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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Public Safety Employees Association (6/25/2010) sp-6485

State v. Public Safety Employees Association (6/25/2010) sp-6485, 235 P3d 197

     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- 13414
Appellant, )
) Superior Court No. 3AN-08-06270 CI
v. )
) O P I N I O N
ASSOCIATION, ) No. 6485 June 25, 2010
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  William  E.  Milks,   Assistant
          Attorney  General,  and Daniel  S.  Sullivan,
          Attorney   General,  Juneau,  for  Appellant.
          Stephen  F. Sorensen, Simpson, Tillinghast  &
          Sorensen, P.C., Juneau, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, and Christen, Justices.

          FABE, Justice.

          An officer of the Airport Police and Fire Department of
the  Alaska  Department of Transportation  (the  Department)  was
discharged  for  gross  abuse  of alcohol,  making  inappropriate
sexual remarks to two female officers, and alleged untruthfulness
during  a  consequent internal investigation.  The Public  Safety
Employees   Association  (PSEA),  the  labor  organization   that
represents  airport police and fire officers in  labor-management
relations,  filed  a  grievance under its  collective  bargaining
agreement  with  the  State of Alaska, and  the  matter  went  to
arbitration.   The arbitrator concluded that the  Department  did
not  have just cause to discharge the officer (the grievant)  and
ordered his reinstatement without back pay for the sixteen months
since  his discharge.  The decision was affirmed by the  superior
court, and the State appeals.
          The  key to the resolution of this appeal is the  level
of  deference  we  accord  an arbitrator.   The  State  and  PSEA
bargained  for a binding arbitration process to resolve  employee
grievances concerning disciplinary actions, and we generally will
not  disturb  its results, even where we would reach a  different
outcome were we to independently review the matter.  Because  the
arbitrator  is  entitled to substantial deference in  making  his
decision, and any possible sources of reversible error have  been
abandoned  or  waived by the State, we affirm the superior  court
and uphold the arbitration decision.
     A.   Facts
          The  following  facts  are drawn from  the  arbitration
decision  and the opinion of the superior court and  are  not  in
dispute.   The grievant had been employed as an officer with  the
Department for approximately four years when he was terminated on
August  24,  2006.  The termination was based on two events  that
occurred in May 2006 while the grievant was working at the Alaska
Law  Enforcement  Academy in Sitka, Alaska and on  the  grievants
conduct during the subsequent investigation.
          On  May  5,  2006, the grievant and two other  training
officers  went  to  a  bar  in Sitka,  and  the  grievant  became
extremely  intoxicated.   While at the  bar,  the  grievant  slid
toward  a female officer on a couch and made inappropriate sexual
remarks,  telling her that he wanted to make her  come,  that  he
could make her scream, [and] that he could push her buttons.  The
female  officer  told him to stop, but he repeated  the  comments
several times.  Because the grievant was too intoxicated to  walk
home  that  night,  another officer drove him  home.   When  they
returned  to the Academy, the grievant vomited outside and  then,
after  the hallways were cleared of recruits, he was helped  into
an Academy building to a room where he could sleep.  The grievant
apologized to the female officer in person the following day  and
by  email  several  days later.  The grievant stated  during  the
internal  investigation and to the arbitrator that  he  does  not
remember  making  these  inappropriate  remarks  to  the   female
          On  the evening of May 17, 2006, the grievant stared at
another  female  officer while they were watching television  and
later sent her unwelcome text messages in which he invited her to
go  on a beer run, go out and have fun, and join him in the  room
where  training officers are allowed to sleep to talk to  him  if
she  wanted.  She told him to stop sending the messages,  but  he
continued to do so.  The following morning, the grievant sent the
officer an email calling her his sexy new friend, telling her she
had  a great [a]ss and very nice tits, and stating that he wanted
to  see  her  nipple rings.  The female officer  wrote  an  email
expressing  her  anger  with  his  behavior,  and  the   grievant
subsequently  sent her an email apology.  The grievant  testified
at arbitration that he was up all night drinking prior to sending
the  email,  a  fact  supported by the female officers  statement
during the investigation that she smelled alcohol on the grievant
when she saw him that morning.
          Following  these  events,  another  officer   filed   a
complaint regarding the grievants behavior.1  Upon receiving  the
complaint, Lauri Burkmire, Chief of the Department, initiated  an
administrative inquiry, assigning a lieutenant to conduct witness
interviews  and  a  site  visit.  In his report,  the  lieutenant
concluded that Grievants conduct violated . . . Department  rules
relating  to  unbecoming  conduct, courtesy,  sexual  harassment,
private  conduct  and truthfulness, immoral conduct  (deception),
