State v. Beard

¶1concurring.

¶2Although I agree that the superior court’s judgment should be reversed and judgment entered for appellants and cross-appellees, I disagree with the court’s reliance on Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983), in Section III.A.2 of the court’s opinion. My reasons are as follows.

¶3The court explains in Section III.A2 that an employee’s failure to exhaust administrative remedies is excused by the union’s refusal to pursue a complaint when

the union has sole power under the contract to invoke the higher levels of the grievance procedure and if the union has prevented the employee from exhausting his remedies by its wrongful refusal to process the grievance.

¶4Op. at 1380-81 (quoting Croston v. Burlington N.R. Co., 999 F.2d 381, 386 (9th Cir. 1993)). The court further explains that “[m]ost courts have equated a “wrongful refusal’ to process a grievance with a breach of the union’s duty of fair representation.” Op. at 1381.

¶5In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the Supreme Court of the United States reviewed a court’s determination that an employee’s failure to exhaust his arbitration remedies was excused. The Missouri Supreme Court relied on the fact that the jury found the employee’s claim meritorious and thus held that the union must have breached its duty of fair representation by not grieving the claim. Id. at 192-93, 87 S.Ct. at 918. The federal high court reversed.

¶6Vacabegins by emphasizing the employer’s interest in having employees adhere to agreed-upon grievance procedures; arbitration saves the employer the expense of litigation. Id. at 191-92, 87 S.Ct. at 917-18. The Supreme Court also noted the contradiction in allowing a union’s breach of duty to excuse an employee’s failure to exhaust, since the employer “may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement.” Id. at 185, 87 S.Ct. at 914. Vacanevertheless concludes that to leave the employee remediless whenever the union fails to grieve would lead to “great injustice.” Id. at 185-86, 87 S.Ct. at 914.

¶7The Supreme Court therefore settled on a standard that allows the employee to insti*1385tute judicial proceedings only when the union’s refusal to pursue his claim is wrongful. Id, at 185, 87 S.Ct. at 914. In other words, the refusal must amount to a breach of the union’s duty of fair representation. Id. at 190, 87 S.Ct. at 916-17. The Court emphasized that it did “not agree that the individual employee has an absolute right to have his grievance taken to arbitration....” Id. at 191, 87 S.Ct. at 917.

¶8By insisting on this elevated standard, the Supreme Court sought not only to protect the employer’s rights under the agreement, but also to preserve the union’s discretion in deciding which complaints will be pursued. “[Fjrivolous grievances” are weeded out early when “the union [has] discretion to supervise the grievance machinery and to invoke arbitration_” Id.In other words, the union acts as a gatekeeper. It must, “in good faith and in a nonarbitrary manner, make decisions as to the merits of particular grievances.” Id. at 194, 87 S.Ct. at 919. In detailing the policies underlying preservation of union discretion, Vacastates:

If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the f cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully. It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures ... if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration.

¶9Id. at 191-92, 87 S.Ct. at 917-18 (footnote and citations omitted).

¶10The Supreme Court went on to conclude that the plaintiff employee in that case could not establish a breach of the union’s duty of fair representation “merely by proof that the underlying grievance was meritorious”; the employee “must also have proved arbitrary or bad-faith conduct on the part of the Union in processing his grievance.” Id. at 195,193, 87 S.Ct. at 919, 918.

¶11Vaca’s emphasis on the union as gatekeeper, with discretion to determine which complaints will go forward, is consistent with decisions both before and since. The Supreme Court had previously established that “individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by the employer and union’_ [T]here can be no doubt that the employee must afford the union the opportunity to act on his behalf.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). It had also made clear that the union does not breach its duty of fair representation so long as it acts “honestly, in good faith and without hostility or arbitrary discrimination.” Humphrey v. Moore, 375 U.S. 335, 350, 84 S.Ct. 363, 372, 11 L.Ed.2d 370 (1964); see also Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953) (emphasizing “hostile discrimination” based on “irrelevant and invidious” considerations; no exception if union exercised good faith within “wide range of reasonableness”).

¶12In subsequent decisions, the Supreme Court has reiterated that exceptions to mandatory arbitration require “substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives....” Amalgamated Ass’n of St., Elec., Ry. and Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 1925, 29 L.Ed.2d 473 (1971). The Court hinted that a showing of negligence would not be sufficient.' “[T]he burden of demonstrating breach of duty by the Union ... involves more than demonstrating mere errors in judgment_ The grievance processes cannot be expected to be error-free.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 *1386L.Ed.2d 231 (1976). At the core of these cases lies the principle that unions must be allowed to make independent determinations as to the merits of individual claims. “[U]n-ion discretion is essential to the proper functioning of the collective-bargaining system.” International Bhd. Elec. Workers v. Foust, 442 U.S. 42, 51, 99 S.Ct. 2121, 2127, 60 L.Ed.2d 698 (1979).

¶13In United Steelworkers of America v. Rawson, 495 U.S. 362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990), the Supreme Court announced that while the duty of fair representation is of major importance,

a breach occurs “only when a union’s conduct toward a member ... is arbitrary, discriminatory, or in bad faith.” The courts have in general assumed that mere negligence ... would not state a claim for breach of the duty of fair representation, and we endorse that view today.

