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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Plumbers & Pipefitters, Local 367 v. Municipality of Anchorage (3/29/2013) sp-6770

Plumbers & Pipefitters, Local 367 v. Municipality of Anchorage (3/29/2013) sp-6770

        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 



PLUMBERS & PIPEFITTERS,                              ) 

LOCAL 367,                                           )   Supreme Court No. S-14664 

                                                     ) 

                        Appellant,                   )   Superior Court No. 3AN-11-10463 CI 

                                                     ) 

        v.                                           )   O P I N I O N 

                                                     ) 

MUNICIPALITY OF ANCHORAGE,                           )   No. 6770 - March 29, 2013 

                                                     ) 

                        Appellee.                    ) 

                                                     ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Alex Swiderski, Judge pro tem. 



                Appearances:       Charles A. Dunnagan and James S. Mundy, 

                Jermain Dunnagan & Owens, P.C., Anchorage, for Appellant. 

                William      A.  Earnhart,    Assistant    Municipal     Attorney,    and 

                Dennis   A.   Wheeler,   Municipal   Attorney,   Anchorage,   for 

                Appellee. 



                Before:     Winfree, Stowers, Maassen, and Bolger, Justices. 

                 [Fabe, Chief Justice, not participating.] 



                PER CURIAM 



                A union and a municipality entered into collective bargaining to renew the 



union’s   expiring   contract.     When   negotiations   broke   down,   the   parties   entered   into 



arbitration, but the arbitrator’s proposed decision failed to garner the necessary municipal 



assembly   votes   to   become   binding   on   the   parties.     Under   the   municipality’s   labor 



ordinances, the assembly’s failure to approve the arbitrator’s decision resulted in an 


----------------------- Page 2-----------------------

impasse, with each party given a remedy:  the municipality could implement its last best 



offer presented at arbitration, and the union could go on strike.              However, the union’s 



statutory    right   to  strike  was   limited   and   could   be   enjoined    if  the  work   stoppage 



threatened public health and safety. 



                Although the union voted to strike, it agreed to a preliminary injunction 



before the strike was scheduled to begin because work stoppage would threaten public 



health and safety almost immediately.            The union then argued that the superior court 



should   impose   the   arbitrator’s   decision   as   a   condition   of   a   permanent   injunction   to 



compensate for “taking away” the union’s right to strike.               The superior court held that 



its equitable jurisdiction was constrained by the municipal code, which had no provision 



for imposing the arbitrator’s decision, and entered an order permanently enjoining the 



strike and allowing the municipality to implement its last best offer.  The union appeals, 



arguing the superior court erred as a matter of law in holding the municipal code limited 



its equitable power to impose contract conditions as part of a permanent injunction. 



                We AFFIRM the superior court in all respects and adopt its decision, which 



is attached as an appendix.1 



        1       On appeal the union discusses several United States Supreme Court cases 



for the first time. These cases are unpersuasive primarily because they involve decisions 

whether     an   injunction    would    be  granted    rather  than   substantive    conditions    on   an 

injunction.  See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008) (noting trial 

court should consider balance of equities and public interest when deciding whether to 

issue   injunction); Amoco   Prod.   Co.   v.   Vill.   of   Gambell ,   480   U.S.   531,   544   (1987) 

(holding trial court had equitable discretion not to issue injunction under the Alaska 

National Interest Lands Conservation Act);  Weinberger v. Romero-Bercelo, 456 U.S. 

305, 320 (1982) (holding trial court had equitable discretion not to issue injunction for 

Clean Water Act violation). 



                                                   -2-                                                6770 


----------------------- Page 3-----------------------

                                         APPENDIX
 



            IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
 



                   THIRD JUDICIAL DISTRICT AT ANCHORAGE
 



MUNICIPALITY OF ANCHORAGE, )
 

                                            ) 

               Plaintiff,                   ) 

                                            ) 

v.                                          ) 

                                            ) 

UNITED ASSOCIATION OF                        ) 

PLUMBERS AND PIPEFITTERS,                    ) 

LOCAL 367,                                  ) 

                                            ) 

               Defendant.                   ) 

Case No. 3AN-11-10463 CI 



             ORDER GRANTING MUNICIPALITY’S MOTION FOR 

          DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF** 



I.     INTRODUCTION 



               The Plumbers and Pipefitters, Local 367 (Union) and the Municipality of 



Anchorage      have  been   engaged    in  negotiations   over  a  new   collective  bargaining 



agreement for more than one year.        The parties came to an agreement on many aspects 



of a new collective bargaining agreement but could not come to terms on several key 



points.   The   dispute   was   submitted   to   an   arbitrator   as   called   for   by   the   Anchorage 



Municipal Code (AMC).  The arbitrator issued a decision adopting the Union’s last best 



       **      The superior court’s decision has been edited to conform to the technical 



rules of the Alaska Supreme Court. 



                                  Appendix - Page 1 of 31                                   6770 


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                                             APPENDIX
 



offer on the primary issue of across-the-board wage increases. The arbitrator’s decision 



was put before the Anchorage Assembly for approval.   The Assembly failed to approve 



the arbitrator’s decision.     The Union’s employees then voted to strike. 



                The Municipality filed for a preliminary injunction before the strike was set 



to begin, arguing that the planned strike would threaten the public health, safety, and 



welfare.     The     Union    agreed    that  a  strike   by  Union     employees     would     pose   an 



unacceptable risk to the public and did not oppose issuance of a preliminary injunction. 



                Both parties now ask the Court to enter a permanent injunction prohibiting 



the Union from going on strike through June 2013 — when the next round of collective 



bargaining would begin.          The Union further asks the Court to declare the arbitrator’s 



decision     binding   upon   the   parties   as   a   condition   of   entering   the   injunction.  The 



Municipality   opposes   this   request   and   instead   asks   the   Court   to   issue   a   declaratory 



judgment       following     AMC      03.70.110.C.10.b       —    that   the   arbitrator’s   award     is 



unenforceable,   that   the   parties   are   at   an   impasse   in   their   negotiations,   and   that   the 



Municipality may implement its last best offer. 



                Because the Court concludes that the AMC forecloses the relief sought by 



the   Union   and   mandates   the   relief   sought   by   the   Municipality,   the   Court   grants   the 



permanent injunction and the Municipality’s request for declaratory judgment. 



II.     BACKGROUND 



                Collective bargaining involving public employees is a highly regulated 



process.   The Court begins its analysis by reviewing the legal framework for collective 



bargaining involving Municipality employees before turning to the specific facts and 



procedural history of this case. 



