Petition for Writ of Certiorari — Patterson v. Matanuska Maid, Inc.

Supreme Court, U.S.

oe FILED

‘) 94 O79ONOV . 8 1994

No. 94-

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

WILLIAM L. PATTERSON,

Petitioner,

v.

MATANUSKA MAID, INC., Individually and

Severally; and its agents JOHN SEAWELL,

RON WILDE, JOE VAN TREECK and STEVE

BEVINS, Individually and Severally,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE STATE

OF ALASKA

PETITION FOR WRIT OF CERTIORARI

A. Lee Petersen, Esq.

LAW OFFICES OF A. LEE

PETERSEN, P.C.

1115 West Fireweed

Suite 204

Anchorage, AK 99503

(907) 276-8330

Attorney for Petitioner

QUESTIONS PRESENTED

The petitioner contends that the decision of

the Supreme Court for the State of Alaska

erroneously held his state tort claim to be pre-

emnpted by the Labor-Management Relations Act

(LMRA) and erroneously held his tort claim and

wrongful discharge claim to be time-barred, as

reflected in the following questions:

1. Did the Alaska Supreme Court deny due

process of law and equal protection of laws in

upholding dismissal of the petitioner's claim for

libel under state law on the basis that the claim

was pre-empted by the LMRA and publication of a

defamatory letter was absolutely privileged ina

labor controversy?

2. Did the Alaska Supreme Court err in

holding that petitioner's suits for defamation

and wrongful discharge were time-barred under the

LMRA?

OTHER PARTIES

The State of Alaska was named as a party in

the state court proceedings. Additional parties

were named in the proceeding in the trial court,

but no appeal was pursued as to them. Patterson

named the defendants "individually and severally"

when he was a pro se plaintiff. A related case

is still pending in the United States District

Court for the District of Alaska, Patterson v.

International Brotherhood of Teamsters Local 959,

Case No. A94-147-CV (JKS).

: TABLE OF CONTENTS

ee ee ee ee ee ee ee

gs re © |

I. STATEMENT OF JURISDICTION. .........1

II. APPLICABLE CONSTITUTIONAL AND

Samaveums PROVISIGNS. . . « « « © © © « « oh

III. STATEMENT OF THE CASE. .. ..-« «© © «© © e3

IV. ARGUMENT STATING REASONS FOR

Geueeaewe BOE WEE 6 6 « te et el lel ltl tlt ltl wt 12

A. Patterson's Defamation Claim Was

Not Pre-empted by the Labor

Management Relations Act .......12

B. Patterson's Claims Should Not Be

Time-Barred Under the Labor-

Management Relations Act ....... 18

1. Patterson's Complaint for

defamation was timely under

the applicable statute of

Dr ss w 6 % 0 « » « « « « 20

2. The limitation period on

Patterson's § 301 claims was

tolled. o * e - s* o . e ° . = — . aa 21

V ° CONCLUS ION e io e ° * 2 o o . e e o * e * 7 s 3

APPENDI ».4 * ad a e e e a e 2 e e + > e e a = . A 1

ii

TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 105 S.Ct. 1904, 85

L.Ed.2d 206 (1985) J e * ” . it _ oe - ° . > > # 13

American Pipe and Construction v.

Utah, 414 U.S. 538, 94 S.Ct. 756,

oe ce Tee es we ow ee ee ee ee 2

Conley v. International Brotherhood

of Electrical Workers Local 639, 810

F.2d 913 (Sth Cir. 1987)... . * « 26,5 B29, 2°9

Daniels v. Pipefitters Association

Local Union No. 571, 945 F.2d 906

Fen aes See fF ee oat we ee oe es OO,

DelCostello v. International Brotherhood

of Teamsters, 462 U.S. 151, 103 S.Ct.

2281, 76 L.Ed.2d 476 (1983) .... . aes Bay Oo

Eichman v. Fotomat Corp., 880 F.2d

149 (Sth Cif. 3908) « © ss we He ee eH A 26

Galindo v. Stoody Co., 793 F.2d

1502 (9th Cir. 1986) ° e +. a a e 7 * o o - - * 19

Harris v. Alumax Mill Products, Inc.,

897 F.2d 400 (9th Cir. 1990). ...... 20, 26

International Union of Electrical,

Radio and Machi Wo s cal 790

v. Robbins & Myers, Inc., 429 U.S.

229, 97 S.Ct. 441, 50 L.Ed.2d 427

(1976) a e a 3 e e e a aa « - e * * e ° . 26, 27

Jackson v. Hayakawa, 605 F.2d 1121

(9th Cir. 1979), cert. denied, 445

U. S. 952 (1980) e e — = * 2 . * 2 7” e * . e 24

Lampf, Pleva, Lipkind, Prupis &

Pettigrow v. Gilbertson, U.S. ,

Aas WeGlle Bete EROOEE 6 « 2 we 6 « « 23, 28, 29

Lingle v. Norge Division of Magic

Chef, Inc., 486 U.S. 399, 108 S.Ct.

1677, 100 L5BG.30 410 41986)... .. 2. se © 3

Linn v. United Plant Guard Workers

of America Local 114, 363 U.S. 53,

86 S.Ct. 657, 15 L.Ed.2d 582 (1986) ..... 18

Nelson v. International Paint Co.,

716 ¥.24 646 (9th Cir. 1983). ... . «sss 26

Retail Clerks Union Local 648, AFL-CIO

v. Hub Pharmacy, Inc., 707 F.2d 1030

(Pee Sees Bees) «+ « « ee et te te 28, 25, 29, 3

Sever v. Alaska Pulp Corp., 978 F.2d

1529 (9th Cir. Bweees 6 6 @ * se « = « & 2

Tellez v. Pacific Gas & Electric

Co., Inc., 817 F.2d 526 (9th Cir. 1987)

Gore, Gemiee, 106 §.Ct. 251. « « « « « « 16, 17

United Steel Workers of America v.

Rawson, 495 U.S. 362, 110 S.Ct. 1904,

AOS 2. BG.30 362 (1990). . 2. 2 2 2 0 eo ew 12

Whittaker v. Whittaker Corp., 629 F.2d

516 (9th Cir. 1982), cert. denied,

SOG UiOs 20gn CERO ess eo we we te hl hl hl hl tl} 2

Zipes v. Trans World Airlines, Inc.,

43> Us8. Bes, 162 6.Ct. 1127, 71

OE ea eee |

co O D STATUTES

United States Constitution,

pO ES ee ee ee ee ee ee ee ee ee ee ee

28 WeweGe 1257. * e ° * @ * os 7. 7 e * ” e a7 . me |

- oe ee ee a a i i oe ee a ey

29 U.S.C. 185(a), (b) and (c) ... 1, 2, 3, 10

Alaska Statutes 09.10.070 . ..... + +. «3, 21

1

I. STATEMENT OF JURISDICTION

The petitioner respectfully prays that a

writ of certiorari be issued to review Opinion

No. 4108, dated August 5, 1994 in Case No. s-

4125, _ P.2d _, of the Supreme Court of the

State of Alaska. See, Appendix at A2 to A34. A

timely petition for rehearing was denied on

September 2, 1994. See, Appendix at Al.

This court has jurisdiction pursuant to 28

U.S.C. 1257. This petition is timely filed in

accord with 28 U.S.C. 2101.

II. APPLICABLE CONSTITUTIONAL AND STATUTORY

PROVISIONS

This case involves rights protected by

Amendment XIV, §1 to the United States

Constitution, which provides:

---nor shall any State deprive any person of

life, liberty, or property without due

process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

This case also involves the Labor-Management

Relations Act, which, in §301, makes provision

for suits by and against labor organizations, 29

2

U.S.C. 185(a), (b) and (c), which provide:

Venue, amount, and citizenship

(a) Suits for violation of contracts

between an employer and a labor organization

representing employees in an_ industry

affecting commerce as defined in this

chapter, or between any §such_ labor

organizations, may be brought in any

district court of the United States having

jurisdiction of the parties, without respect

to the amount in controversy or without

regard to the citizenship of the parties.

Responsibility for acts of agent; entity for

purposes of suit; enforcement of money

judgment

(b) Any labor organization which repre-

sents employees in an industry affecting

commerce as defined in this chapter and any

employer whose activities affect commerce as

defined in this chapter shall be beund by

the acts of its agents. Any such labor

organization may sue or be sued as an entity

and in behalf of the employees whom it rep-

resents in courts of the United States. Any

money judgment against a labor organization

in a district court of the United States

shall be enforceable only against the

organization as an entity and against its

assets, and shall not be enforceable against

any individual member or his assets.

Jurisdiction

(c) For the purposes of actions and pro-

ceedings by or against labor organizations

in the district courts of the United States,

district courts shall be deemed to have

jurisdiction of a labor organization (1) in

the district in which such organization

maintains its principal office, or (2) in

3

any district in which its duly authorized

officers or agents are engaged in

representing or acting for employee members.

State and federal courts have concurrent

jurisdiction of §301 suits. Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399, 108

S.Ct. 1877, 1880 n. 2, 100 L.Ed.2da 410 (1988).

State as well as federal courts must apply

federal law in deciding these claims. Id.

