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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fairbanks Fire Fighters Assoc., Local 1324 v. City of Fairbanks (6/7/2002) sp-5579

Fairbanks Fire Fighters Assoc., Local 1324 v. City of Fairbanks (6/7/2002) sp-5579

     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.


ASSOCIATION, LOCAL 1324,           )
                              )    Supreme Court No. S-9715
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    4FA-99-1551 CI
CITY OF FAIRBANKS,                      )    O P I N I O N
             Appellee.                   )    [No. 5579 - June 7,

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mark I. Wood, Judge.

          Appearances:   Michael A. MacDonald,  Downes,
          MacDonald  & Levengood, P.C., Fairbanks,  for
          Appellant.   Joseph W. Evans, Law  Office  of
          Joseph W. Evans, Fairbanks, for Appellee.

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

          CARPENETI, Justice.


          I.   This appeal poses the question whether the Alaska Labor

Relations  Agency  has  jurisdiction to decide  if  an  issue  is

arbitrable.   The agency ruled that it had that power,  and  held

that  the  underlying  issue in this case  was  arbitrable.   The

superior court concluded that the agency did not have that power,

but  agreed that the underlying issue was arbitrable, and  so  it

affirmed  the  agency decision.  We first hold  that,  while  the

arbitrability  issue  is technically moot  under  the  procedural

posture  of  this  case,1 the public interest  exception  to  the

mootness doctrine applies;  we therefore reach the merits of this

appeal.  Because we conclude that AS 23.40.210 reserves the power

to  determine arbitrability to the Alaska Labor Relations Agency,

we  reverse the contrary ruling of the superior court and  affirm

the  agencys  ruling that it had the power to decide whether  the

underlying dispute was arbitrable.


          Fairbanks  Fire Fighters Association, Local  1324  (the

union)  filed grievances against the City of Fairbanks on  behalf

of  Jim  Rice and Lee Despain under provisions of the  collective

bargaining agreement (CBA) between the union and the  city.   The

union claimed that the city improperly refused to rehire Rice and

Despain for positions that were open in the fire department.  The

two  men had previously been employed as firefighters by the city

but  resigned those positions under conditions that led  them  to

sue  the  city  for  constructive discharge.2  Rice  and  Despain

prevailed at trial on their claims of constructive discharge, and

the  court  awarded monetary damages in their favor but  did  not

order reinstatement.

          The  union  sought  to  enforce  the  CBAs  arbitration

provisions  before  the  Alaska Labor  Relations  Agency  (ALRA).

However,  the  city  responded  that  this  grievance   was   not

arbitrable under the CBA because Rice and Despain were no  longer

employees  of the city when the grievance arose.  The  city  also

argued  that the ALRA did not have the power to decide the  issue

of  arbitrability  and  that only the court  could  decide  which

issues were and were not arbitrable.

          The  ALRA  disagreed with the city on both points.   In

its  decision,  the  ALRA ruled that it had the  jurisdiction  to

determine  what cases are arbitrable under the CBA.   Using  that

power,  the  ALRA  further  held that  the  underlying  grievance

involving Rice and Despain was arbitrable.

          The  city  appealed the ALRA decision to  the  superior

          court.  In his decision, Superior Court Judge Pro Tem Mark I.

Wood  held  that the ALRAs ruling with regard to its  ability  to

hear  questions  of  arbitrability was erroneous.   However,  the

superior court also held that the error was harmless because  the

arguments offered by the city as to why Rice and Despain were not

covered  by  the CBA were meritless.  The court accordingly  held

that  the grievance was subject to the arbitration provisions  of

the CBA, and explicitly affirmed the ALRAs order.

          The  union  now  brings  this  appeal  challenging  the

superior  courts finding that the ALRA did not have the power  to

determine  whether or not the issues in this case are arbitrable.

The  city  has not appealed the superior courts ultimate decision

that the grievance is subject to arbitration.


