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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barnica v. Kenai Peninsula School District (5/3/2002) sp-5562

Barnica v. Kenai Peninsula School District (5/3/2002) sp-5562

     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,
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     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

LAVERN BARNICA,               )
                              )    Supreme Court No. S-9155
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3KN-96-260 CI
                              )
KENAI PENINSULA BOROUGH  )
SCHOOL DISTRICT and           )    O P I N I O N
GLADYS STALKER,               )
                              )
             Appellees.            )    [No.5562 - May 3, 2002]
________________________________)

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:  Arthur S. Robinson, Robinson  &
          Beiswenger, Soldotna, for Appellant.   Howard
          S.  Trickey, Jermain, Dunnagan & Owens, P.C.,
          Anchorage, for Appellees.

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

          MATTHEWS, Justice.
           BRYNER, Justice, with whom CARPENETI, Justice,  joins,
dissenting.


           On  August 22, 1995, Lavern Barnica resigned from  his

position as a custodian at the Nikiski High School.  Eight months

later he sued the Kenai Peninsula Borough School District and his

former  immediate  supervisor, Gladys  Stalker,1  for  wrongfully

constructively discharging him from employment.  Barnica  claimed

that he was discriminated against because of his sex in violation

of  AS  18.80.220, and that this discriminatory  treatment  "made

working conditions so intolerable that Plaintiff was forced  into

involuntary resignation."  Barnica alleged that Stalker permitted

women  custodians  to do less work than he was  required  to  do,

generally   showed  partiality  towards  women  custodians,   and

retaliated  against  his complaints that he  was  being  unfairly

treated  by  giving  him even more work to  do.   Barnica  sought

compensatory and punitive damages but not injunctive relief.

           The district answered and pled a number of affirmative

defenses including that Barnica had failed to exhaust contractual

remedies  prescribed  by the collective bargaining  agreement  to

which  he  was  subject.  Subsequently, the  district  moved  for

summary  judgment on the exhaustion defense.  It noted  that  the

collective    bargaining   agreement   specifically    prohibited

discriminatory treatment on the basis of sex, that it provided  a

four-step grievance procedure culminating in binding arbitration,

and  that  Barnica  did not use these procedures.   The  district

argued  that  the grievance procedures were exclusive,  and  that

Barnica's  unexcused  failure  to use  them  precluded  him  from

maintaining the suit.

           Barnica opposed the motion.  He admitted that  to  the

extent  that he was asserting a contract claim, his claim  should

have  been  exhausted through the grievance procedures.   But  he

contended that his claim was also a tort claim "for violation  of

the  public  policy  contained  in  Alaska's  anti-discrimination

statute,"  and that this claim was independent of the  collective

bargaining  agreement and therefore not barred by his failure  to

use the grievance procedures.

          The superior court granted summary judgment in favor of

the  district.   In  a  balanced opinion, the  court  noted  that

authorities  in other jurisdictions were divided  as  to  whether

exhaustion of contractual remedies should be required in  similar

situations.    Based   generally  on  our   decisions   requiring

exhaustion  of  contractual or administrative  remedies  in  many

contexts, the court concluded that Barnica

          was  required to have exhausted his  remedies
          under  the  collective bargaining  agreement.
          Most wrongful discharges could be ascribed to
          some  violation of a public policy.   If  all
          employees  alleging  tortious  violations  of
          public  policy  were permitted to  circumvent
          the  arbitral procedures set forth  in  their
          contractual  agreements, it  would  undermine
          the doctrine of exhaustion and do violence to
          the  spirit  and the letter of the  Cozzen[2]
          and Beard[3] decisions.
          
           In  his  opening brief on appeal Barnica continues  to

characterize his claim as a "statutory public policy  tort."   He

argues  that  the  basis for this claim "is  independent  of  any

understanding  embodied" in the collective bargaining  agreement,

and  that Norcon, Inc. v. Kotowski4 indicates that he may proceed

without exhausting contractual remedies.

           In response, the district recasts Barnica's claim as a

statutory   claim   and  argues  that  public   policy   favoring

arbitration points to the application of the exhaustion  doctrine

to  this case.  The district also contends that analogous federal

decisions  have  required arbitration of statutory  civil  rights

claims,  relying  on  such cases as Gilmer v.  Interstate/Johnson

Lane  Corp.5 and Austin v. Owens-Brockway Glass Container,  Inc.6

In response to Barnica's argument that Norcon should control this

case,  the  district argues that Norcon is distinguishable.   The

issue  there  was  preemption under the federal Labor  Management

Relations Act, which is inapplicable to states or their political

subdivisions.   The  district  argues  that  the   state   Public

Employment  Relations Act, AS 23.40.210(a), applies instead,  and

that the Public Employment Relations Act mandates that collective

bargaining  agreements contain grievance procedures with  binding

arbitration.

             In    reply    Barnica   accepts   the    district's

characterization  of  his  claim as  a  statutory  discrimination

claim.   But he contends that the district's reliance on  federal

authority  is  ill  conceived.  He notes that the  1974  case  of

Alexander  v.  Gardner-Denver Co.,7 which arose in  a  collective

bargaining  context  and  did  not require  exhaustion,  was  not

overruled  by  the  1991  Gilmer  decision,  which  involved   an

individual contract.  He observes that most federal circuits have

continued   to  follow  Gardner-Denver  rather  than  Gilmer   in

collective bargaining cases.

