that even if the arbitration award
was untainted by the breach (because the pilot hired his own
counsel) the pilot still "suffered loss in the form of fees to be
paid to his privately retained attorney."[Fn. 53]  It therefore
affirmed the jury's award of $35,000 in damages (the pilot's
attorney's fees) for the union's breach, despite the fact that the
arbitration decision was not relitigated or set aside. [Fn. 54]
          Additional support for this view is found in Justice
Stevens's concurring opinion in United Parcel Service, Inc. v.
Mitchell, [Fn. 55] where he explained that the two claims are
"closely related"but "conceptually distinct": [Fn. 56]  
          The fact that the underlying discharge may not
have violated the collective-bargaining agreement does not
necessarily absolve the union of liability for its breach, although
it may limit the size of the employee's recovery against the union. 
Thus, while a court considering an employee's claim against a union
will evaluate the validity of the employer's underlying conduct,
that evaluation is not central to the resolution of the duty-of-
fair-representation claim.[ [Fn. 57]]

          We choose to follow those federal courts that reason
that, even if the arbitration decision upholding an employee's
discharge has preclusive effect, it does not necessarily bar the
employee's suit against the union.  A union is liable to the
employee for damages flowing from its breach of the duty of fair
representation.  In most such cases, the employee's damages will be
limited to attorney's fees and costs expended in the arbitration
process.  
          Applying this rule here may result in de minimus damages
because Feichtinger did not retain an attorney to represent him in
the arbitration.  Nonetheless, Feichtinger should have an
opportunity to seek recoverable damages. 
IV.  CONCLUSION
          The denial of the union's summary judgment motion is
AFFIRMED.  We REMAND for further proceedings consistent with this
opinion. 
MATTHEWS, Chief Justice, dissenting.
                                I.
          May an employee who loses an arbitration against his
employer and then sues his employer and his union claiming union
breach of duty re-try against the employer the issue which has
already been arbitrated?  The majority answers "yes"because this
is permitted under federal labor law.  My answer is "no"because
this is contrary to Alaska law, inconsistent with the adversary
system, one-sided, and needlessly interferes with arbitral
finality.  
                               II.
          In the superior court the union argued that because the
arbitrator had found that the municipality had just cause to fire
Feichtinger, the union could not have breached its duty of fair
representation.  The union contended that it was therefore entitled
to summary judgment.  The superior court properly rejected this
argument, noting that the union's breach of its duty of fair
representation might have caused Feichtinger to lose the
arbitration and, therefore, the arbitration decision should not
have preclusive effect on Feichtinger's claim against the union. 
The trial court observed:
               If the Union's theory of law is adopted
only employees who were successful at arbitration could pursue a
duty of fair representation claim.  This would result in "the tail
wagging the dog"and effectively neuter the duty of fair
representation.

Today's opinion affirms this aspect of the trial court's decision. 
To the extent that it does so, I agree with it. 
          But the real effect of today's opinion is not found in
this unexceptional holding.  The opinion goes on to rule that when
an employee such as Feichtinger claims that the union has breached
its duty of fair representation with respect to an arbitration, 
not only does the arbitration decision not have preclusive effect
with respect to the union, it also is not binding with respect to
the employee's claim against the employer.  Moreover, in its 
discussion concerning apportionment of damages, today's opinion
states that an employee who has lost at arbitration can never be
made whole by simply proceeding against the union. [Fn. 1]  I
disagree with these rulings.  Their effect will be to eliminate the
finality of arbitration decisions favorable to employers and create
incentives to relitigate the merits of such decisions.  This means
that an employer, having won at arbitration, must again defend the
same claim when the employee charges that the employee was badly
represented by the union.  
          Judge Link decided that the arbitration decision in this
case would have a preclusive effect with respect to the
municipality.  It is this aspect of the decision below with which
today's opinion takes issue.  As Feichtinger's appeal from the
final judgment dismissing his claims against the municipality has
now been dismissed with prejudice by stipulation, the question of
whether union breach should result in vacating an arbitration award
in favor of an employer is no longer squarely before us.  Rather
than rule on this issue in this discretionary proceeding, it would
be better, it seems to me, to wait until it comes before the court
in a case in which the interests of an employer are presented for
consideration.  But since the court has ruled that an employer does
not get the benefit of arbitral finality where a claim of union
breach is made, I feel constrained to express my disagreement on
the merits.  
                               III.
          I begin with Judge Link's well-reasoned decision.  Judge
Link wrote:
                         The pivotal case in federal duty of fair
                    representation cases is Vaca v. Sipes, 386
                    U.S. 171 (1967), in which the court held that
                    a union has the duty to represent the
                    interests of all the members, including those
                    who oppose union membership.  A breach of this
                    duty occurs whenever:
                    
