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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Baseden v. State (01/04/2008) sp-6219

Baseden v. State (01/04/2008) sp-6219, 174 P3d 233

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STEVE BASEDEN, )
) Supreme Court No. S- 12380
Appellant, )
) Superior Court No.
v. ) 1JU-05-00809 CI
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) No. 6219 - January 4, 2008
)
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances: Steve Baseden, pro  se,  Juneau.
          William E. Milks, Assistant Attorney General,
          and   Talis  J.  Colberg,  Attorney  General,
          Juneau, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          Following his wrongful termination and the filing of  a
formal  grievance, a state employee refused the states unilateral
offer to grant his grievance through full back pay, benefits, and
reinstatement to a new position at the same classification,  pay,
and  duties as the former position.  When the employee failed  to
show  up  to work for reinstatement, the state terminated  him  a
second  time.   Later  arbitration decisions concluded  that  the
employees unreasonable failure to return to work constituted just
cause  for the second termination and that the employee  was  not
entitled to additional damages.  The employee filed suit  in  the
superior  court to vacate the arbitration decisions and attempted
to  assert an allegedly new cause of action.  After consolidating
the employees lawsuits, the superior court denied the motions  to
strike  the  arbitration  decisions and held  that  the  employee
should  take  nothing  beyond the compensation  already  awarded.
Because  the  employee did not demonstrate that  the  arbitration
decisions  were  arbitrary and capricious  or  gross  error,  and
because  those decisions control the outcome of the new cause  of
action, we affirm the superior courts decisions.
II.  FACTS AND PROCEEDINGS
          In  March  1999 the Alaska Department of Transportation
and   Public   Facilities  (DOT)  hired  Steve  Baseden   as   an
Engineer/Architect  III with a salary range  of  22.   Under  the
terms  of  his  original contract, and according  to  the  Public
Employment  Relations  Act,  Baseden  was  to  have  a   one-year
probationary  period.  In February 2000 DOT sent  Baseden  notice
that   he  had  to  consent  to  an  extension  of  his  one-year
probationary period or be fired.  Baseden had received no written
warnings  or  performance evaluations prior to this  notice.   In
late  February DOT and the union representing Baseden, the Alaska
Public  Employees  Association  (APEA),  agreed  to  a  six-month
extension of probation.  In April 2000 DOT terminated Baseden.
          In October 2000 Baseden filed suit against the state in
superior  court for wrongful termination.1  In May 2001  Superior
Court  Judge  Larry  R. Weeks held that the State  Personnel  Act
prohibited periods of probation exceeding one year, and that as a
result Baseden was not a probationary employee when he was fired.
But  Judge Weeks also held that Baseden had failed to exhaust his
administrative  remedies.   Accordingly,  Judge   Weeks   granted
summary  judgment  to  the state but made the  grant  of  summary
judgment  contingent on the state accepting a grievance filed  on
the subject of Basedens termination within fifteen days following
the order.
          Within fifteen days, APEA, on behalf of Baseden,  filed
grievance  JSU-01-016  (first grievance)  seeking  reinstatement,
back pay, and benefits.  This first grievance, pertaining to  the
compensation owed to Baseden for his April 2000 termination,  was
not  finally resolved by arbitration until July 2005.  (This July
2005  arbitration decision came after the filing   in  2001   and
resolution  by  arbitration   in  2002   of  a  later  grievance,
discussed  below  in  detail.   Each  of  these  resolutions   is
challenged in this appeal.)  Meanwhile, the state filed a  motion
for  reconsideration of Judge Weekss order, which was  ultimately
denied.
          On  or  about  August 9, 2001, the  states  step  three
response2  was  due in Basedens first grievance.   Under  Article
10.2(B)  of the Collective Bargaining Agreement (CBA),  [i]f  the
Employer  fails to comply in rendering a decision in the allotted
time frame, the grievance shall advance without further delay  to
the  next  step  of the procedure.  Allotted time frames  may  be
extended  by  mutual agreement . . . .  Under the  CBA  the  next
stage, step four, is arbitration.
          The  state  did not file a timely step three  response.
The state did file a late step three response on August 10, 2001,
          denying the grievance as not arbitrable and noting that the
superior  court was reconsidering its decision finding Baseden  a
permanent employee.  Later that same day, following the  superior
courts  reaffirmance of its earlier decision, the state rescinded
