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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hammond v. State, Dept. of Transportation & Public Facilities (02/25/2005) sp-5871

Hammond v. State, Dept. of Transportation & Public Facilities (02/25/2005) sp-5871

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

            THE SUPREME COURT OF THE STATE OF ALASKA

ROBERT R. HAMMOND,                 )
                              )    Supreme Court No. S-10448
             Appellant,                 )
                              )    Superior Court No.
     v.                        )     3AN-96-10215 CI/3AN-98-10777
CI
                              )
STATE OF ALASKA,                             )    O P I N I O N
DEPARTMENT OF                           )
TRANSPORTATION & PUBLIC            )     [No. 5871 - February 25,
                                   2005]
FACILITIES,                                  )
                              )
             Appellees.                 )
_______________________________    )

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

          Appearances:   Robert  R.  Hammond,  pro  se,
          Chugiak.    Marjorie  L.  Vandor,   Assistant
          Attorney   General,  and  Bruce  M.  Botelho,
          Attorney General, Juneau, for Appellees.

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

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

I.   INTRODUCTION

          Robert  Hammond was terminated from his  job  with  the

Department of Transportation and Public Facilities.  He contested

his termination by pursuing the grievance-arbitration mandated by

his  collective  bargaining agreement.  While his  grievance  was

being   contested,   Hammond  simultaneously  pursued   statutory

whistleblower  claims in state court against  the  Department  of

Transportation  and Public Facilities and fellow employees  David

Eberle,  Richard  Briggs, and Gordon Keith.   His  grievance  was

ultimately dismissed after arbitration.  The superior court  then

gave  res  judicata  effect  to the arbitral  decision  to  grant

summary  judgment for the defendants.  Hammond appeals.  We  hold

that  Hammond  is  not  precluded from pursuing  his  independent

statutory  claims in state court because he did not  clearly  and

unmistakably  agree  to submit those claims to  arbitration.   We

therefore reverse the superior courts grant of summary judgment.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Robert Hammond was an employee of the Alaska Department

of Transportation and Public Facilities (DOTPF) for approximately

twenty  years.   In August 1994 he was assigned to  DOTPFs  Homer

Gravel  Roads  Project.  While working on  the  project,  Hammond

concluded that the rock being used by the contractor violated the

DOTPF  contract specification that established maximum rock size.

Hammond made a series of complaints to the contractor, throughout

the   DOTPF  chain  of  command,  and  to  the  Federal   Highway

Administration (FHWA) about what he believed to be a violation of

contract  specifications.1   In  October  Hammond  complained  to

DOTPFs  Director of Design and Construction, Dean Reddick,  about

the  projects  management and about the  contractors  failure  to

follow   contract   specifications.   At  that  meeting   Hammond

requested  that  he  be  transferred from  the  project;  Reddick

complied.

          After  being transferred from the project Hammond  made

repeated  allegations  of  DOTPF mismanagement.   Some  of  these

allegations  were  extremely serious and charged  DOTPF  and  its

personnel with corruption, fraud, and incompetence.  In June 1995

Hammond  received performance evaluations from his supervisor  on

the  Homer  Gravel  Roads project and from  Richard  Briggs,  his

regular  supervisor, stating that his performance  was  mid-level

acceptable.   In  July  1995  Hammond  filed  charges  with  FHWA

alleging   criminal  violations  of  18  USC   10202   by   DOTPF

          management.  As a result of these charges, Hammond was placed on

paid,  off-site  status, which subjected him to  a  reduction  in

wages.  After investigation, FHWA concluded that Hammonds charges

were  without  merit.   A  separate investigation  into  Hammonds

allegations   was  conducted  by  the  state,  which   hired   an

independent investigator, Richard Kerns, to investigate the Homer

Gravel  Roads  Project and another project.  Kernss investigation

found  no  violations of 18 USC  1020 or the Alaska Whistleblower

Act.3   Kerns also concluded that Hammond had no reasonable basis

to make his allegations and that the allegations were not made in

good faith.

          David  Eberle, Director of Design and Construction  for

the  Central Region of DOTPF, terminated Hammonds employment with

DOTPF  on July 31, 1996, relying primarily upon the Kerns  report

and the recommendations of Briggs and DOTPF Regional Construction

Engineer  Gordon Keith.  Eberle cited Hammonds unfounded  attacks

impugning  the integrity and competence of department  staff  and

Federal  Highway Administration personnel, threatening  behavior,

and refusal to follow the directions of management as the reasons

for termination.

     B.   Proceedings

          On August 7, 1996 Hammond brought a grievance under his

unions collective bargaining agreement (CBA), alleging that DOTPF

violated  the  CBA by discharging him without  just  cause.   The

parties  were unable to resolve the grievance and they  submitted

the dispute to arbitration as mandated by the CBA.

          On  December  21,  1996  Hammond  also  filed  suit  in

superior   court  against  DOTPF,  Eberle,  Keith,  and  Briggs,4

alleging  violation of the Alaska Whistleblower Act5 and  seeking

compensatory and punitive damages and reinstatement to his former

position.

          After  a  hearing,  the arbitrator held  that  Hammonds

discharge  was for just cause and therefore did not  violate  the

CBA.6   The  arbitrator denied Hammonds grievance  based  on  her

          finding that Hammonds accusations  that DOTPF management acted

dishonestly,  engaged in unethical behavior, allowed  contractors

to  cheat, falsified documents, gave away state property, and was

incompetent   stepped  over the bounds of  reason  and  justified

termination  because they were not made in good faith;  that  is,

with  a  reasonable basis for believing them  to  be  true.   The

arbitrator   also  stated  that  Hammond  was  not  entitled   to

protection  under  the  Alaska  Whistleblower  Act  because   the

allegations  for which he was terminated were not  made  in  good

faith.7

          After  the  unfavorable arbitration  decision,  Hammond

pursued  his superior court whistleblower action.  In  his  state

court  action, Hammond relied upon a report on the  Homer  Gravel

Roads  project  by  the  Alaska  Division  of  Legislative  Audit

released  after the arbitrators decision.  The report found  that

Hammonds  claims had merit and that DOTPFs selection of Kerns  to

investigate  Hammonds allegations against DOTPF  was  flawed;  it

also called Kernss independence into question.