Patterson contends that the statute of

limitations applicable to his defamation claim is

not the limitation for §301 actions, but rather

is the applicable state statute, AS 09.10.0709,

which provides:

Actions to be brought in two years. No

person may bring an action (1) for libel,

Slander, assault, battery, seduction, false

imprisonment, or for any injury to the

person or rights of another not arising on

contact and not’ specifically provided

otherwise; (2) upon a statute for forfeiture

or penalty to the state; or (3) upon a

liability created by statute, other than a

penaldy or forfeiture; unless commenced

within two years.

III. STATEMENT OF THE CASE

Patterson was employed as a delivery driver-

Salesman by Matanuska Maid, Inc. (Mat-Maid) from

4

1979 to 1986.(CR 402, 1100). Mat-Maid began as a

cooperative for processing, distributing and

marketing dairy products. Difficult financial

problems culminated in reorganization of the firm

under the Bankruptcy Code in 1984. The Bankruptcy

Court allowed the State of Alaska, the major

creditor, to take over management of the company

(CR 1099). John L. Seawell was appointed managing

agent for the state on November 15, 1984 (CR 87).

Seawell brought in a new management team, which

resulted in events leading to Patterson's

discharge on April 30, 1986 (CR 1100).

International Brotherhood of Teamsters Local

959 (Local 959) represented Mat-Maid's employees,

but there was no signed collective bargaining

agreement (CBA) in effect between Local 959 and

Mat-Maid from November 18, 1983 until a new two-

year CBA became effective April 1, 1986. During

the interim, the employer operated under what it

called an implemented last offer agreement, not

officially recognized by the union (CR 1099-

1100).

5

Patterson is a United States Army Veteran

who, after serving a tour of duty in Vietnam and

being honorably discharged, was diagnosed as

suffering from Post-Traumatic Stress Disorder

(PTSD) (Patterson Depo. at 38, 41, 72-75, 445).'

Despite the PTSD, Patterson's personnel file con-

tained no documented disciplinary incident prior

to June 3, 1985 and management witnesses acknow-

ledged in the arbitration hearing that Patterson

ordinarily demonstrated good work habits and was

considered a desirable employee (CR 1100, 1103).

Between June 3, 1985 and April 30, 1986,

Patterson's personnel file contains entries of

about a dozen deficiencies, including absent

reports, verbal reports regarding load sheets and

verbal reports regarding customer contacts, but

no formal disciplinary action (CR 1103).

On February 6, 1986, Steve Bevins,

Patterson's immediate supervisor, wrote a letter

to Robert J. Sinnett, Secretary-Treasurer of

‘Patterson's 215-page deposition with

exhibits is in the court file (CR 134-369).

6

Local 959, alleging misconduct by Patterson,

including alleged placing of six capsules of

Tranxene in Bevins' can of Coca-Cola; late

evening abusive telephone calls to Bevins' home

while under the influence of alcohol and/or

drugs, including name-calling and_ threats;

problems with the battery in Patterson's route

truck requiring four jump starts by Bevins in

four months, although the battery was new and

other drivers had no problems with it; obscene

calls at all hours of the day and night to

Bevins' home and the home of a _ non-union

employee, including alleged obscenities to

spouses, and obscene calls to one of the office

girls; customer complaints concerning Patterson's

alleged deliberate failure to follow instructions

and coverup attempts by Patterson (CR 84-85).

Patterson denied the allegations in a letter to

Seawell and requested an apology. Patterson also

obtained and supplied letters from customers

referred to in Bevins' letter, refuting Bevins'

allegations (CR 1115-1118), and a repair order

7

establishes that the truck in question had

serious problems with the electrical system (CR

1102, 1113). The office girl referred to in

Bevins' letter denied Bevins' allegations at the

arbitration hearing (CR 1102) and the company

could present only hearsay testimony about

alleged calls to Bevins' wife and the wife of the

non-union employee (CR 1101).

On April 30, 1986, at the beginning of

Patterson's work shift, he drove his company

truck to Local 959 headquarters hoping to see

Sinnett, the Secretary-Treasurer of Local 959,

to express his views about a provision of the

CBA, which was still under negotiation (Patterson

Depo. at 93, 94; CR 1104). While waiting to see

Sinnett, Patterson took a coffee break in the

restaurant on the premises and completed his

morning paperwork before making his deliveries.

After about 20 minutes, Patterson left without

seeing Sinnett. While he was stopped at a stop

sign at the parking lot exit, his truck was rear-

ended by a pickup truck. Patterson's truck

8

sustained no damage and the other driver was

cited for the accident. Shortly after Patterson

had completed his deliveries and returned to Mat-

Maid, he was given a termination notice by

Seawell, the general manager (Patterson Depo. 92,

93; CR 1104). The termination notice stated:

This is notice of termination of your

employment at Matanuska Maid effective

immediately.

Reasons for your discharge include:

Unauthorized use of company equipment for

personal use.

Gross disobedience.

Second accident within a year involving

property damage to others.

(CR 1081). Patterson had been involved in an

accident on May 27, 1985, which also was

attributable to the other driver (CR 1103).

Local 959 filed a grievance on Patterson's

behalf. On June 23, 1986, a hearing was held

before an arbitrator to determine if the termina-

tion of Patterson was for just cause and, if not,

what was the remedy? (CR 1099). On July 2, 1986,

the arbitrator made his Decision and Award that

ell

9

Mat-Maid had just cause to terminate Patterson's

employment, dismissing Patterson's grievance (CR

1112). The record does not establish when

Patterson was first informed of the arbitrator's

decision, but, because the decision is dated July

2, which was a Wednesday, and it was distributed

by mail, since Friday, July 4, was-a holiday, it

appears certain that Patterson did not become

aware of the decision until at least Monday, July

7, 1986, possibly later. See, Opinion of the

Alaska Supreme Court at Al17.

On January 6, 1987, Patterson filed a

Complaint for Discrimination in Employment with

the United States Department of Labor, Case No.

J870004, which was not finally determined until

March 11, 1993.

On February 5, 1988, Patterson, pro se,

filed a Complaint in the Superior Court for the

State of Alaska, Case No. 3AN-88-1093 Civil,

against Matanuska Maid, Inc., and its agents John

Seawell, Ron Wilde and Steve Bevins, alleging

that he had been maliciously defamed by the

10

publication of Bevins' February 6, 1986 letter to

Sinnett and the republication of that letter

during the arbitration proceeding (CR 27-32).

On May 2, 1988, Patterson, pro se, filed

another Complaint in the Superior Court for the

State of Alaska, Case No. 3AN-88-4692, naming the

same defendants and, in addition, Joe Van Treeck

of Matanuska and Local 959 as defendants (CR 1-

12). The Complaint includes allegations that Mat-

Maid wrongfully terminated Patterson and Local

959 breached its duty of fair representation. The

suit was stayed as to Local 959 because it was in

Chapter 11 Bankrutpcy »(CR 24-25). Upon motion of

Mat-Maid, the court ordered the two cases

consolidated on November 21, 1988 (CR 47-48).

On February 6, 1989, Patterson, still acting

pro se, added the State of Alaska as a defendant

(CR 982-985, 1004-1005).

On April 14, 1989, Mat-Maid filed a motion

for summary judgment asserting that Patterson's

claims were pre-empted by §301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. 185,

i

11

and that all of Patterson's claims were time-

barred by the six-month limitation of action

applicable to §301 causes of action (CR 76-90).

The Superior Court granted Mat-Maid's motion for

summary judgment against all of Patterson's

claims on June 19, 1989 (CR 524-525) and entered

final judgment in favor of Mat-Maid and its

agents on August 10, 1989 (CR 562-563). The

Superior Court had granted summary judgment to

the state on May 1, 1989 (CR 1143-1144).

On November 4, 1992, the Alaska Supreme

Court granted Patterson the right to file a late

appeal (CR 1150-1152).

The Alaska Supreme Court issued its Opinion

affirming the Judgment on August 5, 1994

(Appendix at A2 to A34) and denied a timely

petition for rehearing on September 2, 1994

(Appendix at Al).

12

IV. SONS _ FO TING

THE WRIT

A. Patterson's Defamation Claim Was Not

Pre-empted by the Labor Management

Relations Act.

Patterson asserted his tort claim for defa-

mation based on the publications of the February

6, 1986 letter from Bevins to Sinnett in state

court under state law. Torts asserted pursuant

to state law are pre-empted by §301 of the LMRA

only when they conflict with federal law or would

frustrate the federal scheme, or when the court

discerns from the totality of the circumstances

that Congress sought to occupy the field to the

exclusion of the States. Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 1910,

85 L.Ed.2d 206 (1985). See, also, United Steel

Workers of America v. Rawson, 495 U.S. 362, 369,

110 S.Ct. 1904, 1909, 109 L.Ed.2a 362 (1990);

Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1540-

41 (9th Cir. 1992). A state cause of action is

not pre-empted if it confers non-negotiable

state-law rights on an employee independent of

ale hie Nan ANS we tee. tm

13

any right established under ae CBA. is-

Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912. If

evaluation of the tort claim is not inextricably

intertwined with consideration of the terms of a

labor contract, it is not pre-empted. Id. The na-

ture of the state tort is a matter of state law,

but the question of whether the tort is suffi-

ciently independent of federal contract interpre-

tation to avoid pre-emption is a question of

federal law. 4710U.S. at 214, 105 S.Ct. at 1912.