          As Barnica states, "the essential issue in this appeal"

is  whether  the  collective bargaining agreement  "to  arbitrate

statutory  discrimination claims should be binding on  individual

employees  .  .  . ."8  We regard this as a close question.   The

collective    bargaining    agreement    explicitly     prohibits

discrimination  on the basis of sex.9  The Human Rights  Act,  AS

18.80.220(a), prohibits the same conduct.  The Public  Employment

Relations  Act  requires  that collective  bargaining  agreements

include   a   grievance  procedure  "which  shall  have   binding

arbitration  as  its  final step."10  The  collective  bargaining

agreement complies with this requirement.11  A person aggrieved by

a  violation of the Human Rights Act may bring an action  in  the

superior court;12 in addition, an aggrieved person may initiate an

administrative proceeding before the Commission for Human Rights.13

Grievance  procedures in collective bargaining  agreements,  like

agreements  to arbitrate generally, are mandatory  in  the  sense

that  they  preclude  the  use  of otherwise  available  judicial

remedies.14  But does this rule apply to a claim based on conduct

which  is  both a violation of a collective bargaining  agreement

and a statute which affords a judicial remedy?

          For the reasons that follow, our answer is that a claim

subject  to  an  agreement to arbitrate for which an  independent

statutory  judicial remedy is also available must be  arbitrated,

unless  the  history  and structure of the  statute  in  question

indicate that the legislature intended to preclude waiver of  the

judicial remedy in favor of the arbitral forum.  As there  is  no

such indication in the Human Rights Act, we affirm the judgment.

            Central  to  our  decision  is  the  fact  that   the

legislature   has   mandated  that  all   collective   bargaining

agreements subject to the Public Employment Relations Act contain

grievance  procedures  and  that all such  procedures  must  have

binding  arbitration  as  a final step.15   The  legislature  has

recognized  that  a "rational method for dealing  with  disputes"

between  public employers and employees is one of  the  tools  of

effective  government,16 and it has chosen  grievance  procedures

with  binding  arbitration  as  the  preferred  method  for   the

achievement of this goal.17  The Public Employment Relations Act's

declaration of policy states:

                 The   legislature  finds  that   joint
          decision_making   is  the   modern   way   of
          administering    government.     If    public
          employees  have  been granted  the  right  to
          share    in   the   decision_making   process
          affecting wages and working conditions,  they
          have  become more responsive and better  able
          to   exchange   ideas  and   information   on
          operations    with    their   administrators.
          Accordingly,   government   is   made    more
          effective.   The  legislature  further  finds
          that  the  enactment of positive  legislation
          establishing guidelines for public employment
          relations  is  the best way  to  harness  and
          direct the energies of public employees eager
          to   have   a  voice  in  determining   their
          conditions  of  work, to provide  a  rational
          method  for  dealing with disputes  and  work
          stoppages, to strengthen the merit  principle
          where  civil  service is in  effect,  and  to
          maintain  a  favorable political  and  social
          environment.   The legislature declares  that
          it  is  the  public policy of  the  state  to
          promote  harmonious and cooperative relations
          between government and its employees  and  to
          protect the public by assuring effective  and
          orderly  operations  of  government.    These
          policies are to be effectuated by
          
               . . . .
          
                 (2)  requiring  public  employers   to
          negotiate   with  and  enter   into   written
          agreements  with  employee  organizations  on
          matters of wages, hours, and other terms  and
          conditions of employment[.][18]
          
           The choice of grievance procedures with arbitration as

the  final  step  seems well designed to promote  harmonious  and

cooperative government employer-employee relations.   Such  proce

dures  encourage the early resolution of disputes  by  discussion

and   conciliation   before   they   escalate   to   unmanageable

proportions.   Various practical remedies are then possible.   By

contrast,  once a case reaches the judicial litigation stage  the

disputants'  positions  have  typically  hardened  so   that   no

constructive  solution is possible.  To use  modern  terminology,

"win/win"  results can be achieved with grievance and arbitration

procedures, whereas litigation is more likely to be a "zero  sum"

process - either the employer or the employee will lose.

           In  addition, we have recognized that the "common  law

and statutes of Alaska evince `a strong public policy in favor of

arbitration.' "19  Compared to litigation, arbitration is a  rela

tively inexpensive and expeditious method of dispute resolution.20

This   policy   also  supports  giving  primacy  to   contractual

grievance/arbitration clauses in cases like the present.21

           In  the  one  case  in which we addressed  a  conflict

between a collective bargaining grievance/arbitration remedy  and

a  statutory  judicial remedy we held that  the  judicial  remedy

could  be pursued.  Public Safety Employees Ass'n v. State  arose

out  of a dispute over bush housing owned by the state and rented

to  certain state employees.22  We held that some aspects of  the

dispute  fell within a collective bargaining agreement  and  thus

were potentially subject to arbitration.23  But we held that  the

arbitration  remedy was not exclusive and that the employees  had

the  right  to  sue  as  tenants under  the  Uniform  Residential

Landlord  and  Tenant Act.24  We had "but little  difficulty"  in

reaching  this  conclusion  because  a  section  of  the  Uniform

Residential  Landlord  and  Tenant  Act  contained  a  non-waiver

provision  applicable not only to rights, but to remedies,  under

the  act.25  Referring to this non-waiver clause we stated  "that

the  right to sue under the act cannot be prospectively bargained

away.  Hence, the contract remedy here cannot displace that which

is provided by the act."26

          Unlike the Uniform Residential Landlord and Tenant Act,

the Human Rights Act does not contain a provision prohibiting the

waiver  of judicial remedies.  Thus the rationale underlying  our

conclusion in Public Safety Employees Ass'n does not apply to the

present case.

          One case that we cited in Public Safety Employees Ass'n

was  Alexander  v. Gardner-Denver Co.27  There the United  States

Supreme  Court  held  that an unfavorable  arbitrator's  decision

rendered under a collective bargaining agreement did not preclude

an  employee  from  bringing  a racial  discrimination  claim  in

federal court based on Title VII of the Civil Rights Act of 1964.