          In  February 2001 Superior Court Judge Dan  A.  Hensley

granted  DOTPFs  motion  for  summary  judgment  based   on   the

arbitrators  decision.  The superior court held that Hammond  was

precluded  from  litigating his whistleblower claim  in  superior

court  because  the parties understood that the arbitrator  would

have to address whistleblowing issues in her decision and because

the  arbitrator  did  decide the whistleblowing  claim.   Hammond

appeals.

III. STANDARD OF REVIEW

          We  review a trial courts grant of summary judgment  de

novo  and  affirm  its ruling if the record presents  no  genuine

issues  of  material  fact in dispute and  the  moving  party  is

entitled to judgment as a matter of law.8  We draw all reasonable

factual  inferences in favor of the non-moving party.9   Finally,

[t]he applicability of estoppel principles to a particular set of

facts  is  a  legal  question over which we exercise  independent

          review.10

IV.  DISCUSSION

     A.   The   Arbitrators  Decision  in  Hammonds  State  Court
          Whistleblower Action Was Not Entitled to Preclusive Effect.
          
          1.   Hammond has a right to a fully independent judicial
               determination of his statutory whistleblower action unless he
               submitted that claim to arbitration.
               
          1.   Hammond argues that the arbitrator exceeded the scope of her

authority  by resolving or attempting to resolve his state  court

whistleblower  claim.  He contends that the arbitrators  decision

should not be granted preclusive effect because the only question

the  parties  submitted to arbitration was  whether  Hammond  was

terminated  for just cause.  Thus, Hammond argues, the arbitrator

lacked  the  authority to decide his whistleblower claim.   DOTPF

responds  that  the arbitrators decision should  have  preclusive

effect  because (1) Hammond submitted his whistleblower claim  to

arbitration  and (2) Hammonds CBA-based arbitration claim that he

was  not  terminated  for  just cause was  so  connected  to  his

statutory  whistleblower claim that [i]t simply was not  possible

for  the  arbitrator to reach a conclusion on just cause  without

deciding the validity of Hammonds whistleblower claims.

          Because  we  have  not yet decided  the  precise  issue

before  us  today, we first look to federal law for  guidance  in

determining whether Hammonds statutory claim was precluded by his

arbitration of a similar claim under the CBA.  We have previously

found  federal  precedent to be persuasive  in  interpreting  the

preclusive  effects of arbitration decisions under Alaska  law.11

In  Alexander v. Gardner-Denver Co.,12 the United States  Supreme

Court  held that an arbitrators decision pursuant to a CBA should

not  have  preclusive  effect in a subsequent  lawsuit  asserting

rights  guaranteed by statute.  The Court held that an  employees

submission  of  a  claim that his termination violated  his  CBAs

nondiscrimination clause did not foreclose his right to  a  trial

on  whether his discharge violated Title VII of the Civil  Rights

Act   of  1964.13   Gardner-Denver  recognized  that  Title   VII

          demonstrated a congressional intent to accord parallel or

overlapping remedies against discrimination, suggesting  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.14

The Supreme Court went on to state that

          the  federal  policy favoring arbitration  of
          labor disputes and the federal policy against
          discriminatory employment practices can  best
          be  accommodated by permitting an employee to
          pursue  fully  both  his  remedy  under   the
          grievance-arbitration clause of a collective-
          bargaining agreement and his cause of  action
          under  Title  VII.  The federal court  should
          consider  the employees claim de  novo.   The
          arbitral decision may be admitted as evidence
          and  accorded such weight as the court  deems
          necessary.[15]
          
Gardner-Denvers  protection of an employees right  to  fully  and

independently pursue both a grievance based upon the  CBA  and  a

lawsuit  based  upon the violation of statutory rights  has  been

qualified, but preserved, by subsequent cases.

          In Gilmer v. Interstate/Johnson Lane Corp.,16 the United

States   Supreme  Court  held  that  a  claim   under   the   Age

Discrimination  in  Employment Act of 1967 can  be  subjected  to

compulsory arbitration pursuant to an arbitration agreement in  a

securities registration application.17  In Gilmer the employee had

agreed to arbitrate his statutory claims and the Court held  that

this prior agreement required that preclusive effect be given  to

the   arbitrators  decision  on  the  statutory  claims.   Gilmer

distinguished   Gardner-Denver  because  in  Gardner-Denver   the

employees  .  .  .  had not agreed to arbitrate  their  statutory

claims,  and the labor arbitrators were not authorized to resolve

such  claims, [so] the arbitration . . . understandably was  held

not  to  preclude subsequent statutory actions.18  Significantly,

Gilmer  recognized that because the arbitration in [the  Gardner-

Denver  line  of] cases occurred in the context of a  collective-

bargaining  agreement, the claimants there  were  represented  by

          their unions in the arbitration proceedings.  An important

concern    therefore   was   the   tension   between   collective

representation  and individual statutory rights,  a  concern  not

applicable to [Gilmers claim].19

          The United States Supreme Court recently recognized the

tension  between Gardner-Denver and Gilmer in Wright v. Universal

Maritime  Service Corp., a case in which the Court held that  the

CBA  did  not  waive  the  employees  right  to  bring  statutory

employment  discrimination claims in court.20  Wright  recognized

that  Gilmer supported the proposition that federal forum  rights

cannot  be  waived in union-negotiated CBAs even if they  can  be

waived in individually executed contracts while also noting  that

the  growing  acceptance of arbitration has  undermined  Gardner-

Denvers  prohibition on union waiver of an employees right  to  a

judicial  forum.21  Wright eventually declined  to  resolve  this

tension,  instead finding that if a union has the right to  waive

its  members  statutory rights, such a waiver must be  clear  and

unmistakable  and concluding that the CBA in that  case  did  not

meet this standard.22

          We  have previously addressed the effect of arbitration

on subsequent statutorily based claims in three cases.  In Public

Safety  Employees Assn v. State,23 (PSEA I) we held that a  union

members  right  to sue as a tenant under the Uniform  Residential

Landlord  Tenant Act (URLTA)24 cannot be prospectively  bargained

away.25  Though that decision was predicated in part on the URLTAs

explicit non-waiver provision,26 we later stated in Public Safety

Employees  Assn  v. State27 (PSEA II) that PSEA  I  rejected  the

argument that the availability of arbitration precludes statutory

remedies.28   However, PSEA I and PSEA II  did  not  address  the

question  whether  a  party can trigger preclusion  of  statutory

claims  by  submitting that claim, or a similar  claim  involving

common  issues,  to  arbitration.  This question  was  also  left

unresolved by Barnica v. Kenai Peninsula Borough School District,29

in  which four members of this court were equally divided on  the

          question  whether  a CBA that mandated  arbitration  of

discrimination claims could prevent an employee who did  not  use

the    arbitration   procedure   from   bringing   a    statutory

discrimination claim in court.  Two members of the  court  relied

on  Gilmer in concluding 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.30  Under this approach, arbitration

