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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).
