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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ellison v. Plumbers and Steam Fitters Union Local 375 (08/19/2005) sp-5934

Ellison v. Plumbers and Steam Fitters Union Local 375 (08/19/2005) sp-5934

     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,


) Supreme Court No. S-10849
Appellant, )
) Superior Court No.
v. ) 4FA-99-1171 CI
Appellees. ) [No. 5934 - August 19, 2005]
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mary E. Greene, Judge.

          Appearances:  Michael W. Flanigan, Walther  &
          Flanigan,  Anchorage, Christian N.  Bataille,
          Law   Offices   of  Christian  N.   Bataille,
          Fairbanks,  for  Appellant.   Lance  Parrish,
          Parrish Law Office, APC, William B. Schendel,
          Winfree  Law  Office,  APC,  Fairbanks,   for
          Appellee  Plumbers  and Steam  Fitters  Union
          Local 375.  Aimee Anderson Oravec, Daniel  E.
          Winfree,  Winfree Law Office, APC, Fairbanks,
          for Appellees Kirk Jackson and James Ballam

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

          MATTHEWS, Justice.

          Lori Ellison sued her former union, Local 375, and  the
unions  stewards at her former work site, Kirk Jackson and  James
Ballam,   for   sexual   harassment  and  aiding   and   abetting
discrimination  under AS 18.80.220 and 18.80.260.   The  superior
court  ruled  against her on these claims, and granted  attorneys
fees to the union and stewards under both Civil Rules 68 and  82.
Ellison  appeals.  Because the union has no duty  to  investigate
sexual  harassment  on the part of the employer  sua  sponte  and
because Ellison has not shown that she asked the union to file  a
grievance or take other action, we affirm the judgment.  However,
we  reverse the superior courts award of Rule 82 fees because  we
conclude that Rule 68 prohibits receiving fees under both rules.
          Lori Ellison was a pipefitter dispatched to work in the
fabrication  shop for H.C. Price on the Healy Clean Coal  Project
(HCCP)  in  April  1996.   Ellison, apparently  the  only  female
pipefitter in the fabrication shop, was subjected to a number  of
incidents that she perceived to be based on her gender during the
course  of  her employment.1  These included her male  co-workers
complaints  that  Ellison  was  getting  preferential   treatment
because  she was initially assigned to do paperwork, as  well  as
threatening and vulgar graffiti on welding screens, her work area
and in the mens outhouse.  In addition, someone posted an altered
picture of her from the company newsletter with sexual profanity,
and  created a display of a tampon and cramp pills that indicated
in case of a cranky mood, break the glass.
          Ellison  reported five incidents to the  stewards,  who
were  on  the  job site but only occasionally in the  fabrication
shop  where  Ellison worked.  James Ballam was the union  steward
until  he left in about mid-March 1997, after which Kirk  Jackson
became the steward.
          First, Ellison reported a co-workers spreading lies  in
the  spring  or  summer  of 1996; Ballam  addressed  this  issue,
apparently  to Ellisons satisfaction.  Second, she  reported  the
fabrication shop foreman Doug Gyurisckos denial of her request to
leave  early in October 1996; Ellison was still not permitted  to
leave early, despite complaining to Ballam and Price supervisors.
Third,  she  told  Ballam and Price supervisors that  her  safety
glasses  were  deliberately scratched and gouged in late  January
1997.   She was provided with new safety glasses.  Apparently  no
one investigated, although Ballam may have discussed the incident
with  her  co-workers.   In addition to Ellisons  three  reports,
Ballam was aware of the mens preferential treatment complaints.
          The fourth incident was reported to steward Jackson  in
April  1997.   Ellison  told Jackson and  the  assistant  general
foreman  about  a co-worker calling her bitch during  a  dispute.
The  assistant general foreman, who was a union member, indicated
to  Ellison  that  he wanted to keep the issue  in  house,  which
Ellison interpreted as meaning within the union.  Ellison  agreed
to accept an apology from the co-worker and continue working with
him, although the fabrication shop crew openly supported her  co-
worker.  Lastly, Ellison showed Jackson and Gyuriscko threatening
graffiti  on  her  welding screen and desk  in  early  May  1997.
Gyuriscko  said  he would alert Price management, although  other
          Price supervisors, at least one of whom was a union member,
apparently wanted to handle the matter within the union.
          Jackson  also  heard about many of the other  incidents
during  two  meetings  held with Price management  in  May  1997.
Ellison gave notice she was quitting at the first meeting and all
those present, including Jackson, urged her not to leave.  At the
end  of  the meeting, Jackson reasonably believed Price officials