                                      Appendix - Page 2 of 31                                        6770 


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                                          APPENDIX
 



        A.     The AMC’s Employee Relations Chapter 



               Local governments have the power to fashion their own labor ordinances 

and   systems   of   collective   bargaining.1 The   Assembly   chose   to   regulate   employee 



relations through Title 3, Chapter 70 of the AMC.         The general policy behind Chapter 



70 is to “promote harmonious and cooperative relations between the municipality and 



its employees and to protect the public by ensuring orderly and effective operations of 

government.”2 



               Chapter     70  grants  all  non-exempt     Municipal    employees    the  right  to 

organize for the purpose of collective bargaining.3     Collective bargaining occurs between 



the bargaining unit’s representative on the one hand and the mayor’s office . . . on the 

other.4  While the mayor’s authorized negotiating team conducts collective bargaining 



on behalf of the Municipality, the Assembly has the power to set the Municipality’s 

general labor relations policy and to direct specific contract negotiations.5        In addition, 



       1       See Anchorage Mun. Emps. Ass’n v. Municipality of Anchorage, 618 P.2d 



575, 580 (Alaska 1980). 



       2       AMC 03.70.020.A. 



       3       AMC 03.70.030, .060.C. 



       4       See AMC 03.70.090. 



       5       AMC 03.70.090.D. 



                                   Appendix - Page 3 of 31                                    6770 


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                                             APPENDIX
 



any   agreement   between   the   Municipality   and   the   bargaining   representative   must   be 

ratified by the bargaining unit and the Assembly.6 



                In the event that the parties are unable to reach an agreement during the 



collective bargaining process, Chapter 70 provides a series of steps that the parties must 



                                                                                 7               8 

undertake in moving towards a resolution of the dispute:  mediation;  fact finding;  and, 

finally, interest arbitration.9 



                As part of the arbitration process, each party must submit its Last Best Offer 



(LBO) on each individual outstanding issue.             In resolving each issue in question, the 



arbitrator is limited to selecting one of the parties’ LBOs — the arbitrator may not craft 



his or her own resolution to a particular issue, nor may he or she combine portions of 

each party’s LBO on a given issue.10            The arbitrator must hold hearings and issue a 



decision within 60 days of the expiration date of the collective bargaining agreement.11 



                At    this  point  the   rights  and   remedies    of  each    party  depend     on  the 



classification of the affected bargaining unit employees.  The AMC splits Municipality 



        6       AMC 03.70.130.A. 



        7       AMC 03.70.100.A. 



        8       AMC 03.70.100.B. 



        9       Id. 



        10      AMC 03.70.110.C.7. 



        11      AMC 03.70.110.C.4. 



                                     Appendix - Page 4 of 31                                        6770 


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                                            APPENDIX
 



employees into three classes: Class A.1 employees, Class A.2 employees, and Class A.3 

employees.12 



                Class A.1 employees. Class A.1 employees are those who engage in police, 

fire   protection   and   emergency   services.13   Under   the   AMC,   an   arbitrator’s   decision 



affecting Class A.1 employees is automatically binding upon the parties.14                However, 



Class A.1 employees are flatly prohibited from going on strike for any period of time.15 



                Class A.2 and A.3 employees.  Class A.2 is made up of employees in sewer 

and    water   treatment,   electrical  generation    and   transmission,    and   port  operation.16 



Class A.3 is made up of all other employees.17           Both classes of employees are treated 



similarly when it comes to the effect of an arbitrator’s decision:              in each case, AMC 



03.70.110.C.10.b provides that the arbitrator’s decision is binding on the parties only if 



it is approved by at least eight members of the Assembly. 



                Prior   to   the   Assembly’s   vote,   the   Municipality’s   internal   auditor   must 



review the arbitrator’s decision and the Municipality’s LBO, and provide the projected 



        12      See AMC 03.70.110.A. 



        13      AMC 03.70.110.B. 



        14      AMC 03.70.110.C.10.a. 



        15      See AMC 03.70.110.A.1. 



        16      AMC 03.70.110.B. 



        17      Id. 



                                    Appendix - Page 5 of 31                                       6770 


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                                            APPENDIX
 



costs and savings under each option.18        If the Assembly does not approve the arbitrator’s 



decision   within   a   specified   period   of   time,   then   “the   parties   shall   be   considered   at 



impasse,” “[t]he municipality may . . . implement its last best offer” and “the affected 

bargaining unit may exercise its right to strike.”19 



                While Class A.2 and A.3 employees are treated the same for purposes of 



arbitration, they are not given the same right to strike.  The AMC grants Class A.2 only 

a “limited” right to strike20 with the limit determined “by the interests of the health, safety 



and welfare of the public.”21       Class A.3 employees, on the other hand, are granted an 



almost unfettered right to strike absent “extraordinary circumstances.”22 



                Section 3.70.110.B of the AMC allows the Municipality to apply to the 



superior court for an order enjoining a strike by Municipal employees.                 In the case of 



Class A.2 employees, the superior court may only enjoin the strike if it has begun to 

threaten the health, safety, or welfare of the public.23        The AMC further counsels: 



                A court in deciding whether or not to enjoin the strike shall 

                consider the total equities in the particular class. . . . [T]he 

                term ‘total equities’ includes not only the impact of the strike 

                on    the  public    but  also   the  extent   to  which     employee 



        18      AMC 03.70.110.C.10.b.
 



        19      Id.
 



        20      AMC 03.70.110.A.2; AMC 03.70.110.B.
 



        21      AMC 03.70.110.B. 



        22      See AMC 03.70.110.A.3; AMC 03.70.110.B. 



        23      AMC 03.70.110.B. 



                                     Appendix - Page 6 of 31                                       6770 


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                                            APPENDIX
 



                organizations       and   public    employers      have     met    their 

                obligations under [the employee relations chapter].[24] 



The AMC does not specifically state what effect the issuance of an injunction has on the 



parties or the collective bargaining process. 



        B.	     Facts And Procedural History 



                The Union represents employees of the Anchorage Water and Wastewater 



Utility (AWWU) — a division of the Municipality. These employees are responsible for 



the operation and maintenance of Anchorage’s drinking water and sewage treatment 

plants.  They are Class A.2 employees under the AMC.25 



                The Union and the Municipality began negotiations for a new collective 



bargaining agreement in March or April of 2010. The parties’ prior collective bargaining 



agreement expired on June 30, 2010.   The parties have maintained the status quo of the 



terms and conditions of employment — meaning, primarily, that Union employees have 



not received an across-the-board wage increase since July 1, 2009. 