of  such  a  claim would have preclusive effect on  a  subsequent

state  court claim.  Two other members disagreed, citing Gardner-

Denvers  unequivocal  holding that a CBA could  not  collectively

bargain  away a workers individual right to a statutory  judicial

remedy  and noting that at least some of this protection survived

Gilmer.31   They focused on Wright, which held that  a  CBA  must

incorporate a clear and unmistakable waiver of a statutory  claim

in  order to preclude an employee from bringing a statutory claim

in  state  court.32  Implicit in this approach is the idea  that,

absent  a clear waiver, an employee has a right both to arbitrate

a  claim  under  a  CBA  and to litigate a  related,  independent

statutory claim in state court.33

          We  now  adopt this approach and hold that an employees

exercise  of the right to arbitrate under a CBA does not preclude

subsequent litigation of related statutory claims in state  court

unless   the  employee  clearly  and  unmistakably  submits   the

statutory claims to arbitration.  An employee is not required  to

choose  between  the  rights provided by a  CBA  and  the  rights

provided by statutes such as the Alaska Whistleblower Act; absent

a  clear  and  unmistakable waiver, the employee is  entitled  to

both.   Therefore,  Hammond may pursue his  statutory  claims  in

state  court  unless  he  clearly and unmistakably  waived  those

claims.   We  now  must  determine whether  Hammond  clearly  and

unmistakably waived his right to pursue these claims.

          2.   Hammond did not submit his Alaska whistleblower claims to
               arbitration.
               
          1.   Hammond argues that he did not knowingly, explicitly, and

voluntarily  submit  his  whistleblower  claims  to  arbitration.

Hammond notes that the arbitrators authority was limited  by  the

CBA  to  a  determination of whether Hammond was fired  for  just

cause,  and  he emphasizes that the arbitrator characterized  the

issue   before  her  as  whether  the  employer  violate[d]   the

Collective Bargaining Agreement in its dismissal of Mr.  Hammond.

Hammond also contends that his union did not give him notice that

he would lose his right to pursue his statutory claim and that in

any  case the union did not have the authority to waive his right

to pursue statutory claims in court.

          DOTPF  responds  that Hammond submitted to  arbitration

his statutory whistleblower claims as a necessary part of his CBA-

based  claim  that he was not terminated for just  cause.   DOTPF

generally alleges that Hammonds handling of his arbitration claim

amounted  to  a  voluntary  submission  to  arbitration  of   his

statutory whistleblower claims because it was necessary  for  the

arbitrator to determine whether Hammonds accusations were made in

good faith in order to determine whether DOTPF terminated him for

just  cause.   DOTPF also notes Hammonds own acknowledgment  that

this  case  involves the same facts, or issues, as  the  previous

arbitration.  Finally, as proof that Hammond explicitly submitted

his   statutory  claims  to  arbitration,  DOTPF  points  to  the

arbitrators statement that the parties stipulated both  that  she

had  jurisdiction and that there were no issues  about  what  was

arbitrable.

          There  are  three possible ways in which Hammond  could

have  clearly and voluntarily submitted to arbitration so  as  to

preclude  subsequent  litigation of his  statutory  whistleblower

claims  in  court.   It is possible that (1) the  CBAs  mandatory

arbitration  procedure governing grievances concerning  dismissal

clearly  and  unmistakably  submitted  his  statutory  claims  to

arbitration,  (2) Hammond voluntarily submitted his whistleblower

claims  to arbitration even though he was not bound to do  so  by

the  CBA, or (3) Hammond voluntarily submitted to arbitration the

issues  common  to both his CBA and his statutory claims  and  is

thus  precluded  from  relitigating the  issues.   We  hold  that

Hammond did not clearly and unmistakably submit his whistleblower

claims  to  arbitration  either through  his  CBA  or  through  a

separate  agreement  and  we  reject the  idea  that  independent

statutory claims can be precluded when an employee exercises  his

right   to   contest  a  necessary  issue  through   CBA-mandated

arbitration.

               a.   The CBAs arbitration provisions did not waive Hammonds right

                    to bring independent statutory whistleblower claims in court.

          We  accept the principle that an employee can waive  at

least  some  of the employees rights to an independent  trial  of

statutory claims in a judicial forum by working under a CBA  that

requires  those  rights to be resolved through arbitration.   The

question before us is whether the arbitration provisions  of  the

CBA  waived  Hammonds  right to bring  an  independent  statutory

whistleblower  claim  in  court.   We  adopt  Wrights  clear  and

unmistakable standard in making this determination.

          Four  federal circuits have addressed the issue of what

constitutes  clear  waiver of statutory rights  in  a  CBA.   The

Second and Fourth Circuits have held that in order to clearly and

unmistakably  waive  an employees statutory  rights  a  CBA  must

either  (1)  contain an arbitration clause including a  provision

whereby employees specifically agree to submit all federal causes

of  action arising out of their employment to arbitration or  (2)

contain   an  explicit  incorporation  of  the  statutory   anti-

discrimination  requirements in addition to a broad  and  general

arbitration  clause.34   The  Sixth Circuit,  echoing  the  First

Circuit, has afforded even more protection to employees,  holding

that a statute must specifically be mentioned in a CBA for it  to

even approach Wrights clear and unmistakable standard.35  We adopt

the  less  demanding  test  employed by  the  Second  and  Fourth

          Circuits.

