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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Willard v. Khotol services Corporation (11/09/2007) sp-6190

Willard v. Khotol services Corporation (11/09/2007) sp-6190, 171 P3d 108

     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- 12174
Appellant, )
) Superior Court No. 3AN-03-13762 CI
v. )
) No. 6190 November 9, 2007
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Anchorage, Mark  Rindner,

          Appearances:  Andrew J. Fierro, Law Office of
          Andrew   J.  Fierro,  Inc.,  Anchorage,   for
          Appellant.  Timothy Seaver, Seaver &  Wagner,
          LLC, Anchorage, for Appellee.

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

          BRYNER, Justice.

          After  being  fired  for  alleged  insubordination  and
violating   workplace  rules,  James  Willard  sued  his   former
employer,  Khotol  Services Corporation, for wrongful  discharge,
breach of employment contract, and breach of the implied covenant
of  good  faith  and fair dealing.  The superior court  dismissed
Willards   original   claims   for   breach   of   contract   and
implied-covenant claims on grounds of preemption by federal labor
law.   Willard  filed  an amended complaint that  restated  these
claims  in an effort to avoid the preemption problem; the amended
complaint  also  added new claims based on misrepresentation  and
false  representation.  The superior court then  granted  summary
judgment  to  Khotol on all of Willards claims.  Because  Willard
raised   issues   of  material  fact  in  connection   with   his
implied-covenant claim, we reverse the superior courts  dismissal
of  that  claim.  We also conclude that evidence tending to  show
that  Khotol harbored ill will toward Willard because  he  became
involved  in  union  organizing activities  may  be  admitted  to
support the implied-covenant claim he bases on theories unrelated
to his union activities, so long as the evidence is independently
relevant  to the unrelated claim and creates no danger  of  being
used to prove an essential element of the claim.
     A.   Facts
          Willard  worked  for Khotol Services Corporation  as  a
heavy  equipment operator for approximately six weeks during  the
summer of 2003.  He previously held a similar position as a civil
service  employee  in  the Department of  Public  Works  at  Fort
Richardson.   Willard applied for the job with Khotol  after  the
Army decided to privatize the maintenance unit in which he worked
and  Khotol obtained the contract for that work. Before beginning
work  with  Khotol, Willard was told that civil service employees
losing  their jobs on base had a right of first refusal  to  jobs
with private contractors.
          Willard  completed and signed an employment application
on May 21, 2003 that included the following disclaimer:
          I   understand  this  application  is  not  a
          contract and that acceptance of employment is
          not  a contract of employment for a specified
          period of time. I understand and agree that I
          may  resign  my  employment  with  Gana-AYoo,
          Ltd.[1] for any reason and that my employment
          may  be  terminated at the will of Gana-AYoo,
          Ltd.  at any time and for any reason. I  also
          understand   that  any  handbooks,   manuals,
          policies  and procedures maintained by  Gana-
          AYoo, Ltd. are not contractual in nature  and
          may  be  amended  or abolished  at  the  sole
          discretion of Gana-AYoo, Ltd.
Khotol   interviewed  Willard  after  receiving  his   employment
application  and  offered him a position  as  a  heavy  equipment
operator.  Willard signed the written employment offer, called  a
company  official to verbally accept, and then on  June  2,  2003
personally returned the letter to the companys office.
          On  June 12, 2003, Willard attended a pre-hire meeting,
where  he  was given a copy of Khotols thirty-four-page  employee
manual; Willard signed for the manual but did not read it at that
time.  The manual included detailed policies and procedures on  a
number  of  topics, including probation, disciplinary procedures,
misconduct,  safety,  and  termination.   The  Probation  section
described a ninety-day probation period beginning on the date  of
hire.  The manual characterized the probationary period as a try-
out  time for both employee and employer.  It further stated that
Khotol  would  evaluate the employees suitability for  employment
          and warned that, if the employees work habits, attitude,
attendance  or  performance  does not  measure  up  to  [Khotols]
standards, [Khotol] may release [the employee].
          Under  the Disciplinary Procedures section, the  manual
described a system of progressive disciplinary measures and added
that,  [e]xcept  for  extremely  serious  acts  (assault,  theft,
insubordination,  etc.), employees are  not  discharged  for  the
first offense. The manual further stated that, [n]o employee will
be  dismissed  without  just cause and  all  dismissals  will  be
subject to the grievance procedures.
          Finally,  under  the Separation of Employment  section,
the manual stated:
          An employee may be terminated at any time for
          lack  of  job  performance,  insubordination,
          repeated incidents of minor violations  of  a
          similar  nature and where there has not  been
          an  effort to improve, excessive absences and
          excessive tardiness.
          Willard began working for Khotol on June 30, 2003.   He
was  directly supervised by Rob Bellamy, but Steve Holtery served
as  acting supervisor in Bellamys absence.  Although hired  as  a
heavy  equipment  operator, Willard performed various  tasks  for
Khotol,  including  operating  a  refuse  truck,  teaching  other
employees   truck   routes,  performing  road  maintenance,   and
servicing  oil-water separators.  According to  Willard,  Holtery
began  verbally  harassing  him and other  former  Department  of
Public  Works employees soon after he began working  for  Khotol.
For  example,  Willard alleges that Holtery told  him  that  once
other new employees had been trained, Khotol could get rid of all
the  former Department of Public Works employees, which  included
Willard.  In  response  to  Holterys  actions,  Willard  reviewed
Khotols  policy  on  harassment, and then complained  to  Bellamy
about  Holterys  alleged  verbal abuse.   Although  the  employee
manual directed employees to make all complaints of harassment in
writing,  Willard  made  only verbal  complaints.   According  to
Willard,  this  had  little effect and the verbal  harassment  by
Holtery continued even after he approached Bellamy.
          During  his  brief  tenure with  Khotol,  Willard  also
participated  in  an  effort to secure union  representation  for
Khotol  employees.  On one occasion, he organized and attended  a
meeting  on union representation.  Afterward, he spoke to several
co-workers  about joining the union.  Willard asserts  that  both
Bellamy  and  Holtery  knew of the meeting and  his  interest  in
obtaining union representation.
          On  August  15,  2003, six weeks after  his  employment
began, Bellamy and Khotol controller Douglas Koprowski confronted
Willard and handed him a letter terminating his employment.   The
letter,  signed by Bellamy, stated that the principal reason  for
Willards termination was: insubordination to the established line
of  authority  of  this  company.  The letter  also  stated  that
Willard  had refus[ed] to adapt to Company policy regarding  shop
and operational procedure.
          Willard asserts that before his termination he received
no   notices,    warnings,  or  counseling  regarding   his   job
performance;  nor  had  he  been  disciplined  for  any   alleged
misconduct.   After  receiving  the termination  letter,  Willard
attempted  to invoke the grievance process described  in  Khotols
employee  manual,  which directs employees to discuss  any  work-
related  problem with their project manager first.   But  Bellamy
Willards project manager  refused to discuss  the termination and
directed  Willard  to leave the premises.  Although  he  was  not
represented  by  a  union, Willard attempted to  file  a  written