                Despite ongoing negotiations, the parties were unable to agree on several 



key aspects of a new agreement. Pursuant to the AMC, the parties underwent mediation, 



fact-finding, and finally arbitration of the parties’ remaining disputes.             Retired Judge 



Douglas Serdahely served as fact-finder and arbitrator.  The primary issue put before the 



arbitrator dealt with across-the-board wage changes, a one-time market-based adjustment 



to the wage scales, and the continuation or termination of the “Service Recognition 



Program.”  In accordance with AMC 03.70.110.C.8.a(2), these issues were all treated as 



        24	     Id. 



        25      See id. 



                                     Appendix - Page 7 of 31                                       6770 


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                                            APPENDIX
 



one lump subject such   that the arbitrator had to select between the Union’s and the 



Municipality’s LBOs as to all three sub-issues. 



                The Municipality’s LBO consisted of no across-the-board wage increase 



in 2010, followed by a 2.5% wage increase in 2011 and another 2.5% wage increase in 



2012.  The Municipality’s LBO contained no market-based adjustment and proposed to 



eliminate the Service Recognition Program for new employees. 



                The Union’s LBO consisted of no across-the-board wage increase in either 



2010 or 2011, with an across-the-board wage increase in 2012 equal to the Anchorage 



CPI-U   (Consumer   Price   Index)   average   for   the   previous   five-year   period   —   with   a 



minimum   increase   of   2.5%   and   a   maximum   increase   of   3.9%.      The   Union   further 



proposed a one-time market-based adjustment in 2011 amounting to an increase of $3.00 



per   hour   for  most   union    employees.      The   Union    also  proposed     that  the  Service 



Recognition Program continue in its present form. 



                An arbitration hearing was held on July 25, 2011, and the arbitrator issued 



his decision on August 8, 2011.        The arbitrator selected the Union’s LBO on the issue 



of wages.   The arbitrator found that there was a significant disparity between the wages 



of the Union’s employees and the wages of similar workers within the Municipality and 



in   the   private   sector. The   arbitrator   also   rejected   the   Municipality’s   argument   that 



smaller pay increases were necessary in light of the post-recession economy, noting that 



the Municipality and the IBEW Mechanics’ union had recently agreed to a contract 



providing for substantially greater pay increases than the Municipality had offered the 



Plumbers and Pipefitters’ union. 



                                     Appendix - Page 8 of 31                                       6770 


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                                            APPENDIX
 



                The net result of the arbitrator’s decision was that Union employees would 



receive a one-time $3 per hour wage increase in 2011 and a wage increase between 2.5% 



and 3.9% in 2012.  In addition, the Service Recognition Program would continue for all 

union employees.26 



                The   arbitrator’s   decision   was   sent   to   the   Assembly   for   approval.  An 



internal audit report indicated that implementation of the arbitrator’s decision would cost 



the    Municipality     between     $3,191,722     and   $3,394,446      through    June    30,   2013. 



Implementation of the Municipality’s LBO would cost $988,071 over the same period. 



                The Assembly voted on approval of the arbitrator’s decision on August 30, 



2011.   Seven of eleven Assembly members voted to approve the arbitration decision — 

one vote short of the eight votes necessary for approval under the AMC.27 



                The Union held a meeting on the evening following the Assembly’s vote 



and asked its members to vote to strike.   Union employees approved the strike by a vote 



of 113-2.    The strike was set to begin at 10:00 a.m. on September 2, 2011. 



                On September 1, 2011, the Municipality filed suit in Anchorage Superior 



Court to enjoin the planned strike.         The Municipality asserted that Union employees 



        26      The arbitrator selected the Municipality’s LBO on the two other issues 



submitted to arbitration:   1) the termination of an existing program to pay supplemental 

payments   to   injured   workers   to   ensure   that,   together   with   Workers’   Compensation 

payments, such workers receive 80% of their regular pay; and 2) the termination of a 5% 

premium   payment   for   field   inspections.     The   arbitrator   noted   that   the   supplemental 

Workers’ Compensation payments did not apply to the vast majority of union employees; 

and that the job description for affected union employees now included routine field 

inspections, thus rendering the premium payment superfluous. 



        27      See AMC 03.70.110.C.10.b. 



                                     Appendix - Page 9 of 31                                       6770 


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                                             APPENDIX
 



could not go on strike for more than 48 hours before the strike would pose serious risks 



to AWWU’s facilities and the continued successful operation of its water and sewage 



systems; and that even a strike shorter than 48 hours could cause partial system failure 



if an unexpected event or breakdown occurred. 



                The Court held a hearing on the same day the Municipality filed suit.  The 



Union agreed in advance of the hearing that the strike should be enjoined to protect the 



health, safety, and welfare of the public.         The Court entered a preliminary injunction 



prohibiting Union employees from going on strike, with a specific provision that the 



parties had not waived any future argument as to the terms of a permanent injunction. 



                Following entry of the preliminary injunction, the Municipality filed an 



amended complaint for declaratory and injunctive relief.  The Municipality requested a 



declaration from the Court that, under AMC 03.70.110.C.10.b, the arbitrator’s decision 



is   unenforceable,   that   the   parties   are   at   an   impasse,   and   that   the   Municipality   may 



implement its LBO. The Municipality further requested entry of a permanent injunction 



prohibiting the Union from striking. 



                The   Union   did   not   oppose   the   entry   of   a   permanent   injunction   in   its 



amended answer, but instead requested that the Court impose the arbitrator’s decision 

on the parties as a condition of the permanent injunction.28 



        28      In its original answer, the Union also brought counterclaims based on the 



implied covenant of good faith and fair dealing and substantive due process.  The Union 

did not appear to raise these claims in its amended answer and did not pursue them in its 

briefing    or  at   oral   argument.    Therefore    the  Court   concludes     that  the  Union    has 

abandoned these claims. 



                                    Appendix - Page 10 of 31                                        6770 


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                                             APPENDIX
 



                The    parties   fully  briefed   the  issues   and   oral  argument     was   held   on 



November 9, 2011. 



