Alaska Employment Law

A recent AEL post on arbitration awards noted Arbitrator Bob Landau’s comment that most arbitrators use a heightened standard of proof for just cause when a discharged employee (1) had lengthy, satisfactory service; or (2) was accused of reprehensible, career-damaging conduct.   It should be noted that this practice contrasts with the rule in Alaska courts, where the rule is that the “preponderance of the evidence standard of proof applies to public employee termination proceedings.”  Jurgens v. City of North Pole, 153 P.3d 321, 329 (Alaska 2007)(citing to Romulus v. Anchorage School District, 910 P.2d 610, 618 (Alaska 1996)).  The preponderance standard also applies to wrongful discharge cases tried in Superior Court, of course.  While Landau’s recitation of the arbitration rule arose in a private sector arbitration, and the Alaska court’s formulation expressly refers to public sector employment, there’s no reason to believe that either the arbitration rule or the judicial rule varies depending on whether the employment is public or private.

The differing standards in court and arbitration raise several issues.  1) Does the arbitration agreement dictate a standard of proof?  (Related issue: Counsel who draft arbitration provisions should consider including a section on burden of proof.)   2)  Will an individual arbitrator refuse to process an arbitration if the CBA-dictated standard violates his or her norms of fairness?  (3) Would an Alaskan court vacate an arbitration award that used the “clear and convincing standard” if the CBA didn’t require it?  Or, would an Alaskan court vacate an arbitration award that used the preponderance standard, when faced with an argument that that standard violated arbitral norms?