Based  on a number of factors the Court concluded that the  Title

VII judicial remedy was not meant to be waivable merely because a

claim  raising  the  same  underlying conduct  was  submitted  to

arbitration:

          In  sum,  Title VII's purpose and  procedures
          strongly suggest that an individual does  not
          forfeit  his  private cause of action  if  he
          first   pursues   his  grievance   to   final
          arbitration   under   the   nondiscrimination
          clause     of     a     collective-bargaining
          agreement.[28]
          
            Some  years  after  our  decision  in  Public  Safety

Employees  Ass'n, the United States Supreme Court decided  Gilmer

v.  Interstate/Johnson Lane Corp.,29 which held that an  employee

was  precluded  by  an  arbitration  agreement  from  pursuing  a

judicial  remedy on his claim of age discrimination.  In  Gilmer,

the  Court  established a rule of decision  like  that  which  we

believe  should  govern here.  Agreements to arbitrate  supercede

statutory  judicial remedies "unless Congress itself has  evinced

an  intention to preclude a waiver of judicial remedies  for  the

statutory rights at issue."30  The Court observed that the burden

would  be on the party opposing arbitration to show that a waiver

of  the judicial forum was meant to be precluded and that such an

intention might be discoverable from the text of the act  or  its

legislative  history  or  from  an  "inherent  conflict"  between

arbitration and the underlying purposes of the act.31  The  Court

cautioned that this inquiry should be engaged in bearing in  mind

that "questions of arbitrability must be addressed with a healthy

regard for the federal policy favoring arbitration."32

          The Gilmer Court then turned to the question of whether

Congress,  in enacting the Age Discrimination in Employment  Act,

intended  to  bar  waivers  of  the  individual  judicial  remedy

provided  in the act.  In a discussion which is in many  respects

relevant to the present case, the Court found there to be no such

intent.33   The  Age Discrimination in Employment Act,  like  the

Human  Rights Act, provides both for administrative and  judicial

remedies and for administrative remedies to take precedence  over

judicial  remedies.34   In finding no inherent  conflict  between

arbitration  and  the  purpose  of  the  Age  Discrimination   in

Employment Act, the Court pointed to the act's flexible  approach

to  the administrative resolution of claims - informal efforts to

conciliate like those provided in the Human Rights Act35 -  which

suggested  that  out-of-court  dispute  resolution  methods  like

arbitration were consistent with Congress's purpose.36  The Court

also   noted  that  arbitration  procedures  under  the   Federal

Arbitration Act are fair37 and the arbitrators in the  particular

controversy before the court could fashion both damage awards and

"other" relief, meaning equitable relief.38  Similar broad relief

is also authorized under the clause in this case: "The arbitrator

shall  have  complete authority to make any decision and  provide

any  remedy  appropriate except as otherwise expressly prohibited

by law or this Agreement."39  The Gilmer Court also observed that

arbitration   proceedings  would  not  preclude  the   commission

administering the act from proceeding independently to seek class-

wide  relief  nor would a claimant be precluded  from  filing  an

administrative charge even if he is precluded from filing suit.40

The  same can be said with respect to the Human Rights Commission

and administrative remedies available under the Human Rights Act.41

           Gilmer did not overrule Gardner-Denver.  Instead,  the

earlier  case was distinguished primarily on grounds relating  to

the  fact that a collective bargaining agreement was involved  in

Gardner-Denver  while Gilmer involved an individual  agreement.42

But   the   Court  also  noted  that  general  attitudes   toward

arbitration had changed in the intervening years:

               The Court in Alexander v. Gardner-Denver
          Co.  also expressed the view that arbitration
          was  inferior  to  the judicial  process  for
          resolving  statutory claims.  That  "mistrust
          of the arbitrable process," however, has been
          undermined    by   our   recent   arbitration
          decisions.  "[W]e are well past the time when
          judicial  suspicion  of the  desirability  of
          arbitration and of the competence of arbitral
          tribunals   inhibited  the   development   of
          arbitration  as  an  alternative   means   of
          dispute resolution."[43]
          
           The  Fourth  Circuit has applied the  Gilmer  rule  to

collective  bargaining  agreements.44   But  most  of  the  other

circuits   continue  to  follow  Gardner-Denver   in   collective

bargaining  cases.45   In 1998 the United  States  Supreme  Court

indicated   that  "whether  or  not  Gardner-Denver's   seemingly

absolute prohibition of union waiver of employees' federal  forum

rights survives Gilmer" is an open question.46

           We  deal  here with a question of state law  on  which

neither Gardner-Denver, nor Gilmer, nor other federal authorities

supply binding precedent.  These cases are discussed because they

deal  with  a  similar  controversy in  more  or  less  analogous

situations  and lend history and context to the issue before  us.

We  are  in general agreement with the Gilmer opinion and believe

that   it   more  accurately  reflects  Alaska  policy   favoring

arbitration than does Gardner-Denver.  And we do not believe that

the  distinction  between  collective  bargaining  contracts  and

individual  contracts is necessarily meaningful with  respect  to

the  treatment of arbitration clauses.  Many individual contracts

in  the  employment  area are essentially contracts  of  adhesion

offered  to  the  prospective employee on  a  take-it-or-leave-it

basis.47   Collectively  bargained contracts  are  typically  the

product of bilateral negotiations and thus can be expected to  be

at  least  as fair to employees as standard individual  contracts

offered  by employers.48  Thus there is little reason to  enforce

arbitration  clauses in individual contracts while  declining  to

enforce similar clauses in collective bargaining agreements.49

           Barnica  argues  that our holding in Norcon,  Inc.  v.

Kotowski50  dictates that a judicial forum for  statutory  gender

discrimination claims cannot be waived.  In Norcon,  an  employee

covered  by  a  collective bargaining agreement sued  for  sexual

discrimination in violation of AS 18.80.220.51 The superior court

held  that  plaintiff's claim was preempted by  301 of the  Labor

Management Relations Act,52 and that the claim was subject to the

grievance  procedures of the contract.53  We reversed, explaining

that  "if  [an] employee's suit against her employer is based  on

state  law  claims  neither  founded  on  rights  created  by   a

[collective  bargaining agreement] nor dependent on the  analysis

or  interpretation of the [collective bargaining agreement],  the

[Labor Management Relations Act] does not preempt such claims."54

The  question in Norcon was one of preemption; if the  claim  was

preempted,  the  suit  was  barred  by  the  federal  statute  of

limitations,  and if it was not, the employee could proceed  with

her state statutory judicial remedy.55  The issue did not, as  it

does  here,  involve choosing between a state arbitration  remedy

and state judicial remedy.