III.    DISCUSSION 



                The parties agree that the Court should enter a permanent injunction.  The 



Municipality      contends    that  a  strike   by  Union    employees      of  any   duration   would 



immediately pose an unacceptable threat to the public health, safety, and welfare.  The 



Union   has   consistently   agreed   with   the   Municipality   on   this   point   throughout   the 



litigation.   In   addition,   the   Municipality   and   the   Union   agree   that   both   parties   have 



negotiated in good faith and otherwise met their obligations under the AMC’s Employee 



Relations chapter.     Therefore issuance of a permanent injunction is proper pursuant to 

AMC 03.70.110.B.29 



                Where   the   parties   disagree   is   the   effect   that   issuance   of   a   permanent 



injunction has on the parties’ rights and the collective bargaining process.               The Union 



contends that if the right to strike under the AMC is taken away through entry of a 



permanent injunction, the Court should exercise its equitable power to substitute the right 



to   binding   arbitration   and   impose   the   interest   arbitration   award.  The   Municipality 



contends that the AMC does not allow an interest arbitration award affecting Class A.2 



employees to be made binding on the parties in the absence of Assembly approval.  The 



Municipality      further    contends    that  the   Court   should    declare    pursuant    to  AMC 



        29      The Court hereby incorporates the Findings of Fact and Conclusions of 



Law from the Preliminary Injunction Order entered September 1, 2011, to the extent that 

they are not inconsistent with this Order. 



                                    Appendix - Page 11 of 31                                        6770 


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                                             APPENDIX
 



03.70.110.C.10.b   that   the   parties   are   at   an   impasse   and   that   the   Municipality   may 



implement its LBO. 



                The Union’s arguments raise two primary issues. The first issue is whether 



the Court may exercise its full equitable jurisdiction to decide the parties’ bargaining 



dispute notwithstanding the strictures of the AMC.  If the Court may not exercise its full 



equitable jurisdiction and must instead act within   the   bounds of the AMC, then the 



question becomes whether the AMC itself allows for the remedy that the Union seeks. 



The Union has not directly attacked the AMC provisions — it does not contend, for 



example, that those provisions are unconstitutional or otherwise infirm.                   Rather, the 



Union     asserts   that  the  relief  it  requests   is  consistent   with   the  Court’s    equitable 



jurisdiction and is not repugnant to the AMC. 



        A.      The Court’s Equitable Jurisdiction Is Limited By The AMC. 



                The Union contends that the Municipality invoked the Court’s full equitable 



jurisdiction   when   it   filed   a   complaint   for   injunctive   relief,   such   that   the   Court   may 



fashion whatever equitable remedy it deems just to resolve the parties’ overall collective 

bargaining dispute.  The Union principally relies on Hecht Co. v. Bowles30 in support of 



its argument. 



                In Hecht , the United States Supreme Court held that the Emergency Price 



Control Act of 1942 did not remove courts’ traditional equitable discretion in deciding 

whether to issue an injunction.31       The Act stated that upon a showing that a person has 



        30      321 U.S. 321 (1944). 



        31      Id. at 328-29. 



                                     Appendix - Page 12 of 31                                       6770 


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                                             APPENDIX
 



or is about to violate the Act, “a permanent or temporary injunction, restraining order, 

or   other   order   shall   be   granted   without   bond.”32   The   government   argued   that   the 



language “shall be granted” made issuance of an injunction mandatory under the Act.33 



In rejecting this argument, the Court recognized the long history of the power of equity 

jurisdiction to craft each decree to the particulars of each case. 34           The Court concluded 



that there was no evidence of a clear and unequivocal intent by Congress to depart from 

this traditional equity practice when it enacted the Act.35 



                 The Municipality counters that the Court’s equitable jurisdiction is limited 



by the AMC.  It relies on two principles of equity jurisdiction recognized by the Alaska 

Supreme Court in Riddell v. Edwards .36             The first principle is that “a court acting in 



equity   ordinarily   cannot   [intrude]   in   matters   that   are   plain   and   fully   covered   by   [a] 

statute.”37   A second and closely related principle is that “a court must not apply equity 



to do indirectly what the law or its clearly defined policy forbids to be done directly.”38 



        32      Id. at 322.
 



        33      Id. at 326-27.
 



        34      See id. at 329-30.
 



        35      Id. at 330.
 



        36       76 P.3d 847 (Alaska 2003).
 



        37      Id. at 854 (quoting Pac. Scene, Inc. v. Penasquitos, Inc. , 758 P.2d 1182, 



 1186 (Cal. 1988)) (internal quotation marks omitted). 



        38      Id. at 855 (quoting Pac. Scene, Inc., 758 P.2d at 1186) (internal quotation 



marks omitted). 



                                     Appendix - Page 13 of 31                                         6770 


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                                           APPENDIX
 



Put another way, “[c]ourts of equity can no more disregard statutory and constitutional 

requirements and provisions than can courts of law.”39 



               Collective bargaining involving public employees is a highly regulated 



process. The AMC provides an explicit and comprehensive scheme governing collective 



bargaining between employee unions and the Municipality.               It sets forth a step-by-step 



process   for   the   resolution   of   outstanding   issues   in   collective   bargaining,   with   strict 



constraints and timelines.      The AMC only allows   the parties to involve the court in 



limited circumstances, such as when applying for an injunction prohibiting a strike by 

Class A.2 or A.3 employees,40 or on appeal of an arbitrator’s decision affecting Class A.1 



employees.41     Most importantly in the context of this case, the circumstances under 



which an arbitrator’s decision may be made binding on the parties is fully covered by 



AMC 03.70.110.C.10.b.          The AMC addresses impasses   in the collective bargaining 



process    and   does   not   contemplate    involvement     of   the  courts  beyond     the  finite 



circumstances outlined in the AMC. 



               This conclusion is buttressed by the fact that public employees do not have 

an inherent right to strike or an inherent right to binding arbitration.42      Public employees 



        39     Hedges v. Dixon County , 150 U.S. 182, 192 (1893). 



        40     AMC 03.70.110.B. 



        41     AMC 03.70.110.C.10.a. 



        42     See Anchorage Educ. Ass’n v. Anchorage Sch. Dist., 648 P.2d 993, 996-97 



(Alaska 1982). 



                                   Appendix - Page 14 of 31                                     6770 


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                                            APPENDIX
 



have those rights only where granted by legislative enactment.43            The remedy the Union 



seeks, binding arbitration, is available only to the extent that it is granted by the AMC. 



The Court cannot issue an equitable decree vindicating the Union’s rights on the one 



hand while acting outside the bounds of the very AMC that grants those rights on the 



other. 