grievance  with the help of a union official.  Koprowski  refused
to discuss the termination with the union official.
          On  August 22, 2003, Willard filed a complaint with the
National  Labor  Relations  Board (NLRB),  alleging  that  Khotol
terminated  him  because  of his activities  in  support  of  the
International Union of Operating Engineers, Local  302.   Because
of  this,  the  complaint said, the dismissal  violated  Willards
rights  under  section  7  of the National  Labor  Relations  Act
(NLRA).   In  response  to an inquiry to Khotol  from  the  NLRB,
Bellamy  drafted  but did not send  a letter stating that Willard
was   terminated  for  insubordination  and  failure  to   follow
established  shop  procedures.  The letter  further  stated  that
Willard  had  refused to acknowledge or follow instructions  from
two supervisors, failed to follow procedures related to the daily
maintenance and fueling of each operators equipment, and had left
equipment  parked  in  an  unsafe manner.   Finally,  the  letter
described  a  situation in which Willard raised a safety  concern
that  Bellamy  concluded was unfounded.   According  to  Bellamy,
Willards complaint and the investigation it triggered caused  the
Company a great deal [of] lost time, backlog of work, and led  to
hard   feelings  with  the  contractor.   Bellamys  draft  letter
apparently served as the basis for Khotols formal response to the
NLRB,  which  was  sent by Koprowski.  Koprowskis  letter,  dated
September  29,  2003,  provided  greater  detail  about  Willards
alleged  acts  of  insubordination and  flatly  denied  that  his
termination  was  related  to   or  in  retaliation  for   union-
organizing activities.  In October 2003, the NLRB notified Khotol
that  Willard  had  withdrawn his unfair  labor  practice  charge
against the company.
     B.   Proceedings
          In  December 2003 Willard sued Khotol in superior court
in   Anchorage,  asserting  three  causes  of  action:   wrongful
discharge, breach of the covenant of good faith and fair dealing,
and  breach  of employment contract.  As part of the  second  and
third  claims, Willard alleged that Khotol dismissed him  because
of his efforts to secure union representation.  Specifically, the
implied-covenant  claim  asserted that  Defendants  discharge  of
Plaintiff was a pretextual discharge for union organization.  And
the  breach-of-contract claim stated that the termination .  .  .
was  done in retaliation for Mr. Willards efforts to secure union
representation for his fellow co-workers.
          In  response, Khotol filed a motion to dismiss, arguing
that all three of Willards claims were preempted by the NLRA.  On
April 2, 2004, after briefing and oral arguments by both parties,
the  superior  court dismissed the second and third  claims   the
implied-covenant  and breach-of-contract claims   with  leave  to
amend.   The  court  ruled  that both claims  were  preempted  by
federal  law.   The  superior court left the  wrongful  discharge
claim intact because, as pled, it did not refer to Willards union-
related actions.
          Three weeks later, on April 22, 2004, Willard filed  an
amended  complaint that omitted the references to Khotols alleged
anti-union bias and reasserted Willards first three claims, while
adding    two   new   claims:   misrepresentation    and    false
misrepresentations to procure employment.
          Khotol  then  filed  a  motion  for  summary  judgment,
arguing that all of Willards claims were without merit because he
was  an  at will employee and could be terminated without  cause.
On  May  9,  2005,  following  oral  arguments  and  supplemental
briefing,  the court granted Willards motion to compel  discovery
and  gave  both parties permission to file supplemental briefing.
Finally, on November 10, 2005, the court granted summary judgment
for Khotol on all claims, followed by a final judgment in Khotols
favor on December 5, 2005.
          Willard appeals.
          We  review  de  novo a superior courts  order  granting
summary  judgment.2  We must consider the entire  record  in  the
light  most  favorable to the non-moving party.3  We will  uphold
summary judgment only if the record presents no genuine issues of
material fact and the moving party is entitled to judgment  as  a
matter of law.4
     A.   Willards Breach-of-Covenant Claim
          Willard argues that the superior court erred in  ruling
that he failed to raise a question of material fact as to whether
his discharge violated the covenant of good faith
  and  fair dealing, which is implied in all employment contracts
in Alaska.5
          Breach of the implied covenant may be either subjective
or  objective.6   To  prove  breach  on  subjective  grounds,  an
employee  must  show  that the employer acted  with  a  bad-faith
purpose.7   Apart  from  avoidance of  bad  faith,  the  covenant
requires  parties to an employment contract to act  in  a  manner
which  a  reasonable  person would regard as  fair.8   While  the
determination  of fairness is inherently fact specific,  we  have
held  that  the  covenant requires that an  employer  treat  like
employees  alike  and that failure to do so can give  rise  to  a
claim  for  breach  under the objective test.9  Similarly,  proof
that an employers actions violated public policy may qualify as a
breach of the objective prong of the implied covenant.10
          Willard  asserts  four  theories  in  support  of   his
argument that Khotol breached the implied covenant of good  faith
and fair dealing.  Specifically, he alleges that Khotol fired him
in  retaliation for requesting safety equipment in  violation  of
public  policy; failed to ensure that all employees who  violated
health  and  safety rules received equal treatment; violated  its
own  rules  and  regulations in terminating  Willard;  and  fired
Willard because of his supervisors personal animosity toward him.
          Willards   allegation   that  Khotol   fired   him   in
          retaliation for requesting necessary safety equipment relies
largely  on  Bellamys  draft letter  to  the  NLRB.   During  his
deposition, Bellamy acknowledged that the letters purpose was  to
explain  the termination of Jim Willard.  The letter states  that
Willard was terminated for insubordination and failing to  follow
established  shop  procedures.   It  gives  several  examples  of
Willards   alleged   misconduct,  and  then  describes   Willards
complaints  regarding a task that he believed was unsafe  due  to
the  presence of harmful gases.  In dismissing Willards concerns,
Bellamy wrote:
          Upon investigation by myself into this matter
          I  found that the operation as set forth  was
          completely  safe  and  the  level  of   gases
          present   would  be  a  matter  of   personal
          discomfort.   His  position  on  this  matter
          caused  the  Company a great deal  [of]  lost
          time,  backlog  of  work,  and  led  to  hard
          feelings with the contractor, the Shaw Group.
          Khotol  Services  Corporation  emphasizes   a
          safe,  team  oriented  environment  for   our
          employees.  Mr. Willard indicated  to  me  on
          more  than  one  occasion  that  he  was  not
          interested in being a part of this team.
          The operation in question involved the cleaning of oil-
water  separators installed where motor vehicles  are  maintained
and   repaired.    The  separators  drain  oil   into   waste-oil
reservoirs,  while  diverting  water  into  the  sewage   system.
According   to  Bellamys  deposition  testimony,  the  separators
received periodic inspections and maintenance; employees  checked
pump  operations  weekly  and drained  and  pressure  washed  the
separators tanks and reservoirs quarterly.
          While  Bellamys  deposition  testimony  indicates  that
Willard  was asked only to check the equipment rather than  clean
it, Willards affidavit states that Bellamy directed [him] to work
on  the oil/water separators.  The affidavit further claims  that
in response to Bellamys request, Willard informed Bellamy that he
(Willard)  would  need the proper safety equipment  in  order  to
carry out this task.  Willard insists that Bellamy never told him
the  work  on the oil-water separators could be done without  the