          The test used to determine preemption is different from

the  Gilmer  test  that we are following in  this  opinion.   The

preemption test asks whether the worker's rights under state  law

can  be  adjudicated without having to interpret  the  collective

bargaining  agreement.56  That contrasts with Gilmer  which  asks

whether Congress intended that workers' judicial remedies not  be

waivable.57   Answering as we did in Norcon that  the  employee's

right  to  be  free from sex discrimination could  be  determined

independently  of  the collective bargaining agreement  is  fully

consistent  with  answering the Gilmer test by  saying  that  the

legislature did not manifest an intent to preclude the waiver  of

the  Human  Rights  Act judicial remedy in  favor  of  grievance/

arbitration procedures.

           Barnica points to the statement in Norcon that  "[t]he

right  to a non-discriminatory workplace conferred . .  .  by  AS

18.80.220  could  not  be  waived  by  any  contrary  contractual

provision."58  On its face this statement speaks of a substantive

right and not remedies.59  It is not inconsistent with finding the

judicial remedy for a discriminatory workplace waivable in  favor

of grievance/arbitration procedures.  For these reasons we reject

Barnica's  argument that our decision in this case is  controlled

by Norcon.

           One  additional Alaska case should be  mentioned.   In

Storrs  v.  Municipality of Anchorage we held that an  employee's

state  constitutional right to a pretermination hearing could  be

waived in a collective bargaining agreement so long as the remedy

substituted  by  the collective bargaining agreement  was  "fair,

reasonable   and  efficacious."60   This  holding  supports   our

conclusion  that statutory remedies can be waived  by  reason  of

substitute  remedies  in  collective bargaining  agreements.   If

constitutionally mandated remedies may be waived  by  alternative

grievance/arbitration procedures, statutory remedies likewise may

be subject to waiver because of such procedures.

          For the reasons stated, the judgment is AFFIRMED.

BRYNER, Justice, with whom CARPENETI, Justice, joins, dissenting.

          I dissent from the decision requiring Barnica to assert

his  discrimination claim through binding arbitration  under  his

Collective  Bargaining Agreement.  Because this court  is  evenly

divided  on  this  issue, the plurality opinion will  affirm  the

superior court's ruling but will have no precedential effect.61  I

nevertheless  think  it  important  to  explain  my  reasons  for

dissenting.   In my view, the plurality's decision  misinterprets

federal case law, underestimates our own precedent, and reaches a

conclusion  at  odds  with  the  likely  intent  of   the   CBA's

arbitration clause.

           To help resolve new questions concerning the scope and

effect of Alaska's Public Employment Relations Act,62 this  court

has  commonly looked to relevant federal case law for guidance.63

Today's plurality opinion breaks with this tradition by following

a  federal  ruling  that happens to agree  with  the  plurality's

policy  views  but  does  not  apply in  the  present  procedural

setting; at the same time, the plurality all but ignores  a  more

recent  Supreme  Court  ruling  that  is  squarely  relevant  and

directly contradicts the plurality's position.

          Almost three decades ago in Alexander v. Gardner-Denver

Co.,  the United States Supreme Court categorically held  that  a

collective  bargaining  agreement's  arbitration  clause   cannot

defeat  a  union  worker's right to pursue a  private,  statutory

cause of action in court.64  Seventeen years later, in Gilmer  v.