                The Union’s argument on this point is that the parties have reached the end 



of the process contemplated by the AMC and thus the code is no longer applicable.  The 



Union contends that the AMC always guides the parties towards a resolution of their 



collective bargaining dispute, but that in this instance no resolution may be had because 



the Union’s strike has been permanently enjoined.              But while the AMC does aim for a 



final resolution of the parties’ dispute, it does not mandate   that a final resolution is 



necessarily achieved by this point in the process. 



                Provision     3.70.110.C.10.b      provides    that  if  the  Assembly     rejects  the 



arbitrator’s decision as to Class A.2 employees, as occurred here, then the parties are at 



an impasse, the Municipality may or may not implement its LBO, and the Union may 



choose whether to strike.  Under this provision, there exist a number of scenarios where 



the parties’ collective bargaining issue could be left unresolved after the Assembly votes 



to reject an arbitration award.   The Union could choose not to strike at all.  Or the Union 



could engage in an unsuccessful strike and return to work without concessions from the 



Municipality.     Or, as happened in this case, the Union could choose to strike but the 



strike could be enjoined because of its impact on the public health, safety, and welfare. 



The end result is the same in each instance and is fully contemplated by the AMC:                  the 



        43      Id. 



                                    Appendix - Page 15 of 31                                       6770 


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                                         APPENDIX
 



parties are left at an impasse, the Municipality may unilaterally implement its LBO, and 



the parties may return to the bargaining table once the conditions resulting in impasse 

have changed.44 



               The Court’s conclusion does not run contrary to Hecht Co. v. Bowles . In 



Hecht  the United States Supreme Court noted that the Emergency Price Control Act 



expressly stated that a “permanent or temporary injunction, restraining order, or other 

order shall be granted.”45    Because the entrance of orders other than an injunction or 



restraining order was permissible under the Act, the trial court acted within its equitable 

discretion in not granting an injunction and instead ordering the complaint dismissed.46 



This case is distinguishable from Hecht because the AMC only speaks to whether the 



Court should grant or withhold an injunction.        The AMC does not allow for entry of 



“other orders” nor does it otherwise state or imply that the Court may broadly wield its 



equitable powers to settle the parties’ overall dispute. The Court has the equitable power 



to grant the Union the relief it seeks only if that power can be found within the bounds 



of the AMC’s Employee Relations chapter. 



       B.	     The AMC Does Not Allow The Court To Order Imposition Of The 

               Interest Arbitration Award As A Consequence Of Enjoining A Strike 

               By Class A.2 Employees. 



               The Union proposes two primary rationales under which the Court may 



       44      See generally 48A AM . JUR . 2D Labor and Labor Relations § 2326 (2005) 



(discussing the consequences of a bargaining impasse under federal law). 



       45      Hecht Co. v. Bowles , 321 U.S. 321, 321 (1944). 



       46      See id. 



                                 Appendix - Page 16 of 31                                  6770 


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                                             APPENDIX
 



order the interest arbitration award binding on the parties while honoring the framework 



of the AMC.      First, the AMC requires the Court to consider the “total equities” when 

deciding whether or not to enjoin a strike by Class A.2 employees.47              The Union argues 



that   consideration     of  the  “total  equities”   allows   the   Court   to  impose    the  interest 



arbitration award as a consequence of issuing a permanent injunction. Second, the Union 



contends   that   the   AMC   itself   contemplates   that   all   classes   of   Municipal   employees 



should have either the right to binding arbitration or the right to strike, and that therefore 



the Court should substitute a right to binding arbitration when a class of employees’ right 



to strike is “taken away” through the issuance of an injunction.  The Union’s arguments 



are examined in turn. 



                1.	     In considering the “total equities,” the Court may not go beyond 

                        the limited question of whether an injunction should be issued 

                        to prevent the strike. 



                AMC 03.70.110.B provides that the Court may only enjoin a strike by Class 



A.2 employees if the strike has “begun to threaten the health, safety or welfare of the 



public.” The AMC further counsels that “in deciding whether or not to enjoin the strike,” 

the Court “shall consider the total equities in the particular class.”48          The AMC defines 



the term “total equities” as “includ[ing] not only the impact of the strike on the public but 



also the extent to which employee organizations and public employers have met their 



        47      AMC 03.70.110.B. 



        48      Id. 



                                    Appendix - Page 17 of 31                                        6770 


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                                             APPENDIX
 



obligations under [the Employee Relations chapter].”49 



                The Union contends that consideration of the “total equities” allows the 



Court to impose whatever terms it deems equitable in issuing an injunction, including 



imposition of the interest arbitration award on the parties.  The Municipality argues that 



the term “total equities” is more limited in its scope and that in any event, the Court may 



not rule contrary to AMC 03.70.110.C.10.b by imposing the interest arbitration award 



on the parties when the Assembly failed to approve it. 



                The term “total equities,” taken on its own, might imply that the Court has 



broad powers in fashioning an equitable remedy when the Municipality applies for an 



injunction   against   a   strike.   But   the   term   must   be   read   within   the   context   of   AMC 



03.70.110.B and the AMC’s Employee Relations chapter in general.  AMC 03.70.110.B 



states:  “A court in deciding whether or not to enjoin the strike shall consider the total 



equities in the particular class” (emphasis added).            Thus, the provision expressly limits 



consideration of the “total equities” to the context of whether the Court should enjoin the 



strike. 



                AMC 03.70.110.B also provides examples of what is included in the term 



“total equities.”    The AMC refers to “the impact of the strike on the public” and the 



extent to which the parties have met their obligations under the AMC.                  The term “total 



equities”   contemplates   a   balancing   act   where,   in   determining   whether        to   issue   an 



injunction, the Court should weigh the impact the strike might have on the public health, 



safety, and welfare against the parties’ conduct in the course of collective bargaining — 



including whether the parties took all of the necessary steps to resolve the dispute, such 



        49      Id. 



                                     Appendix - Page 18 of 31                                        6770 


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                                             APPENDIX
 



as mediation, fact-finding, and arbitration, and whether each party has bargained in good 



faith as required by the AMC.          Conversely, the AMC does not list as examples factors 



the Court would logically consider if the Court were deciding whether to impose an 



arbitration award or an LBO, such as whether each side’s LBO was “fair,” or whether 



the arbitrator rendered a just decision. 



                Use of the term “total equities” does not open wide the doors of the Court’s 



full equitable jurisdiction, but is instead limited to the discrete issue plainly stated in the 



ordinance:    whether an injunction should be issued.   Because the Union has not argued 



against an injunction but in fact agreed to it, the “total equities” provision is inapplicable 



to the current controversy. 



                Even if the term “total equities” did allow the Court to go beyond the finite 



issue   of   whether   to   issue   an   injunction,   the   Court   still   could   not   simply   impose   the 



interest arbitration decision as a complete resolution to the issue. AMC 03.70.110.C.10.b 



states that a supermajority of the Assembly must approve an interest arbitration decision 

before it may be binding on the parties.50        In this case, the Assembly voted seven to four 



in favor of approval — one vote short of the necessary number to bind the Municipality 



to the terms of the arbitration award.        The Court may not do through equity what it is 

prohibited from doing through law.51           Thus the Court may not use equitable relief to 



render the arbitration award binding on the parties when the AMC requires Assembly 



approval and the Assembly instead chose to reject the award. 



        50      AMC 03.70.110.C.10.b. 



        51      Riddell v. Edwards , 76 P.3d 847, 855 (Alaska 2003). 



                                    Appendix - Page 19 of 31                                        6770 


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                                             APPENDIX
 



                The    Union   disagrees,   arguing   that   the   Assembly   did   not   “reject”   the 



arbitration award so much as it simply failed to approve it.  But under the facts and law 



of   this   case,   that   is   a   distinction   without   a   difference.  The   Assembly   voted   on   the 



question whether to approve the award, and the award garnered too few votes to be 



approved under the AMC.  And AMC 03.70.110.C.10.b does not require that the award 



be “rejected.”    The section specifically provides that if the arbitrator’s decision is not 



approved within 21 days of delivery of the arbitrator’s decision or seven days of receipt 



of the internal auditor’s financial analysis of the arbitration award, whichever is later, the 



parties shall be considered at an impasse, the Municipality may impose its LBO, and the 

Union may strike.52 



                Another problem with the Union’s rejection rationale is that the applicable 



AMC provision once read as the Union now wishes to interpret it, but it has since been 



amended to its current form.          In 1988 the Assembly approved a version of the AMC 



provision stating that arbitration decisions affecting Class A.2 and A.3 employees were 



binding unless rejected by a three to five majority of the Assembly.  The Assembly then 



amended the provision one year later to provide that the arbitrator’s decision is binding 



only if accepted by a supermajority of voters.            Thus the Assembly evidenced a clear 



intent to make affirmative Assembly approval a necessary condition for the arbitrator’s 



decision to be binding on the Municipality.   For the Court to now impose the arbitrator’s 



award despite the Assembly’s failure to approve it by the necessary eight votes would 



run contrary to the 1989 amendments to AMC 03.70.110. 



        52      AMC 03.70.110.C.10.b. 



                                    Appendix - Page 20 of 31                                        6770 


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                                          APPENDIX
 



               Consideration of the “total equities” as called for by AMC 03.70.110.B 



does not provide a vehicle for the Court to reach beyond the limited question of whether 



it should enjoin the strike. And even if the “total equities” provision did allow the Court 



to reach beyond that limited question, the Court could not use its equitable powers to 



impose the arbitration decision when the Assembly, in effect, rejected the same. 



               2.	    The AMC does not express a general policy that every class of 

                      Municipal   employees   must   have   either   an   unlimited   right   to 

                      strike or a right to binding arbitration. 



               The    Union’s   second   argument   is   that   the  AMC  grants   each  class  of 



employees either the right to strike or the right to binding arbitration, and thus when the 



Court “takes away” the Union’s right to strike by entering an injunction it must substitute 



a right to binding arbitration as quid pro quo. 



               At the outset, the Court notes an inconsistency with the Union’s assertion 



that the Court has “taken away” the Union’s right to strike by granting an injunction:  the 



Union    has  in  fact  not  opposed   the  issuance   of  an  injunction.   The   Union    could 



conceivably have pushed to strike for a “limited” period of time as contemplated by the 



AMC, but chose not to pursue that possibility.       Nonetheless, the Court recognizes that 



the Union acted in good faith and responsibly in not pushing the limits of the “health, 



safety and welfare of the public,” and thus will proceed as though an actual controversy 



exists notwithstanding the Union’s non-opposition. 



               Turning to the Union’s argument, the Union asserts that a public policy in 



favor of granting the Union either an unlimited right to strike or the right to binding 



arbitration can be found in the stated policy underlying the AMC’s Employee Relations 



chapter. 



                                  Appendix - Page 21 of 31                                   6770 


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                                        APPENDIX
 



               The stated policy of the AMC’s Employee Relations chapter is “to promote 



harmonious and cooperative relations between the municipality and its employees and 

to protect the public by ensuring orderly and effective operations of government.”53  The 



Union argues that when there is a breakdown in the collective bargaining agreement, 



harmonious and cooperative relations can only be achieved by giving each party an 



“economic weapon” that it may use against the other.  In the Union’s case, this weapon 



is either the right to strike or the right to binding arbitration; in the Municipality’s case 



it is the option to unilaterally implement its LBO. 



               The   Union   also  points  to  Justice  Rabinowitz’s   dissent   in  Anchorage 

Education Association v. Anchorage School District (AEA )54  in support of its argument 



that public employees are generally given either the right to strike or the right to binding 



arbitration. AEA dealt with an illegal strike attempt by public school teachers. Under the 



version of the Alaska Public Employment Relations Act (PERA) in place at the time, 



teachers presumably would have belonged among a class of public employees who were 



granted a limited right to strike.   However, the definitions section of PERA excluded 



“teachers” from the definition of “public employees” under the Act, meaning that the 

teachers did not have even a limited right to strike by statute.55   In addition to this lack 



       53      AMC 03.70.020.A. 



       54      648 P.2d 993 (Alaska 1982). 



       55      See id. at 995. 



                                 Appendix - Page 22 of 31                                 6770 


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                                            APPENDIX
 



of a statutory right to strike, the Court examined the common law and determined that 

teachers did not have an inherent right to strike.56 



                In response, the teachers noted that other public employees had either the 



right to strike or the right to binding arbitration.   The teachers argued that if they did not 



have a right to strike then they must have a right to binding arbitration, or else they 

would be denied equal protection of the law.57          The Court rejected this argument. 