and  harassment and identified eight instances in which  he  felt
Grievant had been less than truthful in the investigation.
          After  reviewing  the report, Chief Burkmire  sent  the
grievant a letter directing him to attend a meeting on August 18,
2006  to  discuss inconsistencies in your claims and your honesty
regarding  this  matter.   She  reminded  the  grievant  of   his
obligation  to be honest and warned that failure to do  so  could
result in his dismissal.  The grievant attended the meeting  with
his  representative from PSEA and, according to  the  arbitrator,
admitted  that he had not been honest in his interview  with  the
lieutenant.   At  arbitration, the grievant  testified  that  his
dishonesty in his interview during the investigation was  limited
to  downplaying  the  extent  of his  drinking.   Chief  Burkmire
terminated the grievant several days after their meeting.
          The  grievant testified at arbitration that immediately
following his termination, he enrolled in an outpatient alcoholic
treatment  program,  which  he successfully  completed  in  eight
months.   At the time of his testimony before the arbitrator,  he
claimed  he  had been sober for fifteen months.  He  acknowledged
that  his  remarks  on  May  5 and  his  email  of  May  18  were
inappropriate and rude, admitted that he had failed to uphold the
high  standard  of his profession, and stated that  he  was  very
ashamed of his behavior.
     B.   Proceedings
          A.   PSEA filed a grievance regarding the termination under its
collective bargaining agreement and, as a final step, the  matter
went to arbitration.  Arbitrator Harry MacLean held three days of
hearings in November 2007 and issued a final decision on  January
7,   2008.   He  considered  the  following  question:  Did   the
Department  terminate Grievant for just cause?  If not,  what  is
the appropriate remedy?
          After defining just cause, the arbitrator reviewed  the
reasons  for  the grievants termination given in Chief  Burkmires
letter:  (1) Grievants gross and egregious misconduct,  including
gross  misuse of alcohol; (2) Grievants sexual harassment of  the
two  female  officers; and (3) Grievants insincere and untruthful
participation  in  the  investigation and  review  process.   The
arbitrator easily found that the evidence established  the  first
offense, calling the grievants behavior totally contrary to [his]
professional responsibility, sexually offensive, and as far  over
the  line  as one could imagine.  The arbitrator next found  that
the  Department  could not establish that the  grievants  conduct
          constituted either of the two recognized bases for stating a
claim  of  sexual harassment against an employer   quid  pro  quo
harassment and hostile work environment harassment.  Lastly,  the
arbitrator  found that although the Department did not  establish
that  the  grievant had lied, it did prove that he  was  evasive,
misleading and not forthcoming in the investigatory process.
          The  arbitrator next considered whether the penalty  of
termination  was commensurate with the proven misconduct,  noting
the inherent right of arbitrators to review and modify penalties.
He  identified  a  number of mitigating factors  in  finding  the
penalty  to  be  excessive:  the  grievant  had  worked  for  the
Department   for   four  years  with  no  previous   disciplinary
incidents; employees who had committed similar infractions in the
past,   including  being  less  than  truthful  in  an   internal
investigation and engaging in crude behavior at the bar, had  not
received as harsh a penalty; something less than discharge  might
have provided the grievant an opportunity to correct his behavior
and  based on the grievants attitude at the arbitration  hearing,
the  discipline had already had a substantial corrective  effect;
and the grievants conduct occurred off-duty  in one instance off-
site   and there was no evidence that the incidents had an effect
on the Academys reputation.
          The  arbitrator  decided  to order  the  Department  to
reinstate the grievant to his position, but only by the  slimmest
margin, and concluded that the grievant was not entitled  to  any
back pay.  In effect, this decision reduced the grievants penalty
to a sixteen-month suspension.  The State challenged the decision
before  the  superior  court, which granted summary  judgment  to
PSEA.  The State appeals.
     A.   Standard Of Review
          We  review  de  novo  the superior courts  decision  to
confirm  the arbitration award.2  Both the common law and  Alaska
statutes  evince a strong public policy in favor of  arbitration.
In  order  to  encourage  parties to pursue  arbitration,  Alaska
courts  have  a  policy  of  minimizing their  interference  with
arbitration  decisions.3  Thus, we give  great  deference  to  an
arbitrators decision, including findings of both fact  and  law.4
We  will  only  vacate  an arbitration award  arising  out  of  a
collective bargaining agreement where it is the result  of  gross
error  those mistakes that are both obvious and significant.5  We
will  not  vacate such an award merely because we would  reach  a
different decision ourselves.6  This deferential standard is  key
to the decision we reach today.
     B.    The  State Did Not Show That The Arbitrator  Committed
Gross Error.