Interstate/Johnson  Lane Corp., the Court  reached  the  opposite

result  in  a non-union setting, ruling that a private employment

contract's arbitration clause may be presumed to have  waived  an

employee's  right  to pursue potentially arbitrable,  employment-

related,  statutory judicial remedies " `unless  Congress  itself

has  evinced an intention to preclude a waiver[.]' "65   Although

this  court  has  previously  recognized  and  applied  the  rule

articulated  in  Gardner-Denver,66  today's  plurality   decision

discards  that  rule as outmoded, opting instead for  the  Gilmer

rule,  which, it asserts, "more accurately reflects Alaska policy

favoring arbitration."67

           But  in  its  eagerness to embrace  what  it  sees  as

Gilmer's  more contemporary policies, the plurality  shortchanges

the  Supreme  Court's most recent pronouncement on  the  subject,

Wright  v.  Universal  Maritime Service Corp.68   In  Wright,  an

opinion  issued  just four years ago, the Supreme  Court  granted

review of a ruling by the fourth circuit invoking the Gilmer rule

to  bar a longshore worker from pursuing a claim in federal court

under  the  Americans with Disabilities Act.69  In  reaching  its

decision,  the fourth circuit tacitly reasoned, in  keeping  with

its earlier decision in Austin v. Owens-Brockway Glass Container,

Inc.,70 that the Supreme Court had effectively overruled Gardner-

Denver  in  Gilmer and that, under Gilmer, the worker's statutory

claim had to be arbitrated under his CBA.71

           In arguing this decision before the Supreme Court, the

parties and the amici curiae concentrated on what they saw as the

crucial  question:  whether the fourth circuit correctly  decided

that  Gilmer had superceded Gardner-Denver's unequivocal  holding

that  an  arbitration  clause  in a CBA  could  not  collectively

bargain  away a worker's individual right to a statutory judicial

remedy.72   But the Supreme Court found it unnecessary to  answer

this  question, ruling instead that even if Gilmer might  require

arbitration  in  some collective bargaining situations,  Gardner-

Denver  nonetheless  governed  the  case  at  issue,  since   the

generalized  arbitration clause of the  CBA  in  Wright  did  not

incorporate  a  "clear and unmistakable" waiver of the  statutory

remedy.73

           Specifically,  Wright emphasized, the rule  of  waiver

that  it articulated in Gilmer depends largely on the presumption

of  arbitrability; but in the collective bargaining context, this

presumption  extends only as far as "the reach of  the  principal

rationale that justifies it, which is that arbitrators are  in  a

better  position than courts to interpret the terms of a  CBA."74

Wright  further  concluded that neither the underlying  rationale

nor  the presumption of arbitrability applies when a union worker

seeks  to assert a statutory remedy, since, when a claim  arising

under  a  statutory remedy also might be covered by  the  general

terms  of  a  CBA  arbitration  clause,  the  claim's  resolution

"ultimately concerns not the application or interpretation of any

CBA, but the meaning of a federal statute."75  In the absence  of

the presumption of arbitrability, then, Wright decided to apply a

strict  rule disfavoring implied contractual waiver of  statutory

rights: "[W]e will not infer from a general contractual provision

that  the parties intended to waive a statutorily protected right

unless the undertaking is explicitly stated."76

           Hence, although the Supreme Court's opinion in  Wright

does  not  definitively resolve the tension  between  Gilmer  and

Gardner-Denver, it reconfirms that Gardner-Denver survived Gilmer

and  remains  a  vital precedent, at least  to  the  extent  that

Gardner-Denver  continues to preclude a union  from  collectively

bargaining  away  a  worker's individual  right  to  a  statutory

judicial  remedy  unless  the  CBA  incorporates  a  "clear   and

unmistakable" waiver of the statutory claim.77

           Despite  this  unequivocal ruling,  today's  plurality

decision  all  but dismisses Wright, quoting only a snippet  from

that  decision for the proposition "that `whether or not Gardner-

Denver's  seemingly  absolute  prohibition  of  union  waiver  of

employee's  federal  forum rights survives  Gilmer'  is  an  open

question."78   But while this narrow proposition  is  technically

true,  it  veils  Wright's  broader significance:  the  plurality

divorces  the  quoted  snippet of language  from  its  contextual

setting,  inaccurately suggesting that Wright does  nothing  more

than  leave an open question.  What Wright actually says  in  the

passage that embodies the quoted language is this:

                 We   think   the  same   ["clear   and
          unmistakable waiver"] standard applicable  to
          a   union-negotiated  waiver  of   employees'
          statutory  right  to  a  judicial  forum  for
          claims    of    employment    discrimination.
          Although that is not a substantive right, and
          whether  or  not  Gardner-Denver's  seemingly
          absolute  prohibition  of  union  waiver   of
          employees'  federal  forum  rights   survives
          Gilmer,  Gardner-Denver at least  stands  for
          the  proposition that the right to a  federal
          judicial forum is of sufficient importance to
          be protected against less-than-explicit union
          waiver in a CBA.[79]
          
Wright  goes on to disapprove of the fourth circuit's  invocation

of Gilmer in unmistakable terms:

          The  Fourth Circuit relied upon the fact that
          the equivalently broad arbitration clause  in
          Gilmer  - applying to "any dispute, claim  or
          controversy"-  was  held to  embrace  federal
          statutory  claims.   But Gilmer  involved  an
          individual's waiver of his own rights, rather
          than  a  union's  waiver  of  the  rights  of
          represented  employees and hence  the  "clear
          and    unmistakable"   standard    was    not
          applicable.[80]
          
As these passages make clear, then, the Court in Wright pointedly

refused  to  declare Gardner-Denver dead and, instead, explicitly

confirmed that, despite Gilmer, Gardner-Denver remains vital in a

way that is crucially relevant here.

           Post-Wright  federal circuit opinions underscore  that

Wright's  requirement  for waiver of a  judicial  remedy  is  not

easily met: these opinions generally recognize that a CBA will be

construed to incorporate a "clear and unmistakable" waiver  of  a

statutory  antidiscrimination  claim  only  if  it  contains   an

arbitration clause that explicitly agrees "to submit all  federal

causes of action arising out of . . . employment to arbitration"81

or,  in  the event of a more general arbitration clause, only  if

the  CBA  contains  an  additional  provision  that  includes  an

"explicit  incorporation  of  the  statutory  anti-discrimination

requirements."82

           Barnica's CBA fails to meet these federal criteria for

a  "clear  and unmistakable" waiver: its arbitration clause  does

not   explicitly  require  submission  of  statutory  claims   to

arbitration;   and   while   the   CBA   does   include   general

antidiscrimination  language, that language does  not  explicitly

incorporate  any  statutory antidiscrimination requirements.   In

similar  cases, including Wright, federal courts have  found  CBA

grievance  provisions to be too general to meet  the  "clear  and

unmistakable"  standard.83  Indeed, of all federal circuit  cases

that have addressed the issue since Wright - including three from

the  fourth  circuit - apparently none has yet found a  CBA  that

satisfies Wright's "clear and unmistakable" waiver standard.84

           Contrary to the plurality opinion's suggestion,  then,

federal law unequivocally points to the conclusion that Barnica's

CBA  cannot  properly be construed to have waived  his  right  to

pursue an independent court action on his statutory claim.  Here,

as  in  Wright,  the  arbitration clause is "very  general,"  and

"could  be  understood  to  mean matters  in  dispute  under  the

contract";  moreover, "the remainder of the contract contains  no

explicit   incorporation  of  the  statutory   antidiscrimination

requirements."85  Just as in Wright, then, "the CBA in this  case

does not meet [the] standard."86

           To  be  sure, the plurality opinion correctly observes

that  Barnica's case presents "a question of state law  on  which

[federal authorities do not] supply binding precedent."87   Hence

we  consider the Gilmer/Gardner-Denver/Wright line of cases  only

because  those  cases are helpful.  Yet as I emphasized  earlier,

this  court  usually regards federal precedent in this  field  as

highly  persuasive.  Furthermore, the federal  cases  cited  here

have  applied the "clear and unmistakable" waiver standard  to  a

wide  range  of  antidiscrimination  statutes,  both  state   and

federal.88   I  see  no sound reason, then, to deviate  from  the

federal cases.