                         [the] union's conduct toward a
                    member of the collective bargaining unit is
                    arbitrary, discriminatory, or in bad faith.
                    
                    Id. at 190. [Fn. 2]
                    
                         In Vaca the Court held that where a union
                    has failed to adequately represent its members
                    in grievances with their employer, the
                    employer cannot be allowed to hide behind the
                    flawed arbitration decision.  In essence, in
                    cases in which unions violate their duties of
                    fair representation, the arbitration decisions
                    are rendered void, and become subject to
                    collateral attack.  See also, Casey v. City of
                    Fairbanks, 670 P.2d 1133 (Alaska 1983).
                    
                         Feichtinger cites these cases for the
                    proposition that res judicata and collateral
                    estoppel cannot bar his civil suit against the
                    remaining defendants because he has alleged a
                    violation of the duty of fair representation
                    on the Union's part.  However, Feichtinger's
                    case is distinguished from Vaca and Casey in a
                    fundamental way.  In Vaca and Casey the unions
                    were the only conduits for bringing grievances
                    against the employers.  In this case
                    Feichtinger could and did bring his grievance
                    against the Department through arbitration,
                    albeit without assistance from the Union.
                    
                         In those cases in which the employers
                    have not been insulated from collateral
                    attack, the unions have either accepted
                    responsibility for bringing the grievances and
                    have provided inadequate assistance, or the
                    unions have refused to bring the grievances,
                    and the employees were unable to bring
                    grievances without union approval.  In each of
                    these scenarios the arbitration was either
                    flawed or did not occur.  The employees had no
                    chance to fairly litigate the issues on the
                    merits.
                    
                         In contrast here, although the Union did
                    not provide counsel for Feichtinger, he was
                    afforded the opportunity to bring the
                    grievance and could have been represented by
                    counsel.
                    
                         Alaska law provides public employees with
                    a broader scope of rights and remedies than
                    does federal law.  Casey v. City of Fairbanks,
                    supra.  Alaska law recognizes that persons
                    employed in situations other than at will:
                    
                         . . . have sufficient property
                    interest in continuing their employment,
                    absent just cause for their removal, to
                    require that they be given notice and an
                    opportunity to be heard under the due process
                    clause of the Alaska Constitution.
                    
                    Casey at 1138.
                    
                         A public employee in Alaska has the
                    option to either take advantage of the
                    grievance procedure provided for in the
                    collective bargaining agreement or to sue in
                    superior court for wrongful discharge.  Id.
                    
                         In this case, plaintiffs elected to
                    pursue arbitration and not sue directly in
                    superior court.  The general rule is that the
                    arbitrator's decision is binding and has a
                    preclusive effect.  See Borg-Warner Corp. v.
                    Avco, 850 P.2d 628, 634 (Alaska 1993).  This
                    preclusive effect insulates the remaining
                    defendants from further liability. [Fn. 3] 
                    However, Alaska law does not foreclose the
                    opportunity to collaterally establish that a
                    union breached its duty of fair
                    representation.  A contrary holding would be
                    inconsistent with Alaska's recognition of a
                    broader scope of employee rights.
                    
                         A number of public policy arguments favor
                    denying the Union's Second Motion for Summary
                    Judgment and sustaining summary judgment for
                    the remaining defendants.  First, policies of
                    judicial efficiency require enforcement of the
                    doctrines of res judicata and collateral
                    estoppel.  To the extent that a litigant is
                    allowed to try his case in multiple tribunals,
                    the court is inviting forum shopping and
                    nuisance litigation.  Such a policy would
                    invite an employee that loses at arbitration
                    to file suit, de novo, in superior court
                    alleging a breach of the duty of fair
                    representation.  This would destroy the
                    finality of binding arbitration.
                    