                The Court first found that the legislature’s decision to exclude teachers 



from PERA bore a fair and substantial relationship to the purpose of PERA, which is to 



“promote harmonious and cooperative relations between government and its employees 

and to protect the public by assuring effective and orderly operations of government.”58 



The teachers argued that this purpose would be frustrated by the absence of a right to 



strike or right to binding arbitration because those rights are necessary to discourage bad 



faith negotiating by employers.  The Court disagreed, stating that “[w]hile it is true that 



binding arbitration rights may give the teachers greater bargaining leverage, we cannot 

say that it is required as a means of ensuring cooperative relations.”59            In addition, the 



Court noted that neither a right to strike nor a right to binding arbitration was necessary 



        56      Id. at 995-96. 



        57      See id. at 996-97. 



        58      Id. at 997 (quoting AS 23.40.070). 



        59      Id. 



                                    Appendix - Page 23 of 31                                      6770 


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                                              APPENDIX
 



to satisfy PERA’s purpose because, under Alaska law, the teachers’ public employers 

were required to negotiate in good faith.60 



                 The   Court   then    turned    to   the   legislature’s   decision   to  withhold    from 



teachers the right to binding arbitration that PERA afforded to other employees who 



were not granted a right to strike.   The Court stated:   “It is permissible for the legislature 



to have found that teachers, although necessary to the functioning of society so as to 

forbid strikes, were not so essential as to require compulsory arbitration.”61                   Thus the 



Court   determined   that   withholding   both   the   right   to   strike   and   the   right   to   binding 



arbitration was substantially related to the legislature’s goal of uninterrupted school 

operation.62 



                 Justice Rabinowitz dissented from the Court’s opinion on the issue of equal 



protection.     In Justice Rabinowitz’s view, the complete exclusion of teachers from the 



strike and arbitration provisions of PERA was not substantially related to the purposes 

of that Act.63    Justice Rabinowitz noted that PERA’s primary purpose was “to provide 



rational    and   effective    guidelines    for   public   employment       relations”    —    a  purpose 



substantially     similar    to  that  embodied      in  AMC     03.70.020.A.       Justice    Rabinowitz 



explained   that   PERA   furthered   this   purpose   by   balancing   the   employees’   need   for 



effective means of bargaining with the state’s need to maintain uninterrupted services in 



        60       See id. (citing former AS 14.20.550).
 



        61       Id.
 



        62       Id.
 



        63       Id. at 998-99 (Rabinowitz, J., dissenting). 



                                      Appendix - Page 24 of 31                                          6770 


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                                               APPENDIX
 



certain essential governmental operations.64              Thus PERA placed employees into three 



categories:     “non-critical” employees who were given a general right to strike; “semi­ 



critical” employees who were allowed a limited right to strike; and “critical” employees 



who were denied any right to strike but were given the right to binding arbitration in 



         65 

return. 



                 Justice    Rabinowitz      explained     that   the  legislature’s    choice    to  exclude 



teachers from any of the foregoing three classes was not substantially related to PERA’s 



purpose because: 



                 Under      PERA      the   category    of   ‘critical’   employees      was 

                 granted the right to binding arbitration to compensate for the 

                 total   denial   of   a   right   to   strike.   In   essence   the   legislature 

                 realized     that  while    a  ban   on  strikes   for   ‘critical’  public 

                 employees was necessary, such a ban placed these employees 

                 in a disadvantageous bargaining position. Therefore, in the 

                 interest of fair and meaningful negotiations these employees 

                 were given the right to binding arbitration. . . . Viewed in this 

                 perspective,   the   denial   of   binding   arbitration   to   teachers, 

                 coupled with the ban on strikes seems at odds rather than 

                 ‘substantially   related’   to   the   purposes   of   PERA   in   that   it 

                 significantly      handicaps      public    school    teachers     in  their 

                 collective bargaining efforts.[66] 



         64      Id. at 998. 



         65      Id. 



         66      Id. at 999. 



                                       Appendix - Page 25 of 31                                           6770 


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                                             APPENDIX
 



Thus,   Justice   Rabinowitz   would   have   held   that   PERA   violated   the   equal   protection 



clause by completely excluding teachers from the strike and arbitration provisions of 

PERA.67 



                The   Union   essentially   argues that the Assembly   adopted   this theory   in 



drafting its Employee Relations chapter.   As the argument goes, the Assembly intended 



that each group of employees would   have a weapon that they could use against the 



Municipality in the event that collective bargaining negotiations were not fruitful:  they 



could either go on strike, or they could force the issue to binding arbitration.                  If the 



Union’s right to strike is enjoined, the Union argues, then they must have the right to 



binding arbitration substituted in its place.   Otherwise, Union employees would end up 



in a situation not contemplated by the AMC where they have neither the right to strike 



nor the right to binding arbitration.   And because the Municipality retains the option to 



implement its LBO, the balance of power would be shifted toward the Municipality in 



a manner not contemplated by the AMC. 



                The Union’s argument is not persuasive for several reasons.                Beginning 



with the Union’s reliance on the AMC’s statement of policy, the Supreme Court held in 



AEA that granting either the right to strike or the right to binding arbitration was not 



necessary to vindicate the policy statement in PERA, which was substantially similar to 

the AMC policy statement.68         Although the Court dealt with an equal protection claim 



in  AEA ,   the   rationale   applies   with   equal   force   to   an   argument   that   AMC   03.70.20 



        67      Id. 



        68      See id. at 997 (majority opinion). 



                                     Appendix - Page 26 of 31                                       6770 


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                                            APPENDIX
 



somehow mandates that all non-exempt Municipal employees must have either a right 



to strike or a right to binding arbitration.       This is especially true in light of the fact that 



the teachers in AEA had no right to strike whatsoever, whereas the Union is granted a 

limited right to strike under the AMC.69        If the State could satisfy the purposes of PERA 



while withholding from teachers even a limited right to strike, then the AMC certainly 



may satisfy its similarly stated purpose by granting a limited right to strike to Union 



employees. In addition, as in AEA , the Union is still protected by the Municipality’s duty 

to bargain in good faith.70 



                Turning to his dissenting opinion in AEA , Justice Rabinowitz’s views were 



not accepted by the majority of the Court and therefore hold limited persuasive value in 



the instant case.    Moreover, even Justice Rabinowitz did not go so far as the Union is 



now   asking   this   Court   to   go. Justice   Rabinowitz   was   concerned   with   the   complete 

exclusion of teachers from any class of employees under PERA.71                   Unlike the Union 



employees in this case, the teachers in AEA were not given even a limited right to strike. 