requested safety equipment; nor did Bellamy tell Willard that his
request  would  lead  to  a backlog of work,  delays  in  meeting
deadlines,  or  hard feelings with Khotols contractor,  the  Shaw
Group.   To  the  contrary,  Willard states,  Bellamy  eventually
obtained  the  safety equipment he requested.  Bellamy,  for  his
part,  acknowledged  during  his  deposition  that  despite   the
concerns  his  draft  letter  to the  NLRB  expressed  about  the
negative  effects of Bellamys requests for the safety  equipment,
Khotol  had  never actually experienced any economic problems  or
delays  in  the  oil-water  separator work  attributable  to  his
          This  evidence, viewed in the light most  favorable  to
Willard,  supports an inference that Willards request for  safety
equipment  was reasonable, but that Khotol supervisors viewed  it
as  an annoyance and used it as a reason to terminate Willard for
insubordination.  Willards claim that his request was  reasonable
finds  further  support  in  the deposition  testimony  of  Steve
Holtery, who, when asked if it was ever his job to acquire safety
equipment  for use on the oil-water separators, stated:  My  job,
no,  its not my job, but we ordered the equipment in. We got  the
things  that  they were saying was needed . . . .  While  Holtery
did  not  explicitly identify who they referred to, his testimony
in  response  to  other questions suggests he  was  referring  to
employees  formerly with the Department of Public Works  at  Fort
Richardson, who had previously supervised maintenance of the oil-
water   separators.   Holtery  also  acknowledged   that   Khotol
initially purchased the wrong type of air mask or filter.   After
learning  of  the mistake, he said, we went and got  the  correct
          Yet  despite Holterys apparent recognition of the  need
for  safety  equipment in connection with work on  the  oil-water
separators,  his deposition testimony suggests that  managers  at
Khotol  viewed  Willards  request  for  safety  equipment  as   a
nettlesome  delay  or  hindrance.   Asked  about  Willards   work
assignments, Holtery responded:
          A:   Well,  theres  a lot of things  that  we
               wanted   everybody  to  do.  We   wanted
               everybody  because it was such  a  small
               work  force  to be able to cross  craft,
               and   we  wanted  him  to  do  oil/water
               separators,  but we had a  problem  with
          Q:   What was the problem with . . .
          A:     He  didnt  want  to  do  them.  I  can
          Q:     Was   he   assigned  to  do  oil/water
          A:   No. We didnt have time to debate. No, we
          . . .
          Q:    I  guess Im confused. Was he ever asked
          to do . . .
          A:   I  think he was, but every time it  came
               up,    there    was   questions    about
               operational procedures and then wed have
               to  stop  and  go check on  what  safety
               equipment was required . . . .
          We  have  previously held that firing  an  employee  in
retaliation for requesting safety equipment gives rise to a cause
of  action for breach of the implied duty of good faith and  fair
dealing.11  For example, in Reed v. Municipality of Anchorage, we
held  that  a  municipal employee discharged in  retaliation  for
whistle blowing by filing job safety and health complaints had  a
valid common law claim for breach of the implied covenant.12   As
in  Reed, Willards case involves a claim of retaliatory discharge
in connection with his request for safety equipment.
          Khotol  responds  by  downplaying the  significance  of
Bellamys draft letter to the NLRB and asserts that other than his
          conclusory allegations Mr. Willard presented no evidence to
support   this  claim.   Khotol  further  asserts  that  Bellamys
investigation  of the oil-separator operation and his  conclusion
that  it was completely safe, support the companys position  that
Willard  was  fired  for insubordination and  failure  to  follow
company procedures  and not for requesting safety equipment.   As
Khotol sees it, Willards equipment requests provided confirmation
of Willards resistance, both passive and active, to the direction
of his supervisors.
          In  dismissing  Willards retaliatory discharge  theory,
the  superior  court agreed with Khotols position, stating:  [A]s
Defendant points out, Plaintiffs conclusory allegations, made for
the  first time in his supplemental opposition, do not  create  a
factual  issue  whereby  a reasonable jury  might  conclude  that
Khotol  acted  in  an  objectively unfair manner  in  terminating
Plaintiff.   We  disagree.   Here, Willard  relied  on  both  the
Bellamy letter and his own affidavit in support of his complaint.
In  addition, when viewed in the light most favorable to Willard,
Bellamys  and  Holterys  deposition testimony  supports  Willards
retaliatory-discharge claim.  Khotols position, as adopted by the
superior  court, fails to reflect a view of the evidence  in  the
light most favorable to Willard  the approach required for ruling
on Khotols motion for summary judgment.
          Moreover,  the  evidence available at summary  judgment
fails  to support Khotols claim that it made a good faith  effort
to confirm that Willards equipment requests were unreasonable and
that   its  investigation  therefore  provided  confirmation   of
Willards resistance, both passive and active, to the direction of
his  supervisors.  [I]t is possible for an employer to rightfully
terminate  an  employee but to do so in a way that  violates  the
covenant  of good faith and fair dealing.13  But if the  employer
makes  a  good faith determination that the misconduct  occurred,
there  is no breach of the implied covenant . . . , even  if  the
employee  could  subsequently prove that the factual  finding  of
misconduct was a mistake.14
          In  Holland v. Unocal Oil Co. of California,  Inc.,  on
which  Khotol relies, we affirmed summary judgment for  Unocal.15
There,  Holland  planned  to do an independent  project  using  a
significant amount of company materials and time, but  failed  to
obtain  permission  to  do the project  as  required  by  company
policy.16  Two of Hollands supervisors conducted an investigation;
they determined that Holland had not told them the truth and that
his  behavior demonstrated poor judgment, both of which justified
his demotion.17  We concluded that Unocals actions, as a matter of
law,  could  not  reasonably  be considered  objectively  unfair,
because  two supervisors had investigated the misconduct  charges
against  Holland,  including  interviewing  all  of  the  parties
          In  contrast,  the record here indicates that  Bellamys
investigation  of  Willards  requests  consisted  of  second-hand
information from a Department of Public Works supervisor at  Fort
Richardson  who  told Bellamy that an earlier investigation   the
date  of  which  was not stated  had shown that there  w[ere]  no
toxic  gas[]es  to  a level that would harm an  individual.   The
          record provides no further details to support Khotols claim that
it  had investigated the reasonableness of Willards request.  And
Bellamy  acknowledged  that  his  brief  conversation  with   the
Department of Public Works supervisor was the principal basis  of
his  effort  to determine the validity of Willards  requests  for
safety  equipment.  This evidence does not provide  a  reasonable
factual  basis  to support the conclusory assertion  in  Bellamys
draft letter to the NLRB that, [u]pon investigation by myself . .
.  I  found that the operation . . . was completely safe and  the
level of gases present would be a matter of personal discomfort.
          For   these   reasons,  we  conclude  that  there   are
sufficient  genuine  issues of material fact  regarding  Willards
retaliatory discharge theory to support his cause of  action  for
breach of the implied covenant of good faith and fair dealing.19
     B.    Willards  Wrongful  Discharge  and  Breach-of-Contract
          Willards  amended  complaint  asserts  that  Khotol  is
liable  for  wrongful  discharge and  breach  of  his  employment
contract.   Both claims rely on a theory that Willard could  only
be  fired  for  just  cause  and  was  entitled  to  certain  job