its  response and wrote to APEA stating that it would send a  new
response within five business days.3
          On  August  17,  2001, the state, apparently  believing
that  it  could  still file a step three response, notified  APEA
that  it would grant the grievance.  The state declared that  Mr.
Baseden  shall be made whole from April 15, 2000, less  mandatory
deductions  and interim earnings.  The state set a September  17,
2001  start  date for Baseden to report for duty.   It  indicated
that  Baseden would be paid at Salary Range 24, Step B, and  that
he would occupy a new Position Control Number (PCN), but with the
same  classification as his previous position, Engineer/Architect
III.   The state also asserted: This decision is voidable in  the
States  sole discretion if the court order in 1JU-00-1731  CI  is
vacated,  whereupon the State reverts to its decision in  denying
the grievance by letter of August 10, 2001.
          On  September  6,  APEA declined to accept  the  states
proposed  resolution of the grievance and, noting that the  state
had  failed to respond to step three in a timely manner, demanded
arbitration on the matter.
          Baseden did not return to work on September 17 and  the
following  day the state offered to consider a request  from  the
union  for  a  new return-to-work date.  The state also  notified
APEA  that  its offer of reinstatement was no longer  conditional
because the state had decided not to appeal the court order.  The
state  elaborated:   In  other words,  the  State  is  no  longer
reserving  any rights with respect to the legal issues raised  by
Judge  Weeks  order and Mr. Baseden can return  to  work  without
concern  of further action by the State in that case.  The  state
clarified that the class specifications, duties, and pay were the
same in the PCN Baseden had requested in his grievance and in the
new  PCN  that the state was offering.  In a separate letter  the
state  wrote  to  APEA stating that in light of its  decision  to
grant  Basedens  grievance  it did not  see  any  controversy  or
dispute remaining and thus it asked APEA to identify exactly what
controversy or dispute remains to be arbitrated.
          APEA  replied to the state on September 22 that it  did
not  agree  that Baseden was made whole by its offer because  the
state  did  not  offer  to cover attorneys fees  or  compensatory
damages  and  because  the  PCN  of  Basedens  new  position  was
different  than the one requested in the grievance.  APEAs  reply
ignored the states detailed September 18 response  to the  unions
concerns  about  the  job offer.  The state subsequently  replied
that  the  CBA  did not allow for recovery of attorneys  fees  or
compensatory damages beyond the type provided in the states make-
whole  offer.   The state also wrote: Regardless of the  ultimate
resolution of these [two] issues, none of these matters interfere
with  Mr. Basedens ability to return to work.  The state proposed
a new return-to-work date of October 8, 2001.
          On  September 26, APEA requested that the state  extend
Basedens  return to work date to October 15, 2001.  On  September
          28, the state granted APEAs request.  The state also stated that
if  Baseden  did not report to work on October 15 the State  will
consider  Mr.  Baseden  to  have  voluntarily  relinquished   his
position.
          Baseden  did not report to work on October  15.   In  a
letter  to APEA dated October 22, 2001,  the state notified  APEA
that because Baseden failed to report to work on October 15,  and
because APEA did not  offer any legitimate excuse for his failure
to  do  so,  the state considers Mr. Baseden to have  voluntarily
relinquished his position.  The state then requested  information
and documentation regarding Basedens mitigating income to be used
for  calculating the proper amount of back pay and benefits  owed
to  Baseden.   Later that month DOT sent out a  personnel  action
form to Baseden stating that Baseden voluntarily relinquished his
position on October 15.
          In November 2001 APEA filed a new grievance, JSU-01-026
(second  grievance),  on Basedens behalf to  appeal  his  alleged
voluntary relinquishment of employment on October 15.  In  August
2002  Arbitrator  William Dorsey issued a nineteen-page  decision
(Dorsey  decision)  denying the second  grievance,  finding  that
Basedens refusal to report to work on October 15 was without  any
legitimate reason, was deliberate, and constituted just cause for
dismissal.
          In  April 2003 the Alaska Labor Relations Agency (ALRA)
held  that  the  first  grievance could  proceed  to  arbitration
because  there  was  a  dispute as  to  whether  all  the  issues
regarding  the  April  2000 arbitration were resolved,  including
issues  of damages and attorneys fees.  The ALRA found  that  the
state   could  not  unilaterally  impose  a  settlement   despite
