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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
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
| STATE OF ALASKA, | ) |
| ) Supreme Court No. S- 13414 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-08-06270 CI | |
| v. | ) |
| ) O P I N I O N | |
| PUBLIC SAFETY EMPLOYEES | ) |
| 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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
officer.
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.
III. DISCUSSION
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
discipline.
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.
Although this argument is compelling, the State did not
raise it before the arbitrator or in any briefing or oral
argument before the superior court. Accordingly, the superior
court did not address the question of public policy. Although
the State contends that it implicitly made a public policy
argument to the superior court when it discussed ASEA, we
disagree. In ASEA, we ruled that the arbitrator committed gross
error in ruling that an employees past felony conviction did not
provide just cause for her termination;15 here the State cited
ASEA solely in the context of its gross error argument. While
the State now argues that ASEA is best understood as an
application of the public policy exception, it did not make this
argument to the superior court. The superior court had no
opportunity to review the States proffered sources of public
policy or to determine the contours of any public policy against
reinstatement of dishonest officers, nor did it have an
opportunity to consider whether any public policy was violated by
the grievants reinstatement. We decline to consider these issues
for the first time on appeal and conclude that the State failed
to preserve its public policy argument.16
IV. CONCLUSION
For the reasons detailed above, we AFFIRM the superior
courts grant of summary judgment confirming the arbitration
decision.
_______________________________
1 Neither of the female officers directly involved in the
incidents filed a complaint.
2 State v. Alaska Pub. Employees Assn, 199 P.3d 1161,
1162 (Alaska 2008) (citing Baseden v. State, 174 P.3d 233, 237
(Alaska 2008)).
3 Baseden, 174 P.3d at 237 (internal citations and
quotation marks omitted).
4 See Alaska State Employees Assn /AFSCME Local 52 v.
State, 74 P.3d 881, 882-83 (Alaska 2003); Butler v. Dunlap, 931
P.2d 1036, 1038 (Alaska 1997).
5 Alaska Pub. Employees Assn, 199 P.3d at 1162-63 & n.10;
Baseden, 174 P.3d at 238. The standards for vacating an
arbitration award set forth in Alaskas Arbitration Act, AS
09.43.120, do not apply to a labor-management contract unless
they are incorporated into the contract by reference. AS
09.43.010; see also Dept of Pub. Safety v. Pub. Safety Employees
Assn, 732 P.2d 1090, 1093 n.5 (Alaska 1987).
6 See Pub. Safety Employees Assn, 732 P.2d at 1093.
7 74 P.3d 881 (Alaska 2003).
8 Id. at 883-85.
9 Id. at 885.
10 Id. at 884-85.
11 ts Assisted Living, Inc. v. State, Dept of Health & Soc.
Servs, Div. of Health Care Servs., 222 P.3d 258, 270 n.60 (Ala
ska 2009) (holding an argument to be waived for inadequate brie
fing and failure to raise the issue in the statement of points on
appeal); Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.
3 (Alaska 1991) ([W]here a point is given only a cursory sta
tement in the argument portion of a brief, the point will not be
considered on appeal.).E. Associated Coal Corp. v. Unite
d Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63 (2000) (int
ernal quotation marks and citation omitted) (declining to vacate
under public policy exception an arbitration decision
12 instating a truck driver who twice tested positive for m
arijuana).74 P.3d 881, 884-85 (Alaska 2003).See Askinu
k Corp. v. Lower Yukon Sch. Dist., 214 P.3d 259, 266 (Alaska 20
09) (citing Hoffman Constr. Co. of Alaska v. U.S. Fabr
13 See Hidden Heights Assisted Living, Inc. v. State, Dept
of Health & Soc. Servs, Div. of Health Care Servs., 222 P.3d 258,
270 n.60 (Alaska 2009) (holding an argument to be waived for
inadequate briefing and failure to raise the issue in the
statement of points on appeal); Adamson v. Univ. of Alaska, 819
P.2d 886, 889 n.3 (Alaska 1991) ([W]here a point is given only a
cursory statement in the argument portion of a brief, the point
will not be considered on appeal.).
14 E. Associated Coal Corp. v. United Mine Workers of Am.,
Dist. 17, 531 U.S. 57, 62-63 (2000) (internal quotation marks and
citation omitted) (declining to vacate under public policy
exception an arbitration decision reinstating a truck driver who
twice tested positive for marijuana).
15 74 P.3d 881, 884-85 (Alaska 2003).
16 See Askinuk Corp. v. Lower Yukon Sch. Dist., 214 P.3d
259, 266 (Alaska 2009) (citing Hoffman Constr. Co. of Alaska v.
U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska
2001)); see also Baseden v. State, 174 P.3d 233, 240 & n.19
(Alaska 2008) (holding that an argument not raised before
arbitrators was waived).
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