          Hammonds CBA does not manifest a clear and unmistakable

waiver  of  his statutory claims.  Instead, it explicitly  limits

the grievance-arbitration procedure to any controversy or dispute

involving the application or interpretation of the terms of  this

Agreement  arising between the Union or an employee or  employees

and  the  Employer.   Though the CBA  goes  on  to  provide  that

[q]uestions  of arbitrability shall be decided by the arbitrator,

granting  to  the  arbitrator the power to  decide  questions  of

arbitrability does not approach the clear and unmistakable waiver

standard.   No portion of the CBAs grievance-arbitration  section

provided  Hammond with any indication that he would  forfeit  his

right  to  pursue  statutory remedies in  state  court.   Because

Hammonds  CBA did not contain a clear and unmistakable waiver  of

his  statutory  claims,  his unsuccessful  arbitration  does  not

preclude him from litigating these claims in state court.

          We  need not decide whether a union-negotiated CBA  can

waive  an  employees  right  to an independent  determination  of

claims  under the Alaska Whistleblower Act in state court because

DOTPF  presents no evidence that the CBA at issue  in  this  case

contained language clearly and unmistakably waiving such a right.36

               b.   Hammond did not voluntarily submit his statutory
                    whistleblower claims to arbitration.
                    
          a.   We next consider DOTPFs argument that Hammond voluntarily

submitted  his  statutory whistleblower claims to arbitration  by

the  manner  in which he handled the arbitration.   DOTPF  relies

heavily  upon  Nghiem v. NEC Electronics,37 in  which  the  Ninth

Circuit   held  that  an  employee  who  had  submitted  wrongful

termination,  race discrimination, and antitrust  claims  against

his  former  employer to arbitration was precluded from  pursuing

similar  statutory claims in federal court.38  In  rejecting  the

employees  claim  to a separate statutory action,  Nghiem  stated

that [o]nce a claimant submits to the authority of the arbitrator

and  pursues arbitration, he cannot suddenly change his mind  and

assert lack of authority.39  DOTPF relies on Nghiem to support its

          assertion that one who voluntarily submits a claim to an

arbitrator with binding and final authority waives any  right  to

then  challenge  the  authority of the arbitrator  to  act  on  a

statutory claim after receiving an unfavorable result.

          We  agree  with DOTPF that an employee who  voluntarily

submits claims to arbitration, although not required to do so  by

the  CBA, would be precluded from bringing a subsequent statutory

claim  in  court.  This is so because an employee can voluntarily

agree  with  his  or  her employer to resolve a  statutory  claim

through arbitration, as arbitration is essentially a creature  of

contract . . .  in which the parties themselves charter a private

tribunal  for  the  resolution of their disputes.  40   Moreover,

voluntary submission of a statutory claim to arbitration  can  be

inferred   when   employees  are  in  full   control   of   their

representation.41  But a different result obtains when an employee

does  not  voluntarily  submit a claim to arbitration.   When  an

employee is required to submit a claim to arbitration pursuant to

a  CBA,  the  employees  intent to preclude subsequent  statutory

claims  in  state  court cannot be inferred from  such  mandatory

submission  alone.   And when arbitration is  controlled  by  the

union  as  a  result  of  the CBA, the  employees  submission  to

arbitration must be clear and unmistakable.42  As a review of the

facts  discloses,  no  such clear and unmistakable  agreement  to

arbitrate Hammonds statutory claims occurred in this case.

          Hammonds   references   to  the  statutory   protection

provided  by  the  Alaska Whistleblower Act were insufficient  to

submit his statutory claims to arbitration and thus preclude  his

right  to litigate those claims in state court.  To the contrary,

Hammond   clearly  did  not  intend  to  submit   his   statutory

whistleblower    claim    to   arbitration.     Hammonds    union

representative  understood that he was not  arbitrating  Hammonds

statutory claims, as he stated in his affidavit that

          the  union  was limited in its  approach  and
          would  not  be  representing Mr.  Hammond  in
          bringing any whistleblower action. . . .  The
          whistleblower  issue was  not  tried  in  the
          arbitration. . . .  At all times  I  made  it
          clear  that  we  were  only  arbitrating  Mr.
          Hammonds  rights arising under the Collective
          Bargaining  Agreement. . . .  It  came  as  a
          complete  surprise to me that the  arbitrator
          did   not   limit   her   decision   to   her
          jurisdiction; i.e., just cause under the CBA,
          but   that  she  instead  attempted  to  make
          whistleblower findings.
          
The  union  representatives understanding of  the  scope  of  the

arbitration  is supported by the arbitrators statement,  made  at

the start of the proceeding, that the parties stipulated that the

issue  before the Arbitrator was [D]id the employer  violate  the

Collective Bargaining Agreement[?] 43  Additionally, though DOTPF

is  correct  that  the  affidavit  of  Hammonds  former  attorney

provides  evidence that Hammond was aware that arbitration  might

impact  his  statutory claims, the affidavit does not demonstrate

that Hammond had any idea that his arbitration would preclude his

statutory claims.  The affidavit indicates only that Hammond  and

his  attorney discussed the potential implications of arbitration

on  Hammonds subsequent testimony and his potential recovery  for

the  statutory  claim;  it  does  not  demonstrate  that  Hammond

intended  the  arbitration  to  have  preclusive  effect  on  his

statutory claim.  Hammond did not clearly and unmistakably submit

his  statutory claims to arbitration by the manner  in  which  he

presented his CBA-based termination claim to arbitration.

               c.   Hammonds statutory whistleblower claim are not precluded by
                    resolution of common issues in the arbitration of his termination
                    claim under the CBAs mandatory arbitration provision.
                    
          a.   Finally, DOTPF argues that Hammonds statutory whistleblower

action  is precluded because, in the words of the superior court,

Hammond raised the whistleblower claim at the arbitration and, by

framing his claim as retaliation, required the arbitrator to rule

on  the  whistleblowing  issue.  DOTPF is  correct  that  Hammond

understood  that the whistleblower issue would  be  part  of  the

arbitration  because his grievance stated that  [t]ermination  of

employment was without just cause.  Grievant was denied  overtime

in  retaliation for blowing the whistle and exercising rights  as

          otherwise specified in law.  In his briefing to this court,

Hammond   acknowledges  that  the  arbitration  proceedings   and

whistleblower  action  involved the same underlying  facts.   But

while  Hammond clearly and unmistakably submitted to  arbitration

issues  that were essential to his statutory action,  he  is  not

precluded   from  relitigating  these  issues  in  a   subsequent

statutory  action because he did not submit his statutory  claims

to arbitration.

          Hammonds arbitration was conducted pursuant to his CBA.