           Indeed,  if  any  good  reasons exist  to  distinguish

Barnica's  case from Wright and its progeny, they seem  to  favor

adopting an even more stringent state waiver requirement.  First,

as  the plurality's decision correctly points out, CBAs that fall

within  the coverage of Alaska's Public Employment Relations  Act

must  incorporate  binding arbitration as a  final  step  of  the

grievance  procedure.89  Realistically, then, there seems  little

reason  to presume that a general arbitration clause will reflect

anything more than the parties "clear and unmistakable" intent to

comply  with  the statutory mandate to arbitrate  those  disputes

that  arise  exclusively under, and consequently depend  upon  an

interpretation of, the CBA.

           A separate and equally compelling reason to enforce  a

stringent state rule against waiver of statutory claims  is  that

our  own  precedent strongly counsels against allowing  employers

and  unions to collectively bargain for such waivers.  In  Public

Safety  Employees  Ass'n  v. State, we  unequivocally  held  that

public  employees working under a CBA could not  be  required  to

prospectively  bargain  away their right to  sue  under  Alaska's

Landlord  Tenant  Act.90  And more recently, in Norcon,  Inc.  v.

Kotowski,  we  broadly emphasized that "[t]he  right  to  a  non-

discriminatory  workplace conferred . . . by AS  18.80.220  could

not be waived by any contrary contractual provision.  Because  it

is  a non-waivable state law right, no need exists to consult the

CBA to determine its meaning."91

           The  plurality  tries to distance  itself  from  these

precedents.  But its attempts are unpersuasive.92  True,  neither

PSEA  nor  Norcon  directly controls the outcome  here;  yet  the

plurality's retreat from their deliberately broad language hardly

seems consonant with their intent and spirit - particularly  when

one  considers that the plurality proposes to replace this  broad

language discouraging waiver with a strong presumption of  waiver

that  originates in a federal judicial rule that  federal  courts

themselves would decline to apply to these facts.

           In  short,  given  our  own  case  law  and  the  rule

articulated by the United States Supreme Court in Wright, I would

hold  that the CBA does not extinguish Barnica's right to a cause

of  action  under  the Human Rights Act and that  Barnica  should

remain free to pursue his superior court action.

_______________________________
1    Collectively referred to in this opinion as the district.
2     Cozzen  v. Municipality of Anchorage, 907 P.2d 473  (Alaska
1995).
3    Beard v. Baum, 796 P.2d 1344 (Alaska 1990).
4    971 P.2d 158 (Alaska 1999).
5    500 U.S. 20 (1991).
6    78 F.3d 875 (4th Cir. 1996).
7    415 U.S. 36 (1974).
8    Barnica thus concedes that under the terms of the collective
bargaining  agreement  his discrimination claim  was  subject  to
arbitration and that the question we must decide is whether  this
aspect of the agreement is enforceable.
9    Article 4 of the agreement provides:

                The District and Association shall  not
          discriminate  against  any  bargaining   unit
          member   in   matters  of  salaries,   fringe
          benefits,  similar  terms and  conditions  of
          employment, or any other conditions  of  this
          Agreement on the basis of . . . sex . . . .
          
