Appeal from the Superior Court No.3AN-13-08887CI of the State of Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Vikram N. Chaobal, Anchorage, and Frederick W. Triem, Petersburg, for Appellant.
Gregory S. Fisher and Elizabeth P. Hodes Davis Wright Tremaine LLP, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
A former airline employee sued his former employer for wrongful termination without first attempting to arbitrate his claims under the provisions of a collective bargaining agreement subject to the federal Railway Labor Act. The superior court dismissed the employee's complaint for failure to exhaust his contractual remedies. It also denied him leave to amend his complaint a second time - to add a claim against his union for breaching its duty of fair representation - on the ground that the six-month limitations period for such claims had expired. We hold that the employee's right to bring his claims in state court was not clearly and unmistakably waived under the collective bargaining agreement and he therefore should have been allowed to pursue them. We agree with the superior court, however, that the employee's claim that the union breached its duty of fair representation was time-barred. We therefore affirm in part and reverse in part the judgment of the superior court.
II. FACTS AND PROCEEDINGS
In June 2011 Alaska Airlines charged that Pierre Bernard, one of its baggage handlers, had taken part in drafting and sending a threatening text message to a co-worker and had then deleted a recorded conversation relevant to the ensuing investigation. The company terminated Bernard's employment.
The employment's terms and conditions were governed by a collective bargaining agreement (sometimes abbreviated "CBA") negotiated by Bernard's union, the International Association of Machinists and Aerospace Workers, pursuant to the federal Railway Labor Act (RLA). The collective bargaining agreement provided a three-stage process for grieving termination decisions. The first two stages consisted of an "initial hearing" and a "secondary hearing, " each presided over by a representative of Alaska Airlines, with a union representative in attendance to represent the employee. The result of a secondary hearing could be appealed to the System Board of Adjustment, a three-member arbitration panel consisting of "a Company member, a Union member[, ] and a neutral referee."
Bernard initiated the grievance process through his union, and over the next two months Alaska Airlines held two hearings, each time in the presence of a union representative. The presiding company officers issued written decisions after both hearings upholding Bernard's termination - though the second decision, in August, offered him "the opportunity to resign in lieu of termination, " an offer he did not accept.
A few weeks after the August decision a union representative wrote to Bernard informing him that "[i]f the Union brings your case to an arbitration, there is paperwork you must fill out, " and advising him that he "may acquire a lawyer at any time." The union's written notice to Bernard that it had decided not to appeal is dated November 14, 2011, nearly two months after the 30-day appeal deadline had expired. The union informed Bernard that it had thoroughly reviewed his case, concluded that "we could not sustain our position before the System Board of Adjustment, " and closed its file.
In August 2013, two years after the unappealed decision of the secondary hearing, Bernard filed a complaint against Alaska Airlines in the superior court. He alleged a background to his termination: that in 2009 he had filed a sexual harassment complaint against a supervisor and was ostracized as a result; that he was later unfairly disciplined after a co-worker imposed upon him with inappropriate personal demands; and that the allegedly threatening text message for which he was discharged in 2011 had actually been "sent in jest" in response to "a hostile and threatening text from another employee." He alleged that his termination was in retaliation for his reports of sexual harassment and therefore violated the covenant of good faith and fair dealing.
Alaska Airlines filed a motion to dismiss under Alaska Civil Rule12(b)(1), arguing that (1) the RLA preempted Bernard's claim; and (2) even if not preempted, his claim was precluded because he had failed to exhaust ...