This  fact  is  particularly  significant  in  light  of  federal

precedent on this subject.  Gardner-Denver established  that  the

CBA  determines  the  preclusive effects of arbitration  when  it

noted that

          the  federal  policy favoring arbitration  of
          labor disputes and the federal policy against
          discriminatory employment practices can  best
          be  accommodated by permitting an employee to
          pursue  fully  both  his  remedy  under   the
          grievance-arbitration clause of a collective-
          bargaining agreement and his cause of  action
          under  title  VII.  The federal court  should
          consider the employees claim de novo.[44]
          
In distinguishing Gardner-Denver, Gilmer held that preclusion can

only  be  triggered  by the submission of a  statutory  claim  to

arbitration, and not by the submission of a CBA-based claim  that

merely has an issue in common with a statutory claim.  In Gilmer,

the Court stated:

          Since  the  employees [in the  Gardner-Denver
          line  of  cases] had not agreed to  arbitrate
          their   statutory  claims,  and   the   labor
          arbitrators  were not authorized  to  resolve
          such  claims, the arbitration in those  cases
          understandably  was  held  not  to   preclude
          subsequent statutory actions.[45]
          
The  Sixth  Circuit reached a similar conclusion  in  Kennedy  v.

Superior  Printing  Co.,46   holding that  an  employee  was  not

precluded from bringing statutory discrimination claims in  state

court by an arbitrators dismissal of his CBA-based discrimination

claim.47   In that case the employee claimed in arbitration  that

the  employer  had  violated  the statutory  protections  of  the

Americans with Disabilities Act (ADA)48 as well as his CBAs anti-

discrimination  provision.49  The Sixth  Circuit  held  that  the

employees  statutory claims were not precluded by his arbitration

of common issues:

          The  burden  was  on Superior  to  show  that
          Kennedy  waived  his  statutory  rights,  not
          merely  that  he  arbitrated a discrimination
          claim under a collective bargaining agreement
          that   also  had  a  basis  in  federal  law.
          Superior has not met this burden.  There  was
          no  written agreement providing that  Kennedy
          would  submit  his  ADA statutory  claims  to
          binding arbitration.50
          
Just as it was not at all unreasonable or surprising that Kennedy

and  the  arbitrator  would discuss the ADA  in  the  context  of

arbitrating a dispute involving a claim that the company violated

the   anti-discrimination  clause  of   the   [CBA]   prohibiting

disability discrimination,51 it is not unreasonable that  Hammond

would  refer  to  the protection of the Alaska Whistleblower  Act

when contesting whether he was terminated for just cause under  a

CBA that did not define that phrase.

          Federal  protection of an employees right  to  litigate

statutory  claims in court despite the unfavorable resolution  of

common  issues in arbitration is a persuasive model  for  Alaska.

While  we  recognize that, similar to the federal policy favoring

arbitration,  [t]he common law and statutes of  Alaska  evince  a

strong public policy in favor of arbitration, 52 this policy does

not outweigh Alaskas strong public policy against allowing anyone

but  the  employee  to  waive the employees  right  to  statutory

protections.   A statutory grant of rights provides  an  employee

with  the right to fully litigate claims based upon those rights.

Granting preclusive effect to arbitration proceedings mandated by

a  CBA  and  negotiated by the employees union  rather  than  the

employee   would,  in  the  absence of a clear  and  unmistakable

submission  of  the statutory claim to arbitration,  unacceptably

diminish these statutory rights.53  Accordingly, we preserve  the

          distinct statutory remedies to which an employee is entitled

under  Alaska  law by denying preclusive effect to a  prior  CBA-

based  arbitration involving similar issues unless  the  employee

clearly  and unmistakably submits his or her statutory claims  to

arbitration.   Because  Hammond  did  not  submit  his  statutory

whistleblower claims to arbitration, he may litigate all  aspects

of  those claims in state court free of any preclusive effect  of

the  arbitrators decision and regardless of whether his CBA-based

grievance implicated whistleblower issues.

     B.   Summary  Judgment  Was  Not  Appropriate,  Despite  the
          Arbitrations Significant Evidentiary Value, Because Hammond
          Presented Sufficient Evidence that His Firing Was Retaliatory To
          Meet the Low Summary Judgment Threshold.
          
          A.   DOTPF contends that the superior courts decision could

readily have been made in reliance on the arbitrators decision as

establishing the absence of any genuine dispute as to  the  facts

material  to Hammonds termination.  We agree with DOTPF  that  an

arbitrators decision can be admitted as evidence in a  subsequent

proceeding.54  Nonetheless, even if the arbitrators  decision  is

accorded  great  weight, the presence of strong  evidence  is  an

insufficient  basis upon which to grant summary judgment  if  the

party  opposing  the  motion has presented  a  genuine  issue  of

material  fact.55   It is well established that  the  evidentiary

threshold  necessary to preclude an entry of summary judgment  is

low.56

          Hammond presented sufficient evidence to meet this  low

threshold.   This burden is met by Hammonds testimony  concerning

his  various complaints about the Homer Gravel Roads Project  and

Project Engineer Duane Paynters testimony that he was livid  that

Hammond   complained   outside   of   the   chain   of   command.

Additionally, the Division of Legislative Audit (DLA) released  a

report after the arbitrators decision which may be admissible  as

evidence  in  Hammonds statutory whistleblower action.   The  DLA

report  found that Hammonds claims had merit, and it called  into

question  the independence of Richard Kerns, who was selected  by

          DOTPF to investigate Hammonds allegations.57  When taken together,

this  evidence  presents genuine issues of material  fact  as  to

whether   Hammond   was   fired  for   protected   whistleblowing

activities.   We conclude that summary judgment should  not  have

been granted to DOTPF.58

V.   CONCLUSION

          The  arbitrators  decision should not have  been  given

preclusive  effect  and summary judgment  should  not  have  been

granted  against Robert Hammond because Hammond did  not  clearly

and  unmistakably  submit his statutory whistleblower  claims  to

arbitration.    Accordingly,  we  REVERSE  the  superior   courts

decision  and  REMAND so that Hammond may litigate his  statutory

whistleblower claims.

MATTHEWS,   Justice,   with   whom  EASTAUGH,   Justice,   joins,

dissenting.