were going to handle Ellisons complaints.  At the second meeting,
Ellison  still believed she should quit, although Prices  general
superintendent at HCCP advised her that Price had taken steps  to
educate people, cleaned up the graffiti, and would not allow  her
to be harassed.
          The  only  other union officials who may have known  of
any  of  the  incidents were business agent Jim Laiti  and  union
manager  J.C.  Wingfield.   In  April  1997  Ellison  was  denied
permission to leave a half-day early for her R&R period.  Ellison
believed  she  was  being discriminated against  because  of  her
gender  since two men had previously been allowed to leave  early
for   their  R&R  periods.   Ellison  sought  relief  from  Price
supervisors, who contacted Laiti at the union hall.  They decided
that  Ellison  could leave at 3 p.m., rather than  her  requested
time of noon.
          Twice  during her employment at HCCP, Ellison indicated
to union officials, Laiti and Wingfield, that she was considering
quitting  or she made a request for information about  other  job
opportunities.  She never asked the stewards or any  other  union
officials  to file a grievance regarding any of these  incidents.
She quit on May 17, 1997.
          Ellison  signed  the  out-of-work  book  at  the  union
several  days  later but did not accept any dispatches  for  more
than  a year.  In March 1998 Ellison wrote a letter to the union,
referring  to the harassment and requesting a plan to ensure  her
safety.   On  May  17,  1999, Ellison sued  the  union,  Jackson,
Ballam,  Price, and a number of Price supervisors and  employees,
asserting discrimination and sexual harassment in violation of AS
18.80.220 and 18.80.260, and other claims.2
          Ellison  met  with union officials in July 1999,  after
which  the  unions  attorney investigated her  sexual  harassment
complaint.   Although he did not conclude that sexual  harassment
occurred,  he  recommended a safety plan  for  Ellison.   Ellison
eventually  agreed to the unions plan, at least  insofar  as  she
agreed  to  accept future work under the terms of the  plan  (and
without  prejudice  to  her  pending  lawsuit),  and  accepted  a
dispatch  in  September 1999.  Although Ellison did not  want  to
work  with any of the union members named in her lawsuit,  Ballam
also was dispatched to the same job, apparently because the union
was   contractually  obligated  to  do  so   since   Ballam   was
specifically  requested.  Ballam was uncomfortable  working  with
Ellison and quit shortly after they were put on the same crew.
          After  the  job ended, Ellison and the union  disagreed
over  the  terms of her safety plan.  Ellison did not accept  any
other  dispatches and eventually decided not to work through  the
union, in part for family reasons.
          On  September  13,  1999, Jackson and  Ballam  provided
          Ellison with separate offers of judgment for $500 each that she
did  not  accept.  On November 2, 1999, the union,  Jackson,  and
Ballam  provided a joint offer of judgment that Ellison also  did
not accept.
           Price and its employees settled before trial.  Jackson
and Ballam successfully moved for summary judgment on all claims.
At  trial, Superior Court Judge Mary E. Greene ruled in favor  of
the  union,  concluding it was not liable under AS  18.80.220  or
.260.  The court awarded the union, Jackson, and Ballam attorneys
fees under Rules 68 and 82.  Ellison appeals.
          We  review  findings of fact under a clearly  erroneous
standard.   To  reverse,  we  must  have  a  definite  and   firm
conviction that a mistake has been made, giving due regard to the
trial  courts  opportunity  to  judge  the  credibility  of   the
          Statutory  interpretation4  and  a  grant  of   summary
judgment5  present questions of law that we review de novo.   The
independent  standard  of  review  also  applies  to  considering
whether  the  trial court properly applied the law when  awarding
attorneys fees6 and in determining a settlement offers compliance
with Rule 68.7  On questions of law, we do not defer to the lower
courts  decision,  but adopt the rule of law most  persuasive  in
light of precedent, reason, and policy.8
     A.   Ellisons Claim for Discrimination Under AS 18.80.220
          Ellison argues that the union discriminated against her
in  violation of AS 18.80.220 by failing to respond to a sexually
hostile  work environment at HCCP.9 Ellison does not assert  that
the  union created the discriminatory work environment but rather
that it had an affirmative duty to remedy harassment.  The union,
on  the  other hand, contends that a union cannot be held  liable
for   passively   acquiescing  in  an  employers   hostile   work
environment under AS 18.80.
          1.    Standard  for  union liability for  an  employers
          Alaska Statute 18.80.220(a)(2) establishes that  it  is
unlawful for . . . (2) a labor organization, because of a persons