                         It would also discredit the entire
                    arbitration system.  Employers would be far
                    less likely to submit issues to arbitration,
                    knowing that the arbitration would simply be
                    an additional expense to what might eventually
                    become a case in superior court.
                    
                         Placing the financial burden for failure
                    to fairly represent its members fully on the
                    Union will deter unions from refusing to
                    represent their members in potentially
                    meritorious grievance actions.  Union
                    administrators will be far less likely to
                    allow prejudice against one of their members
                    to enter into the equation of whether to
                    represent the member, if they know that the
                    union will be held liable for any monetary
                    losses attributable to their refusal to
                    fulfill their duties.
                    
                    Judge Link's observation that an employee who loses an
arbitration will have little reason not to file suit in superior
court under a ruling like today's bears elaboration.  The
employee's suit will include the union as one defendant.  The
employee will allege that the union has breached its duty of fair
representation and that the breach caused the employee to lose the
arbitration.  But the employee will also usually name the employer
as a defendant.  Without the employer, the result of the
arbitration as to the employer could not be set aside.  Given
today's apportionment of damages ruling, the employee cannot be
made whole by an award against the union alone, since the union is
never required to pay lost wages up to the time that a hypothetical
arbitration award should have been made. [Fn. 2]  Since the
employee's objective will be full reimbursement for his losses, we
can expect him to join the employer as a defendant.    
          What will the issues in the suit be?  First, the employee
must prove that the union breached its duty to the employee to
fairly represent him.  Second, the employee must show that the
breach "seriously undermined the arbitral process"[Fn. 3] meaning,
as I understand it, that the breach caused an erroneous arbitration
decision. [Fn. 4]  Thus the employer (and the union also) may
defend the suit on the basis that discharge of the employee by the
employer was justified, for justification would mean that any
breach by the union did not cause an erroneous decision.  
          Judge Link's description of what would happen if a system
like the one adopted today were in effect seems apt.  The employer,
having convinced the arbitrator that the discharge was justified,
will quickly find itself in the superior court litigating the
identical issue again.  As Judge Link observed, not only is the
finality of binding arbitration destroyed, but the arbitration
system is discredited.  Arbitration simply becomes a stepping-stone
to the superior court where identical issues are litigated and
finally determined, without regard to how they were resolved by the
arbitrator. 
          As noted above, under today's ruling what an employee has
to prove in order to set aside an arbitration decision is (1) a
breach on the part of the union of its duty of fair representation
and (2) that the breach produced an outcome in the arbitration
which was different from what would have resulted had there been no
breach.  This is a deviation from our current case law with respect
to the finality of labor arbitration decisions.  Under existing
law, labor arbitration can only be set aside when an arbitrator has
committed "gross negligence, fraud, corruption, gross error or
misbehavior"or "when the arbitrator's mistakes are both obvious
and significant."[Fn. 5]  The standard reflected in today's
opinion -- union error affecting the result -- considerably
broadens existing standards.
          The new standard seems unfairly one-sided.  If an
employer is poorly represented and its representative commits a
breach of duty which affects the arbitration result, the
arbitration decision nonetheless stands.  Why should an employee be
treated more favorably than an employer when a similar act or
omission is committed by the employee's representative?
          Further, arbitration, like court litigation, is an
adversary process.  A mistake by a party's representative may
result in the party losing the case.  If so, redress is a matter
between the party and his representative.  The party has a claim
for damages against the representative.  And he is entitled to be
made whole for the full loss caused by the breach of duty of the 
representative.  The representative's breach is not a ground for
setting aside the litigation.  Until today, this is the model we
have followed. [Fn. 6]  In my view, we should continue to follow
it.  
          A particularly close analogy exists where employee
grievances are decided not by arbitration but by an administrative
hearing. [Fn. 7] In such cases aggrieved employees have the right
to counsel.  If an employee's attorney -- who may be either
privately selected or supplied by the employee's union -- in an
administrative hearing breaches a duty which causes the employee to
lose, the decision of the administrative tribunal is not set aside. 
The employee's remedy is against the attorney and the employee may
obtain a full recovery.  I see no reason why the result should be
different where a similar breach is made in the context of an
arbitration. 
                               IV.
          What can be said for today's opinion is that it is
consistent with federal labor law.  But this case is not governed
by federal labor law.  One of the strengths of our system of
parallel federal and state sovereignties is that the states are, in
some areas, free to do things differently than the federal
government.  Sometimes a state method is better. [Fn. 8] 
          In keeping with this aspect of our federal system I do
not think it is sufficient justification to say that we will
function in a certain way merely because it is the federal way.  In
this case, I have tried to show that there are good reasons not to
duplicate federal law.  
          Under Alaska law, labor arbitration decisions have been
at least as difficult to set aside as administrative adjudications
and trial court decisions.  Today's decision changes this and holds
that in cases where a union is guilty of a breach of duty in
representing a union member and the breach affected the arbitration
result, the arbitration decision must be set aside.  This is
needed, according to the majority, because the interests of
decisional finality must give way to the interests of union members
who have been victimized by their union's breach of duty.  If this
were true, one would expect that union members victimized by union
breaches of duty in administrative adjudications or in court
litigation would also be entitled to have decisions of those forums
set aside.  But this is not the case, nor should it be. 
Representational failings in an adversary system can be redressed
by an action between the victim and the representative.  There is
no need to disturb the finality of the decision between the
original parties.  This is as true in arbitration as it is in
administrative adjudication and in court litigation.  
          Since I believe that we should continue to adhere to
Alaska norms of arbitral finality, I dissent.