          We  resolve issues of standing and mootness  using  our

independent judgment because they are questions of law  involving

matters of judicial policy.3

          In  administrative  appeals,  we  directly  review  the

agency  action in question.4  We apply a substitution of judgment

standard  to  the  agencys decision that  it  has  the  power  to

determine issues of arbitrability, because that ruling is a legal

conclusion  concerning  statutory and common  law  interpretation

that  does  not implicate agency expertise.  The substitution  of

judgment  standard  .  .  . applies where the  agencys  expertise

provides  little guidance to the court or where the case concerns

statutory interpretation or other analysis of legal relationships

about which courts have specialized knowledge and expertise.5


     A.   This  Case  Is Moot, but We Review It under the  Public
          Interest Exception to the Mootness Doctrine.
          The  party  bringing this appeal, the union,  prevailed

before  the ALRA.  The superior court affirmed that ruling.   The

city  does not appeal the adverse decisions of either the  agency

or  the superior court.  The first question is whether the  union

can  appeal  a  decision  in  its favor  simply  because  it  was

          dissatisfied with the reasoning of the superior court.

          1.   This appeal is moot.

          1.   We have ruled that,  [u]nder ordinary circumstances, we will

refrain  from  deciding questions where events have rendered  the

legal  issue  moot.  6  A claim is moot if  it  is  no  longer  a

present,  live  controversy, and the party  bringing  the  action

would  not be entitled to relief, even if it prevails.7  Mootness

can also occur when a party no longer has a personal stake in the

controversy and has, in essence, been divested of standing.8  The

basic requirement for standing in Alaska is adversity.9

          This  case  presents  an unusual  twist  on  the  usual

mootness consideration.  In most cases, mootness is found because

the  party raising an appeal cannot be given the remedy it  seeks

even if the court agrees with its legal position.10  In this case,

the  union  has  already been given the remedy it seeks,  and  we

cannot  give  it  any further relief even if we  agree  with  the

unions  legal argument.  The union merely asks us to  resolve  an

intermediate  legal question  whether the ALRA has the  power  to

decide its own jurisdiction  differently than the superior  court

did,  while  reaching  the  same  ultimate  conclusion  that  the

superior court reached.

          Although  the situations are not exactly the  same,  we

have previously found that issues were moot because the appellant

was  able  to  secure  relief, even though  the  means  by  which

appellant secured relief were different from those argued by  the

appellant below.11  The facts of the present case present an even

easier  case  for mootness because  the union has  been  able  to

secure  relief.   As a result, we find that the  superior  courts

decision to affirm the determination of the ALRA has rendered the

unions appeal moot.

          2.   This appeal merits application of the public interest
               exception to the mootness doctrine.
          We  have  held  that we can choose to  address  certain

issues  if they fall under the public interest exception  to  the

mootness  doctrine.12   There  are three  main  factors  that  we

          consider in deciding whether to apply the public interest

exception:  (1)  whether  the  disputed  issues  are  capable  of

repetition,  (2) whether the mootness doctrine, if  applied,  may

cause review of the issues to be repeatedly circumvented, and (3)

whether  the  issues  presented are so important  to  the  public

interest as to justify overriding the mootness doctrine.13   None

of  the  individual factors is dispositive; rather,  we  use  our

discretion to determine whether the public interest dictates that

immediate review of a moot issue is appropriate.14

          With  regard to the first requirement, we have  refused

to  apply  the  public  interest  exception  to  unusual  factual

circumstances  that  were  unlikely  to  repeat  themselves15  or

situations  where  the applicable statute or  regulation  was  no

longer in force and was unlikely to be reinstated.16  Neither  of

those  exceptions applies here.  This issue is likely  to  repeat

itself  as  questions of arbitrability are likely to  arise  with

regard  to other CBAs put before the ALRA in the future,  and  no

statutory change has occurred.

          The   second   requirement  for  the  public   interest

exception is that the issue will continually evade court  review.

This  question  is close.  It is possible that  this  issue  will

arise  again  when  it  is not moot.  In Legislative  Council  v.

Knowles,17 we were uncertain as to whether the issue would  evade

review  in the future, but we were persuaded to apply the  public

interest  exception  because in that  case  the  threatened  harm

resulted  when a claim was brought, not when it was  concluded.18

This  case  presents  a similar situation.   Arbitrability  is  a

threshold  question; thus, the harm is caused  by  the  means  of

resolution  and  not the resolution itself.  Therefore,  we  find

that this requirement is met.           The third requirement  is

also satisfied.  We have applied the public interest exception to

situations,  otherwise  moot, where the  legal  power  of  public

officials was in question.  Specifically, in Knowles, we  applied

the exception to the issue whether the governor had the right  to

          bring suit against the legislature.19  Even though later

enactments  resolved the immediate conflict between the  governor

and legislature, we agreed to consider, under the public interest

exception,  the meaning of a constitutional prohibition  of  such

suits.20  Similarly, in Kodiak Seafood Processors Assn v. State,21

we considered the issuance of a permit for fishing in waters that

had been closed for over twenty-five years, despite the fact that

the permit was revoked prior to trial, which rendered many of the

issues moot.22  We refused on mootness grounds to consider  issues

of  procedural error that were admitted by the Department of Fish

and  Game,  but  we  did  consider whether the  commissioner  had

exceeded  his  authority.23   We ruled  that  the  scope  of  the

Commissioners power is an issue of public interest.24

          The  present  case meets the important public  interest

requirement.   As  this case raises a question of  the  power  of

government  officials, the issues are sufficiently  important  to

the  public  interest  to  merit consideration.   Therefore,  the

issue,  though  moot,  has  met the  three-prong   public  policy

exception test.

     B.   The ALRA Has Jurisdiction To Decide Whether an Issue Is
          The union argues that there are statutory, contractual,

and  policy reasons that support the agencys power to decide  the

arbitrability of this dispute.  The superior court disagreed  and

ruled  that the ALRA erred by concluding that it had jurisdiction

to resolve [arbitrability].

          In State v. Public Safety Employees Assn25 we held that

questions  of  arbitrability should be determined  by  the  court

unless  the parties clearly and unmistakably provide otherwise.26

The  decision in PSEA adopted the federal rule as stated  by  the

United  States  Supreme  Court  in  AT&T  Technologies,  Inc.  v.

Communications Workers of America.27  The Supreme Court based its

decision  in  that case on the long-established  legal  principle

that  because the duty to arbitrate is contractual in nature,   a

compulsory  submission  to arbitration  cannot  precede  judicial

          determination that the collective bargaining agreement does in

fact create such a duty. 28  However, PSEA is inapplicable to the

present situation.

          PSEA  dealt  with the issue of whether a  court  or  an

arbitrator should decide questions of arbitrability.   Here,  the

issue is whether the court or the ALRA, an administrative agency,

has  jurisdiction  to determine questions of arbitrability.   The

latter issue is covered by positive statutory law giving the ALRA

jurisdiction.  Specifically, AS 23.40.210 provides,  in  relevant


          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.[29]

The  union  asserts  that  the  ALRA  has  the  power  to  decide

arbitrability because this statute gives the agency the power  to

enforce   the  CBA,  including  the  requirement  for   grievance

arbitration.  We agree.

          Because arbitrators have such broad discretion,  it  is

often problematic for them to decide their own jurisdiction,  for

if  they are wrong, there may be essentially no review.  This  is

so  because  the  superior court reviews an arbitrators  decision

under a standard giving extreme deference to the arbitrator.30  On

the  other  hand,  a  decision  by  the  ALRA  goes  through   an

administrative appeals process in which the decision  is  subject

to  varying  standards of scrutiny31 that allow for a  much  more

piercing   review   than  review  of  an  arbitrators   decision.

Therefore,  the concerns about the non-appealable  nature  of  an

arbitrators  award  are  not present with  administrative  agency



          Because this appeal does not present a live controversy

          we conclude that the appeal is moot. But we also conclude that

the  public policy exception to the mootness doctrine applies and

we  therefore  reach the merits of the appeal.  For  the  reasons

stated  above, we hold that the ALRA has jurisdiction  to  decide

questions  of  arbitrability under AS  23.40.210.   We  therefore

REVERSE  the  decision  of  the superior  court;  we  AFFIRM  the

decision of the ALRA that it had the power to decide whether  the

present dispute is arbitrable.

     1     Arbitrability is technically moot because the city has
not  appealed  the  superior courts ruling  that  the  underlying
dispute was arbitrable.

     2    City of Fairbanks v. Rice, 20 P.3d 1097 (Alaska 2000).

     3    Kleven v. Yukon-Koyukuk School Dist., 853 P.2d 518, 525
n.13 (Alaska 1993) (citing Bowers Office Prod., Inc. v. Univ.  of
Alaska, 755 P.2d 1095, 1096 (Alaska 1988)).

     4    N. Alaska Envtl. Ctr. v. State, Dept of Natural Res., 2
P.3d 629, 633 (Alaska 2000).

     5    Id. (internal quotation marks omitted).

     6     Gerstein  v.  Axtell, 960 P.2d 599, 601 (Alaska  1998)
(quoting Kodiak Seafood Processors Assn v. State, 900 P.2d  1191,
1195 (Alaska 1995)).