sex  .  . . to discriminate in any way against one of its members
or  an  employer or an employee.  We have not decided whether  AS
18.80.220(a)(2)  requires  a  union  to  investigate  and  remedy
discrimination by the employer without being requested to do  so.
Since this is an unresolved question under Alaska law, we look to
similar federal cases under Title VII for guidance.10
            Ellison  bases  her  arguments  for  union  liability
primarily on Goodman v. Lukens Steel Co.11 and Thomas v. Anchorage
Telephone  Utility.12  However, in both these cases,  the  unions
were  held liable for more than mere inaction in the face  of  an
employers discrimination.  Although in Goodman the district court
held  the  union  liable for mere passivity,  the  United  States
Supreme  Court  did not address this rather abstract  observation
because the unions actions involved far more than mere passivity.13
The  union  had  refused to file proffered  grievances  based  on
racially  discriminatory discharges and  racial  harassment,  and
          refused to include assertions of racial discrimination in
grievances that asserted other contract violations.14  The  Court
concluded  that  [a] union which intentionally  avoids  asserting
discrimination  claims,  either  so  as  not  to  antagonize  the
employer and thus improve its chances of success on other issues,
or in deference to the perceived desires of its white membership,
is liable under . . . Title VII.15
            Similarly, in Thomas, we based a unions liability for
discrimination  on its actions, rather than on mere  passivity.16
Because  the  union  participated in negotiating  the  collective
bargaining agreement, we held it could be liable for an allegedly
discriminatory provision, even though the employer  proposed  the
provision.17  Although we stated that a union may be liable . . .
for  acquiescing  in  discriminatory noncontractual  policies  or
conduct on the part of the employer,18 this was unnecessary to our
holding   in  Thomas.   Consequently,  we  did  not  define   the
circumstances under which union acquiescence might be  sufficient
to  impose liability for an employers conduct, nor did we require
unions to take the initiative to remedy workplace discrimination.
          Most  federal courts that have addressed the issue have
not  imposed  liability  on  a union  for  failing  to  remedy  a
discriminatory  work environment.19  In EEOC v. Pipefitters  Assn
Union  Local 597, the Seventh Circuit explained that unions  have
no  duty  to  remedy  racial or sexual  harassment  because  they
typically do not control the workplace:
          The employer is in a better position than the
          union  to  prevent  or  eliminate  harassment
          because it can discipline its employees;  the
          union  cannot.  If a worker complains to  the
          union  that  he  is being harassed,  all  the
          union  can  do  is  file a grievance  on  his
          behalf against the employer; the union cannot
          eliminate the harassment itself  that is  the
          companys  responsibility. . .  .   A  further
          consideration  is that members  of  different
          unions, or union and nonunion workers,  often
          find   themselves   working   at   the   same
          site.  .  . .  The pipefitters union  had  no
          control  over  workers  belonging  to   other
          unions . . . .[20]
However, the court noted that its analysis might differ in  cases
where a collective bargaining agreement delegates more power to a
union to control the workplace.21
          In  addition,  the Seventh Circuit did  not  require  a
union  to take the initiative to address workplace harassment  to
the   limited  extent  that  it  can  because  inaction,   unless
invidious,  is not discrimination in any accepted  sense  of  the
term.22  Imposing such an affirmative duty might force a union to
take  sides  in  conflict  with  its  statutory  duty  to  fairly
represent all workers.23  The Seventh Circuit thus concluded that
[i]f  [a  union] discriminates in the performance of  its  agency
function, it violates Title VII, but not otherwise.24  Because no
one  attempted to file a grievance or even complained to a  union
          official in his representative capacity in Local 597, the union
had  no duty under Title VII to address the racial harassment  at
the workplace.25
          Ellison  cites  to a number of cases that  she  asserts
establish  that  a  union may not sit idly by when  it  knows  or
should  know of workplace sexual discrimination. First,  none  of
these  cases  holds that constructive notice alone is  enough  to
impose  liability  on a union for an employers  discrimination.26
Second,  even  though some of these cases ostensibly  follow  the
acquiescence theory, they base Title VII liability on the  unions
own  actions,  not simply their inaction in the  face  of  actual
knowledge of discrimination.27  The unions themselves were accused
