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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hallam v. Holland America Line, Inc. (04/18/2008) sp-6252

Hallam v. Holland America Line, Inc. (04/18/2008) sp-6252, 180 P3d 955

     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,


STUART HALLAM, individually )
and as class representative, ) Supreme Court Nos. S-12573/12584
Appellant/ ) Superior Court No. 1JU-96-01734 CI
Cross-Appellee, )
) O P I N I O N
v. )
) No. 6252 April 18, 2008
INC., )
Appellees/ )
Cross-Appellants. )

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Michael A. Thompson, Judge.

          Appearances:  John E. Casperson  and  William
          D.  De Voe, Holmes Weddle & Barcott, Seattle,
          Washington, for Appellant and Cross-Appellee.
          Stephen M. Rummage and Eric J. Jenkins, Davis
          Wright Tremaine LLP, Anchorage, for Appellees
          and Cross-Appellants.

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

          FABE, Chief Justice.
          Stuart Hallam, a former employee of the Holland America
Line-Westours Company, appeals the superior courts  dismissal  of
his  class  action,  maintaining that (1) Holland  America  Line-
Westours,  Holland  America Line-USA, and all  of  the  companies
Alaska  subsidiaries  (Holland America) failed  to  pay  adequate
overtime  compensation  to employees,  and  (2)  Holland  America
failed  to timely pay compensation to terminated employees within
three  days,  as required by AS 23.05.140(b).  In  light  of  the
plain  language  of  the  statute, the  legislatures  unambiguous
directives,  and  the  case law, we affirm  the  superior  courts
dismissal of Hallams claims.
          This case comes to us for a second time on appeal.1  We
summarized  the  facts and proceedings leading to  Hallams  prior
appeal as follows:
               Stuart  Hallam  was employed  as  a  bus
          driver for Holland America Line, Inc. between
          May   10   and  August  20,  1994.    Hallams
          employment  agreement included  an  incentive
          program  that provided a bonus based  on  the
          employees safety record, job performance, and
          customer service.  Although his last  day  of
          work  was  August 20, 1994,  Hallam  did  not
          receive  his final pay check until  September
          1,  and  did not receive his incentive  bonus
          until   October   27.   As  Holland   America
          concedes,  Hallam did not receive  his  final
          paycheck  from  Holland  America  within  the
          three-day  time  period  prescribed   by   AS
               Hallam  filed a pro se complaint against
          Holland  America in superior court on  August
          19,   1996  alleging  (1)  failure   to   pay
          overtime;  (2) failure to pay for every  hour
          worked; (3) failure to pay the final paycheck
          within  three days of termination; (4) breach
          of  contract  for  failure  to  pay  overtime
          wages; and (5) breach of contract for failure
          to  pay  an  incentive bonus  as  contracted.
          Hallam  filed a motion to amend his complaint
          to  allege four new claims on April 25, 1997.
          Superior  Court  Judge  Walter  L.  Carpeneti
          denied that motion, holding that the four new
          claims   were  barred  by  the   statute   of
          limitations because they did not relate back.
          Hallam   also  filed  a  motion   for   class
          certification.  The court denied that  motion
          because   Hallam   was  not  represented   by
          counsel;    the   court   then    transferred
          jurisdiction to the district court.
               Hallam     filed    a     motion     for
          reconsideration, arguing that AS 23.10.110(b)
               specifically allows pro se litigants to bring
          class   actions.   This  motion  was  denied.
          Hallam  then filed a motion with the district
          court  seeking  conditional certification  of
          the  class, with certification contingent  on
          Hallam  hiring an attorney.  The court  never
          decided     Hallams     conditional     class
          certification motion.
               Holland   America  moved   for   summary
          judgment on Hallams first, second, and fourth
          claims  for  relief, arguing that  they  were
          barred    by   the   two-year   statute    of
          limitations.  District Court Judge  Peter  B.
          Froehlich granted Holland Americas motion for
          summary judgment over Hallams opposition, and
          denied  Hallams  motion for  reconsideration.
          Superior  Court Judge Larry R.  Weeks  denied
          Hallams  petition  for review.   Hallam  then
          filed a motion for summary judgment on all of
          his  claims for relief  including those which
          had  been dismissed  reserving only his fifth
               Holland  America  filed  a  motion   for
          summary  judgment on Hallams third and  fifth
          claims,  arguing  that  its  failure  to  pay
          Hallam  within three days of termination  did
          not  warrant  a penalty.  Hallams  opposition
          argued  that Holland Americas willful failure
          to pay wages within three days of termination
          justified  a  penalty.  Holland America  also
          moved  for attorneys fees and costs.   Hallam
          argued in opposition that the Alaska Wage and
          Hour  Act did not allow defendants to collect
          attorneys  fees  and costs.  Judge  Froehlich