          I disagree with todays opinion insofar as it holds that

Hammond  may  litigate twice the question whether the accusations

that  he  made against his employer were in good faith, that  is,

with a reasonable basis for believing them to be true.

          One  of  the  grounds the state relied  on  for  firing

Hammond  was that he made unfounded attacks on the integrity  and

competence of DOTPF staff that undermined the departments ability

to  carry  out its mission.  To succeed in his challenge  to  his

firing, Hammond had to establish that he acted in good faith with

a  reasonable  belief  that  his  accusations  were  true.   This

question  was  litigated in the seven-day arbitration  proceeding

and  it  was resolved against him.  The same question is critical

to his claim under the Whistleblower Act because the act does not

protect those whose reports are not made in good faith.1   Unless

the  arbitration proceedings were unfair in some fundamental way,

I  believe that Hammond should be precluded from relitigating the

same question in his claim under the Whistleblower Act.

          The  norm  in  our legal system is that a  litigant  is

entitled to litigate a question only once.  The doctrines of  res

judicata  (claim  preclusion)  and  collateral  estoppel   (issue

preclusion) are founded upon the principle that parties ought not

to  be  permitted to litigate the same issue more than  once  and

that  when  a right or fact has been judicially determined  by  a

court  of competent jurisdiction or an opportunity for such trial

has  been given, the judgment of the court, so long as it remains

unreversed, should be conclusive upon the parties .  .  .  .2   A

valid  arbitration award generally has the same preclusive effect

as a court judgment.3  Todays opinion declines to apply this rule

on  the ground that doing so would unacceptably diminish Hammonds

right  to sue under the Whistleblower Act.  I disagree because  I

see  no  indication in the Whistleblower Act that the legislature

intended  to  deviate from the established norm that  a  litigant

          gets only one bite at the apple.4

          It is important to note that the procedures under which

Hammond  litigated the question whether his firing was  justified

are  mandated  by  statute.  Hammond was a state  employee  whose

employment  was  governed  by a collective  bargaining  agreement

regulated by the Public Employment Relations Act, AS 23.40.070 et

seq.  Under PERA, collective bargaining agreements must include a

grievance procedure which shall have binding arbitration  as  its

final  step.5   Allowing  an employee to  relitigate  against  an

employer  questions that have already been determined in  binding

arbitration   destroys   the  finality   of   the   PERA-mandated

arbitration  remedy.   Further,  doing  so  permits  inconsistent

results, and is costly and inefficient.

          Some  of the differences between my views and those  of

todays  opinion are reflected in the two opinions in  Barnica  v.

Kenai  Peninsula Borough School District,6 a case decided  by  an

evenly divided court.7  The dispositional opinion, which I  wrote

and  in  which Justice Eastaugh joined, held 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.8  Justice Bryner,  in  an

opinion  joined by Justice Carpeneti, dissented, taking the  view

that a statutory right to a judicial forum can only be waived  by

a  provision in a collective bargaining contract that contains  a

clear and unmistakable waiver.9

          In   Barnica   the   collective  bargaining   agreement

explicitly  barred  discrimination on the basis  of  sex.10   But

Barnica  proceeded  directly to court on his  sex  discrimination

claim  without using the grievance and arbitration procedures  of

the collective bargaining agreement.11  The dispositional opinion

held that he was barred from pursuing his judicial remedy because

he failed to exhaust his remedies under the collective bargaining

          agreement.12  The present case differs in two respects.

Protection  of  whistleblowers is not explicitly built  into  the

collective bargaining contract, and Hammond, unlike Barnica,  did

exhaust his contract remedies.  These differences are potentially

important.  One might say that Hammond had no duty to grieve  and

arbitrate  his  dismissal  as  a  precondition  to  suit  on  his

whistleblower claim, reasoning along the lines of the dissent  in

Barnica  that the collective bargaining agreement must contain  a

clear and unmistakable waiver of the right to a judicial forum on

a   statutory  claim.13   That  position  would  nonetheless   be

consistent  with the view that when the right to  arbitration  is

actually  exercised  and  an  issue common  to  the  claim  being

arbitrated  and  the  statutory claim is  determined,  the  issue

cannot   be  relitigated  because  of  established  legal   norms

precluding  litigation  of an issue more  than  once.   For  this

reason  this  case presents a stronger claim for preclusion  than

Barnica.

          But  most  of  the  reasons given in the  dispositional

opinion  in Barnica also apply to this case.  Briefly summarized,

they   are   as   follows.   The  legislature  mandated   binding

arbitration in PERA; that procedure is in no sense a second-class

remedy subordinate to the judicial remedy provided under the  act

in  question.14  Further, we recognized that the common  law  and

statutes  of  Alaska evince a strong public policy  in  favor  of

arbitration 15 and that arbitration compared to litigation  is  a

relatively   inexpensive  and  expeditious  method   of   dispute

resolution.16   The dispositional opinion rejected the  Alexander

v. Gardner-Denver Co.17 line of cases in favor of the more recent

Gilmer  v. Interstate/Johnson Lane Corp.18 approach and  declined

to  find  that  the  distinction  between  collective  bargaining

contracts [as in Gardner-Denver] and individual contracts [as  in

Gilmer]  is necessarily meaningful with respect to the  treatment

of  arbitration  clauses.19  Finally, the  dispositional  opinion

noted  that  an  employees  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.  20

[I]f   constitutionally  mandated  remedies  may  be  waived   by

alternative grievance/arbitration procedures, statutory  remedies

likewise may be subject to waiver because of such procedures.21

          As  I have suggested, the legislature has the right and

power  to  provide  that facts essential to whistleblower  claims

cannot be resolved in PERA-mandated arbitration.  But there is no

indication  in  the  text or history of the  act  that  this  was

intended,  nor is there an inherent conflict between  arbitration

and  the  purposes of the Whistleblower Act.  Thus  there  is  no

reason  not  to  adhere to the norm that a party is  entitled  to

litigate an issue only once.

          One  of  Hammonds  defenses to the  states  motion  for
summary  judgment  was  that  the  arbitration  proceedings  were
fundamentally  unfair because of discovery deficiencies,  because
he  was  poorly  represented,  and  because  he  was  denied  the
opportunity to be represented by his own attorney or to represent
himself.   Arbitration  awards should  not  be  given  preclusive
effect   if   they   lack   the  essential   elements   of   fair
adjudication.22  The superior court did not address this issue in
its decision granting summary judgment.  I would remand this case
for  that purpose.  If the issue were resolved in Hammonds favor,
his  suit  could proceed.  If it were resolved in  favor  of  the
state,  the  question  of the good faith of Hammonds  accusations
could not be litigated a second time.

_______________________________
     1     The  parties dispute the nature of Hammonds complaints
and the response to those complaints by DOTPF employees.

     2      18   USC   1020  (West  2000)  imposes  a   fine   or
imprisonment,  or both, upon a person who knowingly  makes  false
statements  or  false representations, concerning any  federally-
funded  highway project, about the character, quality,  quantity,
or  cost  of the material used or to be used, or the quantity  or
quality of the work performed or to be performed.

     3    AS 39.90.100-39.90.150.

     4     This opinion refers to the defendants collectively  as
DOTPF.

     5    AS 39.90.100(a) provides in relevant part that:

          [a]   public   employer  may  not  discharge,
          threaten,  or otherwise discriminate  against
          an    employee   regarding   the    employees
          compensation, terms, conditions, location, or
          privileges of employment because
               (1)  the  employee . . .  reports  to  a
          public body or is about to report to a public
          body on a matter of public concern; or
               (2) the employee participates in a court
          action,  an investigation, a hearing,  or  an
          inquiry held by a public body on a matter  of
          public concern.
          
We  have held that AS 39.90.100(a)  protects public employees who
report  to  public  bodies  on matters  of  public  concern  from
retaliation by their employers.   Lincoln v. Interior Regl  Hous.
Auth., 30 P.3d 582, 586 (Alaska 2001) (quoting Alaska Hous.  Fin.
Corp.  v. Salvucci, 950 P.2d 1116, 1121 (Alaska 1997)).  In order
to bring suit under the Alaska Whistleblower Act an employee must
show  that (1) she has engaged in protected activity and (2)  the
activity   was  a  substantial  or  motivating  factor   in   her
termination.   An  employer  may rebut  a  prima  facie  case  by
demonstrating  that the employee would have been discharged  even
had  she  not  engaged in the protected activity.  Id.  (internal
citations omitted).

     6     The arbitrator stated that [t]he essential elements of
proof in a just cause case are: 1) whether the employee committed
the  offenses  charged; 2) whether the employee was afforded  due
process;  and  3) whether the penalty was appropriate  under  the
facts  and  circumstances  of the case, including  the  employees
record of employment.

     7    AS 39.90.110(a) provides in relevant part:

          [a] person is not entitled to the protections
          under   AS  39.90.100-39.90.150  unless   the
          person
               (1)   reasonably   believes   that   the
          information reported is or is about to become
          a matter of public concern; and
               (2)  reports  the  information  in  good
          faith.
          
     8    Spindle v. Sisters of Providence in Washington, 61 P.3d
431, 436 (Alaska 2002).

     9    Id.

     10     Powers v. United Servs. Auto. Assn., 6 P.3d 294,  297
(Alaska 2000).

     11     See Barnica v. Kenai Peninsula Borough Sch. Dist., 46
P.3d  974 (Alaska 2002); Anchorage Police Dept Employees Assn  v.
Feichtinger, 994 P.2d 376 (Alaska 1999).

     12    415 U.S. 36 (1974).

     13    Id. at 38 (citing 42 USC  2000e, et seq.).

     14    Id. at 47, 49.

     15    Id. at 59-60.

     16    500 U.S. 20 (1991).

     17    Id. at 23.

     18    Id. at 35.

     19    Id.

     20    525 U.S. 70 (1998).

     21    Id. at 77.

     22    Id. at 80.

     23    658 P.2d 769, 774-75 (Alaska 1983).

     24    AS 34.03.

     25    658 P.2d at 774-75.

     26    AS 34.03.040(a).

     27    799 P.2d 315 (Alaska 1990).

     28    Id. at 323.

     29    46 P.3d 974 (Alaska 2002).

     30    Id. at 977.

     31    Id. at 983.

     32    Id.

     33    Id. at 984.

     34     Rogers  v. New York Univ., 220 F.3d 73, 76  (2d  Cir.
2000).  See Carson v. Giant Food, Inc., 175 F.3d 325, 331-32 (4th
Cir. 1999).

     35     Bratten v. SSI Services, Inc., 185 F.3d 625, 631 (6th
Cir.  1999).  See Quint v. A.E. Staley Mfg. Co., 172  F.3d  1,  9
(1st Cir. 1999).

     36    See Wright v. Universal Maritime Serv. Corp., 525 U.S.
70,  80  (1998)  (stating that we find it unnecessary to  resolve
the  question of the validity of a union-negotiated waiver, since
it  is apparent to us, on the facts and arguments presented here,
that no such waiver has occurred).  Cf. Norcon, Inc. v. Kotowski,
971  P.2d 158, 165 (Alaska 1999) (holding that [t]he right  to  a
non-discriminatory  workplace conferred . .  .  by  AS  18.80.220
could not be waived by any contrary contractual provision).

     37    25 F.3d 1437 (9th Cir. 1994).

     38    Id. at 1439.

     39    Id. at 1440.

     40    Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657,
660  (Alaska 1995) (quoting Nizinski v. Golden Valley Elec. Assn,
509 P.2d 280, 283 (Alaska 1973)).

     41    See Nghiem, 35 F.3d at 1440.

     42     Given  that  a unions waiver of independent  judicial
determination  of  statutory rights must be explicit  in  a  CBA,
Wright,  252 U.S. at 80, an employees subsequent waiver of  those
rights  through union representation in CBA-mandated  arbitration
of  contractual  grievances must be equally  explicit.   In  this
case,  Hammonds  CBA  provided that the union,  rather  than  the
employee,  controls  the  arbitration  of  the  employees  claim.
Accordingly,  in asserting preclusion, DOTPF has  the  burden  of
proving  that the employee, rather than the union, made  a  clear
and unmistakable waiver of his own statutory rights.

     43     The  narrow scope of this stipulation cannot  support
DOTPFs  contention that Hammond submitted his statutory claim  to
arbitration.   The  agreement that there  were  no  arbitrability
issues   was  predicated  on  the  earlier  agreement  that   the
arbitrator was only deciding whether DOTPF had violated the CBA.

     44    Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974)
(noting  that  arbitral decision may be admitted as evidence  and
given whatever weight court finds appropriate).

     45     Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
35  (1991)  (quoting Mitsubishi Motors Corp. v.  Soler  Chrysler-
Plymouth, Inc., 473 U.S. 614, 625 (1985)).

     46    215 F.3d 650 (6th Cir. 2000).

     47    Id. at 655.

     48    The Americans with Disabilities Act of 1990, 42 U.S.C.
12101 et seq (1994 ed. and Supp. V).

     49    Kennedy, 215 F.3d at 655.

     50    Id.

     51    Id.

     52    Dept of Pub. Safety v. Pub. Safety Employees Assn, 732
P.2d  1090, 1093 (Alaska 1987) (quoting Univ. of Alaska v. Modern
Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974)).

     53     We  note  that this establishes a somewhat  different
analytical  framework  than  the  traditional  doctrines  of  res
judicata and collateral estoppel, which the superior court relied
upon  in  dismissing Hammonds statutory claims.  The  traditional
notions  of  res  judicata, or claim preclusion,  and  collateral
estoppel,  or  issue preclusion, are inapplicable to  this  case.
Instead,  the  key  inquiry is whether the  statutory  claim  was
submitted to arbitration, because granting any preclusive  effect
to   the  arbitration  in  the  absence  of  Hammonds  clear  and
unmistakable waiver of his statutory claim would deny Hammond the
full protection of his two distinct remedies.

     54    See Alexander v. Gardner-Denver, 415 U.S. 36, 60 (1974)
(stating  that  the federal court should consider  the  employees
claim de novo despite previous unfavorable arbitral decision, but
that  [t]he  arbitral decision may be admitted  as  evidence  and
accorded such weight as the court deems appropriate).

     55     Johns  Heating Serv. v. Lamb, 46 P.3d  1024,  1032-33
(Alaska  2002).   See also Bell v. Conopco, 186 F.3d  1099,  1102
(8th  Cir.  1999)  ( employees evidence, even if  weak,  must  be
viewed  in a light most favorable to [the employee]. .  .  .  The
[arbitral] decision may be received at trial, a jury may give  it
great  weight.  But in summary judgment proceedings, neither  the
district court nor we may place the parties competing evidence in
a   balance   scale  when  deciding  whether  to  grant   summary
judgment.).

     56     Johns  Heating, 46 P.3d at 1032.  See also  Meyer  v.
State,  Dept of Revenue, Child Support Enforcement Div.  ex  rel.
N.G.T., 994 P.2d 365 (Alaska 1999) (holding that putative fathers
affidavit that he had not had intercourse with mother at probable
time  of conception was sufficient to create question of fact  as
to  whether  DNA test indicating 99.98% probability of  paternity
was accurate).

     57     Kernss report takes on added significance because the
DLA  report  found  that  the arbitrator relied  heavily  on  the
findings of Mr. Kerns.

     58    Because we are reversing the superior courts dismissal
of  Hammonds  statutory whistleblower action, we do not  need  to
reach Hammonds other arguments.

1     AS  39.90.110(a)(2)  provides: A  person  is  not  entitled
to  the  protections  under AS 39.90.100 - 39.90.150  unless  the
person . . . (2) reports the information in good faith.

     2    State v. Baker, 393 P.2d 893, 897 (Alaska 1964).

     3    See Restatement (Second) of Judgments  84(1).

4     See  Bignell  v.  Wise,  720 P.2d 490,  494  (Alaska  1986)
(The  same  considerations of efficiency and fairness that  limit
civil  plaintiffs  to  one bite of the  apple  apply  equally  to
workers compensation proceedings.).

     5    AS 23.40.210(a).

     6    46 P.3d 974 (Alaska 2002).

     7     A  decision by an evenly divided court results  in  an
affirmance.  The opinion agreeing with the result reached by  the
superior  court is referred to as the dispositional opinion,  but
it  does  not have the precedential effect of an opinion  of  the
court.   Anderson v. State ex rel. Central Bering Sea  Fishermens
Assn, 78 P.3d 710, 713 (Alaska 2003).

     8    Barnica, 46 P.3d at 977.

     9    Id. at 983.

     10   Id. at 975.

     11   Id.

12   Id. at 977.

     13   Id. at 983.

     14   Id. at 977-78.

     15    Id.  at 978 (citing Dept of Pub. Safety v. Pub. Safety
Employees  Assn,  732  P.2d  1090, 1093  (Alaska  1987)  (quoting
University of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138
(Alaska 1974))).

     16   Id. at 978.

     17   415 U.S. 36 (1974).

     18   500 U.S. 20 (1991).

     19    Barnica,  46  P.3d at 980.  We noted  that  individual
contracts are often contracts of adhesion offered on a take-it-or-
leave-it basis, while collective bargaining contracts are usually
the  product of bilateral negotiations and are therefore at least
as fair to employees as standard individual employment contracts.
A recent journal article makes the same point more strongly:
               Individual  employees lack of bargaining
          power  when compared to that of union members
          draws  into  question the  relevance  of  the
          Gilmer  Courts distinction between union  and
          nonunion    arbitration   agreements.     The
          arbitration  provision at issue  in  Gardner-
          Denver was negotiated by the employer and the
          union   selected   by  a  majority   of   the
          plaintiffs co-workers.  The union,  like  the
          employer, was likely a repeat player with  an
          equivalent insight into arbitration  and  the
          operations  of the workplace,  and  with  the
          experience and knowledge necessary to draft a
          fair  arbitration agreement.  By  comparison,
          the individual employee in Gilmer had to sign
          a  contract in which he had little,  if  any,
          input.   If  the  Court were to  enforce  the
          arbitration  clause  in  either  of  the  two
          cases,  it  should have enforced the  one  in
          Gardner-Denver.
Erica F. Schohn, The Uncertain Future of Mandatory Arbitration of
Statutory  Claims in the Unionized Workplace, 67 Law  &  Contemp.
Probs. 321, 327 (Winter/Spring 2004) (footnotes omitted).

     20     Id.  at  981  (quoting  Storrs  v.  Municipality   of
Anchorage, 721 P.2d 1146, 1150 (Alaska 1986)).

     21   Id.

     22     See  Restatement  (Second)  of  Judgments   84(3)(b);
83(2)(a-e).