of  discriminating in these cases by denying members requests  to
pursue  grievances  out  of  deference  to  the  desires  of  the
harassers28 or because of policies not to assert sexual harassment-
based grievances.29
          We  are  persuaded by the consensus view of the federal
authorities  represented by such cases as Local 597,30  Thorn  v.
Amalgamated Transit Union,31 and Anjelino v. New York Times Co.32
Therefore, we conclude that under AS.18.80.220, a union may  only
be  liable  on account of an employers discriminatory  harassment
when (1) the harassed worker asks the union to take action within
its  representative capacity, such as by filing a grievance,  and
(2)   the   union  decides  not  to  pursue  the  complaint   for
discriminatory reasons.
          2.   Ellison cannot meet this standard.
          The  superior court concluded that [w]hat the  stewards
knew, without more, was insufficient to alert them that Price had
permitted  a  gender-based  hostile  work  environment.   Ellison
contests  a  number  of  the  superior  courts  factual  findings
underlying  this  conclusion and argues that the  unions  actions
amount  to  more  than mere passivity because the  stewards  knew
about  the harassment and did not report it to Price.33  However,
even  considering the facts in the light most favorable  to  her,
Ellison has not described anything more than inaction in the face
of  knowledge  of  discrimination, which  we  have  concluded  is
insufficient to establish union liability.
          Even  if  the  union  knew of the  discrimination,  the
record does not reflect that she asked the union to do more  than
it  did.   Although  she  told  the  union  stewards  about  five
incidents and they were aware of others, she never requested that
the  union  file  a grievance.  Furthermore, the  superior  court
found that she was satisfied with the unions response to at least
two  of these reports.  In the spring or summer of 1996, she  was
satisfied with Ballams response to a co-workers alleged spreading
of  lies.   In  April 1997 she informed Jackson  of  a  co-worker
calling  her  a bitch during a dispute but ultimately  agreed  to
accept an apology and to continue working with the co-worker.
          Ellison  claims that she did request that the union  do
more  and that union officials promised to investigate.  But  the
only   evidence  she  points  to  is  fabrication  shop   foreman
Gyurisckos  deposition  testimony  that  it  seemed  Lori   wasnt
satisfied with what the stewards were doing for her.  This single
statement  is insufficient to establish that she asked the  union
          to do more.  Moreover, there was evidence to suggest that the
union thought more was being done; the superior court found  that
Jackson   reasonably   believed  Price  would   investigate   her
complaints following the first May 1997 meeting.
          In  addition,  Ellison has not proven  that  the  union
failed to pursue any of her reports of the harassment at HCCP for
discriminatory  reasons.  Ellison asserts the union  purposefully
tried  to  keep  information  about  the  harassment  from  Price
officials.   There is evidence that a few Price supervisors,  who
were union members, indicated a desire to handle the incidents in-
house,  which Ellison believed meant within the union.   However,
although these people were union members, they were not agents of
the  union,  such that their statements could be imputed  to  the
union.34  Moreover, even if the union did want to try to  resolve
incidents  in-house  before  involving  Price,  Ellison  has  not
presented  any evidence that the union was treating  her  reports
any  differently than male members complaints or  grievances  not
based  on unlawful harassment.  Moreover, notwithstanding the  in
house  comments, Ellison was not intimidated into  not  involving
Price;  in  fact, she reported numerous incidents  to  her  Price
supervisors.   Thus, Ellison has not stated  a  claim  for  union
          Lastly, Ellison describes the unions actions after  she
left HCCP as evidence of the unions conduct that amounted to more
than  mere acquiescence in Prices discrimination.  Again, Ellison
does not point to any evidence that she asked the union to file a
grievance  or  pursue other action against Price.   The  superior
court  noted  Ellisons legal theory is not  entirely  clear,  but
because the court found no duty to act before she left, the court
concluded that the union had no duty to act afterward either.  If
Ellison is arguing that the union permitted a hostile environment
to  exist  at  the job site affording her with no choice  but  to
quit, the unions actions after she left seem irrelevant.  She has
not  argued that persisting discrimination kept her from  working
further  union  jobs.   Since Ellison  has  not  articulated  her
argument  in a manner that can be considered, the superior  court
did not err in denying this aspect of her claim.
     B.   Ellisons Aiding and Abetting Discrimination Claims