          granted  Holland  Americas  summary  judgment
          motion, and awarded Holland America attorneys
          fees and costs.[2]
          Hallam appealed, and we reversed and remanded the  case
to  the  superior  court for consideration of  Hallams  undecided
motion for class certification conditioned on obtaining counsel.3
We also noted genuine, material fact disputes surrounding Holland
Americas  good  faith  and  the amount of  [Hallams]  performance
bonus.4  Specifically, we determined that further discovery could
be  relevant to Hallams claim that Holland America exercised  bad
faith  by failing to provide Hallam with customer comment  cards,
which  had affected his bonus.5  Finally, we held that the  lower
court  should  have granted Hallam leave to amend his  complaint,
although we took care to express no opinion as to whether the new
claims will relate back.6
          On remand, Hallam retained counsel and filed an amended
complaint  that  named as defendants both Holland  America  Line-
Westours, Inc., and its parent corporation, Holland America Line,
          Inc.  In his motion for class certification, Hallam included
several  categories of employees at the two companies as well  as
at  their  Alaska  subsidiaries.   On  September  24,  2002,  the
superior court granted Hallams motion for class certification and
allowed  Hallam  to  amend  his complaint.   The  superior  court
further held that all but one of Hallams claims would relate back
to the date of his original complaint.7
          But  the  superior court denied Hallams application  to
apply  Judge Weekss 1999 decision on the statutory overtime claim
as  the  law  of the case.  Rejecting Hallams pyramiding  theory,
Superior  Court Judge Michael A. Thompson stated his disagreement
with Judge Weekss interpretation of AS 23.10.060 in an April  16,
2003  memorandum  decision.  Not long after the  superior  courts
ruling  in  this  case, we addressed a similar claim  brought  by
Hallam  against another employer, Alaska Travel Adventures.8   In
that  case, we held that precedent, legislative direction, agency
interpretation,  and  policy considerations supported  the  lower
courts decision rejecting pyramiding.9
          On  March  18,  2004, the superior court  narrowed  the
class  of  employees  entitled  to seek  penalties  from  Holland
America  and  its subsidiaries for late payment of  final  wages.
The  court  found that only employees who had made a  demand  for
payment could claim penalties under AS 23.05.140.  Otherwise, the
court  reasoned,  the statutes three-day payment deadline  should
not  apply  since  [p]enalties for the  failure  to  depart  from
regular established practice, without any request to do so,  seem
unjustified and an unlikely design of the Legislature.  On August
2,  2004, the superior court granted Holland Americas motion  for
summary judgment on Hallams overtime claims.
          Hallam  and  Holland America then reached a settlement,
which   resolved   Hallams  remaining   claims,   including   his
allegations  that  the company had improperly  destroyed  records
used  to  calculate  employee bonuses.  The settlement  agreement
nevertheless permitted Hallam to file this appeal challenging the
superior courts rulings on his overtime and late payment claims.
          We  review  de  novo a superior courts dismissal  of  a
complaint on summary judgment.10  We have recognized that the law
of the case doctrine is not an absolute rule of law but rather  a
matter  of  sound judicial policy, and that it falls  within  the
power of one trial court judge to overrule another, in the proper
exercise of judicial discretion.11  We therefore review  a  lower
courts  decision to apply the law of the case doctrine for  abuse
of discretion.12
     A.   The  Law  of  the Case Doctrine Did Not  Prevent  Judge
          Thompson  from Ruling Against Hallam on His  Claim  for
          Additional Overtime Pay.
          Hallams appeal focuses primarily on the superior courts
rejection  of  pyramiding13 as the proper basis  for  calculating
overtime  wages in Alaska.  Hallam contends that because  Holland
America  failed to appeal Judge Weekss ruling on  the  merits  of
that claim, Judge Thompson was not permitted to depart from Judge
          Weekss analysis without finding that it presented a clear error
constituting a manifest injustice.14
          Although Hallam argues to the contrary, the law of  the
case  doctrine  implicates  a courts discretion.   In  our  prior
decisions,  we have defined the doctrine as a matter of  judicial
policy,  which  describes the practice  of  courts  generally  to
refuse to reopen what has been decided, but does not limit  their
power  to  do so.15  And where a judge newly assigned to  a  case
reverses  the  ruling of the formerly presiding judge,  as  Judge
Thompson  did in this case, we have determined that the  doctrine
of law of the case is inapplicable.16
          In  any  event, several factors justify Judge Thompsons
reversal of Judge Weekss ruling.  Hallam cannot point to a single
jurisdiction  that has ever adopted his pyramiding  theory.   The
relevant  case  law,  now  and before Judge  Thompsons  decision,
undermines his theory.17  And the legislature enacted a 1999  law
in  the  wake  of  Judge Weekss decision stating  its  intent  to
override  the  superior  courts decision  in  Hallam  v.  Holland
America  Line, Inc. because the court in that case misinterpreted
the intent of AS 23.10.060(b).18
          In  Alaska Travel Adventures, we signaled our agreement
with  the  legislature, explaining that the Alaska Department  of
Labors  longstanding interpretation of the statute has  precluded