In fact, Justice Rabinowitz specifically wrote that, in his view, the State would not have 



        69      See AMC 03.70.110.B. 



        70      See AMC 03.70.010, .020.A, 070.B, & .140.A.5. 



        71      See   AEA,   648   P.2d  at   998-99   (Rabinowitz,   J.,   dissenting)   (stating   “the 



question which must be answered is whether the exclusion of public school teachers 

from any of [PERA’s three classes of employees] is reasonable in light of the purposes 

of PERA”). 



                                    Appendix - Page 27 of 31                                       6770 


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                                              APPENDIX
 



violated the equal protection clause if it had given the teachers the same limited right to 

strike that Union employees have in this case.72 



                 The   Union   contends   that   the   instant   case   is   distinguishable   from AEA 



because the Assembly granted the Union a limited right to strike, whereas in AEA the 



legislature granted teachers neither a right to strike nor a right to binding arbitration.  In 



the Union’s view, the fact that the Assembly granted a limited right to strike means that 



the   Assembly   must   have   believed   that   the   Union   would   and   should   have   a   right   to 



binding arbitration when the limits of their right to strike were reached. But the Union 



cites no authority for that assertion, it ignores overwhelming authority to the contrary, 



and it conflicts with the express language of the AMC. 



                 The   AMC   repeatedly   refers   to   the   limited   nature   of   the   right   to   strike 



enjoyed by Class A.2 employees.            The services of Class A.2 employees are defined as 



those   that   “may   be   interrupted   for   a   limited   period   but   not   .   .   .   indefinite   period   of 

time.”73   AMC 03.70.110.B states that Class A.2 employees may engage in a strike only 



“for   a   limited   time”;   that   “[t]he   limit”   of   Class   A.2   employees’   right   to   strike   “is 



determined by the interests of the health, safety and welfare of the public”; and that the 



strike may be enjoined if it has begun to threaten those interests. 



                 The AMC juxtaposes this limited right to strike on the part of Class A.2 



employees with the more extensive right to strike enjoyed by Class A.3 employees. 



        72       See id. at 999 (“On the other hand, if teachers are not as essential as the 



‘critical’ employees then they should enjoy the same limited strike rights given to other 

‘semi-critical’ public employees.”). 



        73       AMC 03.70.110.A.2. 



                                      Appendix - Page 28 of 31                                          6770 


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                                         APPENDIX
 



Work stoppages involving Class A.3 employees “may be sustained for extended periods” 

absent “extraordinary circumstances.”74     And a strike by Class A.3 employees may only 



be enjoined in “extraordinary circumstances [threatening] the health, safety or welfare 

of the public.”75 



               Despite granting Class A.2 employees a more limited right to strike than 



that enjoyed by other Municipal employees, the AMC does not substitute a right to 



binding arbitration when the limits of Class A.2 employees’ right to strike have been 



reached and an injunction has issued against them.  Given that there is no inherent right 

to strike or right to arbitration except those which are granted by legislative acts,76 this 



absence of a substituted right to arbitration must be interpreted as a decision by the 



Assembly to affirmatively deny Class A.2 employees that right. 



               That the Assembly affirmatively chose not to substitute a right to arbitration 



when an injunction is issued against a strike by Class A.2 employees is even clearer 



when comparing the AMC scheme to Alaska’s state statutes.  Like the AMC, the PERA 

divides employees into three separate classes.77    Also similar to the AMC, Class A.2 state 



employees’ right to strike is “limited” by the interests of the health, safety, or welfare of 



the public, and the public employer may apply to the superior court to enjoin the strike 



       74      AMC 03.70.110.A.3. 



       75      AMC 03.70.110.B. 



       76      See Anchorage Educ. Ass’n v. Anchorage Sch. Dist., 648 P.2d 993, 995-97 



(Alaska 1982). 



       77      See AS 23.40.200(a). 



                                 Appendix - Page 29 of 31                                  6770 


----------------------- Page 32-----------------------

                                             APPENDIX
 



when these interests are threatened.78        The state statute goes on to say:   “If an impasse or 



deadlock   still   exists   after   the   issuance   of   an   injunction,   the   parties   shall   submit   to 

arbitration.”79   The AMC mandates non-binding interest arbitration before a strike may 



be held but does not contain a similar provision allowing for binding arbitration as a 



consequence of an injunction prohibiting a strike. 



                It   is   permissible   for   the   Assembly   to   have   concluded    that   Class   A.2 



employees are essential enough that their right to strike should be limited, but not so 



essential that they must be given the right to binding arbitration enjoyed by Class A.1 

employees.80       Faced     with   the  choice    of  completely     withholding      from   Class   A.2 



employees any right to strike whatsoever or granting a limited right to strike that might 



not be particularly useful, the Assembly chose the latter option.                The Union wants to 



make this limited right in to something more than it is.               The premise of the Union’s 



equitable argument is logically sound, the Court may assume that it is accurate, and the 



Court   is   sympathetic   to   their   plight,   that   as   Class   A.2  employees,   they   have   less 



bargaining leverage than either Class A.1 or A.3 employees.   But that is the position that 



the Assembly lawfully chose for them. 



                The Union argues that the Court should superimpose upon the AMC either 



an unlimited right to strike or a right to binding arbitration for all public employees.  But 



        78      AS 23.40.200(c). 



        79      Id. 



        80      Cf. AEA, 648 P.2d at 997 (“It is permissible for the legislature to have found 



that teachers, although necessary to the functioning of society so as to forbid strikes, 

were not so essential as to require compulsory arbitration.”). 



                                     Appendix - Page 30 of 31                                         6770 


----------------------- Page 33-----------------------

the Court cannot override the policy choices of the people’s elected representatives in 



this manner.    Such a maneuver by the Court “would be an action . . . tipping the social 

balance in [the Municipality’s] labor relations.”81       This balance is set by the Assembly. 



If the Union is to achieve a more favorable status for itself than it currently enjoys under 



the AMC, it must do so through the political process, not the Courts. 



IV.     CONCLUSION 



               The Municipality’s Motion for Declaratory Judgment and Injunctive Relief 



is GRANTED. 



               The Union shall be permanently enjoined from going on strike through the 



end    of   the  current   collective  bargaining  period   in  June  2013.   Pursuant   to   AMC 



03.70.110.C.10.b, the interest arbitration award is advisory only and cannot be imposed 



on   the   bargaining   parties;   the   parties   are   at   an   impasse;   and   the   Municipality   may 



implement its LBO. 



               Dated:    February 10, 2012
 

               /s/     Alex M. Swiderski
 

                Superior Court Judge, Pro Tem
 



        81     See id. at 996. 



                                   Appendix - Page 31 of 31                                     6770 

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