          Ellison also argues that the union, Jackson, and Ballam
aided  and  abetted discrimination in violation of AS  18.80.260.
Ellisons argument as to the union and the stewards is essentially
the  same  argument she makes for liability under  AS  18.80.220,
asserting   that   the  union  and  stewards   knew   about   the
discrimination  and deliberately kept such knowledge  from  Price
          We  have  not  defined the elements for an  aiding  and
abetting   discrimination   claim.   Alaska   Statute   18.80.260
provides:   It  is  unlawful for a person to aid,  abet,  incite,
compel,  or  coerce  the  doing of an act  forbidden  under  this
chapter  or  to  attempt to do so.  We look  to  the  Restatement
(Second)  of Torts for guidance, which other courts have  adopted
in   interpreting   state  statutes  on   aiding   and   abetting
discrimination.35  Section  876(b)  concludes  that  aiding   and
abetting  liability occurs when the actor knows that  the  others
          conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other.36
          Ellison  has made no attempt to satisfy this  standard.
She  points out that the stewards had knowledge of discriminatory
actions  and  did not report them, but this does  not  amount  to
substantial encouragement or assistance.  Therefore, the superior
court  did  not err in finding that the union was not liable  for
aiding and abetting discrimination against Ellison.
          For  the same reasons, the evidence is insufficient for
Ellison  to  assert claims for aiding and abetting discrimination
against the stewards Jackson and Ballam. Although Ellison asserts
that  the  stewards wanted to obstruct any inquiry, she  provides
little  evidence,  other  than a purported  desire  to  keep  her
concerns  within the union. Because we conclude the  evidence  is
insufficient,  we  do  not decide whether  AS  18.80.260  imposes
individual  liability on co-workers.  Thus,  the  superior  court
properly granted summary judgment in favor of Jackson and Ballam.
     C.   Attorneys Fee Awards
          Ellison  makes a number of arguments seeking to reverse
or  reduce  the attorneys fees granted to the union and stewards.
The  superior court awarded the stewards Civil Rule  82  fees  of
$200   for  work  performed  before  their  September  13,   1999
settlement  offers and Civil Rule 68(b)(1) fees of  $142,500  for
worked  performed  after their offers.   The  union  was  awarded
$4,625.25  in Rule 82 fees for work before its November  2,  1999
offer  and $227,272.12 in Rule 68 fees for work after its  offer.
We  agree  with Ellisons contention that the union  and  stewards
could  not  receive fees under both Civil Rule 82 and Civil  Rule
68,  but reject her other arguments on the applicability of  Rule
68 to her case.
          1.   Attorneys  fees cannot be awarded under both  Rule
               68 and Rule 82.
          Ellison  argues  that awarding attorneys  fees  to  the
union  and  stewards  under both Rules 68 and  82  was  improper.
However,  Jackson  and Ballam argue that a prevailing  party  may
receive attorneys fees under both Rules 68 and 82 when the  rules
are  applied to different time periods for work performed  before
and after an offer.
          Rule 68(c) (in the version in effect prior to April 15,
2005) provides that the party may receive the greater of Rule  82
or Rule 68 fees, but not both:
               If   an   offeror  receives  costs   and
          reasonable   actual   attorney   fees   under
          paragraph   (b),   that  offeror   shall   be
          considered the prevailing party for  purposes
          of an award of attorney fees under Civil Rule
          82.   Notwithstanding paragraph (b),  if  the
          amount  awarded an offeror for attorney  fees
          under  Civil Rule 82 is greater than a  party
          would   receive  under  paragraph  (b),   the
          offeree  shall  pay to the  offeror  attorney
          fees specified under Civil Rule 82 and is not
          required  to  pay reasonable actual  attorney
               fees  under paragraph (b).  A party  who
          receives  attorney fees under this  rule  may
          not  also  receive attorney fees under  Civil
          Rule 82.
The  plain  language of the rule prohibits receiving  fees  under
both rules.  Therefore, granting fees under both rules was error.
The  stewards did not argue that their fee award calculated under
Rule  82  would  be  higher than under  Rule  68(b)(1),  and  the
superior court concluded that the union could not get higher fees
under Rule 82 than under Rule 68.  Therefore, we strike the  fees
awarded under Rule 82 and uphold the fees awarded under Rule  68.
In  the  stewards case, the superior court determined that  award
was $142,500; in the unions case, $227,272.12.
            2.   The  post-1997  version of Rule  68  applies  to
Ellisons case.
          Ellison  also argues that any attorneys fees should  be