purporting  to  grant  everything it believed  the  grievant  was
entitled  to.  In a subsequent appeal the superior court affirmed
the ALRA decision.4
          In  July  2005 Arbitrator Janet Gaunt issued a  thirty-
eight  page  decision  (Gaunt decision) on the  first  grievance.
Arbitrator  Gaunt  found that in light of the  States  concession
that  it violated Article 5 of the CBA when it terminated Baseden
on  April 14, 2000, the grievance over that termination  was  not
settled  when  the state offered Baseden reinstatement  and  back
wages and benefits. Accordingly, Arbitrator Gaunt awarded Baseden
back  wages  and benefits, as well as interest on those  amounts.
The  arbitrator  noted  that although  Basedens  own  failure  to
provided documentation about his interim earnings had delayed his
receipt  of  payment,  Baseden was due interest  because  of  the
states  greater  misconduct.  But Arbitrator  Gaunt  declined  to
grant   punitive  damages,  compensatory  damages  for  emotional
distress, or attorneys fees and expert fees from Basedens October
2000  wrongful termination suit.  Arbitrator Gaunt exercised  her
discretion  to defer to the Dorsey decision on matters pertaining
to  Basedens October 15, 2001 termination, and declined to  grant
any  wages or benefits for the period following October 15, 2001.
Finally, Arbitrator Gaunt also found that the state unjustifiably
caused  APEA to appear before the ALRA and the superior court  on
the   matter   of  the  arbitrability  of  the  first  grievance.
Arbitrator Gaunt awarded APEA its attorneys fees as a remedy.
          In  September 2005 Baseden appealed the Dorsey decision
to  the  superior  court.   On the same day,  Baseden  separately
appealed the Gaunt decision.  In January 2006 Baseden filed a new
suit  against the state seeking damages related to his April 2000
firing and subsequent dealings with the state (2006 case).
          In  March 2006 Superior Court Judge Patricia A. Collins
consolidated  all three of Basedens pending cases,  finding  that
the cases involved questions pertaining to two arbitration awards
which themselves involve common questions of law or fact.  In May
2006  Judge  Collins denied Basedens motions  to  set  aside  the
Dorsey   and  Gaunt  decisions.   Baseden  filed  a  motion   for
reconsideration on May 9, which Judge Collins denied on May 18.
          Baseden  filed a motion dated May 23, 2006, for summary
judgment  in  the 2006 case.  Judge Collins issued a judgment  on
the consolidated cases on May 24 declining to provide Baseden any
further  relief.   Upon Basedens filing of a motion  for  amended
judgment  to  clarify that he was still entitled to  such  relief
awarded  to  him  in the Gaunt decision that was not  on  appeal,
Judge  Collins  issued an order noting that [t]he final  judgment
entered in the consolidated cases does not impact the arbitration
award.   Accordingly,  the  back pay and  benefits  that  Baseden
received  for the period from April 14, 2000 through October  15,
2001, the date he failed to return to work, remained undisturbed.
          Baseden, appearing pro se, appeals various decisions of
the superior court, both procedural and substantive.
III. STANDARD OF REVIEW
          We  review the superior courts review of an arbitration
award de novo to the extent that it involves questions of law and
contract interpretation.5
          We give an arbitrators decision great deference.6  Both
the  common law and Alaska statutes evince a strong public policy
in  favor  of  arbitration. 7  In order to encourage  parties  to
pursue  arbitration,  Alaska courts have a policy  of  minimizing
their   interference  with  arbitration  decisions.8    We   have
previously declined, however, to decide definitively the standard
of review of compulsory grievance arbitration awards.9
          In general we have applied the highly deferential gross
error  standard to review grievance arbitration awards,10 but  we
have  not  decided  whether  the less deferential  arbitrary  and
capricious  standard should apply where the grievance arbitration
is compulsory.11  We have defined gross error as being only those
mistakes  which are both obvious and significant.12  Because  the
arbitration   decisions  on  review  here  withstand   the   less
deferential  arbitrary  and capricious standard,  we  decline  to
decide precisely which standard of review applies.
          We  review the decision to order consolidation of cases
for  an  abuse of discretion.13  We also review for an  abuse  of
discretion  the  superior  courts decision  to  treat  a  pro  se
litigants  untimely motion for summary judgment as a  motion  for
reconsideration.14  We will not overturn an order denying a motion
for reconsideration unless there has been an abuse of discretion.15
IV.  DISCUSSION
     A.   We Uphold the Arbitrators Decisions.
          1.   Arbitrator Dorsey did not act in an arbitrary  and
          capricious    manner    in   finding   that    Basedens