protections, including an opportunity to dispute his  termination
through company grievance procedures.  In support of this theory,
Willard  relies  primarily on our decision in  Jones  v.  Central
Peninsula  General  Hospital20 and language in  Khotols  employee
manual to argue that the manual fostered a reasonable expectation
that he could only be legally discharged for cause.
          In  granting  Khotol summary judgment on these  claims,
the  superior court compared the facts of this case to Jones  and
concluded that, unlike the provisions of the manual at  issue  in
Jones,   certain  disclaimers  in  Khotols  manual  and   Khotols
employment  application made it clear that, as a matter  of  law,
Willard  remained an at-will employee.  The superior  court  thus
concluded that the manual did not affect Willards at-will status,
so he could be legally discharged with or without just cause.  On
appeal,  Willard  contends  that the  superior  court  improperly
distinguished  Jones  and renews his argument  that  the  manual,
taken as a whole, fostered a reasonable expectation that he could
only  be  fired for cause and was entitled to certain  procedural
job protections.
          While  Jones  recognized  that  personnel  manuals  can
sometimes  modify  at-will  employment  agreements  by   creating
expectations of specific job protections, we conclude that  Jones
has  no  bearing on Willards case because uncontroverted evidence
establishes  that  Willard  was still  a  probationary  employee.
Khotols employee manual  unambiguously provided that, as such, he
could  be  fired  at any time during his first  three  months  of
employment if his attitude, habits, attendance or job performance
did not measure up to Khotols standards.
          Willard was on the job for only six weeks before  being
fired.   The  Khotol  manual  defines  the  probation  period  as
extending  for  90 days, commencing on the date of  hire,  during
which  time the employee must demonstrate the ability to  perform
the job. The manual further describes probation as a try-out time
for  both  employee and employer, during which  the  company  may
          dismiss the employer for reasons related to work habits,
attitude,  attendance or performance.  The manuals only guarantee
to  probationary  employees  is that they  will  receive  several
evaluations  of  their  job  performance  during  the  ninety-day
period, followed by a final review at the end of probation.
          Willard  contends that, even though he fell within  the
manuals  description of a probationary employee, Khotol  did  not
regard  him  as  having  probationary status.   He  disputes  his
probationary  status  on three specific grounds:  he  notes  that
company  officials never told him he was on probation; he asserts
that  he  never received probationary evaluations; and he  points
out  that  he  received holiday pay for July 4, contrary  to  the
manuals  statement that probationary employees are  not  eligible
for such pay.
            Willards arguments are unpersuasive.  Nothing in  the
manual suggests that new employees must be told that they are  on
probationary status before they fall into that category; instead,
the  manual classifies all new employees as probationary workers.
Moreover,  Khotols alleged failure to give Willard an  evaluation
during  his  six weeks on the job does not support  a  reasonable
inference  that  he  was  not  on probation.   While  the  manual
promises  several  evaluations during  the  ninety-day  probation
period,  it  does  not  specify when the evaluations  must  occur
within  the  ninety-day  period.  Likewise  Willards  unexplained
receipt of holiday pay for July 4th does not support a reasonable
expectation of non-probationary status.
          Courts in other jurisdictions have generally recognized
that,   absent  specific  contractual  protections,  probationary
employees  may be dismissed for any non-discriminatory reason  or
no  reason  at all.21  Similarly, we have consistently recognized
that in the absence of statutory or contractual provisions to the
contrary,  probationary  employees  traditionally  are   accorded
minimal  procedural and substantive job protections.22   In  sum,
Willards  attempt  to  raise  claims  under  Jones  for  wrongful
discharge and breach of contract fails as a matter of law because
Khotols  employee  manual unequivocally made him  a  probationary
employee  and  gave him no right or reasonable expectation  of  a
right to pursue these claims.  We thus affirm the superior courts
decision on these claims.
     C.   Willards Misrepresentation Claim
          Willards amended complaint separately asserted a  claim
for  misrepresentation, alleging that Khotol misrepresented three
conditions  or  terms  of  his employment  through  its  employee
manual: (1) the right to progressive discipline, (2) the right to
not  be terminated without just cause, and (3) that any dismissal
would  be  subject to the companys grievance procedure.  Willards
complaint does not specify whether the misrepresentation claim is
based on negligent or fraudulent misrepresentation.  The superior
court  ruled  that  Willard failed to supply enough  evidence  to
withstand summary judgment under either theory.  The court  ruled
that  the  negligent misrepresentation claim lacked  legal  merit
because the record established that Willard did not rely  on  the
employee  manual in deciding to accept the job.   Similarly,  the
court  ruled  that  a  fraudulent  misrepresentation  claim   was
destined  to  fail  because  of Willards  lack  of  reliance  or,
alternatively, because Willard failed to offer any evidence  that
Khotol knowingly or intentionally made misrepresentations in  its
          Willard now asserts that the superior court erroneously
failed to consider his argument that he reported Holterys alleged
harassment  in  reliance on statements in  the  employee  manual.
Willard  also  contends  that the court failed  to  consider  his
argument that Khotols characterization of Willard as an  at  will
employee  proves that Khotol never intended to honor the  manuals
promise  that [n]o employee will be dismissed without just  cause
and all dismissals will be subject to the grievance procedures.
          Khotol  responds that Willard presented no evidence  of
reliance.   Citing  the Restatement (Second) of  Torts,23  Khotol
asserts that even if we accept Willards premise that Khotol  knew
that   the  manuals  promises  about  grievance  procedures   and
discharge only for good cause were false, Willard would not  have
been  justified in relying on those promises.  Khotol argues that
Willards   reliance  was  unjustifiable  because   the   relevant
provisions conflict with other provisions in the manual  and  the
employment  application, which state that all  at-will  employees
may be terminated at any time and for any reason.
          The Restatement (Second) of Torts  552 defines the four
elements  required  to establish negligent misrepresentation  as:
(1)  the  party accused of misrepresentation must have  made  the
statement   in   the  course  of  his  business,  profession   or
employment; (2) the representation must supply false information;
(3)  the  plaintiff must show justifiable reliance on  the  false
information;  and  (4)  the accused party  must  have  failed  to
exercise   reasonable  care  or  competence   in   obtaining   or
communicating  the  information.24  Fraudulent  misrepresentation
requires  an additional element: proof that the party making  the
misrepresentation knew that it was untrue.25
          We  agree  with  Khotol that Willards misrepresentation
claim  fails  because  the record does not include  any  evidence
supporting the requisite element of justified reliance.   As  the
superior  court noted, the evidence shows that Willard could  not
have relied on the statements in the employee manual in accepting
the  job  with Khotol.  Willard stated in his deposition that  he
accepted  the job on June 2, 2003 by signing a written job  offer
          and calling a company official to convey his acceptance.  Yet he
did  not receive the employee manual until June 12 and failed  to
read it until sometime after that date.  Willard also offered  no
support  for his assertion that he relied on the employee  manual
in  deciding to report Holterys alleged harassment.  In his reply
brief,  Willard  points to his own deposition testimony  that  he
read  the employee manuals policy on harassment to find out [h]ow
we  were supposed to be treated.  Yet the harassment section says
nothing  about  for-cause  employment  or  grievance  procedures.
Moreover,  the  manual specifically requires reports  of  alleged
harassment  to  be in writing and states that they  must  contain
specific   details.   Willard  failed  to  comply   with   either
          Because Willard has failed to offer evidence supporting
a    finding    of    justified   reliance   on    any    alleged
misrepresentation,  we affirm the superior  courts  dismissal  of
Willards misrepresentation claim.
     D.    Effect of Federal Preemption on Evidence of Anti-Union
          After   Khotol  moved  to  dismiss  Willards   original
complaint,  the superior court indicated that it was inclined  to
dismiss two of Willards claims because they were preempted by the
NLRA.26  The first claim asserted that Khotol breached the implied
covenant of good faith and fair dealing and alleged in part  that
Willards  termination  by Khotol was a pretextual  discharge  for
union  organization. The second claim was for breach of contract;
among  other  things,  it  asserted  that  Khotol  breached   its
employment contract with Willard in retaliation for [his] efforts
to  secure  union representation for his fellow  co-workers.   In
stating its intent to dismiss these claims, the court proposed to
enter  the  dismissals without prejudice to  allow  amendment  of
Willards complaint.  In reply, Willards attorney stated: I  think
thats probably appropriate for relief as long as Mr. Willard  has
the opportunity to amend his complaint. After the court dismissed
the  claims as preempted, Willard amended his complaint to remove
all   references   to  his  involvement  in  efforts   at   union
          On   appeal,   Willard  challenges  the  courts   order
dismissing  his  original claims.  He argues  that,  because  his
union  activities formed only a part of those claims, the  claims
were not barred by federal preemption.  In Willards view,
          [t]he  fact  that the complaint  alleged  his
          participation in union activities as  one  of
          several  reasons  for his discharge  did  not
          justify  dismissal and the  requirement  that
          the   complaint  be  amended   to   eliminate
          reference    to    [Khotol]s    bad     faith
          actions.  .  .  .  Evidence of [Khotol]s  bad
          faith  in  terminating Willard for his  union
          organizing  activities  is  both  proper  and
          relevant  to  his  claim for  breach  of  the
          covenant of good faith and fair dealing,  and
          therefore  he  should have been permitted  to
          allege  such  facts in his complaint  and  be
          able  to  present  such evidence  at  a  jury
          In  response,  Khotol contends as a preliminary  matter
that Willards attorney waived the right to challenge the superior
courts preemption ruling by expressly telling the superior  court
that  its  proposal to dismiss the original claims  was  probably
appropriate.  But the statement by Willards counsel cannot fairly
be  construed as acquiescence to the courts ruling on preemption.
After  the  superior court proposed to dismiss the two claims  as
preempted,  it  qualified this proposal by  suggesting  that  the
dismissal  could  be  entered  without  prejudice.   The  ensuing
response  by Willards counsel focused on the suggested remedy  of
allowing amendment: I think thats probably appropriate for relief
as  long  as  Mr.  Willard  has  the  opportunity  to  amend  his
          When  viewed in context, Willards counsel simply agreed
that  if  the court followed through with its proposal to dismiss
the  two  claims,  it would be appropriate to allow  Willard  the
opportunity to amend his complaint.  Indeed, the ensuing colloquy
between  Willards  counsel and the superior court  confirms  this
interpretation by making it clear that Willards counsel continued
to  disagree with the courts ruling of preemption.  For instance,
when  the court later reiterated that it favored the approach  of
dismissal without prejudice, Willards attorney replied, Again,  I
think  this whole idea [of preemption under federal case law]  is
misconstrued  because there are no federal issues  involved  here
aside  from  the  reference  to union activities.27   Because  we
conclude  that Willard did not waive the point, we  turn  to  the
merits  of  his  claim  that the superior  court  misapplied  the
doctrine of federal preemption.28
          In  San  Diego Building Trades Council, Millmens Union,
Local  2020,  Building  Material and Dump Drivers,  Local  36  v.
Garmon,29  the United States Supreme Court announced two  general
guidelines  for  courts  to follow in assessing  the  permissible
scope of state regulation of conduct touching on labor-management
relations.   First,  the Court declared, state jurisdiction  must
yield  when  the  activity in question is  clearly  protected  or
prohibited by the NLRA.30  Second, the Court stated, both federal
and  state courts must defer to the exclusive competence  of  the
National  Labor  Relations Board when  an  activity  is  arguably
subject to  731 or  832 of the NLRA.33
          But  the  Court has also warned against applying  these
guidelines  in  a literal, mechanical fashion.34  In  Garmon  the
Court  carved out specific exceptions to preemption  for  matters
that  are of only peripheral concern to the NLRA, or that are  so
deeply  rooted in local law as to make it unreasonable to  assume
that Congress intended to preempt state law from applying.35  The
Court also has stressed the need to weigh the states interest  in
adjudicating  the type of claim asserted against the  possibility
of  interference with the NLRBs regulatory jurisdiction.36  Under
this  balancing test, when conduct is arguably prohibited by  the
NLRA, a critical inquiry is whether the controversy presented  to
the  state  court is identical with that which could be presented
to  the  [NLRB].37   For  example, in Sears,  Roebuck  &  Co.  v.
          Carpenters, the court held that a state trespass action was not
preempted  because the state action focused only on the  location
of  the  picketing,  while a complaint to  the  NLRB  would  have
focused on the substance and object of the picketing.38
          Willard  contends on appeal that Garmon preemption  did
not  apply  to  his original implied-covenant claim,  because  it
included  theories independent of the allegations  of  anti-union
bias.   In particular, he contends, because his original implied-
covenant  claim  included allegations that  his  termination  was
based  on  personal animosity and that it violated public  policy
factual allegations falling beyond the range of NLRB jurisdiction
the  original claim was not factually identical to his  potential
federal claim, and so was not barred by Garmon preemption.
          Furthermore,  regarding his amended complaint,  Willard
argues  that  because the implied-covenant  claim  now  does  not
allege  anti-union bias at all  resting completely on independent
grounds   Garmon  preemption does not bar  him  from  introducing
evidence  tending  to show anti-union bias,  so  long  as  it  is
relevant  to support the independent state-law claims he actually
seeks to prove.
          Willard supports this argument with a California  Court
of  Appeal case, Kelecheva v. MultiVision Cable T.V. Corp.39   In
Kelecheva,  a former supervisor alleged that he was subjected  to
harassment and discharged for refusing to spy on and write up co-
workers involved in a unionization effort.40  He sued his employer
for   wrongful  termination,  breach  of  an  implied  employment
contract,  and  breach of the covenant of  good  faith  and  fair
dealing.41  The California Court of Appeal ultimately  held  that
the  plaintiffs  state-law contract claims  were  not  preempted,
because  the  state  litigation would focus on issues  distinctly
different from those that could have been raised before the NLRB.42
In  particular, the court noted that the contract did not require
a  showing  of  an  unlawful motive and that the implied-covenant
claim  would  likely focus on whether the defendant followed  its
own  personnel  rules  or  falsified  the  asserted  grounds  for
discharge.43  Under these circumstances, the court observed,  the
plaintiff  would  not  be  required to prove  that  the  employer
discharged  him  for reasons that violated federal  labor  law.44
Noting  the  states  substantial interest in  providing  contract
remedies  for  employees  not covered  by  collective  bargaining
agreements, the court concluded that this interest outweighed any
marginal  effect that adjudication of the state-law claims  would
have on national labor policy.45  Accordingly, Kelecheva held that
the state claims were not barred, stating:
          Although  evidence  of defendants  anti-union
          animus may be relevant to plaintiffs claim of
          breach of the covenant of good faith and fair
          dealing,  plaintiff would not be required  to
          prove that defendant, in fact, discharged him
          for  reasons  that would violate  federal  or
          state labor law.[46]
          In  response to Willards reliance on Kelecheva,  Khotol
insists that the superior court correctly dismissed the claims in
Willards original complaint under Garmon and that Willard  cannot
          escape preemption merely by characterizing his complaints as
state  contract claims.  Khotol rests its argument on cases  from
other  jurisdictions  in  which courts found  state-law  contract
claims  preempted under Garmon. But those cases  namely,  Foreman
v.  AS Mid-America, Inc.47 and Young v. Caterpillar, Inc.48   are
distinguishable  from Willards.  Both involved  state-law  claims
that  centered  on the ways in which employees  were  treated  or
reinstated  to  their  jobs following  the  resolution  of  labor
strikes.   And in both cases, the courts specifically found  that
the  employers strike-related conduct provided the sole basis for
the  state  claims, and was identical to the conduct  that  could
have been, or had been, presented to the NLRB.49
          In  Foreman  non-union replacement workers  sued  their
former  employer  for  breach  of  contract  in  connection  with
harassment   and  intimidation  perpetrated  by   union   workers
returning  to work after a strike.50  The Nebraska Supreme  Court
found that the employers failure to provide harassment-free  work
as  it had promised to do  was actually or arguably prohibited by
the  NLRA  because  the  inaction  amounted  to  condonation   or
protection  of misconduct attributed to the union.51   The  court
thus concluded that the companys failure to act was not merely  a
peripheral  concern to federal labor law, but, rather,  [was]  so
inextricably intertwined with federal labor law that to do  other
than  preempt appellants alleged breach-of-contract claims  would
obfuscate the NLRBs ability to adjudicate controversies under its
          Similarly,  in Young, a group of employees  sued  their
employer in state court for failing to reinstate them immediately
after a strike concluded.53  While the plaintiffs claimed that the
employer  had  breached their individual employment contracts  by
delaying  reinstatement,  the court  found  that  the  plaintiffs
claims  were  in  essence  unfair labor  practices  claims  under
section  8  of the [NLRA].54  The court concluded that  [d]espite
attempts  to dress the claims as breach of contract,  the  actual
issues  presented to the state court would be identical to  those
presented to the [NLRB] in an unfair labor practices claim.55  The
court thus concluded that the claims were preempted.
          By  contrast, Willards original complaint provided  two
potential  bases for his breach-of-covenant claim  that  did  not
necessarily hinge on his allegations of anti-union bias  that his
termination  violated public policy and/or was based on  personal
animosity.   As amended, his complaint does not allege anti-union
bias.  Thus, the issues to be considered by a state court are not
identical to those originally presented to the NLRB.  Foreman and
Young are not persuasive authority for preemption here.
          Khotol  also argues that Willards reliance on Kelecheva
is  misplaced, particularly as to whether his anti-union bias  is
admissible in support of his implied-covenant of good  faith  and
fair dealing claim.  Khotol contends that if Kelecheva represents
good  law  consistent with United States Supreme Court precedent,
it  cannot  be  interpreted as permitting evidence of  anti-union
bias  to be admissible in support of a state claim, even  if  the
evidence  of  bias  is relevant to that claim.   Further,  Khotol
insists  that Kelechevas reference to the potential relevance  of
          anti-union animus is merely dicta that  indicates the opposite
point   that regardless of the relevance of the evidence of anti-
union  animus, such evidence would not be required to  prove  his
          Although  Kelechevas  meaning is somewhat  unclear,  we
agree  with  Willards reading of the case.  The  implied-covenant
claim  in  Willards  first superior court complaint  included  an
allegation that he had been fired in retaliation for his  efforts
to  secure union representation.  That allegation was essentially
identical  to  the one he initially made to the  NLRB.   Standing
alone,   it   raised  a  matter  within  the  ambit   of    NLRBs
jurisdictional  sphere.  But Willards claim  advanced  two  other
implied-covenant  theories that could  stand  independently.   As
originally raised, and as later elaborated on in Willards amended
complaint,  these  theories  that Willards  termination  violated
public  policy  and/or that it was prompted  by  his  supervisors
personal animosity toward him  fall outside the ambit of  federal
concern,  even  though the conduct they allege  might  have  been
motivated  by hostility resulting from Willards union activity.56
Accordingly, these theories were not preempted.
          Moreover, if these independent theories were  tried  in
the  superior  court  and  evidence of anti-union  animus  became
genuinely  relevant to support them, we would see no  reason  why
the  admissibility of the evidence of bias should not be governed
by  the  Alaska  Rules of Evidence.  The rules of  evidence  give
trial  courts broad discretion to exclude relevant evidence  when
its  prejudicial impact or potential for confusion outweighs  its
probative  value.57  Here, if Willard offered to use evidence  of
Khotols anti-union bias not just to impeach Khotols claim that he
was  fired  for insubordination, but also to suggest that  Khotol
breached  the implied covenant by firing Willard for engaging  in
union-related  activities, then the evidence  could  be  excluded
because of its tendency to inject confusing issues into the  case
that  belong  in a federal forum.  Given the broad scope  of  the
trial  courts  powers  to  exclude  relevant  evidence  when  its
potential for confusion outweighs its probative value, we see  no
reason  to fear that the superior court would hesitate to exclude
it.   On the other hand, though, if the evidence is relevant  for
impeachment  and  poses  no risk of being  mistaken  as  evidence
offered  to  prove an element of Khotols implied-covenant  claim,
federal preemption would not bar its admission.58
          On  remand,  then, the superior court should  determine
questions concerning the admissibility of such evidence under the
Alaska  Rules of  Evidence, keeping a careful eye on the purposes
underlying the doctrine of preemption adopted in Garmon.
          Because  Willard  presented  evidence  raising  genuine
issues  of material fact in connection with his claim that Khotol
violated the implied covenant of good faith and fair dealing,  we
REVERSE the superior courts decision on this claim and REMAND for
further  proceedings  consistent  with  this  opinion.   We  also
conclude  that, on remand, evidence of Khotols alleged anti-union
bias  may be admitted to support Willards implied-covenant  claim
so  long as it is relevant and does not supply, or pose an  undue
          risk of appearing to supply, an essential element of the claim.
We AFFIRM the superior courts decision in all other respects.
     1     Khotol  is a subsidiary of Gana-AYoo, Ltd., an  Alaska
Native  Corporation. See Khotol Services Corporation, Background,
.htm [sic] (last visited Oct. 31, 2007).