calculated  based on the pre-August 1997 version of AS 09.30.065.
She notes that because the legislature indicated that the amended
version  of  AS  09.30.065 would apply only to causes  of  action
accruing  on  or  after August 7, 1997,37  her  claim  should  be
considered  under the old version because it accrued before  this
          Upon the passage of the amended AS 09.30.065, which was
meant  to  change Civil Rule 68, we altered the rule so that  the
legislative changes applied to all cases filed on or after August
7, 1997.38  As the superior court correctly observed, we extended
the coverage of the amendment, rather than substantively changing
what  the  legislature had done.  This extension of coverage  was
permissible  because  we  have procedural  rule-making  authority
through the Alaska Constitution.39  Because Ellison filed her case
in  1999, the superior court was correct to apply the post-August
7, 1997 version of Rule 68.
          3.   Rule  68(b)(1) applies to settlement  offers  made
               before Rule 26 initial disclosures.
          Ellison  next contends that because the 1999 settlement
offers  were  served before the Rule 26 initial disclosures  were
made, those offers should not be considered for Rule 68 attorneys
fees  purposes.   She  claims that the legislature  intended  the
timing  of  any  offer to occur after the initial disclosures  so
that the parties would have sufficient information to value their
claims  and evaluate any settlement offers.  She further  alleges
that  because  she  could  not properly evaluate  the  settlement
offers  made  before the initial disclosures,  she  rejected  the
offers  and  then  somehow the defendants were able  to  use  her
rejection as a means of later conspiring and leveraging attorneys
fees against her.
          Ellisons arguments are without merit.  We recently held
that  the rate specified in Rule 68(b)(1) applies to offers  made
before Rule 26 disclosures.40  Such offers are timely because, in
the  language of the rule, they are served no later than 60  days
after  both  parties made the disclosures required by Civil  Rule
26.41  Additionally, Ellisons claim that the defendants exploited
          Rules 26 and 68 by acting in concert to leverage their case
against  her is highly speculative.  She provides no support  for
her  allegations  other than the stewards and  unions  hiring  of
separate  defense counsel and their subsequent rejection  of  her
later  settlement  offers.   Thus, the  superior  court  properly
awarded fees under Rule 68(b)(1).
          4.   Rejecting  the joint offer triggered Rule  68  for
               purposes of awarding fees to the union.
          Ellisons final argument is that the joint offer by  the
union and stewards should not trigger Rule 68 for purposes of the
unions  fee award.42  Ellison argues that this joint offer raised
apportionment problems.
          In  Johns Heating Service v. Lamb, we noted that in the
context  of  an  offer by joint offerors to a single  offeree,  a
rejection  of  that  offer triggers Rule 68 if  two  factors  are
satisfied.43   First,  the  settlement  offer  must  sufficiently
indicate that all claims between the parties would be resolved if
the  offer  were accepted.44  Second, the offer must  present  no
apportionment difficulties by forcing multiple offerees to decide
how  to  divide  the  proceeds  or  allocate  responsibility  for
payment.45   We  found  that the offer in Johns  Heating  Service
presented no apportionment problem, not because the defendant was
a  single entity as Ellison claims, but because the offeree was a
single  entity.46   Because the offer made  to  Ellison  proposed
settlement  of  all  of her claims, and because  Ellison  as  the
offeree was a single entity, her rejection of the joint offer was
sufficient to trigger Rule 68.
          We  AFFIRM the superior courts judgment in favor of the
union, Jackson, and Ballam on Ellisons AS 18.80.220 and 18.80.260
claims.  Because we conclude that Ellison has not stated a  claim
under state law, we need not reach the unions arguments that  her
claim  is  outside the statute of limitations or is preempted  by
the federal Labor Management Relations Act.
          We  also  AFFIRM the superior courts awards of Rule  68
attorneys  fees in favor of the union, Ballam, and  Jackson,  but
REVERSE the awards of Rule 82 attorneys fees.
     1     The superior court found that a number of the specific
incidents  were  either  not  gender-based  or  not  directed  at
Ellison,  concluding  that the unfortunate  harassment  to  which
Ellison was subjected and which was known to the stewards was not
directed  at  her  because she was a  woman.   It  was  based  on
personal reasons, personality conflicts, and on Ellisons  conduct
at  work  and in camp.  Although Ellison contests these findings,
we  do  not decide the issue because even if the union knew  that
Ellison was subjected to sexual harassment, she has not stated  a
claim for union liability.