               rejection  of an offer of reinstatement  was  just
               cause for his discharge.
          Arbitrator William Dorsey conducted a full hearing  and
issued  a  nineteen-page decision on the  merits  to  decide  the
following question:
          Did  the grievants failure to report for work
          as  scheduled  on October 15, 2001  give  the
          employer just cause (as that phrase  is  used
          in   Article  5  of  the  parties   2000-2003
          contract) to dismiss him?
 This formulation of the issue was framed with the consent of the
parties.
          The  arbitrator considered Basedens arguments regarding
his  legitimate reasons for not reporting to work on October  15,
2001,  as scheduled, including that Baseden had cause to distrust
the employers representatives and that Baseden did not receive  a
complete  position description for the new position (PCN 25-2311)
which  the  state  was offering him.  Arbitrator Dorsey  decided,
however,  that Basedens concern over the change of  PCN  did  not
warrant  absenting  himself from work because  Baseden  had  been
notified   that   he   would  be  returning   to   work   as   an
Engineer/Architect  III, and it is this classification,  not  the
PCN,  which determines an employees salary.  Moreover, Arbitrator
Dorsey  found  that because the state had already  hired  someone
else to fill Basedens old PCN, and because Baseden knew that fact
prior  to  receiving notice of the reinstatement  offer,  Baseden
knew  or  should  have  known that he  would  be  working  as  an
Engineer/Architect III under a different PCN whenever he returned
to the payroll.  Arbitrator Dorsey also found that the duties and
tasks described on Basedens incomplete position description  were
exactly  the  same as those he had under his former  PCN.   After
considering these factors, Arbitrator Dorsey concluded:
          The grievant had no legitimate reason for his
          failure  to  report  for work  at  DOT&PF  on
          October  15, 2001 as scheduled, and therefore
          his   failure  to  return  to  work  for  the
          employer on that day was deliberate.
               . . . .
          .   .   .   Under  all  of  the   facts   and
          circumstances  of  this case,  the  grievants
          deliberate  failure  to report  for  work  at
          DOT&PF  as  scheduled  on  October  15,  2001
          constituted   an  immediately   dischargeable
          offense   under  Article  5  of  the  parties
          contract.
          The  Dorsey decision is further supported by the  Gaunt
decision,  in  which  Arbitrator Gaunt ruled  that  deference  to
Arbitrator Dorseys decision was warranted under the circumstances
because  Baseden  received  a full and  fair  prior  hearing  and
Arbitrator Dorsey issued a clear and well-reasoned opinion.
          Basedens   pro   se  briefing  does  not   specifically
articulate  any reasons why the Dorsey decision was either  gross
error  or  arbitrary  and  capricious, and  is  instead  directed
towards  the  superior  courts failure to properly  evaluate  the
arbitrators    decisions.16    Baseden   argues   that    special
circumstances   warranted  his  rejection   of   the   offer   of
reinstatement.  Basedens special circumstances included the  fact
that  he was bound by statute to use a grievance procedure,  that
he was an employee of the state of Alaska, and that he would have
lost his remaining rights in his first grievance by accepting the
position.17   Baseden does not make clear the legal relevance  of
the  first  two  factors, and he provides  no  factual  or  legal
support  for the proposition that his return to work  would  have
terminated  his remaining rights under his first  grievance.   To
the  contrary,  the  state  notified Baseden  in  its  letter  of
September  24, 2001, that [r]egardless of the ultimate resolution
of  [Basedens claim to compensatory damages and attorneys  fees],
none  of  these  matters interfere with Mr. Basedens  ability  to
return to work.
          Moreover,  the record indicates that Arbitrator  Dorsey
fully  considered these facts and concluded that Baseden was  not
justified in refusing to return to work.  Because Basedens claims
are without support, and because the arbitrators decision was not
arbitrary  or  capricious,  we affirm  the  arbitrators  decision
regarding  Basedens eligibility for wages and benefits subsequent
to October 15, 2001.
          Baseden also argues that the chronological order of the
arbitration  hearings somehow deprived him of his rights  because
Arbitrator  Dorsey  made  his decision  without  the  benefit  of
knowing that Arbitrator Gaunt would conclude two years later that
the  state  was not allowed to unilaterally settle the  grievance
procedure.  Basedens claim that he was prejudiced by the order of
the  arbitration is without merit because Arbitrator  Dorsey  was