pyramiding,  and  that precedent, legislative  direction,  agency
interpretation, and policy considerations . . . persuade us  that
the  superior  court did not err when it granted  [Alaska  Travel
Adventures]  summary judgment on the pyramiding claim.19   Hallam
dismisses  Alaska  Travel Adventures because  the  case  was  not
published,  has  no precedential effect, and may  not  be  cited.
Unpublished  decisions may still have persuasive value,  however,
and  Hallam has failed to demonstrate any grounds that might lead
us to distinguish the rationale for our decision in Alaska Travel
     B.   Hallams Contract-Based Claim for Overtime Pay Fails for
          the Same Reasons as His Statutory Claim.
          Hallam  attaches a variation of his overtime  claim  to
the  particular language of Holland Americas employment contract.
Specifically,  he  argues that even if Judge  Thompson  correctly
ruled  that  the overtime statute entitles Hallam to  no  relief,
language  in Holland Americas standard form employment  contract,
when  construed  in favor of Hallam and the class,  supports  the
pyramiding claim.  Holland Americas employment contract states:
          I agree by signing this contract, to work for
          Westours  for  the basic wage  of  $8.00  per
          hour.  This wage is for straight time for the
          first  eight  (8) hours per  day,  the  first
          forty  (40) hours of each week.  I understand
          that  my assignments may result in my working
          more or less than eight (8) hours per day  or
          forty  (40) hours per week.  I will  only  be
          paid  for actual hours worked.  For any hours
          in  excess  of eight (8) hours in  a  day  or
          forty  (40)  in a week, overtime compensation
          will  be  paid  at 1.5 times the  basic  rate
          which will be $12.00 per hour.
Hallam  argues  that  this  language  clearly  and  unambiguously
required  overtime compensation for any hours in excess of  forty
hours in a week.
          The  same  factors  that control our  analysis  of  the
statutory  overtime  provision  apply  here  as  well.     Hallam
emphasizes the contracts reference to straight time and  attempts
to  parse  the meaning of particular phrases in the  contract  to
support his claim.  But we have held that a court should construe
each  part  of  a  contract with every other  part  to  create  a
harmonious  whole.21   And such a construction,  along  with  the
context  and  function  of Holland Americas employment  contract,
leads  us  to  interpret it in the same manner  as  the  overtime
statute   whose  language  it  resembles.   Hallams   alternative
interpretation does not comport with the reasonable  expectations
of  the thousands of people employed by Westours between 1990 and
1998.   And  indeed, Hallam gives no indication  that  any  other
Holland  America  employees read their  employment  contracts  to
promise pyramiding of overtime hours.
     C.   The Superior Court Correctly Rejected Hallams Claim for
          Damages Under AS 23.05.140.
          Hallam  alleges  that  Holland America  failed  to  pay
seasonal bonuses to him and other members of the class within the
statutorily prescribed period, thereby entitling them to damages.
He  relies  on AS 23.05.140 and its directive that employers  pay
terminated  employees within three working days  to  support  his
claim for damages.22  Hallam argues that Judge Thompson erred  in
reading the pay period statute to require that employees  make  a
demand for wages in order to maintain a claim under the statute.
          Alaska   Statute  23.05.140  mandates  that  where   an
employer  terminates a worker, regardless of the  cause  for  the
termination, payment is due within three working days  after  the
termination.23  The statute proceeds to define the penalty for an
employer failing to pay within the time required as the amount of
the  employees  regular wage, salary, or other compensation  from
the  time  of  demand to the time of payment, or for  90  working
days,  whichever  is  the lesser amount.24   Hallam  argues  that
Holland  America  paid  seasonal bonuses  to  him  and  to  other
employees  long  after the statutorily mandated  three  days  had
passed.25  Consequently, he seeks damages for a class defined  as
employees who did not receive timely final bonus paychecks.
          We  agree  with  the  superior courts  conclusion  that
AS  23.05.140 affords Hallam no relief.  The superior court ruled
that  Hallam  and the other class members could not bring  claims
under AS 23.05.140 unless they had made a demand, reasoning  that
it  would be unjustified to penalize Holland America based on the
companys  regular established practice of paying bonuses  in  the
fall  and  beyond three days after the end of the summer  tourist
season  absent  a  demand  for  earlier  payment.   Here,  it  is
important  to  note that Holland America did not withhold  hourly
wages  beyond three days after Hallams termination.   Instead  it
          paid a bonus in accordance with a straightforward contractual
term  providing  for that incentive bonus to be paid  by  October
31st.   That contract term does not implicate the interests  that
the  legislature  sought  to protect in  enacting  AS  23.05.140.
Thus,  the  trial  court  did not err in its  determination  that
Hallam and the class members were required at the least to make a
demand for premature payment of the seasonal bonus.26
          For  the reasons detailed above, we AFFIRM the judgment
of the superior court.
     1     See  Hallam  v. Holland Am. Line, Inc.,  27  P.3d  751
(Alaska 2001).