                            FOOTNOTES


Footnote 1:

     893 P.2d 1266, 1268 (Alaska 1995).  


Footnote 2:

     Alaska R. Civ. P. 56(c).


Footnote 3:

     See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).


Footnote 4:

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


Footnote 5:

     United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 581 (1960).


Footnote 6:

     See, e.g., United Paperworkers Int'l Union v. Misco Inc., 484
U.S. 29, 36-37 (1987) (reviewing arbitral reinstatement of employee
accused of smoking marijuana at work); United Steelworkers of Am.
v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960)
(reviewing arbitral reinstatement of sympathy strikers).


Footnote 7:

     See DelCostello v. International Bhd. of Teamsters, 462 U.S.
151, 163-64 (1983).  


Footnote 8:

     See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-72
(1976).


Footnote 9:

     A union's breach of its duty of fair representation to the
employee does not shield the employer from liability.  Having
initiated the charges against the employee and having wrongfully
terminated the employee, the employer precipitated the dispute
through its own acts.  


Footnote 10:

     See Hines, 424 U.S. at 568.


Footnote 11:

     424 U.S. 554 (1976).


Footnote 12:

     Id. at 556.


Footnote 13:

     See id. at 557-58.


Footnote 14:

     See id. at 558.


Footnote 15:

     Id.


Footnote 16:

     See Hines, 424 U.S. at 572.


Footnote 17:

     Id. at 571.


Footnote 18:

     Id. at 569.  


Footnote 19:

     Id. at 571.


Footnote 20:

     See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 102
(1962); Textile Workers Union of Am. v. Lincoln Mills of Ala., 353
U.S. 448, 456-57 (1957).


Footnote 21:

     See 29 U.S.C. sec. 152(2) ("The term 'employer' . . . shall
not
include . . . any State or political subdivision thereof . . . .");
see also Casey v. City of Fairbanks, 670 P.2d 1133, 1138 (Alaska
1983) (concluding that city employee's suit against city "falls
outside the scope of federal law").  


Footnote 22:

     See, e.g., Kollodge v. State, 757 P.2d 1028, 1034 (Alaska
1988) (discussing dismissal of Alaska Department of Labor
employee).


Footnote 23:

     670 P.2d 1133, 1138 (Alaska 1983) (declining to adopt federal
rule requiring employee to show breach of union's duty of fair
representation before suing employer for wrongful discharge when
CBA prohibits employee from initiating arbitration proceedings
without union involvement).


Footnote 24:

     See Wilson v. Municipality of Anchorage, 977 P.2d 713, 719
(Alaska 1999) (stating that "[a] union's mere negligence does not
rise to the level of a breach of the duty of fair representation"). 