     2     Ellison amended her complaint in December 2000, adding
more claims.

     3     Municipality of Anchorage v. Gregg, 101 P.3d 181,  186
(Alaska 2004) (internal quotation marks omitted).

     4    VECO, Inc. v. Rosebrock, 970 P.2d 906, 921 n.32 (Alaska

     5     Grant  v.  Anchorage Police Dept,  20  P.3d  553,  555
(Alaska 2001).

     6    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

     7    Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004).

     8    Norcon, Inc. v. Kotowski, 971 P.2d 158, 164 n.3 (Alaska

     9     Under AS 18.80.220, a hostile work environment  exists
when  there  is  discriminatory behavior sufficiently  severe  or
pervasive  to  alter  the conditions of the  victims  employment.
French v. Jadon, Inc., 911 P.2d 20, 28 (Alaska 1996).

     10     E.g.,  Alaska State Commn for Human Rights v.  Yellow
Cab, 611 P.2d 487, 490 (Alaska 1980).

     11    482 U.S. 656 (1987).

     12    741 P.2d 618 (Alaska 1987).

     13    482 U.S. at 666 (internal quotations marks omitted).

     14    Id.

     15    Id. at 669 (quotation marks and brackets omitted).

     16    741 P.2d at 630-31.

     17    Id. at 631.

     18    Id. (emphasis added) (citation omitted).

     19    See EEOC v. Pipefitters Assn Local Union 597, 334 F.3d
656,  660  (7th  Cir. 2003) (rejecting argument  that  union  has
affirmative  duty  to  investigate and  rectify  discrimination);
Thorn  v.  Amalgamated Transit Union, 305 F.3d 826,  832-33  (8th
Cir.  2002) (holding that because employee did not ask  union  to
file a grievance, union had no duty to remedy sexual harassment);
Anjelino v. New York Times Co., 200 F.3d 73, 95-96 (3d Cir. 1999)
(holding  union  was not liable because it did not  instigate  or
actively   support  the  discrimination  and  the  employer   was
responsible for assigning work and ensuring a discrimination-free
workplace);  cf. York v. American Tel. & Tel. Co., 95  F.3d  948,
956-57  (10th Cir. 1996) (adopting so-called acquiescence  theory
but  noting  mere  inaction does not constitute acquiescence  and
requiring (1) knowledge that prohibited discrimination  may  have
occurred  and  (2)  a  decision not to assert the  discrimination
claim).   Contra  Howard v. Intl Molders & Allied Workers  Union,
779  F.2d 1546, 1548, 1553 (11th Cir. 1986) (holding union liable
for failing to use all reasonable efforts to end employers use of
racially  discriminatory test for promotion, although no  members
had asked union to pursue grievances).

     20    Local 597, 334 F.3d at 659.

     21    Id. at 661.

     22    Id. at 660.

     23    Id. at 661.

     24    Id. at 659.

     25    Id. at 658, 660-61.  Although one worker complained to
his   supervisor/union   steward  about  the   racially   hostile
environment, his complaint was limited to graffiti that addressed
him  specifically  and  was  apparently  directed  to  the  union
steward/supervisor  in  his  supervisory  capacity  because   the
supervisor ordered it painted over.  Id. at 660.

     26    Because the union and employers have different roles in
the  workplace,  Ellisons  citations  to  cases  laying  out  the
standards  for  employer  liability for wrongful  termination  or
discriminatory  harassment  are  inapposite.   E.g.,  Charles  v.
Interior Regl Hous. Auth., 55 P.3d 57, 61 (Alaska 2002);  Norcon,
Inc.  v. Kotowksi, 971 P.2d 158, 172 (Alaska 1999); cf. Woods  v.
Graphic  Communications,  925 F.2d 1195,  1201  (9th  Cir.  1991)
(discussing  unions  liability  for  creation  of  hostile   work
environment by its stewards).