     2     Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska  1995);
Bishop  v.  Municipality of Anchorage, 899 P.2d 149, 153  (Alaska

     3     Olson v. Teck Cominco Alaska, Inc., 144 P.3d 459,  463
(Alaska 2006).

     4    Nielson, 903 P.2d at 1052; Bishop, 899 P.2d at 153.

     5    Mitford v. de Lasala, 666 P.2d 1000, 1006 (Alaska 1983)
(Every contract imposes upon each party a duty of good faith  and
fair  dealing  in  its performance or its enforcement.)  (quoting
Restatement  (Second) of Contracts  205 (1981)); see also  Knight
v.  American Guard & Alert, Inc., 714 P.2d 788, 792 (Alaska 1986)
(complaint   that   alleged  retaliatory  discharge   stated   an
enforceable cause of action under covenant of good faith and fair
dealing implied in employment contracts).

     6     Pitka  v. Interior Regl Hous. Auth., 54 P.3d 785,  789
(Alaska 2002).

     7    Id. at 789.

     8    Id.

     9     Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 789
n.6  (Alaska  1989); see also Rutledge v. Alyeska Pipeline  Serv.
Co., 727 P.2d 1050, 1056 (Alaska 1986).

     10    Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123,
1130 (Alaska 1989) (Luedtke I).

     11    Reed v. Municipality of Anchorage, 782 P.2d 1155, 1158-
59 (Alaska 1989); see also Kinzel v. Discovery Drilling, Inc., 93
P.3d 427, 438 (Alaska 2004).