Footnote 25:

     See Hines, 424 U.S. at 571.


Footnote 26:

     See Vaca v. Sipes, 386 U.S. 171, 195 (1967) (noting that
"breach of the duty of fair representation is not established
merely by proof that the underlying grievance was meritorious").


Footnote 27:

     See DelCostello, 462 U.S. at 165.


Footnote 28:

     Id.


Footnote 29:

     See Czosek v. O'Mara, 397 U.S. 25, 28-29 (1970) (holding that
employees may sue union for breach of duty of fair representation
without joining employer, but that union is liable only for damages
flowing from its own conduct).


Footnote 30:

     The superior court found that a genuine issue of material fact
precluded summary judgment on the question whether the union
breached its duty of fair representation; we denied the union's
petition for review on that issue.  Therefore, we assume for
purposes of discussion that the union breached its duty.


Footnote 31:

     See, e.g., Del Casal v. Eastern Airlines, Inc., 634 F.2d 295,
297-300 (5th Cir. 1981) (affirming district court grant of summary
judgment to employer on employee's wrongful discharge claim because
union's breach of its duty of fair representation did not seriously
undermine integrity of arbitral process); Vance v. Lobdell-Emery
Mfg. Co., 932 F. Supp. 1130, 1137-39 (S.D. Ind. 1996) (granting
union summary judgment); cf. Hardee v. North Carolina Allstate
Serv., Inc., 537 F.2d 1255, 1259 (4th Cir. 1976) (finding
insufficient evidence to support jury verdict that arbitration
proceeding was tainted by union's breach).


Footnote 32:

     See, e.g., Taylor v. Ford Motor Co., 866 F.2d 895, 898-99 (6th
Cir. 1989) (holding that union's breach did not seriously undermine
arbitral process because "the witnesses who the plaintiffs contend
should have testified would not have helped their case"); Wood v.
International Bhd. of Teamsters, 807 F.2d 493, 501 (6th Cir. 1986)
("Plaintiffs' independent attorneys insured that plaintiffs'
interests were fairly represented.  Any breach by the Union of its
duty of fair representation therefore could not have tainted the
decision of the arbitrator."); Vance, 932 F. Supp. at 1137-39
(granting the union summary judgment because employee "present[ed]
no argument or evidence"indicating how alleged breaches would have
affected arbitrator's findings on underlying discharge).


Footnote 33:

     See Hines, 424 U.S. at 558.


Footnote 34:

     See id.


Footnote 35:

     See Vaca, 386 U.S. at 197.


Footnote 36:

     See supra note 21.  


Footnote 37:

     386 U.S. 171 (1967).


Footnote 38:

     See id. at 196-97.  But see id. at 197 n.18 (observing that
joint and several liability may be appropriate when "the union has
affirmatively caused the employer to commit the alleged breach of
contract"); Allen v. Allied Plant Maintenance Co. of Tenn., 881
F.2d 291, 298-99 (6th Cir. 1989) (applying rule of joint and
several liability because evidence indicated that employer and
union colluded to effect firing of employee and prevented him from
receiving impartial arbitration); Baskin v. Hawley, 807 F.2d 1120,
1132-33 (2d Cir. 1986) (applying joint and several liability where
union participated in underlying wrong of employer).


Footnote 39:

     See Vaca, 386 U.S. at 196-98.


Footnote 40:

     See id. at 197; see also International Bhd. of Elec. Workers
v. Foust, 442 U.S. 42, 50 (1979).  


Footnote 41:

     See Bowen v. United States Postal Serv., 459 U.S. 212, 223-24
(1983).


Footnote 42:

     See id. at 230 n.19; Bowen v. United States Postal Serv., 470
F. Supp. 1127, 1129-31 (W.D. Va. 1979).


Footnote 43:

     See Bowen, 470 F. Supp. at 1129-31.


Footnote 44:

     See Aguinaga v. United Food & Commercial Workers Int'l, 993
F.2d 1463, 1475-77 (10th Cir. 1993), aff'g 720 F. Supp. 862, 869-70
(D. Kan. 1989).