In Allis-Chalmers, the tort involved was

alleged bad faith in adjusting an insurance claim

which derived from the implied covenant of good

faith and fair dealing in the CBA. Since the tort

was intrinsically related to the nature and

existence of the contract and rooted in the

expectations of the parties that must be

evaluated by federal contract law, it was held to

be preempted. 471 U.S. at 216-220, 105 S.Ct. at

1914-16.

The tort asserted by Patterson in his Con-

Plaint dated February 5, 1988, however, was en-

14

tirely independent of any CBA. It did not derive

from any rights or obligations established by the

contract, nor did it require interpretation or

application of any of the terms of the CBA.

Mat-Maid contended that the publications of

the Bevins letter were absolutely privileged be-

cause it had been its regular custom and practice

to informally confer with the union on labor

issues to prevent them from becoming serious

labor disputes (CR 427). Mat-Maid asserted that

it was operating under an implemented last offer

agreement at the time of the initial publication

of the letter, but it never disclosed in the

record any of the terms of the alleged implemen-

ted agreement. At the time the letter was pub-

lished at the arbitration hearing, a new CBA was

in effect, and Mat-Maid asserted that the

preamble (Article 1.01) and Articles 9.01 and

9.02 provided for informal conferences and con-

ciliation and direct communication of complaints

by the employer to union representatives apart

from initiation of formal grievance proceedings

15

(CR 426). The pertinent portion of Article 1.01

states, "The purposes of this Agreement are to

provide for the settlement of labor disagreements

by conference..." (CR 92). Article 9.01 is merely

a general statement of the intent of the parties

to follow the procedures stated thereafter in the

orderly and peaceful resolution of disputes (CR

97). Article 9.02 states:

Any dispute that arises between the employee

and the employer or any complaint or

grievance on the part of both or one, said

grievance, complaint or dispute shall be

submitted to the Local Union within thirty

(30) days to be eligible to receive

assistance of the Local Union.

(CR 97). Articles 9.03 through 9.11 specify the

procedures for bringing a grievance, complaint or

dispute and the arbitration thereof, but there is

no provision for Mat-Maid to file a dispute,

complaint or grievance without seeking

arbitration (CR 97-98).

The Bevins letter did not seek arbitration,

nor did it give notice of any suspension or

termination. When Patterson was terminated on

April 30, 1986, the termination notice neither

16

referred to the February 6, 1986 letter nor

anything stated in that letter.

In Tellez v. Pacific Gas & Electric Company,

Inc., 817 F.2d 526, 538 (9th Cir. 1987), cert.

denied, 108 S.Ct. 251, the court stated, "One can

sue for defamation regardless of employment

status or union membership." That case involved

a suspension letter which alleged that the

employee had been observed to purchase cocaine

from another employee. The Court of Appeals

stated further:

The agreement (the CBA) simply does not

govern Bain's allegedly defamatory conduct.

It neither requires management to _ send

written notice of suspension nor provides

guidelines in the event such notice is sent.

Thus, Bain could not have been acting under

the terms of the collective bargaining

agreement when he sent the _ suspension

letter. It follows that the resolution of

Tellez's defamation claim does not require

interpretation or consideration of the

agreement.

...We therefore conclude that permitting

Tellez's state defamation claim to proceed

does not impinge on the authority of the

arbitration process contemplated by the

parties' collective bargaining agreement.

|

i ‘ ¢ 4

17

(Footnotes omitted). 817 F.2d at 538. The Court

of Appeals then distinguished the Tellez case

from the cases cited by the Alaska Supreme Court

in support of its holding that the publication of

Bevins' letter was absolutely. privileged.

(Appendix, A32). The same distinguishing factors

apply to this case. In fact, this case is even

further removed from the labor contract than

Tellez because in that case the defamatory letter

was a "suspension letter," whereas here the

letter did nothing whatsoever to invoke or cause

the invocation of the CBA. Consequently there is

no basis for pre-emption of Patterson's

defamation claim and, likewise, there is no basis

for any privilege to attach to the defamatory

statements in the context of the LMRA.

Furthermore, Patterson asserted in his

Complaint that the defamatory statements were

made with malice and were either deliberately or

recklessly untruthful. Even in the labor

relations context, such statements enjoy no

constitutional protection and cannot be condoned.

18

inn v. Unit uard W fe) erica

Local 114, 363 U.S. 53, 63, 86 S.Ct. 657, 663, 15

L.Ed.2d 582 (1966). A cause of action based on

such libelous statements is not pre-empted. 383

U.S. at 64, 86 S.Ct at 663-664.

By holding that Patterson's state tort claim

for defamation was pre-empted by the LMRA and

that the publications of the Bevins letter were

privileged as though they were in the context of

a labor dispute, the Alaska Supreme Court

erroneously deprived Patterson of his day in

court and in reality denied him equal protection

of laws and also deprived him of his property

(his cause of action) without due process of law.

Patterson is entitled to litigate his claim and

have it decided by a jury of his peers.

B. Patterson's Claims Should Not Be Time-

Barred Under the Labor-Management

Relations Act.

In applying for summary judgment as to

Patterson's claims for defamation and wrongful

termination, after the two lawsuits were consoli-

dated, Mat-Maid took the position that all claims

Soci AL NaN RR eal PEN

ata aden Mia AN ei Se ev et

19

were étindupaseed in a hybrid §301/Fair Represen-

tation action, which is a dual action against the

union for breach of its duty of fair representa-

tion implied under the LMRA and against the

employer for breach of the CBA. See, DelCostello

v. International Brotherhood of Teamsters, 462

U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2da

476 (1983). A six-month limitation period is

applied to such claims. DelCostello, 462 U.S. at

169-170, 103 S.Ct. at 2293-94.

Assuming the six-month limitation is applic-

able, the record in this case is unclear as to

when it began to run. It is clearly established

that the limitation period does not begin to run

until the employee learns of the arbitrator's

decision. Galindo v. Stoody Co., 793 F.2d 1502,

1509 (9th Cir. 1986). Other court decisions

confirm that such a hybrid cause of action does

not accrue and the six-month statute of limita-

tions does not begin to run until the employee

discovers that the union will take no further

action on his grievance. Daniels v. Pipefitters

20

Association Local Union No. 571, 945 F.2d 906,

922 (7th Cir. 1991); Harris v. Alumax Mill

Products, Inc., 897 F.2d 400, 404 (9th Cir.

1990). In this case, the arbitrator's decision

is dated July 2, 1986 and it was mailed by the

arbitrator to the union representative. Since

July 2 in 1986 was a Wednesday, it appears that

Patterson could not have been informed before the

July 4th holiday on Friday, so the only fair

inference is that Patterson did not know about it

until at least Monday, July 7, 1986. Thus, the

record is sufficient to establish that the

limitation could not have begun to run before

that date, but it is insufficient to determine

exactly when Patterson was informed that the

union would take no further action on his

grievance. Moreover, Patterson has never conceded

that the six-month limitation applied to his

defamation claims.

1. Patterson's Complaint for defamation

was timely under the applicable statute

of limitations

As shown previously, Patterson's Complaint

21

for defamation is a tort under state law and it

should not have been pre-empted by the LMRA. The

applicable statute of limitations is two years as

provided by AS 09.10.070, quoted supra at 3-4.

2. The limitation period on Patterson's

§ 301 claims was tolled.

In DelCostello, 462 U.S. at 172, 103

S.Ct. at 2295, this court remanded for a deter-

mination as to whether the six-month limitation

period had been tolled, thereby recognizing that

tolling may be applicable in such cases.

Statutes of limitations are not jurisdictional,

so they are subject to waiver and tolling when

equity so requires. Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct.

1127, 1135, 71 L.Ed.2d 234 (1982). In deciding

whether to toll a limitation period, "[t]he

ultimate question is one of the congressional

intent ‘whether tolling the limitation in the

given context is consonant with the legislative

scheme.'" Whittaker v. Whittaker Corp., 639 F.2d

516, 527 (9th Cir. 1982), cert. denied, 454 U.S.

22

1031 (1981), quoting, American Pipe and

Construction v. Utah, 414 U.S. 538, 558, 94 S.Ct.

756, 768, 38 L.Ed.2d 713 (1974).

Patterson's cause of action accrued sometime

after July 7, 1986, but the record does not

establish exactly when it accrued. Patterson

filed a complaint for wrongful termination with

the Department of Labor on January 6, 1987, which

appears certainly to have been within six months

of the accrual of his cause of action. Because

Patterson was without employment and,

consequently, representing himself, the record in

this case contains very little information about

the nature and progress of his complaint to the

Department of Labor, although he _ testified

briefly about it in his deposition (Patterson

Depo. at 46-47). Summary judgment was granted

against Patterson on the basis of a statute of

limitations without anything in the record

establishing when the limitation period began to

run and little information to indicate whether it

should have been tolled.

23

This court has consistently recognized that

time requirements in lawsuits are customarily

subject to equitable tolling. See case citations

in Lampf, Pleva, Lipkind, Prupis & Petiaqrow v.

Gilbertson, — Meme . , £33 8.08. 2773, 2783

(1991).

At the time Patterson's hybrid §301 cause of

action accrued, the applicable law to be

considered, if Patterson as a prospective pro se

litigant was able to find and apply the law, was

that a six-month limitation period applied and it

could be tolled in a context consonant with the

legislative scheme. In Retail Clerks Union Local

648, AFL-CIO v. Hub Pharmacy, Inc., 707 F.2d

1030, 1033 (9th Cir. 1983), the court had

explained:

Equitable tolling should not be applied in

a manner that frustrates national labor-

management policy. We believe that policy is

fostered by the NLRB attempt to resolve an

issue before a party resorts to a §301

action. Thus, if tolling is appropriate in

this case, it would not be inconsistent with

the Constitution or with the applicable

federal labor laws.