fully  informed  of  the  underlying circumstances,  and  because
Arbitrator Gaunts review of the Dorsey decision resulted  in  her
own decision to give it deference.
          Because  the  Dorsey  decision  is  well-reasoned   and
legally  supported, and because Baseden has not shown  it  to  be
either  arbitrary and capricious or gross error,  we  affirm  the
superior courts decision not to vacate it.
          2.   Arbitrator  Gaunt did not act in an arbitrary  and
               capricious manner in declining to grant additional
               benefits or in deferring to the Dorsey decision on
               the matter of wages and benefits following October
               15, 2001.
          Arbitrator  Gaunt  issued a thirty-eight-page  decision
which likewise followed a full hearing.  Arbitrator Gaunt decided
the following issues pertaining to the first grievance:
          1.   In  light of the States concession  that
               it  violated Article 5 of the collective
               bargaining  agreement when it terminated
               Mr.  Baseden on April 14, 2000, was  the
               grievance over that termination  settled
               when   the  State  offered  Mr.  Baseden
               reinstatement  and restoration  of  back
               wages and benefits?
          2.   If not, what is an appropriate remedy?
          3.   Did the State violate Article 10.2(B) of
               the collective bargaining agreement when
               processing    the    [first]     Baseden
               grievance?
          4.   If so, what is an appropriate remedy?
On issues one and three Arbitrator Gaunt ruled in Basedens favor,
finding  that the first grievance was not settled when the  state
offered reinstatement and back wages, and finding that the  state
violated  Article 10.2(B) when it refused to arbitrate the  first
grievance following its offer of reinstatement.  Those aspects of
the Gaunt decision are not on appeal here.
          Baseden  appears to request that the Gaunt decision  be
vacated  to the extent that Arbitrator Gaunt refused to  overturn
the Dorsey decision and with respect to the appropriate remedies.
The  Gaunt decision deferred to the Dorsey decision on the  issue
of  whether  just  cause existed for Basedens  termination  after
Baseden  failed  to report to work on October 15,  2001.   Before
arriving  at her conclusion, Arbitrator Gaunt heard arguments  by
APEA  as  to  why  she  should circumvent  the  Dorsey  decision,
examined  the fairness of the Dorsey hearing, and considered  the
legal  reasons  and the contractual reasons for  considering  the
Dorsey  decision final and binding.  Based on our review  of  the
decision  and record, we conclude that Arbitrator Gaunts decision
to  defer  to  the  Dorsey  decision was  well-reasoned  and  not
arbitrary or capricious.
          Baseden   sought  damages  for  his  initial   wrongful
termination and sought additional damages to compensate  him  for
the  way the state had handled his grievances.  Arbitrator  Gaunt
had  the  ability  to  grant additional creative  remedies  where
warranted18  and  considered several remedies including  punitive
damages,  front pay, and an award for emotional distress.   After
reviewing  in a full hearing the facts of Basedens grievance  and
the  states  subsequent unilateral offer of judgment,  Arbitrator
Gaunt   determined  that  Basedens  grievance  was  appropriately
remedied  by the award of back wages and benefits that  he  would
have  earned if he had remained employed by the state from  April
14,  2000,  through the date of his failure to  return  to  work,
October  15, 2001.  This was the same make-whole offer  that  the
state  had  attempted  to unilaterally grant.   Arbitrator  Gaunt
awarded  Baseden interest on that money, and awarded APEA certain
additional  attorneys fees to compensate Basedens union  for  the
expense of extra litigation. Ultimately, Arbitrator Gaunt decided
not to grant Baseden additional compensation of the type that  he
sought in his subsequent 2006 case. In light of the states  offer
of  back-pay and reinstatement and Basedens refusal to return  to
work,  we  conclude  that  the  decision  not  to  award  Baseden
additional compensation  was not in gross error or arbitrary  and
capricious.
          Because  Baseden fails to substantiate  any  allegation
that the Gaunt decision was either clearly erroneous or arbitrary
and  capricious, and because our review of the record reveals  no
such  error, we affirm the superior courts decision not to vacate
the order.
          3.   Baseden  is not entitled to bring a new  claim  or
          receive  an  amended  arbitration award  based  on  the
               theory that he was not an employee at the time  of
               his alleged second discharge.
           Baseden argues that he was not an employee on  October
15,  2001,  when  he was offered reinstatement.  He  argues  that