     12    Reed, 782 P.2d at 1158-59.

     13     Alaska  Marine Pilots v. Hendsch, 950  P.2d  98,  109
(Alaska 1997).

     14     Holland v. Unocal Oil Co. of Calif., Inc.,  993  P.2d
1026, 1035 (Alaska 2000).

     15    Id.

     16    Id.

     17    Id.

     18    Id.

     19     Willard also asserts that Khotol breached the implied
covenant  when it failed to treat like employees alike  regarding
alleged health and safety rule violations and that this disparate
treatment was objectively unfair.  On appeal, Willard argues that
he  established  triable issues of fact in connection  with  this
theory  and  that  in  dismissing this basis for  his  breach-of-
covenant  claim,  the superior court improperly  applied  a  high
evidentiary  threshold . . . inconsistent with Alaska  case  law.
Because  we hold below that Willard was a probationary  employee,
we  conclude that the implied covenant did not entitle Willard to
be treated equally by Khotol when it sanctioned him for violating
health  and safety rules.  For the same reason, we conclude  that
Khotols alleged failure to follow its own policies regarding non-
probationary employees did not result in a breach of the  implied
covenant.    And  because  Willards  allegations  that   personal
animosity  led  to  his  dismissal meshes  with  his  retaliatory
discharge theory, we see no need to address the animosity  theory
separately here.

     20    Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 787
(Alaska  1989)  (holding that a personnel manual  issued  by  the
employer  had  been  incorporated  into  the  plaintiffs  at-will
employment  agreement,  so  that  the  plaintiff  could  only  be
terminated for cause).

     21     E.g., Pinto v. Wynstra, 250 N.Y.S.2d 1012, 1015 (Sup.
Ct.  1964) (It has heretofore been regarded as well settled  that
the  appointment of a teacher may be terminated, with or  without
cause,  at  any time during the probationary period, and  that  a
teacher so situated has no right of review.); Commonwealth,  Dept
of  Health  v. Graham, 427 A.2d 1279, 1281 (Pa. Commw. Ct.  1981)
(holding  that as long as state agencys reasons for dismissing  a
probationary  employee  are  job-related  and  not   tainted   by
discriminatory motive, the court will not substitute its judgment
for  the  agencys  or  weigh  the  sufficiency  of  the  evidence
supporting the agencys decision).

     22     See,  e.g., Cassel v. State, Dept of Admin., 14  P.3d
278,  283-84 (Alaska 2000); Univ. of Alaska v. Tovsen,  835  P.2d
445,  447 (Alaska 1992); Van Gorder v. Matanuska-Susitna  Borough
Sch. Dist., 513 P.2d 1094, 1096 (Alaska 1973).

     23      Restatement  (Second)  of  Torts   537  (1977)  (The
recipient  of a fraudulent misrepresentation can recover  against
its  maker for pecuniary loss resulting from it if, but only  if,
(a)  he  relies on the misrepresentation in acting or  refraining
from action, and (b) his reliance is justifiable.).

     24    Id.  552(1);  see also Bubbel v. Wien Air Alaska, Inc.,
682 P.2d 374, 380 (Alaska 1984).

     25    Bubbel, 682 P.2d at 381 (citing Restatement (Second) of
Torts   530 cmt. b).

     26    See 29 U.S.C.  157-158 (2000).

     27     Notably,  after making this point, Willards  attorney
supported  it  by  specifically calling the courts  attention  to
Mitford  v. De LaSala, 666 P.2d 1000 (Alaska 1983)   one  of  the
main  cases  he currently relies on in challenging  the  superior
courts preemption decision.

     28      On questions of law, this court is not bound by  the
lower courts decision; our duty is to adopt the rule of law  that
is  most  persuasive in light of precedent, reason,  and  policy.
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     29     San Diego Bldg. Trades Council, Millmens Union, Local
2020, Bldg. Material & Dump Drivers, Local 36 v. Garmon, 359 U.S.
236 (1959).

     30    Id. at 244.

     31    Section 7 of the NLRA protects the rights of employees
to   self-organization,   to  form,   join,   or   assist   labor
organizations, to bargain collectively through representatives of
their  own  choosing, and to engage in other concerted activities
for  the purpose of collective bargaining or other mutual aid  or
protection.  29 U.S.C.  157.

     32    Section 8 of the NLRA makes it an unfair labor practice
for  an employer  to discriminate in regard to hire or tenure  of
employment or any term or condition of employment to encourage or
discourage  membership  in  any  labor  organization.  29  U.S.C.

     33    Garmon, 359 U.S. at 245.

     34    Sears, Roebuck & Co. v. San Diego County Dist. Council
of  Carpenters,  436 U.S. 180, 188 (1978); see also  Garmon,  359
U.S.  at  246-47; Farmer v. Carpenters, 430 U.S. 290, 302  (1977)
(Our  cases  indicate . . . that inflexible  application  of  the
doctrine is to be avoided . . . .).

     35    Garmon, 359 U.S. at 244.

     36     Sears, 436 U.S. at 189; Vaca v. Sipes, 386 U.S.  171,
180  (1967);  see  also  Farmer, 430 U.S.  at  295-96  ([B]ecause
Congress  has  refrained from providing specific directions  with
respect  to the scope of pre-empted state regulation,  the  Court
has  been  unwilling to declare pre-empted all  local  regulation
that    touches   or   concerns   in   any   way   the    complex
interrelationships between employees, employers, and unions . . .
.) (internal quotations omitted).

     37    Belknap v. Hale, 463 U.S. 491, 510 (1983).

     38    Sears, 436 U.S. at 198.

     39     Kelecheva  v. MultiVision Cable T.V. Corp.,  22  Cal.
Rptr. 2d 453 (App. 1993).

     40    Id. at 454-55.

     41    Id. at 455.

     42    Id. at 459.

     43    Id.

     44    Id.

     45    Id.

     46    Id.

     47     Foreman v. AS Mid-America, Inc., 586 N.W.2d 290 (Neb.

     48     Young v. Caterpillar, Inc., 629 N.E.2d 830 (Ill. App.

     49     Foreman, 586 N.W.2d at 301; Young, 629 N.E.2d at 797-

     50    Foreman, 586 N.W.2d at 296-97.

     51    Id. at 301.

     52    Id.

     53    Young, 629 N.E.2d at 832.

     54    Id. at 833.

     55    Id.

     56    See Roberts v. Auto. Club of Mich., 360 N.W.2d 224, 228
(Mich.  App.  1985)  (State  court jurisdiction  over  breach  of
implied employment contract claim not preempted where state court
would focus on existence of contract and breach, while NLRB would
focus on whether employer bargained in good faith to a bona  fide
impasse  before  unilaterally  imposing  changes  in  terms   and
conditions of employment.).

     57    See Alaska R. Evid. 403.

     58    Our ruling that Willards breach-of-contract claim fails
as  a matter of law for reasons unrelated to preemption makes  it
unnecessary  to  consider the issue of preemption  in  connection
with that claim.

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