It also had been established that where a

24

plaintiff adopts a single course of action which

is dismissed or otherwise fails, courts generally

allow the plaintiff to pursue a second remedy

based on the same right or claim, tolling the

limitations period during the pendency of the

initial defective action. Nelson v. Internationa

Paint Company, 716 F.2d 640, 645 (9th Cir. 1983).

In order to establish that tolling should apply,

a plaintiff had to show that his pursuit of the

initial remedy gave notice to the defendant of

the existence of a legal claim against it, the

defendant must not be prejudiced in its ability

to gather evidence by the bringing of the second

claim, and the plaintiff must have acted in good

faith. Jackson v. Hayakawa, 605 F.2d 1121, 1127

(9th Cir. 1979), cert. denied, 445 U.S. 952

(1980). Not until after Patterson had elected to

file his wrongful discharge claim with the

Department of Labor did the Ninth Circuit Court

of Appeals pronounce that the filing of an

optional NLRB action did not toll the limitation

for the filing of a §301 claim. Conley v.

ir rice land i! a

25

International Brotherhood of Electrical Workers,

Local 639, 810 F.2d 913, 916 (9th Cir. 1987). In

doing so, the court stated, "Allowing tolling in

this circumstance would frustrate the national

policy of prompt resolution of labor disputes,"

which was exactly the opposite of what the same

court had said in Hub Pharmacy, = supra.

Furthermore, in DelCostello, this court indicated

at least as much concern about a limitation

period being too short as too long. 462 U.S. at

167-6, 103 &.Ct. at 2292.

In Conley, the court made the illogical

pronouncement that, "Equitable tolling is most

appropriate when plaintiff is required to avail

himself of an alternate course of action as a

precondition to filing suit." 810 F.2d at 915.

But equitable tolling does not apply when an

alternate course of action is a precondition to

filing suit, because a cause of action does not

accrue until preconditions have been exhausted.

ni Vv. ipefitters Association Local Union

No. 597, 945 F.2d 906, 922 (7th Cir. 1991). In

26

Eichman v. Fotomat Corp., 880 F.2d 149, 155 (9th

Cir. 1989), a different panel, without reference

to Conley, explained:

Equitable tolling applies when the plaintiff

seeks a different remedy for the same wrong.

However, equitable tolling is not applicable

when a plaintiff has pursued a remedy as to

only one of several distinct wrongs.

The first sentence of this pronouncement is

applicable in Patterson's case. The second

sentence was applicable in Harris v. Alumax Mill

Products, Inc., 897 F.2d 400 (9th Cir. 1990) in

which the court held that a §301 claim was not

tolled by the filing of a worker's compensation

claim. Without reference to Eichman, the Harris

court unnecessarily relied on the illogical

pronouncement in Conley. Harris, 897 F.2d at 404.

In Harris, the court also relied on this

court's decision in International Union of

Electrical, Radio and Machine Workers, Local 790

v. Robbins & Myers, Inc., 429 U.S. 229, 236-40,

97 S.Ct. 441, 446-49, 50 L.Ed.2d 427 (1976). In

that case, a majority of this court analyzed the

applicability of tolling the limitation period

27

for filing a Title VII claim under the Civil

Rights Act of 1964 while pursuing a grievance of

a discharged employee under the applicable

collective bargaining agreement. The majority of

the court concluded that the Title VII time

limitation was not tolled. But that conclusion

appears to be limited to that specific legisla-

tion in which Congress emphasized the existence

and independence of the two remedies. 429 U.S. at

237, 97 S.Ct. at 447. There is no similar em-

phatic expression of congressional intent

applicable in this case. Even so, in Robbins &

Myers, four members of this court, as then

constituted, declined to join in that part of the

opinion, but concurred in the result on the basis

that Congress had lengthened the limitation

period after the cause of action had initially

accrued and the new limitation was applicable.

Although, as has been noted, all members of

this court appear consistently to have recognized

the desirability of the doctrine of equitable

tolling of limitation periods, how and under what

28

circumstances tolling and related concepts are to

be applied has resulted in many differences of

opinion among the members of this court. For

example, in Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson, supra, there are five

different opinions, with only four members of the

court joining in all of the main opinion. Justice

Stevens, in his opinion, recognized that the

traditional rule of borrowing from analogous

state limitations is often chaotic, but he said

it would still be preferable for Congress, rather

than the court, to legislate any change. 111

S.Ct. at 2784. But the pithy comments of Justice

O'Connor are more applicable to this case. She

wrote:

In holding that the respondents' suit is

time-barred under a limitation period that

did not exist before today, the Court

departs drastically from our established

practice and inflicts an injustice on the

respondents.

111 S.Ct. at 2785. Justice O'Connor continued:

Notwithstanding respondents' entirely proper

reliance on this limitations period, the

Court now holds that their suit must be

dismissed as untimely because respondents

did not comply with a federal limitations

29

period announced for the first time today--

four-and-one-half years after the suit was

filed. Quite simply, the Court shuts the

courthouse door on respondents because they

were unable to predict the future.

111 S.Ct. at 2786. Although the facts of this

case are somewhat different, the essential facts

are analogous. At the time Patterson, pro se,

elected to pursue his claim administratively with

the Department of Labor, the law appeared to be

clear that doing so would toll the limitations

period applicable to his §301 claims. But now,

*he state courts have shut the courthouse door on

Patterson because he was unable to predict the

future. As Justice Kennedy commented,

That (looking to limitations periods

Congress established under the Act) does not

relieve us, however, of our obligation to

reject a limitations rule that would

"frustrate or significantly interfere with

federal policies."

111 S.Ct. at 2788. Federal policies at the time

Patterson was determining his course of action

favored a party attempting to resolve an issue

administratively before resorting to a §301

action. i erks Union Local 648 v. Hub

30

Pharmacy, 707 F.2d at 1033.

V. CONCLUSION

Patterson has been denied due process of law

as to his state tort action by unwarranted pre-

emption of it into his §301 cause of action; and

he has been denied due process of law as to his

§301 cause of action by the application of

concepts of tolling the limitation period which

did not exist at the time Patterson's cause of

action accrued.

This court is urged to grant a writ of

certiorari so that this case may be considered on

the merits and then to determine that the

Judgment of the Alaska Supreme Court should be

reversed.

Respectfully submitted the LZ) day of

November, 1994.

LAW OFFICES OF A. LEE PETERSEN, P.C.

Attorneys for Petitioner

1115 West Fireweed Lane, Suite 204

Anchorage, Alaska 99503

(907) 276-8330

Al

F APPELLATE COURTS CLERK

R 303 K STREET

0 ANCHORAGE, AK 99501

M

Case Title: PATTERSON Vv MATANUSKA MAID INC

Suprem Court Case #: S4125

eeeKE OR DE R #kkkKe 09/01/94

IT IS ORDERED: THE PETITION FOR REHEARING FILED

ON AUGUST 15, 1994. IS DENIED. ENTERED AT THE

DIRECTION OF THE SUPREME COURT ON SEPTEMBER 1,

1994,

CC: JUSTICES, JUDGE HUNT, APPEALS DIVISION 3AN-

88-1093 CIVIL. PUBLISHERS (OP#4108. 8/5/94). TRW

Clerk of the Appellate Courts

A2

THE SUPREME COURT FOR THE STATE OF ALASKA

WILLIAM J. PATTERSON, a.

)Supreme Court

Appellant, )No. S-4125

)

Vv. )Superior Court No.

) 3AN-88-1093 CI

STATE OF ALASKA, DEPARTMENT OF)

AGRICULTURE, Individually and ) OPINION

Severally; MATANUSKA MAID, )

INC., Individually and )[No. 4108 - August

Severally; and its agents ) 5, 1994]

JOHN SEAWELL, RON WILDE, )

STEVE BEVINS and JOE )

VAN TREECK, Individually )

and Severally, )

)

)

Appellees.

Appeal from the Superior Court of the State

of Alaska, Third Judicial District,

Anchorage, Karen L. Hunt, Judge.

Appearances: A. Lee Petersen, Law Offices of

A. Lee Ptersen, P.C., Anchorage, for

Appellant. Parry Grover, James H. Juliussen,

Davis Wright Tremaine, Anchorage, for

Appellees Matanuska Maid, John Seawell, Ron

Wilde, Steven Bevins, and Joe Van Treeck.

Kevin Saxby, Assistant Attorney General,

Anchorage, Charles E. Cole, Attorney

General, Juneau, for Appellee State of

Alaska.

Before: Moore, Chief Justice, Rabinowitz,

Matthews and Compton, Justices. ([Burke,

Justice, not participating. ]}

RABINOWITZ, Justice.

' Justice Burke participated in oral argument but

retired from the court before the opinion was

rendered.

I. INTRODUCTION

William Patterson initially sued Matanuska

Maid and its agents (Mat-Maid) for defamation.

Patterson then filed a second lawsuit against the

State of Aalska, Department of Agriculture

(State) and Mat-Maid for wrongful termination.

Patterson now appeals from the superior court's

grant of summary judgment in favor of the State

and Mat-Maid on both claims.