Footnote 45:

     See, e.g., DiPinto v. Sperling, 9 F.3d 2, 4 (1st Cir. 1993);
Wood, 807 F.2d at 502; Jordan v. Washington Metro. Area Transit
Auth., 548 A.2d 792, 797 (D.C. App. 1988).


Footnote 46:

     See, e.g., Czosek, 397 U.S. at 28-30 (implying availability of
damages independent of merits of employee's wrongful discharge
claim); Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1274-76
(9th Cir. 1983) (affirming damage award of attorney fees against
union for breach of duty of fair representation, despite finding no
wrongful discharge, because union's failure to represent employee
fairly in arbitration forced him to hire lawyer); Self v. Drivers,
Chauffeurs, Warehousemen & Helpers Local Union No. 61, 620 F.2d
439, 441, 444 (4th Cir. 1980) (finding no wrongful discharge but
holding union liable for expenses incurred by employees as result
of union's failure to properly press grievance against employer).


Footnote 47:

     634 F.2d 295 (5th Cir. 1981).


Footnote 48:

     See id. at 297. 


Footnote 49:

     See id. at 300. 


Footnote 50:

     See id.


Footnote 51:

     See id. at 301.


Footnote 52:

     Del Casal, 634 F.2d at 301.


Footnote 53:

     Id.


Footnote 54:

     See id. at 301-02.


Footnote 55:

     451 U.S. 56 (1981).


Footnote 56:

     Id. at 72-73 (Stevens, J., concurring in the judgment and
dissenting in part).


Footnote 57:

     Id. at 73 n.4; see also id. at 72-74.




                       FOOTNOTES (Dissent)


Footnote 1:

     "[O]nly the employer is responsible for back-pay following a
wrongful discharge . . . ." Slip Op. at 17.  


Footnote 2:

     2    In the majority of duty of fair representation cases, the
alleged misconduct has been based upon allegations of racial
discrimination.  In the early 1900's, discrimination within the
unions based upon race and national origin were quite common.  The
rule requiring unions to fairly represent all members was
originally established to combat this problem.


Footnote 3:

     3    Due process, as it applies to this case, does not require
that the Union provide an aggrieved employee with an attorney.  Nor
does it require that the arbitrator reach the correct and just
result.  Rather, all due process requires, is that the terminated
employee be given notice and an opportunity to present his case in
front of a neutral third party.  Feichtinger was provided these
opportunities in the context of the arbitration hearing.


Footnote 2:

     Slip Op. at 16-18. 


Footnote 3:

     Slip Op. at 11.


Footnote 4:

     Slip Op. at 10.


Footnote 5:

     City of Fairbanks Mun. Util. Sys. v. Lees, 705 P.2d 457, 459-
60 (Alaska 1985).  In Butler v. Dunlap, 931 P.2d 1036, 1039 (Alaska
1997), we described the judicial review standard applied in labor-
management arbitration as "gross error, either factual or legal."


Footnote 6:

     See, e.g., Sauer v. Home Indem. Co., 841 P.2d 176, 184 (Alaska
1992) (holding that where the insurance company has an obligation
to defend its insured and breaches it, it is liable to the insured
for the cost of the judgment); Bohna v. Hughes, Thorsness, Gantz,
Powell & Brundin, 828 P.2d 745, 754 (Alaska 1992) (noting that if
an attorney's malpractice causes a client to incur liability, then
the attorney can be liable for that amount); Continental Ins. Co.
v. Bayless & Roberts, Inc., 608 P.2d 281, 293 (Alaska 1980)
(holding that an insurer who undertakes a defense and fails to
exercise good faith and ordinary care may be held liable for the
judgment).


Footnote 7:

     See, e.g., Romulus v. Anchorage Sch. Dist., 910 P.2d 610
(Alaska 1996); Pederson-Szafran v. Baily, 837 P.2d 124 (Alaska
1992).


Footnote 8:

     See for example, Reeves, Inc. v. Stake, 447 U.S. 429, 441
(1980), where the United States Supreme Court expressed reluctance
to impose uniformity on the states where that would risk
suppression of "effective and creative programs"and quoting
Justice Brandeis's classic description of the states as
laboratories of social and economic experimentation from New State
Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting).