Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Superior Court No. 3AN-11-04522 CI.
William Milks, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.
Stephen F. Sorensen, Simpson, Tillinghast, Sorensen & Sheehan, P.C., Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. MAASSEN, Justice, with whom STOWERS, Justice, joins, dissenting.
FABE, Chief Justice.
An Alaska state trooper was discharged for having consensual sex with a domestic violence victim the morning after assisting in the arrest of the victim's husband. The Public Safety Employees Association (PSEA), the labor organization that represents the Alaska State Troopers, filed a grievance under its collective bargaining agreement with the State of Alaska. The matter went to arbitration. The arbitrator ordered that the trooper be reinstated with back pay after a three-day suspension, concluding that the State did not have just cause to discharge the trooper. The superior court upheld the arbitrator's order of back pay but decided that it could not enforce the ordered reinstatement because the Alaska Police Standards Council had by this point revoked the trooper's police certificate. The State now appeals, arguing that the arbitrator committed gross error and that the arbitrator's order is unenforceable as a violation of public policy.
The keys to this appeal are the level of deference we accord the arbitrator and the very limited nature of the public policy exception. The State and PSEA's collective bargaining agreement provided for binding arbitration to resolve employee grievances regarding disciplinary actions. We generally will not disturb the results of a binding arbitration, even where we would reach a different conclusion were we to review the matter independently. Because no statute, regulation, or written policy prohibited supervisors from engaging in progressive discipline of the trooper, in lieu of discharging him for his misconduct, the arbitrator's decision to impose discipline rather than uphold the termination does not violate any explicit, well-defined, and dominant public policy. Because the arbitrator's award is neither unenforceable nor grossly erroneous, we affirm the superior court's decision to uphold the arbitration award in part.
II. FACTS AND PROCEEDINGS
The following facts are based on the record, the arbitration decision, and the opinion of the superior court. " [W]e give great deference to an arbitrator's decision, including findings of . . . fact."  The Trooper-Grievant was discharged on November 2, 2009. The discharge was based on misconduct that occurred in April 2009, a little over a year after the Trooper-Grievant first entered the trooper training academy and less than two months after he started his position as a state trooper. The Trooper-Grievant entered the trooper academy as a recruit in February 2008, undergoing four months of " training in a variety of subjects including Criminal Code, Domestic Violence, First Aid, Handgun Radar, Search & Seizure, Handgun, and Traffic Stops." Following field training and the completion of his probationary period, the Trooper-Grievant was promoted to the position of Alaska State Trooper in March 2009.
In April 2009 the Trooper-Grievant engaged in the misconduct that led to this case. At the time, he was 24 years old. On April 19 the Trooper-Grievant responded to a request by Trooper C for backup. Trooper C had been dispatched to victim M.H.'s house after another trooper, Trooper G, asked the dispatch center to request a welfare check on M.H. Trooper G, who was an acquaintance of M.H., had received calls from her that day possibly indicating that there was a domestic
disturbance at her house and that she needed assistance.
When Trooper C arrived at M.H.'s house, M.H. appeared to be afraid of her husband, J.H. The husband was intoxicated and became physically aggressive toward Trooper C, who then called for backup. Upon his arrival, the Trooper-Grievant aided Trooper C in restraining J.H. and in transferring him to Trooper C's car. Trooper C interviewed M.H., who reported that J.H. had not struck her but had threatened her verbally and put her in fear. M.H. reported that J.H. was upset about her receiving phone calls from Trooper G, and M.H. noted that J.H. believed she was being unfaithful to him. The Trooper-Grievant was present for portions of Trooper C's interview with M.H.
After Trooper C finished interviewing M.H., he asked the Trooper-Grievant to go over a pamphlet on domestic violence and victim's rights with her while Trooper C interviewed M.H.'s daughter in another part of the house. According to testimony by the Trooper-Grievant and M.H., " [M.H.] flirted with [the Trooper-Grievant] as he read her the victim's rights information." M.H. asked the Trooper-Grievant for his personal cell phone number, but he refused to ...