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Anchorage Police Department v. Feichtinger12/30/1999
[No. 5224 - December 30, 1999]
Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Jonathan H. Link, Judge.
MATTHEWS, Chief Justice, dissenting.
I. INTRODUCTION
A municipal employee sued his union for breach of the union's duty of fair representation because it refused to represent him in an arbitration in which he unsuccessfully challenged his termination. The superior court denied the union's motion for summary judgment, and the union now petitions for review of that denial. We hold that if a union's breach of its duty of fair representation seriously undermines the integrity of the arbitral process, the arbitration decision may lose its preclusive effect. We conclude that a genuine issue of material fact exists as to whether any union breach seriously undermined the integrity of the arbitral process in this case. We therefore affirm the denial of the union's summary judgment motion.
II. FACTS AND PROCEEDINGS
This petition for review arises out of the termination of Eric "Frank" Feichtinger's employment with the Anchorage Police Department. In October 1988 the department arrested Feichtinger and the state brought criminal charges against him. Based on an internal investigation into Feichtinger's alleged criminal conduct, the department terminated him.
Feichtinger had been a member of the Anchorage Police Department Employees' Association (the union) since joining the department. The collective bargaining agreement (CBA) between the Municipality of Anchorage and the union permitted the municipality to discharge an employee for just cause. Feichtinger filed a grievance within a month of his termination. He alleged that the department had terminated him without just cause, and sought reinstatement and back pay. After extensively debating the grievance's merits, the union elected not to accept the grievance for referral to arbitration. Feichtinger asked the union to reconsider its decision, but it declined to do so.
The CBA authorized an employee to proceed to arbitration without union representation if the union refused to accept the grievance. Feichtinger chose to go to arbitration. He and the department agreed that the arbitration would await the resolution of his criminal charges.
A jury acquitted Feichtinger on all criminal charges in January 1990. Following Feichtinger's acquittal, the union's executive board met to reconsider its earlier decision regarding Feichtinger's grievance. It decided not to change its decision.
Arbitration then began. At the start of the arbitration hearing, Feichtinger asked that the proceedings be postponed "until such time as he would be able to bring legal action against the [union] for . . . the financial resources to hire an attorney." The arbitrator denied Feichtinger's request, noting that arbitration is less formal than a court proceeding and that non-lawyers often represent themselves well in arbitration. The arbitrator also told Feichtinger that he could stay and observe the hearing, but that once he left the hearing or declined to participate he could not participate further. Feichtinger left the hearing and did not return.
At the end of the hearing, the arbitrator accepted a pro se brief from Feichtinger containing argument and some motions. Nonetheless, the arbitrator determined that the department had terminated Feichtinger for just cause.
Although the CBA provided that the decision of the arbitrator was to be "binding upon all parties thereto," Feichtinger sued the union, the department, the municipality, the state, arbitrator Eaton Conant, and f
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