II. FACTS AND PROCEEDINGS

Patterson had been employed by Mat-Maid for

seven and one-half years, during which time the

company came under new management. Mat-Maid had

experienced financial difficulties, and the

federal bankruptcy court ordered reorganization.

The bankruptcy court authorized the State to

Operate the company, and a new managing agent,

John Seawell, was appointed in November 1984.

Patterson was involved in an accident with

a company truck in June 1985. He was reprimanded,

and a corrective action report was placed in his

file. This incident, coupled with the change in

A4

management and Patterson's problems associated

with post-traumatic stress disorder,’

appear to

have triggered a series of absences from work,

customer complaints about Patterson, and

reprimands regarding his performance of routine

duties. Mat-Maid took no formal disciplinary

action against Patterson for any of these

reported incidents.

Starting in April 1986, a collective

bargaining agreement between Mat-Maid and

Teamsters Local 959 controlled Patterson's terms

of employment.° The agreement required "just

cause" for termination of employment and also

‘Patterson is a Vietnam veteran who has been

diagnosed as suffering from post-traumatic stress

disorder. His psychotherapist states that as a

result of his war experiences Patterson has

"experienced a great deal of problems in his

relationships with supervisors in his work over

the years." It appears that after the change in

management "the relationship between Mr.

Patterson and his supervisors became very

adversarial."

*Before the collective bargaining agreement

went into effect, Mat-Maid looked to an employer-

implemented last offer agreement, which Local 959

had never endorsed, to govern relations with

employees.

A5

contained mandatory grievance and arbitration

procedures.?

On February 6, 1986, Steve Bevins,

Patterson's immediate supervisor, wrote a letter

to the secretary-treasurer of Local 959, Robert

J. Sinnett, asserting misconduct by Patterson.

Bevins alleged that Patterson tried to poison him

and that Patterson was calling his home making

obscene remarks to his spouse. The letter also

said that Patterson made obscene calls to other

employees, and that Bevins was concerned about

Patterson's stability and performance. Essen-

tially, the letter asked Local 959 to intervene

and attempt to straighten out the situation, and

stated that if problems with Patterson's behavior

continued, he would be fired.

Patterson was subsequently involved in a

second automobile accident on April 30, 1986. At

the time of the accident Patterson had detoured

‘The agreement specified that the procedures

therein would be "the sole means of resolving

disputes, complaints, or grievances." Under these

procedures, arbitration would be a last resort.

ill

A6

without permission from his delivery route. He

drove to the Teamsters Building in an attempt to

gain Sinnett's permission to attend a meeting

between Local 959 and Mat-Maid. As he left the

parking lot a pick-up truck collided with the

rear of his delivery truck. Patterson was

terminated for cause that same day.

Patterson subsequently filed a termination

grievance, which Local 959 took to arbitration on

his behalf. An arbitration hearing was held and

on July 2, 1986, the arbitrator rendered a

decision and award in favor of Mat-Maid. Neither

Patterson nor Local 959 appealed from the

arbitration decision.

On February 5, 1988, Patterson file a pro se

tort action for defamation against Mat-Maid. On

May 2, 1988, Patterson filed a second lawsuit for

wrongful termination against Mat-Maid, Local 959

aud its officers, and the arbitrator. Both

actions were based on the conduct of Mat-Maid and

Local 959 during Patterson's employment and the

subsequent grievance proceedings. According to

| A7

Patterson's complaint, the arbitrator "admitt[ed]

unsubstantiated, irrelevant, and grossly hearsay

evidence," sustained Patterson's termination on

grounds other than those charged, "overstepp[ed]

his bounds," and "ignor[ed) his duty as an

impartial judge." The two cases were subsequently

consolidated by superior court order. on February

6, 1989, Patterson filed a document titled

"Addition to Plaintiff's List of Defendants in

Above Mentioned Cases," in which for the first

time he named the State as a defendant in the now

consolidated lawsuits. The State and Mat-Maid

thereafter filed separate summary judgment

motions.

The superior court granted summary judgment

in favor of the State in May 1989, on the grounds

that Patterson had not named the State as a party

until after the statute of limitations for

wrongful discharge and defamation had run. The

Superior court also held that Patterson's claim

against the State did not relate back to the date

of his original complaints, see Alaska R. Civ. P.

A8

15(c), because he was not mistaken as to the

identity of the proper party.*

Without comment, the superior court granted

summary judgment in favor of Mat-Maid in June

1989. The court entered final judgment in favor

of Mat-Maid on August 10, 1989. Now represented

by counsel, Patterson appeals from the grants of

summary judgment to the State and Mat-Maid.°

“All claims against Local 959's officers

were dismissed by superior court order in August

1988. The superior court on that date also

ordered a stay of proceedings against Local 959

pursuant to the United States Bankruptcy Code, 11

U.S.C. § 362. In September, the superior court

additionally dismissed all claims against the

arbitrator.

>In Patterson v. State, Mem. Op. & J. No.

0642 (Alaska Nov. 4, 1992), this court granted

Patterson leave to file a late appeal from the

superior court's final judgment of August 10,

1989. The State now contends that because

Patterson did not explicitly appeal the superior

court's May 1, 1989 grant of summary judgment to

the State, he cannot challenge that judgment

here. The superior court's judgment was titled

"Order Granting Final Summary Judgment," and the

State now characterizes this determination as a

proper final judgment.

The State is mistaken. If an action involves

multiple claims or multiple parties, and some

claims are adjudicated before others, then no

appeal may be taken until the court has disposed

of the entire case on all substantive issues,

A9

III. DISCUSSION

A. Standard of Review

"When reviewing an appeal from summary

judgment, we determine whether there was a

genuine issue of material fact before the trial

court, and whether the moving party was entitled

to judgment on the law applicable to the

established facts." Crissey v. Alaska USA Fed.

Credit Union, 811 P.2a 1057, 1059 (Alaska 1991).

except as provided under Alaska Civil Rule 54(b).

See Johnson vy. State, 577 P.2d 706, 709-10

(Alaska 1978). Rule 54(b) allows the entry of

final judgment "as to one Or more but fewer than

all of the claims or parties only upon an express

determination that there is no just reason for

delay and upon an express direction for the entry

of judgment." The Superior court's order of May

1, 1989 contained no such explicit findings.

Therefore, no appeals could occur until

final disposition of the action on August 10,

1989, with the entry of final judgment as to Mat-

Maid. The time for filing an appeal on any of

Patterson's claims started at that time. Under

these circumstances, we read our grant of

permission to file a late appeal as an extension

of the time to appeal all claims. Whether

Patterson mentioned the judgment of May 1, 1989

in his motion to file a late appeal is not a

relevant consideration.

and the Applicable _ Period ___of

Limitations

An arbitrator's decision can only be

challenged in two ways: (1) collaterally in an

action alleging breach of contract against an

employer and breach of the duty of fair

representation against a union; or (2) directly

through an action to vacate the award. Hines v.

Anchor Motor Freight, Inc., 424 U.S. 554, 570

(1976); see also Sine v. Local No. 992 Int'l Bhd.

of Teamsters, 644 F.2d 997 (4th Cir.) (addressing

and analyzing both employee's direct challenge to

arbitrator's decision and employee's claim for

union's breach of duty), cert. denied, 454 U.S.

965 (1981). We turn first to the issues

pertaining to Patterson's collateral attack on

the arbitrator's decision.

1. The Applicable Limitations Period

fo 3 brid Claims

Patterson attempts to characterize his May

2, 1988 wrongful termination suit as a hybrid

action that federal law authorizes when a labor

All

union breaches its duty to fairly represent an

employee in arbitration proceedings. See

DelCostello vy. International Bhd. of Teamsters,

462 U.S. 151, 164-65 (1983). Brought under § 301

of the Labor Management Relations Act, 29 U.S.C.

§ 185,° this action is both a suit against the

employer for breach of a collective bargaining

agreement, and a suit against the union for

breach of the duty of fair representation.

DelCostello, 462 U.S. at 164-65; see also Vaca v.

Sipes, 386 U.S. 171, 186-87 (1967). State courts

have concurrent jurisdiction to hear a collective

bargaining suit presenting § 301 hybrid clains.

Vaca, 386 U.S. at 186-87. See generally John P.

‘This statute states in part:

Suits for violation of contracts

between an employer and a labor organization

representing employees in an industry

affecting commerce as defined in this

chapter, or between any such labor

Organizations, may be brought in any

district court of the United States having

jurisdiction of the parties, without respect

to the amount in controversy or without

regard to the citizenship of the parties.

29 U.S.C. § 185(a).

Al2

Ludington, Annotation, State Court Jurisdiction

as Pre-e b bo tions Act as

Amended U.S.C.S. 141 et seq.)--Supreme

Court Cases, 75 L.Ed.2d 988, 1012-13 (1985)

(discussing lack of pre-emption in § 301 cases).

However, state courts must apply federal

substantive law in adjudicating § 301 actions.’

"The U.S. Supreme Court requires application

of federal law alone in order to ensure uniform

interpretation of collective bargaining

agreements and to promote the peaceful and

consistent resolution of disputes between labor

and management:

The dimensions of § 301 require the conclu-

sions that substantive principles of federal

labor law must be paramount in the area

covered by the statute. Comprehensiveness is

inherent in the process by which the law is

to be formulated ... requiring issues raised

in suits of a kind covered by § 301 to be

decided according to the precepts of federal

labor policy.