regardless of the existence of just cause, a non-employee  cannot
be   terminated  and  therefore  his  rejection  of  the   states
reinstatement  offer  cannot  result  in  his  termination.   The
superior court held that this argument was waived because it  was
not  raised  before the arbitrators.  We agree that the  argument
was not raised and was therefore waived.19  Moreover, it was APEA,
Basedens  representative, that chose to  frame  the  issue  as  a
termination.         APEA  explicitly  noted  in  its  step   two
grievance  filing  in  the Dorsey arbitration  that  because  the
effect  of  Basedens  alleged  voluntary  relinquishment  of  the
October  2001  job was the same as a termination, the  state  had
violated  Article  5 by terminating Baseden  for  a  second  time
without  just  cause.  In essence it appears that Basedens  union
representatives framed the issue of Basedens refusal to return to
work  within the part of the CBA that the situation most  closely
approximated.
            In his brief before this court, Baseden presents this
argument  in a new light, arguing that the parties did not  agree
to  submit to arbitration the issue of offer rejection.   As  the
state  notes  in  its brief, Basedens argument is  without  merit
because regardless of the label attached to Basedens situation in
October 2001, the parties did submit to arbitration the merits of
whether  or  not Baseden reasonably refused to go  to  work  when
offered  the  position  and  what  his  entitlement  was  to  any
subsequent wage and benefit accrual.
          Baseden argues that he did not waive his argument  that
he  was  not  an  employee because in step two of  the  grievance
process APEA also included the following paragraph:
          APEA/AFT    disagrees   that   Mr.    Baseden
          voluntarily relinquished his position.  There
          are  several problems with the States action.
          First,  Mr. Baseden was non-retained  by  the
          State  on  April 15, 2000 from  PCN  25-3185.
          Mr.  Baseden has never been reinstated  as  a
          permanent  employee  to PCN  25-3185  by  the
          State.  How can he relinquish something  that
          he  was  already terminated from over a  year
          ago?
It was in this same letter, however, that the union chose to file
the new grievance and chose to frame the issue as a violation  of
Article  5  of the CBA regarding termination without just  cause.
It  would  be nonsensical to simultaneously allow the parties  to
frame the question for arbitration and then allow the grievant to
complain  that the central issue was not arbitrated.  The  merits
of this issue were reached in arbitration, and to the extent that
the argument was not addressed in arbitration it is waived.
          Finally,  as  Judge Collins adroitly noted,   there  is
nothing  in  the CBA or in our case law that dissuades  employers
from offering reinstatement, even prior to the completion of  all
          facets of a grievance dispute.20  After an employee unreasonably
refuses an offer of unconditional reinstatement, the employee  is
not  entitled to continued claims for lost wages and  benefits.21
Arbitrator Dorsey found that Basedens refusal to return  to  work
was  unreasonable, and thus Baseden is not entitled to lost wages
and benefits for the time period after October 15, 2001.
          4.   The  arbitrators decisions are not invalid due  to
               fraud.
          Baseden  raises the issue of fraud before  this  court.
Alaska  case  law holds that arbitration decisions, though  given
great  deference, can be overturned where there  has  been  gross
negligence, fraud, corruption, gross error or misbehavior on  the
part of the arbitrator.22  However, Basedens allegations of fraud
seem to misunderstand our case law.  Instead of alleging fraud on
the  part of the arbitrator or fraud within either the Dorsey  or
Gaunt  arbitration proceedings, Basedens fraud allegations center
on  the actions that the state took in offering reinstatement  to
Baseden  in  October.   Because all of  the  facts  that  Baseden
alleges  were  part of the record considered by the  arbitrators,
there  is  no  fraud-based reason for this court to overturn  the
arbitration decisions.
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Consolidating  Basedens 2006 Case with  His  Other  Two
          Cases.
          Under  Alaska Civil Rule 42(a), judges are given  clear
authority to consolidate cases.  Rule 42(a) provides, in relevant
part:
          When  actions involving a common question  of
          law or fact are pending before the court,  it
          may order a joint hearing or trial of any  or
          all  the matters in issue in the actions;  it
          may  order all the actions consolidated;  and
          it    may   make   such   orders   concerning
          proceedings  therein as  may  tend  to  avoid
          costs or delays.