¶14Id. at 372-73, 110 S.Ct. at 1911 (emphasis added) (citation omitted) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916-17, 17 L.Ed.2d 842 (1967)).

¶15Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991), affirms and elaborates:

We hold that the rule announced in Vaca v. Sipes — that a union breaches its duty of fair representation if its actions are either “arbitrary, discriminatory, or in bad faith” — applies to all union activity.... We further hold that union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a “wide range of reasonableness” as to be irrational.

¶16Id. at 67, 111 S.Ct. at 1130 (citations omitted) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916-17, 17 L.Ed.2d 842 (1967); Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953)). O’Neillwent on to direct courts not to substitute their own judgment for that of the unions. “Any substantive examination of a union’s performance ... must be highly deferential-” Id. at 78, 111 S.Ct. at 1135.

¶17The standard which emerges from this fairly consistent line of cases is that a union’s decision not to pursue an employee grievance is reviewed only for an abuse of discretion. A union’s refusal to grieve constitutes a breach of duty only when it stems from an improper motive or lacks a rational basis. As the gatekeeper to arbitration, the union must be allowed to independently decide which claims are meritorious and should go forward. Judicial review is deferential.

¶18Burle Beard cannot meet this standard. There is no evidence that union representative Senkow’s decision not to grieve Beard’s claims as a pattern was the product of an improper motive. Nor can Beard show the decision was irrational. At the exhaustion hearing, Senkow himself testified that he had not discerned a pattern in the complaints Beard had brought to him.

¶19Senkow also refused to grieve several of Beard’s individual claims. Among these were complaints that a supervisor had asked Beard to justify his use of sick leave in May 1986, that he was forced to keep detailed time sheets, and that the supervisors avoided assigning work to Beard. The union’s several refusals neither individually nor in combination constitute an abuse of discretion. The record contains absolutely no evidence that Senkow’s decisions were the result of an improper motive, nor does Beard so allege. The only possible basis for finding that the union acted wrongfully is that the decisions were irrational.

¶20Senkow’s decisions had a rational basis. Senkow affied that he did not pursue the several individual claims because he felt they were “not provable” and the actions fell within “management prerogative.” And both Senkow and Beard’s witness testified that Senkow did not pursue the pattern complaint because he did not perceive a pattern of harassment against Beard.

¶21As to the individual claims, Senkow’s explanation for his refusal is in and of itself rational. The actions which Beard complained of — requiring detailed time sheets, justifying sick leave, and apportioning work load — are all decisions which management is generally entitled to make. Senkow could have rationally concluded that Beard’s complaints would not have supported a successful grievance and should not be pursued. His *1387determination that these actions were not provable as harassment because they fell within management discretion, while not necessarily correct, is not irrational. Furthermore, as discussed below, Senkow had reason to doubt Beard’s interpretation of events.

¶22As to Beard’s pattern complaint, both parties’ evidence indicates that Senkow simply did not perceive a pattern of harassment where Beard did. Senkow’s skepticism of Beard’s charge of a unified management conspiracy had a rational basis. Senkow’s interactions with Beard and the events leading up to Beard’s resignation could have led Senkow to conclude that Beard was unduly sensitive and there was no “pattern” against him. None of the evidence available to Senkow conclusively established the existence of an organized campaign.

¶23The evidence which was available to Sen-kow could either have led him to conclude that Beard was the victim of management orchestrations or that he was a troublemaker. In support of the latter, Beard had charged that Milt Lentz, the Director of the Department of Transportation, had lied about a conversation with Beard during a visit to the office in May 1986. Cameron v. Beard, 864 P.2d 538, 543 n. 4 (Alaska 1993) (Beard II). However, it is entirely understandable that Senkow could decline to believe that the alleged conspiracy against Beard went to the highest levels of the Department of Transportation. Furthermore, the implausibility of the charge could also have led Senkow to discount Beard’s other allegations, and to conclude that Beard was overly suspicious of his superiors. Senkow’s decisions were not “wrongful.” Beard cannot demonstrate that “in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a “wide range of reasonableness’ as to be irrational.” O’Neill, 499 U.S. at 67, 111 S.Ct. at 1130 (citation omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953)). Nor does the fact that a jury ultimately found Beard’s claims meritorious justify his failure to exhaust. This is precisely the argument that was rejected by the Supreme Court in Vaca.

¶24In my view, Vacaarticulates a reasonable standard for determining when an employee’s failure to exhaust administrative remedies is excused. The Vacatest essentially determines when the employer will be denied the protections of mandatory arbitration because of something the union did. It is reasonable to accord the union discretion over which complaints should be pursued. As a gatekeeper, the union preserves the integrity of the arbitration process by screening out frivolous complaints. If courts did not defer to union decisions, and a union refusal always allowed the grievant to go to court, employers would have little incentive to enter into arbitration agreements in the first place. In this regard, I find the Supreme Court’s reasoning compelling. See Vaca, 386 U.S. at 191-92, 87 S.Ct. at 917-18.