     27     Marquart  v.  Lodge 837, Intl Assn  of  Machinists  &
Aerospace  Workers, 26 F.3d 842, 853 (8th Cir. 1994); Woods,  925
F.2d at 1201; Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991);
Rainey v. Town of Warren, 80 F. Supp. 2d 5, 18-19 (D. R.I. 2000);
EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260, 269
(D. Conn. 1995).

     28     Marquart,  26  F.3d at 845, 853  (holding  plaintiffs
complaint made out prima facie case where she alleged union would
not  process  her  grievance  because alleged  perpetrators  were
favored  union  members); Woods, 925 F.2d at 1198, 1201  (holding
unions  actions amounted to more than mere passivity  where  shop
stewards  engaged  in  harassment and  union  repeatedly  ignored
requests  to  file grievance because it did not want employer  to
discipline  any  union  member for racial  harassment)  (internal
quotation  marks omitted); Regency Architectural Metals,  896  F.
Supp.  at  269  (holding  union liable for  not  pursuing  sexual
harassment  grievance in deference to perceived desires  of  male

     29     Johnson,  931  F.2d at 209 (holding union  unlawfully
retaliates  under  Title  VII  when  it  chooses  not  to  grieve
discrimination complaint because of employers desire that it  not
do  so  when  the claim is pending before the state  Division  of
Human  Rights);  Rainey, 80 F. Supp. 2d  at  10,  18-19  (denying
summary  judgment  to union under deliberate acquiescence  theory
because  plaintiff  alleged  union  repeatedly  refused  to  file
grievance, telling plaintiff it was not grievable).

     30    334 F.3d at 661.

     31    305 F.3d at 832-33.

     32    200 F.3d at 95-96.

     33    Ellison challenges the superior courts conclusion that
imputing  what  the  stewards knew to the  union  was  impossible
because   of   federal  preemption  under  the  Labor  Management
Relations   Act   since   the  task  would  necessarily   involve
interpreting  the  unions internal documents and  the  collective
bargaining agreement.  We do not reach this argument because even
if  the  stewards knowledge is imputed to the union, Ellison  has
not stated a claim for union liability under state law.

     34     See  Alaska  Pulp Corp. v. United  Paperworkers  Intl
Union,  791 P.2d 1008, 1012 (Alaska 1990) (Moore, J., concurring)
(Workers are not the agents of their union.).

     35     E.g., Failla v. City of Passaic, 146 F.3d 149, 157-58
(3d Cir. 1998) (predicting New Jersey would adopt the Restatement
view);  Fiol  v. Doellstedt, 58 Cal. Rptr. 2d 308,  312-13  (Cal.
App. 1996) (adopting the Restatement view, at least in part).

     36     Restatement  (Second) of Torts  876 (1979)  describes
liability for people acting in concert:

               For  harm  resulting to a  third  person
          from the tortious conduct of another, one  is
          subject to liability if he
               (a)  does a tortious act in concert with
          the other or pursuant to a common design with
          him, or
               (b)   knows  that  the  others   conduct
          constitutes  a  breach  of  duty  and   gives
          substantial  assistance or  encouragement  to
          the other so to conduct himself, or
               (c)  gives substantial assistance to the
          other in accomplishing a tortious result  and
          his   own   conduct,  separately  considered,
          constitutes  a breach of duty  to  the  third
     37    Ch. 26,  55, SLA 1997.

     38     Alaska  Supreme Court Order No. 1281  17  (August  7,
1997) (emphasis added).

     39    Alaska Const. art. IV,  15.

     40     Cook  Schuhmann & Groseclose, Inc. v. Brown  &  Root,
Inc., Op. No. 5921 ___ P.3d ___ (Alaska, July 8, 2005).

     41    Alaska R. Civ. P. 68(b)(1).

     42     This argument does not apply to the stewards Rule  68
fee  awards because their Rule 68 awards were not based  on  this
joint  offer but rather on their separate settlement offers  made
on September 13, 1999.

     43    46 P.3d 1024, 1042 (Alaska 2002) (citing Taylor Constr.
Servs., Inc. v. URS Co., 758 P.2d 99, 102 (Alaska 1988)).

     44    Id.

     45    Id.

     46    Id.