          The State argues that based on the arbitrators findings
of fact, it was gross error to order the grievants reinstatement.
In  making  its  argument, the State relies on  our  decision  in
Alaska  State  Employees Association/AFSCME  Local  52  v.  State
(ASEA).7  In ASEA, we affirmed a superior court order vacating an
arbitration decision reinstating an administrative clerk employed
by  the  Child  Support Enforcement Division who  had  previously
          pleaded guilty to the felony of theft of public money.8  In
reaching  our  decision, we relied heavily on a personnel  hiring
rule  providing that the State could refuse to examine  or  could
disqualify  applicants based solely on a felony  conviction  that
bears on the performance of their potential duties.9  Because the
clerk  had access to confidential information and held a position
of   trust,  we  concluded  that  her  conviction  for  knowingly
withholding child support and employment income information could
justify  her termination just as it could disqualify  her  as  an
applicant under the hiring rule.10  In this case, the grievant has
not been convicted of a felony and is not alleged to have engaged
in   felonious  conduct.   This  personnel  hiring  rule  is  not
applicable, and ASEA is thus not controlling.
          The  State makes several specific allegations of  gross
error: that the arbitrator relied on an erroneous conclusion that
the  Department  has  not consistently discharged  employees  for
outright lying in evaluating whether the grievants punishment was
excessive;  that  the  arbitrator relied  on  factually  distinct
cases; and that the arbitrator erroneously found and relied on  a
conclusion that the grievants conduct occurred off-site  or  off-
duty  as a mitigating factor.  In essence, however, the State  is
simply arguing that the arbitrator made the wrong decision   that
the decision is so clearly wrong that it constitutes gross error.
While  we  may  disagree  with the arbitrators  ruling,  this  is
insufficient  to  justify  reversing  the  decision   given   our
deferential  standard of review.  In his opinion, the  arbitrator
found  the grievant to have engaged in harassing conduct  and  to
have been evasive and misleading during the investigation, but he
also  found  there  to  be  a number of mitigating  factors  that
favored a lesser penalty.  If we were reviewing this case in  the
first  instance, or under a less deferential standard, we  likely
would  not  have reached this conclusion.   But our standard  for
viewing  an arbitrators decision is very deferential:  We  review
for  gross  error.  And it was not gross error for the arbitrator
to  conclude  that  the Department did not  have  just  cause  to
terminate  the  grievant  and that  a  lesser  but  still  severe
penalty,  a  sixteen-month suspension without pay, was sufficient
     C.   Other Claims Of Error
                                   We now turn to two additional arguments made by the

State, one that it waived and one that it failed to preserve.

The State correctly argued below that the arbitrator erred in

concluding that the State had not established the charge of

sexual harassment.  In evaluating Chief Burkmires stated grounds

for terminating the grievant, the arbitrator interpreted the

charge of sexual harassment to mean the legal cause of action for

sexual harassment under Title VII of the Civil Rights Act of

1964.11  But Chief Burkmire was clearly using the term sexual

harassment to refer to sexually harassing conduct.  Employers,

such as the Department, need not wait until sexually harassing

conduct becomes so pervasive as to rise to the level of

actionable sexual harassment under Title VII before taking

disciplinary action; indeed, they have an affirmative duty to

address such conduct before it rises to that level.12  Where an

arbitrator is reviewing a decision to discipline an employee for

sexual harassment, the arbitrator should evaluate only whether

the employer has established sexually harassing conduct.  The

arbitrator in this case erred in applying the wrong standard and

in finding that the State had not established the charge of

sexual harassment.

          This error might have required a remand.  However,  the

State  failed  to  raise this argument on  appeal  and  took  the

express  position at oral argument that the arbitrators error  in

failing to find sexual harassment was harmless.  Counsel for  the

State  maintained  at  oral argument that  the  arbitrator  found

harassing  conduct of a sexual nature as part of his  finding  of

egregious  misconduct.  A member of the court asked  counsel:  If

[the  arbitrator]  took  [sexual  harassment]  into  account   in

connection with egregious behavior, then is it harmless error  or

even  irrelevant that he went off on a tangent on  whether  there

was  sexual  harassment in the workplace?  Counsel replied:  Yes,

your honor.  Thats our view.  (Emphasis added.)  In light of this

position  and  the States failure to argue that  the  arbitrators

finding on sexual harassment requires us to vacate or remand  the

arbitration decision, we consider this argument to be waived.13

          The  State also argues, in this instance for the  first

time on appeal, that we should vacate the arbitrators decision to

reinstate the grievant on the grounds that the decision  violates

public  policy.   The State advocates adoption  of  a  judicially

created exception to enforcing arbitration decisions where  doing

so  would violate an explicit, well defined, and dominant  public

policy.14   The  State contends that there exists  in  Alaska  an

explicit, well-defined, and dominant public policy requiring that

law  enforcement  officers  be  trustworthy  and  of  high  moral

character that was violated by the grievants reinstatement.