10    AS 23.40.210(a).
11      The   grievance  procedures  article  of  the  collective
bargaining   agreement   provides  for  a   four-step   grievance
resolution  process beginning with a meeting with the  employee's
immediate  supervisor,  continuing through  hearings  before  the
superintendent and the school board, and culminating  in  binding
arbitration  before  an  impartial  arbitrator  selected  by  the
American Arbitration Association.  A grievance under the contract
is  defined  as  "a claim by a grievant that there  has  been  an
alleged  violation . . . of the [collective bargaining] Agreement
. . . ."
12     See AS 22.10.020(i).  The availability of this remedy,  as
well  as  the  remedy under the collective bargaining  agreement,
makes  a  separate tort remedy unnecessary and we  conclude  that
none is available.  See Walt v. State, 751 P.2d 1345, 1353 & n.16
(Alaska 1988).
13     See  AS 18.80.100-.135.  Moreover, unlawful discriminatory
conduct prohibited under AS 18.80 is a misdemeanor punishable  by
up  to  thirty days in jail and by a fine of no more  than  $500.
See AS 18.80.270.
14    See Casey v. City of Fairbanks, 670 P.2d 1133, 1137 (Alaska
1983);  International Bhd. of Teamsters, Local 959 v.  King,  572
P.2d  1168,  1172  n.9 (Alaska 1977); see, e.g.,  Republic  Steel
Corp.  v.  Maddox, 379 U.S. 650 (1965) (stating general  rule  in
federal law that "individual employees wishing to assert contract
grievances  must attempt use of the contract grievance  procedure
agreed upon by employer and union as the mode of redress").
15    See AS 23.40.210(a).
16    See AS 23.40.070.
17    See AS 23.40.210(a).
18    AS 23.40.070.
19    Department of Pub. Safety v. Public Safety Employees Ass'n,
732  P.2d 1090, 1093 (Alaska 1987) (quoting University of  Alaska
v. Modern Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974)).
20    See id.
21     As  the  Supreme Court of the United States  has  recently
observed in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123
(2001):  "Arbitration agreements allow parties to avoid the costs
of  litigation, a benefit that may be of particular importance in
employment litigation, which often involves smaller sums of money
than disputes concerning commercial contracts."
22    658 P.2d 769, 770 (Alaska 1983).
23    Id. at 774.
24    Id.
25    Id.
26    Id. at 774-75.
27    415 U.S. 36 (1974).
28    Id. at 49.
29    500 U.S. 20 (1991).
30    Id. at 26 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 628 (1985)).
31    Id.
32    Id.
33    Id. at 27-29.
34    29 U.S.C.  626; AS 18.80.145.
35    29 U.S.C.  626; AS 18.80.145.
36    Gilmer, 500 U.S. at 29.
37    Id. at 30.
38    Id. at 32.
39     Here,  as in Gilmer, "by agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded  by
the  statute;  it only submits to the resolution in an  arbitral,
rather  than  a  judicial,  forum."   500  U.S.  at  26  (quoting
Mitsubishi  Motors  Corp. v. Soler Chrysler-Plymouth,  Inc.,  473
U.S. 614, 628 (1985)).
40    Id.
41    AS 18.80.060, .100-.110.
42    Gilmer, 500 U.S. at 35.
43     Id. at 34 n.5 (quoting Mitsubishi Motors, 473 U.S. at 626-
27) (internal citations omitted).
44    See Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d
875, 880-82 (4th Cir. 1996).
45     See  Penny v. United Parcel Serv., 128 F.3d 408, 414  (6th
Cir. 1997) (concluding that "an employee whose only obligation to
arbitrate  is  contained  in  a collective  bargaining  agreement
retains  the  right  to  obtain a judicial determination  of  his
rights  under  a  statute  such as the ADA");  Harrison  v.  Eddy
Potash,  Inc., 112 F.3d 1437, 1453 (10th Cir. 1997),  vacated  on
other  grounds,  Eddy  Potash, Inc. v.  Harrison,  524  U.S.  947
(1998); Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.
1997) (holding that "the union cannot consent for the employee by
signing  a  collective  bargaining agreement  that  consigns  the
enforcement of statutory rights to the union-controlled grievance
and  arbitration machinery created by the agreement"); Brisentine
v.  Stone & Webster Eng'g Corp., 117 F.3d 519, 526-27 (11th  Cir.
1997); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213
(8th Cir. 1996); Tran v. Tran, 54 F.3d 115, 118 (2d Cir. 1995).
46     Wright  v. Universal Maritime Serv. Co., 525 U.S.  70,  80
(1998).
47    Cf. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)
(reviewing individual contract); Mago v. Shearson Lehman  Hutton,
Inc., 956 F.2d 932 (9th Cir. 1992) (same).
48     Further, individual member's claims under Alaska  law  are
less  subject  to  union control than under  federal  law.    For
example, if Barnica's union had refused to take his case to  step
four  arbitration, he could have sued the district for breach  of
the collective bargaining agreement in the superior court without
the  need,  as  under  federal law, to show that  the  union  had
breached its duty of fair representation.  See Casey v.  City  of
Fairbanks, 670 P.2d 1133, 1138 (Alaska 1983).
49     The  lack  of fair procedures or the absence  of  unbiased
arbitrators  can serve as a reason not to require  that  contract
remedies be used in preference to judicial remedies with  respect
to both individual and collective bargaining contracts.  But such
contentions  are  case specific.  Cf. Bruns  v.  Municipality  of
Anchorage,  32  P.3d  362  (Alaska 2001)  (discussing  excuse  of
failure  to exhaust administrative remedies "where administrative
procedures are ineffective because of lack of meaningful  access,
bias,  futility, or the possibility that the claimant could  face
irreparable  harm").  No contentions of procedural unfairness  or
bias are made in this case.
50    971 P.2d 158 (Alaska 1999).
51    Id. at 165.
52    29 U.S.C.  185.
53    Norcon, 971 P.2d at 164.
54    Id. at 164-65.
55    Id.
56    Id.
57    Gilmer, 500 U.S. at 26.
58    Norcon, 971 P.2d at 165.
59    The Gilmer Court stressed that statutory substantive rights
are  not waived even though statutory remedies may be.  See supra
note 39.
60    721 P.2d 1146, 1150 (1986).
61     Our  case law establishes that "[a] decision by an  evenly
divided court results in an affirmance."  Ward v. Lutheran Hosps.
&  Homes Soc'y of America, Inc., 963 P.2d 1031, 1037 n.11 (Alaska
1998)  (quoting Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997).
Moreover,  "an  affirmance by an equally  divided  court  is  not
precedent."  City of Kenai v. Burnett, 860 P.2d 1233, 1239  n.11,
1246 (Alaska 1993) (Compton, J., concurring).
62    AS 23.40.070-.260.
63     See, e.g., Pub. Safety Employees Ass'n v. State, 658  P.2d
769, 775 (Alaska 1983).
64    415 U.S. 36, 49 (1974).
65     500 U.S. 20, 26 (1991) (quoting Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
66    See Pub. Safety Employees Ass'n, 658 P.2d at 775.
67    Slip Op. at 13-14.
68    525 U.S. 70 (1998).
69    Id. at 72, 75.
70    78 F.3d 875 (4th Cir. 1996).
71     Wright,  525  U.S. at 75-76 (describing  fourth  circuit's
unpublished opinion in Wright v. Universal Maritime Servs. Corp.,
121 F.3d 702 (4th Cir. 1997)).
72    Id. at 76-77.
73    Id. at 77, 80-81.
74    Id. at 78.
75    Id. at 78-79.
76     Id. at 80 (quoting Metro Edison Co. v. NLRB, 460 U.S. 693,
708 (1983)) (internal quotations omitted).
77    Id. at 80-81.
78    Slip Op. at 13 (quoting Wright, 525 U.S. at 80).
79    Id. at 80 (citations omitted).
80    Id. at 80-81.
81     Rogers v. New York Univ., 220 F.3d 73, 76 (2d Cir.  2000);
accord  Carson v. Giant Food, Inc., 175 F.3d 325, 331  (4th  Cir.
1999).
82    Rogers, 220 F.3d at 76 (emphasis added); accord Carson, 175
F.3d at 332.  Hence, even when other sections of the CBA prohibit
discrimination in terms similar to the statutory protection,  the
waiver  of  a  judicial remedy requires explicit mention  of  the
statute  incorporated.  See Rogers at 76 (stating that  "[c]ourts
agree  that specific incorporation requires identifying the anti-
discrimination  statutes  by  name  or  citation");  Kennedy   v.
Superior  Printing  Co.,  215  F.3d  650,  654  (6th  Cir.  2000)
(disapproving  of  a  non-discrimination clause  that  failed  to
mention  the ADA by name); Bratten v. SSI Servs., Inc., 185  F.3d
625,  631  (6th  Cir. 1999) (ruling that since antidiscrimination
provision   was  in  separate  section  of  CBA  from   grievance
procedure, it did not require arbitration of such claims).
83    Compare CBA Article 35 ("A `grievance' shall mean a claim by
a   grievant   that   there  has  been  an   alleged   violation,
misinterpretation,  or  misapplication of  the  Agreement,  or  a
violation of official Board policy."), with Wright, 525  U.S.  at
73  ("Any  dispute concerning or arising out of the terms  and/or
conditions   of   this  Agreement,  or  dispute   involving   the
interpretation  or  application of  this  Agreement,  or  dispute
arising out of any rule adopted for its implementation, shall  be
referred  to  [arbitration]"); Kennedy, 215 F. 3d  at  654  ("any
controversy  or  dispute arising from the  interpretation  and/or
application  of  the terms and work conditions under  this  labor
agreement");  Bratten, 185 F.3d at 631 ("[a]ny grievance  arising
under  the  terms  of  this  contract  or  an  alleged  violation
thereof"); Rogers, 220 F.3d at 76 ("[a]ny dispute concerning  the
interpretation, application, or claimed violation of  a  specific
term or provision of this Agreement").
84     See  Robinson v. Healthtex, Inc., 215 F.3d 1321 (4th  Cir.
2000); Carson, 175 F.3d at 332; Brown v. ABF Freight Sys.,  Inc.,
183 F.3d 319 (4th Cir. 1999).
85    Wright, 525 U.S. at 80 (emphasis added).
86    Id. at 80.
87    Slip Op. at 13.
88    See Wright, 525 U.S. at 76 (citing cases considering, among
others,  claims under Title VII of the Civil Rights Act  of  1964
and  Fair  Labor Standards Act of 1938); see also, e.g.,  Rogers,
220  F.3d at 74, 76 (considering claims under the Americans  with
Disabilities  Act, Family and Medical Leave Act,  and  state  and
local human rights laws).
89    See AS 23.40.210(a):