     7     Id.  (citing OCallaghan v. State, 920 P.2d 1387,  1388
(Alaska 1996)).

     8     15  Martin H. Redish, Moores Federal Practice   101.90
(3d ed. 1998).

     9    Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska
1987) (citing Moore v. State, 553 P.2d 8, 24 n.25 (Alaska 1976)).

     10    See, e.g., R.I. v. C.C., 9 P.3d 274, 278 (Alaska 2000);
OCallaghan, 920 P.2d at 1388; Alaska Consumer Advocacy Program v.
Alaska Pub. Util. Commn, 793 P.2d 1028, 1032 n.1 (Alaska 1990).

     11     Allen  v.  State,  Dept  of  Revenue,  Child  Support
Enforcement  Div., 15 P.3d 743, 749 (Alaska 2000)  (finding  that
appeal of lower courts denial of claim as untimely was moot since
same issue was to be decided in separate, pending case); Gerstein
v.  Axtell,  960  P.2d  599,  601  (Alaska  1998)  (holding  that
successful   acquisition  of  easement  through  eminent   domain
proceeding mooted claim for use of easement as property right).

     12    Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1196 (Alaska 1995).

     13    Id.

     14     See,  e.g., Legislative Council v. Knowles, 988  P.2d
604,  606-07 (Alaska 1999); Krohn v. State, Dept of Fish &  Game,
938  P.2d   1019,  1021  (Alaska 1987)  (quoting  Kodiak  Seafood
Processors Assn, 900 P.2d at 1196).

     15    OCallaghan, 920 P.2d at 1388-89 (concerning legality of
specific   procedures  surrounding  decision  of  candidate   for
lieutenant governor to change party affiliation during campaign).

     16     Krohn,  938 P.2d at 1022-23 (refusing to decide  moot
issues   under  provisions  of  Open  Meetings  Act   that   were
subsequently amended).

     17    988 P.2d 604 (Alaska 1999).

     18    Id. at 606-07.

     19    Id.

     20    Id.

     21    900 P.2d 1191 (Alaska 1995).

     22    Id. at 1193-94.

     23    Id. at 1196.

     24    Id.

     25    798 P.2d 1281 (Alaska 1990) [hereinafter PSEA].

     26      Id.   at   1285  (quoting  AT&T  Techs.,   Inc.   v.
Communications Workers of America, 475 U.S. 643, 649 (1986)).

     27    475 U.S. 643 (1986).

     28     Id.  at  649  (quoting John Wiley  &  Sons,  Inc.  v.
Livingston, 376 U.S. 543, 546-47 (1964)).

     29    AS 23.40.210(a).

     30    An arbitrators award arising out of a labor management
contract  is  reviewed under a gross error standard, which  means
that  only  those mistakes which are both obvious and significant
warrant  reversing the arbitrators award. Public Safety Employees
Assn, Local 92, Intl Union of Police Assns, AFL-CIO v. State, 895
P.2d  980, 984 (Alaska 1995) (quoting City of Fairbanks v.  Rice,
628  P.2d  565, 567 (Alaska 1981)).  We have also held that  when
the  agreement  incorporates  the  Uniform  Arbitration  Act,  AS
09.43.010-.180, an even stricter standard applies: there  are  no
statutory  grounds for review of an arbitrators determination  as
to the meaning of contract provisions which do not pertain to the
issue  of  arbitrability.  (Ahtna, Inc. v.  Ebasco  Constructors,
Inc.,   894  P.2d  657,  661 (Alaska 1995)  (internal  quotations

     31    Review of administrative decisions occurs under varying
standards based on the issue being appealed:

          We  have  recognized four principal standards
          of  review  of administrative decisions.  The
          substantial   evidence  test  is   used   for
          questions of fact. The reasonable basis  test
          is used for questions of law involving agency
          expertise. The substitution of judgment  test
          is   used  for  questions  of  law  where  no
          expertise is involved. The reasonable and not
          arbitrary   test  is  used  for   review   of
          administrative regulations.
Handley  v.  State, Dept of Revenue, 838 P.2d 1231, 1233  (Alaska
1992)  (citing Jager v. State, 537 P.2d 1100, 1107  n.23  (Alaska