More important, the subject matter of

§ 301(a) “is peculiarly one that calls for

uniform law." The possibility that indivi-

dual contract terms might have different

meanings under state and federal law would

inevitably exert a disruptive influence upon

both the negotiation and administration of

collective agreements .... Indeed, the

existence of possibly conclicting legal

concepts might substantially impede the

parties' willngness to agree to contract

terms providing for final arbitral or

Al3

Patterson's action is a § 301 action even though

he seeks to vindicate "uniquely personal" rights

related to his claim for wrongful discharge. See

Hines, 424 U.S. at 562.

As a threshold issue, both Mat-Maid and the

State contend that Patterson raises § 301 claims

for the first time on appeal and that this court

existence of possibly conclicting legal

concepts might substantially impede the

parties' willngness to agree to contract

terms providing for final arbitral or

judicial resolution of disputes.

--- The ordering and adjusting of com-

peting interests through a process of free

and voluntary collective bargaining is the

keystone of the federal scheme to promote

industrial peace. State law which frustrates

the effort of Congress to stimulate the

smooth functioning of that process thus

strikes at the very core of federal labor

policy.... [W]Je cannot but conclude that in

enacting § 301 Congress intended doctrines

of federal labor law uniformly to prevail

over inconsistent local rules.

Local 174, Teamsters of Amer. v. Lucas Flour -

369 U.S. 95, 103-04 (1962) (citations omitted) ;

accord Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 403 & n. 2 (1988). See generally 2

Vv j w 1556-59 (Charles J.

Morris ed., 2d ed. 1988) (discussing applicability

of preemption doctrine to fair representation

cases under § 301).

Al14

record indicates that Patterson indeed failed to

make a § 301 argument to the superior court.

The State and Mat-Maid presented separate

defenses before the superior court, and do not

present a common defenses on appeal. In the

proceedings below, the State responded to

Patterson's wrongful discharge and defamation

claims without discussing any aspect of federal

labor law. However, in its memorandum in support

of its summary judgment motion, Mat-Maid raised

several arguments concerning the applicability of

§ 301 to Patterson's claims. Thus, § 301 issues

were before the superior court.®

The statute of limitations for hybrid § 301

claims is six months. DelCostello, 462 U.S. at

170-72." However, the statute of limitations

Spatterson's § 301 claim against the State

is meritless. As used in the Labor Management

Relations Act, the term "employer" does not

include states or their political subdivisions.

29 U.S.C. § 152(7).

*DelCostello borrowed the statute of limita-

tions for making charges of unfair labor prac~-

tices to the National Labor Relations Board. See

29 U.S.C. § 160(b); DelCostello, 462 U.S. at 169.

A15

pegine to run not on the date of the arbitrator's

decision but on the date that the employee learns

of the arbitrator's decision. Galindo v. Stoody

Co., 793 F.2d 1502, 1509 (9th Cir. 1986).'°

Patterson contends that Mat-Maid never

established in the record the exact date on which

he became aware of the decision, and that thus a

genuine issue of material fact exists that

precludes summary judgment.

Patterson, however, does not produce

evidence that establishes a specific date from

which the limitation period should run.”

"The Galindo court said that "in a duty of

fair representation case, the six-month period

generally beings to run when an employee knows or

Should know of the alleged breach of duty of fair

representation by a union." Id.

Similarly, where a duty of fair representa-

tion suit seeks to overturn an unfavorable

arbitration award on the ground that the

union committed errors in the arbitration

proceedings, the claim accrues when the

employee learns of the arbitrator's award.

Id.

"see Bauman v. State, Div. of Family & Youth

Servs., 768 P.2d 1097, 1099 (Alaska 1989) ("Once

the movant has met that initial burden [estab-

lishing the absence of genuine issues of material

A16

Moreover, contrary to Patterson's allegations,

Mat-Maid in fact specified a date when the

limitations period started to run. In its

memorandum in support of its summary judgment

motion, Mat-Maid contended that the statute of

limitations started to run no later than July 2,

1986, the date of the arbitrator's decision.

Further, the record indicates that Patterson

knew or should have known of the arbitrator's

decision no later than July 21, 1986. On July 21,

1986, Mat-Maid appealed a decision by an

Employment Security Division hearing officer that

Patterson was entitled to unemployment compensa~

tion from May 4, 1986. The Commission of Labor

based his decision only on the evidence presented

to the hearing officer. That evidence included

the arbitrator's award upholding Patterson's

fact], 'the non-movant is required, in order to

prevent summary judgment, to set forth specific

facts showing that he could produce evidence

reasonably tending to dispute or contradict the

movant's evidence and thus demonstrate that a

material issue of fact exists.'") (quoting State,

Dep't of Highways v. Green, 586 P.2d 595, 606

n.32 (Alaska 1978)).

A17

discharge. Because Patterson participated in that

unemployment compensation proceeding, he must

have known of the arbitrator's decision by the

time of Mat-Maid's appeal on July 21, 1986.

Furthermore, Patterson's counsel "assumes" that

Patterson may have learned of the arbitrator's

decision on or about July 7, 1986.

Patterson filed his complaint for defamation

on February 5, 1988 and his wrongful termination

claim May 2, 1988, both over one and one-half

years after the July 2, 1986 arbitration award.

We therefore conclude that Patterson's § 301 suit

for wrongful termination is time barred, since it

was not brought within six months of the time

Patterson knew or should have learned of the

arbitrator's July 2, 1986 decision.

Patterson also claims that the applicable

limitation period should have been equitably

tolled while he pursued quasi-judicial relief.

Patterson filed a complaint with the U.S.

Department of Labor on January 16, 1987.

Patterson contends that if he learned of the

A18

arbitrator's decision on or around July 7, 1986

and then filed his complaint with the Department

of Labor within six months of that date, then a

genuine issue of fact exists as to whether the

applicable limitaitons period was tolled.

In countering Patterson's argument, Mat-Maid

relies on Harris v. Alumax Mi ducts nc.,

897 F.2d 400, 404 (9th Cir.), cert. denied, 498

U.S. 835 (1990), where the court cited authority

to the effect that an employee's § 301 claim is

not tolled by virtue of the filing of a worker's

compensation claim. The Ninth Circuit concluded

"that to allow tolling when the filing of an NLRB

claim was merely optional would 'frustrate the

national policy of prompt resolution of labor

disputes.'" Id. (quoting Conley v. International

Bhd. of Elec. Workers, 810 F.2d 913, 916 (9th

Cir. 1987)).

The Harris court stated that "'[e]quitable

tolling is most appropriate when the plaintiff is

required to avail himself of an alternate course

of action as a precondition to filing suit.'" Id.

TE"

A19

(quoting Conley, 810 F.2d at 916). Additionally,

Harris relies on the reasoning of the U.S.

Supreme Court regarding the tolling of a statute

of limitations by the filing of an optional

Claim, stating that "(tjhe Court has made it

Clear that it is reluctant to invoke tolling

where a plaintiff is tardy in pursuing a parallel

avenue of relief." Id. (citing International

Union of Elec., Radio, & Mach. Workers, Local 790

v. Robbins & Myers, Inc., 429 U.S. 229, 236-40

(1976)). We conclude that Patterson's filing of

a claim with the U.s. Department of Labor was not

a precondition to the filing of his § 301 suit

against Mat-Maid, and that the applicable six-

month limitation period was not tolled by the

filing of that clain.”

Noting that Local 959 has filed for

bankruptcy and had obtained a stay of Patterson's

suit against it during that time, Patterson also

contends that Local 959 was an indispensable

party, and that the limitations period thus was

tolled for the duration of the stay. He is

mistaken. Except in unusual circumstances, an

automatic bankruptcy stay under 11 U.S.c. §

362(a) applies to the debtor alone and not to

non-bankruptcy co-defendants. E.g., Cushman &

Wakefield, Inc. v. Backos, 129 B.R. 35, 36 (E.D.

A20

Pa. 1991). Therefore, severance of the bankruptcy

defendant from non-bankrupt co-defendants is

allowable unless the bankrupt defendant is

indispensable to the action. Id. Patterson

acknowledges this rule. He also acknowledges that

in a hybrid § 301 action, neither the employer

nor the union is typically an indispensable party

in an action against the other, because generally

the suit against the employer is for breach of

the collective bargaining agreement, whereas the

suit against the union for breach of the duty of

fair representation. See Kaiser v. Local No. 83,

577 F.2d 642, 644 (9th Cir. 1977).

Nonetheless, Patterson contends that Local

959 is an indispensable party, because his claim

against Mat-Maid is not only for breach of the

collective bargaining agreement, but also for

conspiring with the union agaiinst Patterson.

Patterson does not discuss why the union might be

an indispensable party under Alaska Civil Rule 19

or the parallel federal rule. The sole authority

on which Patterson relies is an unsupported dic-

tum from Kaiser that an employer is not a parti-

cipant in the union's breach of duty "unless, of

course, the employee alleges that his union and

his employer conspired against him." Id.

Patterson's arguments must fail. In order

for one member of a civil conspiracy to be

liable, not all members of the conspiracy need be

named defendants or be joined as defendants.

E.g., U.S, dus. . Vo u , 854

F.2d 1233, 1251 (10th Cir. 1988); Walker Distrib.

Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 8

(9th Cir. 1963), cert. denied, 385 U.S. 976

(1966); Non-Ferrous Metals, Inc. v. Saramar

Aluminum Co., 25 F.R.D. 102, 104 (N.D. Ohio

1960); 16 Am.Jur.2d Conspiracy § 66 (1979).

A21

2. Applicable Limitations Period for a

Direct Attack on the Arbitrator's

u 986 Award

Because his suit concerns the alleged

violation of a contract between an employer and

a labor organization, Patterson's direct

challenge to the arbitrator's decision, like his

Claims against Mat-Maid and Local 959, falls

under § 301, and state courts thus must apply

federal law. See United Steelworkers of Amer. v.

Northwest Steel Rolling Mills, Inc., 324 F.2qa

469, 481 & n.2 (9th Cir. 1963) (addressing action

to enforce arbitration award); Safeway Stores v.

Brotherhood of Teamsters Local No. 70, 147 Cal.

Rptr. 835, 838 (Cal. App. 1978) (addressing

action to vacate arbitration award). Thus as a

threshold issue we must address the limitations

period that applies to such a direct attack.

If Congress does not Supply an express

Statute of limitations regarding enforcement of

a federal cause of action, courts must first look

to state law for an analogous rule of timeliness.

Reed v. United Transp. Union, 488 U.S. 319, 323

A22

(1989); Posadas de Puerto Rico Assocs., Inc. v.

sociaci ° ,

873 F.2d 479, 480 (1st Cir. 1989). However, a

narrow exception to this rule exists where

adoption of state statute of limitations would

frustrate or hinder the carrying out of federal

policy. Reed, 488 U.S. at 324; Posadas, 873 F.2d

at 480. DelCostello gives a two-factor test for

determining when the exception applies:

[Wjhen a rule from elsewhere in federal law

clearly provides a closer analogy than

available state statutes, and when the

federal policies at stake and the

practicalities of litigation make that rule

a significantly more appropriate vehicle for

interstitial lawmaking, we have not

hesitated to turn away from state law.

462 U.S. at 172; accord Reed, 488 U.S. at 324.

Applying such an analysis, the DelCostello

court concluded that a six-month limitations per-

iod would be appropriate as to both union and en-

ployer in hybrid § 301 actions involving a un-

ion's breach of the duty of fair representation."

4 Ordinarily, the federal statute of limita-

tions for a motion to vacate, modify, or correct

an arbitration award is three months after the

filing or delivery of the award. 9 U.S.C. § 12.

A23

462 U.S. at 155, 169-70. The Court contrasted the

employee's claim with an action to vacate an

arbitration award in a commercial context:

The main difference is that a party to

commercial arbitration will Ordinarily be

represented by counsel or, at least, will

have some experience in matters of

commercial dealings and contract

negotiation. Moreover, an action to vacate

an commercial arbitral award will rarely

raise any issues not already presented and

contested in the arbitration proceeding

itself. In the labor setting, by contrast,

the employee will often be unsophisticated

in collective-bargaining matters, and he

will almost always be represented solely by

the union. He is called upon, within the

limitations period, to evaluate the adequacy

of the union's representation, to retain

counsel, to investigate substantial

mattersthat were not at issue in the

arbitration proceeding, and to frame his

suit. Yet state arbitation statutes

typically provide very short times in which

to sue for vacation of arbitration awards.

However, the federal arbitration statutes do not

apply to contracts of employment, such as collec-

tive bargaining agreements, see id. § 1; United

e ‘1 Union v. Misco Inc., 484 U.S.

29, 40 n.9 (1987), and most of the federal cir-

cuits, including the Ninth Circuit, reject the

limitations period found in 9 U.S.C. § 12. See

in > V. Graphic Communi-

. » 912 F.2d 608,

612-13 (2d Cir. 1990) (summarizing case author-

ity); i i il of Carpen-

e 683. ¥.2d.- 1137, 1141 (9th Cir.

1982).

A24

Id. at 165-66."

However, Patterson's case presents a situa-

tion unanticipated in DelCostello, because here

the state limitations period for challenging the

arbitrator's award is potentially far longer than

the six-month period borrowed in DelCostello.

"tn contrast, if a union raises a suit

directly challenging the aribtrator's award, so

that no issue arises regarding the duty of fair

reprsentation, then the concerns raised in

DelCostello are largely absent. Though the

circuits are split as to what limitations period

is applicable, see Posadas, 873 F.2d at 482-84

(surveying the case law), the Ninth Circuit

employs the state statute of limiations for

challenges to arbitrators' decisions when unions

seek to vacate them:

The factors that led to the result in

DelCostello have no parallel in the present

case. [The union] does not claim that the

arbitral process itself was flawed or

distored by the commission of an unfair

labor practice. It does not seek relief that

could not have been obtained in the

arbitration proceedings themselves. It has

been represented by counsel from the

beginning, and does not question the quality

of the representation.

United Bhd. of Carpenters & Joiners Local 1020 v.

FMC Corp., 724 F.2d 815, 815 (9th Cir. 1984). At

the same time, applying the state limitations

period promotes the speedy adjudication of

workplace grievances. Posadas, 873 F.2d at 483.

A25

Alaska statutory law applies a ninety-day limita-

tions period for a party to apply to the superior

court to vacate an arbitration award. See AS

09.43.120(c). However, AS 09.43.010-.180 will not

apply to a labor-management contract unless the

contract expressly incorporates these provisions

or another statute provides for their applica-

tion. AS 09.43.010. Because the contract between

Mat-Maid and Local 959 contains no provision

directing the application of AS 09.43.010-.180,

a ninety-day limitations period is inapplicable.

See, €.g., IBEW, Local Union 1547 v. City of

Ketchikan, 805 P.2q 340, 342 (Alaska 1991); State

Vv. Public Safety Emplovees Ass'n, 798 P.2d 1281,

1284-85 (Alaska 1990). We have consistently urged

legislative action on this matter, because no

time limit exists at common law for challenges to

an arbitration award. See IBEW, Local Union 1547,

805 P.2d at 342 n.5; Public Safety Employees

Ass'n, 798 P.2d at sa0n 8.7 < However, the

legislature has not yet responded.

Patterson's appeal presents a less difficult

A26

question. We must decide not the appropriate

state limitations period for his action, but

rather whether to apply a state limtations period

or a federal one. Our determination turns upon

our long-standing view that "the parties to an

agreement reached through arbitration should be

able to proceed to implement the agreement

without worry that it is subject to challenge

months or years in the future.," and that

"(fjinality is an important consideration" in

review of an arbitrator's decision. Public Safety

Employees Ass'n, 798 P.2d at 1285 n.7; cf. City

of Fairbanks Mun. Util. Sys. v. Lees, 705 P.2d

457, 459-60 (Alaska 1985) (holding that courts do

not review the merits of an issue submitted to

arbitration, because "arbitration should be a

final and binding means of dispute resolution,

not a mere prelude to litigation"). We also note

that where an employee's § 301 challenge to an

arbitrator's decision required a choice between

a state's ninety-day limitations period for

challenges to arbitrator's decisions and the same

A27

state's Six-year period for contract claims, the

U.S. Supreme Court selected the shorter period,

in part on the grounds that the system of

industrial self-government, "with its heavy

emphasis on grievance arbitration, and the ‘law

of the shop,' could easily become unworkable if

a decision ... could Suddenly be called into

question as much as six years later." United

Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 58-

59, 64 (1981)."%

Taking the DelCostello and Mitchell

decisions together, we hold that the statute of

limitations for directly attacking the

arbitrator's decision is the six-months period

under federal law for hybrid § 301 claims.

Patterson did not file his suit against the

arbitrator's July 1986 award until 1988, well in

excess of the six-months limitations period. We

“The Mitchell court declined to reach the

issue of whether to borrow a federal statute of

limitations, because neither party raised the

matter on appeal. id. at 451 & n.2; see also

DelCostello, 462 U.S. at 154 & n.2.

A28

therefore conclude that Patterson failed to make

timely his direct attack on the award.

B. at son' e tio

Patterson argues that there are genuine

issues of material fact regarding an agreement

not to re-publish Bevins' February 6, 1986 letter

to Sinnett. Mat-Maid responds that the

publication of the allegedly defamatory letter

was privileged and that the privilege constitutes

a complete defense. ®

The Ninth Circuit has held that statements

made by parties during the course of grievance

proceedings conducted pursuant to the provisions

of a collective bargaining agreement that is

subject to the Labor Management Relations Act are

absolutely privileged, as long as the statements

are not published to individuals’ lacking

legitimate interests in them:

Federal labor policy promotes’ the

collective bargaining process as a means of

stabilizing the relationship between

"’conceding that the State is immune from

suit on the defamation claims, [At. R. Br. 6]

Patterson pursues them against Mat-Maid alone.

A29

employers and employees. It is "an effort to

erect a system of industrial self-

government." j s ica

Vv. i i i , 363 U.S.

574, 580, 80 S.Ct. 1347, 1351, 4 L.Ed.2d

1409 (1960). Grievance procedures

very heart of the System of industrial self-

government.... the Processing of disputes

through [that] Machinery is actually a

vehicle by which meaning and content are

given to the collective bargaining

agreement." Id. at 581, 80 S.Ct. at 1352.

To allow state defamation Claims based

on statements made in grievance proceedings

would weaken the grievance system as a means

of industrial self-government.