¶25Furthermore, the standard for exceptions to exhaustion articulated in Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983), is arguably incorrect. Despite this court’s acknowledgment of federal preemption, Caseyadopted the test articulated in Eidelson v. Archer, 645 P.2d 171 (1982), which asks only whether the employee made a good faith effort to seek arbitration. Casey, 670 P.2d at 1136. Eidelsonis inapposite. That ease did not involve a collective bargaining agreement and the plaintiff was not dependent on a union for access to administrative remedies. In fact, the plaintiff there was not even a member of a labor union. Eidelsoninvolved a doctor’s challenge to a private hospital’s termination of his staff privileges. See Eidelson, 645 P.2d at 172-75. This situation is entirely outside the scope of the Labor Management Relations Act. Eidelsonis simply an application of the general rule that “an aggrieved member of a private association must exhaust the remedies provided by the organization before seeking judicial action against the association.” Id. at 179. The policy driving the decision was that internal remedies allow an organization to apply its expertise and correct its own errors. Id. at 176. The Eidelsonstandard has nothing to do with Vaca: no labor union was involved, the doctor had direct access to administrative remedies, and it was unnecessary to determine if a union’s refusal to grieve was wrong*1388ful. Casey’s reliance on that case is misplaced. Since I am of the view that Caseyis in conflict with binding federal law, I would disapprove it.1

¶27dissenting.

¶28I. IIED

¶29I accept, arguendo, the court’s characterization of Beard I and I assume as well that the court is correct in requiring Beard to exhaust his contractual remedies as to individual defendants. The court nevertheless errs, as a matter of fact, in holding that Beard should not be excused from exhausting his contractual remedies as to his claim for IIED. It may be arguable that Beard failed to exhaust his contractual remedies as to the constructive discharge claim.1 Beard’s resignation was the last essential element of that claim. Beard did not specifically request that Senkow grieve a claim “for constructive discharge” after Beard resigned — after the cause of action arose.

¶30However, Beard’s resignation was not an essential element of his claim for IIED. A claim for IIED requires only “(1) that the defendant’s conduct was extreme and outrageous, (2) that the conduct was intentional or reckless, (3) that this conduct caused the plaintiff emotional distress, and (4) that the distress was severe.” Cameron v. Beard, 864 P.2d 538, 548 (Alaska 1993).

¶31Beard did request that Senkow grieve the “pattern of harassment” against him. It is this pattern of harassment which supports both the IIED claim and the constructive discharge claim. Although it is arguable that the constructive discharge claim did not arise until after Beard resigned, no such argument can be made as to the IIED claim. Senkow explicitly refused to recognize the pattern of harassment alleged by Beard, which supports his claim for IIED. Under even the court’s stringent interpretation of Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983), Beard has complied with the requirements for excusing his failure to exhaust his contractual remedies as to his IIED claim.2

¶32The court fails to adequately explain why it requires Beard to have asked the union to grieve conduct that occurred “after mid-May 1986.” Maj. op. at 1383. The pattern of harassment alleged by Beard prior to that time is sufficient to support his claim for IIED. Senkow’s explicit refusal to grieve this pattern of harassment is sufficient to satisfy the court’s interpretation of Casey. The court’s assertion that Beard “did not timely ask the union to pursue the work conditions that were central to his IIED claims,” Maj. op. at 1383, is inaccurate. The judgments against McMullen and Venusti should be affirmed.

¶33II. Constructive Discharge

¶34The rule laid down by the court is a harsh one:

Where an ongoing pattern of harassment in the workplace culminates in an employee’s resignation, the employee must attempt to grieve this involuntary termination even if the union has previously been unresponsive to the employee’s complaints of harassment.

¶35Maj. op. at 1382 (emphasis added). In the instant case, we have an employee who consistently requested that his union representative aid him in grieving a pattern of harassment. His union representative consistently denied that such a pattern existed or was grievable. Nonetheless, this court requires Beard to know that such a pattern becomes grievable when he is actually forced to resign. Had Beard but known to invoke the magic words “constructive discharge” following his resignation, he would not be faced with this appeal.

¶36This formalistic reasoning leads to an unjust result. It requires employees to possess *1389both specific legal knowledge and unreasonable tenacity. Beard made a good faith effort to resolve his overall working conditions through the available grievance procedures. His union failed to come to his aid. We should require no more than this before permitting employees to turn to the courts for the assistance that their unions refuse to provide.

¶37III. Law of the Case

¶38That said, I adhere to the view I expressed in Cameron v. Beard, 864 P.2d 538 (Alaska 1993) (Beard II). In Beard II I dissented from the court’s decision to remand for an evidentiary hearing on the issue of whether Beard was excused from exhausting his contractual remedies. Id. at 551-53 (Compton, J., dissenting). My position was that this issue was raised and resolved in Beard I. Id. at 551. I remain convinced that in Beard I this court “unqualifiedly and unconditionally held that Beard was excused from exhausting his contractual remedies.” Id. at 552. See Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977) (“The doctrine of the law of the case prohibits the reconsideration of issues which have been adjudicated in a previous appeal in the same case.”).

¶39I dissent.