                      (a)   Upon   the  completion   of
          negotiations  between an organization  and  a
          public  employer, if a settlement is reached,
          the  employer shall reduce it to  writing  in
          the form of an agreement. . . . The agreement
          shall  include  a  grievance procedure  which
          shall  have binding arbitration as its  final
          step.   Either party to the agreement  has  a
          right  of action to enforce the agreement  by
          petition to the labor relations agency.
90    658 P.2d 769, 770, 774-75 (Alaska 1983).
91    971 P.2d 158, 165 (Alaska 1999).
92    The plurality distinguishes Public Safety Employees Ass'n v.
State  by noting that, unlike the Human Rights Act at issue here,
the  Uniform Residential Landlord and Tenant Act at issue in PSEA
contained  an  express  provision  against  waiver  of   judicial
remedies.   Slip Op.  at 8-9.  But this was only one  of  several
factors  that  we  mentioned in deciding PSEA.  Notably,  another
factor  we  considered was the existence of  a  body  of  federal
decisions  -  among them, Gardner-Denver - which we described  as
holding  that, "[i]n circumstances involving coincident  arbitral
and  statutory  avenues of relief, . . .   arbitration  does  not
afford  an  exclusive  remedy." PSEA, 658 P.2d  at  774-75.   Our
express  reliance  on Gardner-Denver and other analogous  federal
cases  establishes that PSEA's broad language was not exclusively
based on the URLTA's express anti-waiver provision.

          The plurality also attempts to explain Norcon as simply
a  federal  preemption case.  Slip Op. at  14-15.   But  Norcon's
discussion of federal preemption cannot account for its broad and
categorical  language  holding that Kotowski's  rights  under  AS
18.80.220 "could not be waived by any contractual provision"  and
that  AS  18.80.220 was "a non-waivable state law right." Norcon,
971  P.2d at 165.  Strictly speaking, of course, these statements
are  dicta.  But they certainly do not deal with preemption.  Nor
can  Norcon's  focus on preemption explain its citation  to  PSEA
(which  had nothing to do with federal preemption) as "a  similar
situation"  in  which we established that "the existence  of  the
arbitration remedy did not preclude the exercise of the statutory
remedy."  Norcon,  971  P.2d  at 165.   And  finally,  while  the
plurality  correctly  observes that the test  for  preemption  at
issue in Norcon differs from the Gilmer test that it proposes  to
adopt as the law of Alaska, Slip Op. at 15, this observation begs
the  threshold  question whether Gilmer properly applies  to  the
facts  in  Barnica's  case.  By glossing  over  this  preliminary
question,  the  plurality  overlooks  that  Wright's   test   for
determining whether the presumption of arbitrability attaches  in
a  given case - the very determination that, according to Wright,
justifies  substituting the Gilmer analysis for  Gardner-Denver's
"clear and unmistakable" waiver requirement - is exactly the same
as  the test for federal preemption: whether the dispute at issue
necessarily  hinges  on an interpretation of  the  CBA.   Compare
Norcon, 971 P.2d at 164-65 with Wright, 525 U.S. 77-79.  Norcon's
preemption analysis thus accords with the prescribed analysis  in
Wright and strongly counsels against reliance on Gilmer.