Hyles v. Mensing, 849 F.24q 1213, 1217 (9th Cir.

1988).

Patterson asserted in his complaints that

Bevins'! February 6, 1986 letter was published on

three occasions: (1) on February 6, 1986, when

Bevins sent the letter to Sinnett; (2) on June

23, 1986, when Mat-Maid introduced the letter

into evidence at the arbitration proceeding; and

(3) on certain unspecified dates and to

unspecified recipients when "the contents of the

letter (were) used when other employer[]s

A30

requested information regarding Mr. Patterson."

On appeal, Patterson failed to provide briefing

about the third occasion; thus we consider this

point waived. See Miles v. Miles, 816 P.2d 129,

133 (Alaska 1991). On the second occasion,

publication clearly was privileged under Hyles.

See 849 F.2d at 1217. However, the first occasion

presents a more complex issue. The collective

bargaining agreement on which Mat-Maid relies did

not go into effect until April 1986, after Bevins

sent Sinnett the letter. The agreement was in

effect at the time of Patterson's termination and

at the arbitration hearing. Patterson thus

contends that the grant of summary judgment on

the absolute privilege issue was improper because

"Mat-Maid has failed to establish that any

[agreement] was in effect at the time of the

initial publication by Bevins to Sinnett."

Mat-Maid's summary judgment motion relied

solely on the April 1986 collective bargaining

agreement. However, the arbitrator's decision

states that before the collective bargaining

A31

agreement went into effect, Mat-Maid abided by an

"employer implemented last offer agreement,"

which was dated November 18, 1983, and which

Local 959 had never endorsed. Patterson did not

address Mat-Maid's arguments at the summary

judgment stage.

This evidence is sufficient for the summary

judgment in favor of Mat-Maid to survive

Patterson's appeal. If no union-management

grievance resolution mechanism were in effect at

all, then no need would have existed for Bevins'

February letter to Local 959's representative.

The implemented agreement Clearly was a

substitute for a collective bargaining agreement.

The letter would constitute a type of informal

grievance resolution, related to whatever

agreement would be in force at the time of the

actual termination and _ formal arbitration

proceeding. Even though the letter from Bevins to

Sinnett falls outside of formal grievance

proceedings, its relationship with the grievance

resolution process brings it within the scope of

A32

the privilege. See General Motors Corp. v.

Meridicki, 367 F.2d 66, 70-. (10th Cir. 1966)

(holding that absolute privilege extends to

statements made in informal but customary

conference, which occurred before formal hearing

on the grievance, and which the bargaining

agreement did not mandate); accord Hasten v.

Phillips Petroleum Co., 640 F.2d 274, 276-77

(10th Cir. 1981); see also Green v. Hughes

Aircraft Co., 630 F.Supp. 423, 427 (S.D. Cal.

1985) (allowing an absolute privilege for

statements made to union representatives in a

meeting prior to the initiation of disciplinary

action). See e Gary J. Spivey,

Annotation, Libel and Slander: Privileged Nature

of Communication to Other Employees or Employees'

Union of Reasons tiff's Di , 60

A.L.R.3d 1081 (1974); Gary J. Spivey, Annotation,

ib a :

Communications Made in Course of Grievance or

Arbitrati p p ided for by Collecti

—_—_ ET

A33

Bargaining Agreement, 60 A.L.R.3d 1041 (1974) .17

IV. CONCLUSION

We AFFIRM the Superior court's grant of

summary judgment to Mat-Maid and the State on

Patterson's wrongful termination claims. As for

Patterson's § 301 collateral attack on the

arbitrator's award, we conclude that it is barred

by the applicable six-month period of

limitations. Similarly, we conclude that

Patterson's direct attack on the arbitrator's

award was untimely and thus was barred.

“in regard to Bevins' sending the February

6, 1986 letter to Sinnett in his capacity as an

officer of Local 959, the collective bargaining

agreement provides:

Any dispute that arises between teh employee

and the Employer or any complaint or

grievance on the part of both or one, said

grievance, complaint, or dispute shall be

Submitted to the Local Union within thirty

(30) days to be eligible to receive the

assistance of the Local Union.

Given this provision, Bevins' letter to Sinnett

can fairly be viewed as a publication in

connection with "'the entire proceeding

contemplated by the provisions of the agreement

for the grievance machinery,'" Green, 630 F.Supp.

at 427 (quoting Hasten, 640 F.2d at 277), and

thus is absolutely privileged.

A34

We AFFIRM the superior court's grant of

summary judgment to Mat-Maid on Patterson's

defamation claims, since on the two occasions

when Bevins' February 6, 1986 letter was

published, such publication was absolutely

privileged.

AFFIRMED.

A35

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

WILLIAM L. PATTERSON, )

) CaseNo. 3AN-

Plaintiff, )88-1093 Civil

vs. )

STATE OF ALASKA, DEPT. OF AGRICUL- )

TURE, Individually and Severally; )

MATANUSKA MAID, INC., Individually )

and Severally; and its agents JOHN )

SEAWELL, RON WILDE, and STEVE )

BEVINS, Individually and Severally, )

)

Defendants. )

WILLIAM L. PATTERSON, )

) CaseNo. 3AN-

Plaintiff, )88-4692 Civil

vs.

)

)

STATE OF ALASKA, DEPT. OF AGRICUL- )

TURE, Individually and Severally; )

MATANUSKA MAID, INC., Individually )

and Severally, and its agents JOHN )

SEAWELL, RON WILDE, STEVE BEVINS )

and JOE VAN TREECK, Individually )

and Severally; and the INTERNA- )

TIONAL BROTHERHOOD OF TEAMSTERS, )

CHAUFFEURS, WAREHOUSEMEN AND )

HELPERS OF AMERICA, Individually )

)

)

)

)

)

)

)

)

)

)

and Severally; and THE INTERNA-

TIONAL BROTHERHOOD OF TEAMSTERS

LOCAL 959, Individually and Sever-

ally, and its agents ROBERT J.

SINNETT and EDWARD R. CONYERS, In-

dividually and Severally, and JERRY

THORN dba JERRY THORN, Arbitrator,

Individually and Severally,

Defendants.

A36

THIS MATTER having come on before the above-

entitled Court on defendants Matanuska Maid,

Inc., John Seawell, Steve Bevins, Ron Wilde, and

Joe Van Treeck's Motion for Final Judgment the

Court having entered an Order Granting Motion for

Summary Judgment on June 19, 1989, and being

otherwise fully advised of the premises; NOW,

THEREFORE,

IT IS HEREBY ADJUDGED AND ORDERED:

1. Summary Judgment is entered in favor of

Matanuska Maid, Inc., John Seawell, Ron wilde,

Steve Bevins, and Joe Van Treeck, dismissing all

claims against them in the above-captioned

consolidated matters;

2. Matanuska Maid, Inc., John Seawell, Ron

Wilde, Steve Bevins, and Joe Van Treeck are

awarded judgment against plaitniff William L.

Patterson for attorneys' fees in the amount of

$ and costs in the amount of $ -

3. This judgment shall bear interst at the

rate of 10.5 percent per annum from the date

entered until paid in full.

A37

DONE this 10th day of August, 1989, at

Anchorage, Alaska.

K. _L. HUNT

The Honorable Karen Hunt

Judge of the Superior Court

A38

Parry Grover

Gina M. Zadra

DAVIS WRIGHT & JONES

550 W. 7th Avenue, Suite 1450

Anchorage, AK 99501

(907) 276-4488

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTR{CT AT ANCHORAGE

WILLIAM L. PATTERSON,

Plaintiff,

vs.

MATANUSKA MAID, INC.

Individually and Severally

and its agents JOHN SEAWELL,

RON WILDE, and STEVE BEVINS,

Individually and Severally,

Defendants.

CaseNo. 3AN-

)88-1093 Civil

WILLIAM L. PATTERSON,

Plaintiff,

vs.

MATANUSKA MAID, INC.,

Individually and Severally, and

its agents JOHN SEAWELL,

RON WILDE, STEVEN BEVINS and

JOE VAN TREECK, Individually and

Severally and THE INTERNATIONAL

BROTHERHOOD OF TEAMSTERS,

LOCAL 959, Individually and

Severally, and its agents

ROBERT J. SINNETT and EDWARD R.

CONYERS, Individually and

Severally, and JERRY THORN dba

JERRY THORN, Arbitrator,

Individually and Severally,

) CaseNo. 3AN-

)88-4692 Civil

ee ee ee ee See Se ee See ee See See ee See See See See” =,

.

ve)

A39

)

Defendants. )

THIS MATTER having come on before the above-

entitled Court on defendants Matanuska Maid, John

Seawell, Ron Wilde, Steve Bevins and Joe Van

Treeck's Motion for Summary Judgment; the Court

having reviewed defendants’ Motion and Memorandum

in of Support Motion for Summary Judgment, the

Affidavit of Gina M. Zadra, the Affidavit of

Steve Bevins, the Affidavit of John Seawell, and

the Affidavit of Robert J. Sinnett, and the

pleadings and record herein, and being otherwise

fully advised of the premises; NOW THEREFORE

IT IS HEREBY ORDERED that Summary Judgment

is granted in favor of Matanuska Maid, Joe Van

Treeck, Ron Wilde, Steve Bevins and John Seawell.

Done this 19 day of June, 1989.

K. L. HUNT

The Honorable Karen Hunt

Judge of the Superior Court