          Alaska  case  law  places the decision  to  consolidate
cases firmly within the discretion of the superior court judge.23
Nothing   in  Rule  42  suggests  that  the  legal  theories   of
consolidated  cases must be identical in order  for  a  judge  to
consolidate them.
          Here, there was ample commonality in both the legal and
factual  questions between Basedens 2006 case and his  other  two
cases  to set aside the arbitrators decisions.  Basedens  factual
claims  in  his 2006 case were entirely based on facts intimately
intertwined  with  his  other two cases.  Additionally,  Basedens
legal  theories  for  recovery  were  based  on  the  outcome  of
Arbitrator  Gaunts decision, the states alleged misrepresentation
in  offering  Baseden  reinstatement, and the  states  subsequent
dismissal  of  Baseden.   Judge Collins, in  her  order  granting
consolidation,   found   that  these  cases   involve   questions
pertaining  to  two  arbitration awards which themselves  involve
common questions of law or fact, such as Basedens termination  on
October  15,  2001.  This finding was not clearly erroneous,  and
hence  the courts decision to consolidate Basedens cases was  not
          an abuse of discretion.
          Baseden argues that his 2006 case claims could not have
any  common  questions  of  law with  the  review  of  arbitrator
decisions  under  the gross error standard .  .  .  [because  the
central complaint in the 2006 case] is that the Plaintiff was not
an  employee and therefore could not be bound by the terms of the
CBA  to  which  he  was not a party at the time  of  the  alleged
misrepresentation.  The fact remains, however, that  through  his
2006  case Baseden was seeking compensation for the same  dispute
for  which  he  previously  sought  relief  through  arbitration.
Although  Baseden may desire to file his complaint  anew  without
having to defer to the arbitrators decisions, he offers no  legal
support for the assertion that he should be able to so circumvent
their  authority.  He therefore has not shown that  the  superior
court abused its discretion in consolidating the cases.
     C.   The  Superior  Court Did Not Err in  Treating  Basedens
          Motion  for Summary Judgment as an Untimely Motion  for
          Reconsideration and in Denying It.
          Baseden  asserts that the superior court erred  in  its
ruling  that  his  motion for summary judgment  was  an  untimely
motion  for  reconsideration.  He argues that he did not  receive
the  consolidation notice and that as a result the pleadings used
by  Judge  Collins  to  rule on the consolidated  cases  did  not
encompass his arguments for his 2006 case.  Baseden overlooks the
fact  that  when the cases were consolidated, Judge Collins  then
had access to the pleadings he entered in his 2006 case, and that
Judge  Collins explicitly acknowledged his filings  in  the  2006
case,  referring to it as his most recent lawsuit and placing  it
within the procedural timeline.  Moreover, the legal arguments of
his  2006  case,  regarding lack of an employment contract,  were
clearly addressed (and determined to be waived) by Judge Collins.
          Baseden   allegedly  never  received   the   March   28
consolidation  order.  It is apparent from  Basedens  motion  for
reconsideration of the May 4 order and his subsequent motion  for
summary judgment in his 2006 case that he did not understand that
courts  May 4 decision applied to the 2006 case as well.  Baseden
does  not provide any briefing on the legal significance  of  his
failure to receive the courts consolidation order, and the  state
did  not  address the issue.  Because the issue is not adequately
briefed, it is waived.24
          Baseden also argues that his motion for reconsideration
was  not untimely because final judgment had not yet been issued.
However,  Alaska  Civil  Rule 77(k)  provides  that  motions  for
reconsideration of a ruling must be made within  ten  days  after
the date of notice of the ruling . . . unless good cause is shown
why  a  later   filing  should be accepted.  The  superior  court
issued  its ruling on May 4, 2006.  Basedens motion came nineteen
days later, and thus was rightly considered untimely.
          We  conclude that the superior court did not abuse  its
discretion  in  treating  Basedens untimely  motion  for  summary
judgment as an untimely motion for reconsideration.
V.   CONCLUSION
          Because  the  arbitrators decisions were not  arbitrary
and  capricious and were not the result of fraud, and because the
          superior court did not abuse its discretion in consolidating
Basedens three claims, we AFFIRM the superior courts judgment  in
all respects.
_______________________________
     1     Baseden v. State, Case No. 1JU-00-1731 (Alaska  Super.
May 31, 2001). This case is erroneously labeled as 1JU-01-1731 on
the May 31, 2001 decision in the case, as well as in the superior
court decision on review.