     2    Id. at 752-53 (footnotes omitted).

     3    Id. at 752.

     4    Id. at 755.

     5    Id. at 756.

     6    Id. at 755.

     7     The  superior  court  held that Hallams  challenge  to
Holland Americas practice of charging employees a uniform fee did
not  relate back to the date of his original complaint but rather
to  the  date on which Hallam sought to add that claim  with  his
amended complaint.

     8     See Hallam v. Alaska Travel Adventures, Mem. Op. &  J.
No. 1173, 2004 WL 1535161 (Alaska, July 7, 2004).

     9    Id. at *5.

     10     West  v. Umialik Ins. Co., 8 P.3d 1135, 1137  (Alaska

     11    West v. Buchanan, 981 P.2d 1065, 1067 (Alaska 1999).

     12     See  Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska

     13     An  example best illustrates Hallams theory.   If  an
employee works nine hours on Monday, followed by eight hours  per
day  Tuesday  through  Friday, for a total  of  forty-one  hours,
Hallam  argues  that  the employee should receive  two  hours  of
overtime pay  one for working in excess of eight hours on  Monday
plus  one  for working in excess of forty hours during the  week.
Holland America, by contrast, argues that the hour exceeding  the
forty  hour per week limit is the same as the hour exceeding  the
daily  eight  hour limit, and therefore Hallam is double-counting
the  same  overtime  work.  We have previously  endorsed  Holland
Americas view.  See Alaska Travel Adventures, 2004 WL 1535161.

     14     Petrolane Inc. v. Robles, 154 P.3d 1014, 1026 (Alaska

     15     Smith  v.  Cleary, 24 P.3d 1245, 1248  (Alaska  2001)
(quoting West v. Buchanan, 981 P.2d at 1067).

     16    Hayes v. Xerox Corp., 718 P.2d 929, 934 (Alaska 1986).

     17    See, e.g., Piquniq Mgmt. Corp. v. Reeves, 965 P.2d 732,
733  n.1 (Alaska 1998) (employing overtime computation that  does
not  rely  on  pyramiding); Monzon v. Schaefer  Ambulance  Serv.,
Inc.,  273  Cal.  Rptr.  615,  627 (Cal.  App.  1990)  (rejecting
pyramiding   under   California  law  because   of   its   absurd

     18    Ch. 43,  1, SLA 1999.

     19    2004 WL 1535161, at *4-5.

     20     See  Alaska Supreme Court Order No. 1654  (April  15,
2008)  (amending  Alaska Rule of Appellate Procedure  214(d)  and
providing  that  [i]f a party believes . . . that an  unpublished
decision  has  persuasive value in relation to an  issue  in  the
case, and that there is no published opinion that would serve  as
well,  the  party  may cite the unpublished  opinion);  McCoy  v.
State,   80  P.3d  757,  759  (Alaska  App.  2002)  (noting   the
appropriate  use of unpublished opinions as persuasive  precedent
in   addition  to  such  purposes  as  collateral  estoppel,  res
judicata, or law of the case).

     21    See, e.g., Earthmovers of Fairbanks, Inc. v. State, 644
P.2d 238, 239-40 (Alaska 1982).

     22    AS 23.05.140(b) provides:

               If  the  employment is  terminated,  all
          wages,  salaries,  or other compensation  for
          labor or services become due immediately  and
          shall  be  paid within the time  required  by
          this subsection . . . .  If the employment is
          terminated by the employer, regardless of the
          cause  for  the termination, payment  is  due
          within   three   working   days   after   the
     23    Id.

     24    AS 23.05.140(d).

     25     Holland Americas employment contract with Hallam  and
other employees states that [i]ncentive compensation will be paid
by October 31, 1994.

     26     Because  the parties settled the late payment  claims
with respect to those employees who did make a demand, we do  not
address those claims.

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