     2     Under  the Collective Bargaining Agreement, grievances
are   addressed  using  a  four-step  process.   Because  of  the
circumstances  in  this case, the grievance procedures  began  at
step three.

     3     Thus, even if the August 10, 2001 response would  have
been  considered timely (the exact deadline depended on when  the
state  received  the APEA grievance letter), the states  ultimate
step  three response was untimely because it did not obtain APEAs
consent to an extension of time.

     4     State  v.  Alaska Pub. Employees Assn, No.  1JU-03-379
(Alaska Super. March 24, 2004).

     5     Univ.  of  Alaska  v. Alaska Cmty.  Colleges  Fedn  of
Teachers, Local 2404, 64 P.3d 823, 825 (Alaska 2003).

     6     Alaska State Employees Assn/AFSCME Local 52 v.  State,
74 P.3d 881, 882 (Alaska 2003).

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

     8    Id.

     9    Alaska State Employees Assn, 74 P.3d at 882.

     10     Id. (citing Pub. Safety Employees Assn. Local  92  v.
State, 902 P.2d 1334, 1336 (Alaska 1995)).

     11     Univ.  of  Alaska v. Alaska Cmty.  Colleges  Fedn  of
Teachers, Local 2404, 64 P.3d 823, 826 (Alaska 2003).

     12     City  of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska
1981).

     13    See Brown v. Hawkins, 418 P.2d 28, 31 (Alaska 1966).

     14    See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d
996,  1001 (Alaska 2005) (reviewing for abuse of discretion trial
courts decision on guidance to pro se litigant).

     15     Magden v. Alaska USA Fed. Credit Union, 36 P.3d  659,
661 (Alaska 2001).

     16    The section of Basedens brief arguing Arbitrators Gaunt
and  Dorsey  Erred  is only two sentences long  and  purports  to
incorporate,  without elaboration, seventy pages of the  excerpt.
Where  possible, and in light of Basedens pro se status, we  have
gleaned  his  arguments disputing the decisions  from  the  other
forty-six pages of briefing.

     17     Basedens alleged special circumstances appear  to  be
slightly different than those presented to the arbitrator,  which
emphasized   the  different PCN.  To the extent  the  issues  now
raised  were not raised below, they are waived.  See  Brandon  v.
Corr.  Corp.  of Am., 28 P.3d 269, 280 (Alaska 2001)  (concluding
that argument not raised below was waived).

     18     Alaska  Pub. Employees Assn v. State, Dept of  Envtl.
Conservation,  929  P.2d  662, 666 (Alaska  1996)  (holding  that
arbitrators have broad discretion in fashioning remedies).

     19    See New Chicago Newspaper Guild v. Field Enters., Inc.,
747  F.2d  1153,  1158  (7th Cir. 1984)  (precluding  party  from
challenging arbitration remedy with argument not presented  below
[i]n  order  to  preserve the efficiency  and  integrity  of  the
arbitral  process);  United Steelworkers of Am.  v.  Smoke-Craft,
Inc., 652 F.2d 1356, 1360 (9th Cir. 1981) (Parties to arbitration
proceedings  cannot  sit  idle while an arbitration  decision  is
rendered and then, if the decision is adverse, seek to attack the
award collaterally on grounds not raised before the arbitrator.).

     20     Cf.  Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982)
(holding  that  employers unconditional  offer  of  reinstatement
tolls further accrual of back pay liability).

     21     Id. at 231-32.  The situation is different where  the
employee  reasonably  refuses  an  offer  of  reinstatement.  See
Pyramid Printing Co. v. Alaska State Commn for Human Rights,  153
P.3d  994  (Alaska  2007) (holding that  employee  who  had  been
sexually  harassed  reasonably  refused  offer  of  re-employment
because  she reasonably believed intolerable conditions  had  not
changed).

     22     Nizinski v. Golden Valley Elec. Assn, Inc., 509  P.2d
280, 283 (Alaska 1973).

     23    Brown v. Hawkins, 418 P.2d 28, 31 (Alaska 1966).

     24     See  Brady  v.  State, 965 P.2d 1, 20  (Alaska  1998)
(holding  inadequately briefed argument is waived despite  courts
solicitude for pro se litigants).

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