      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

PIERRE BERNARD,                                )
                                               )        Supreme Court No. S-15592
                      Appellant,               )
                                               )        Superior Court No. 3AN-13-08887 CI
              v.	                              )
                                               )        OPINION
ALASKA AIRLINES, INC.,                         )
                                               )        No. 7082 - February 12, 2016
                      Appellee.	               )

                                               )


              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Frank A. Pfiffner, Judge.

              Appearances: 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.

              MAASSEN, Justice.

I.    INTRODUCTION
              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).1 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.”2

      1
             45 U.S.C. §§ 151-188 (2012).
      2
            See 45 U.S.C. § 153(i) (2012) (“[F]ailing to reach an adjustment[,] . . .

disputes may be referred by petition of the parties or by either party to the appropriate

                                                                            (continued...)


                                          -2-                                        7082

              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.



        2
       (...continued)
division of the Adjustment Board with a full statement of the facts and all supporting
data bearing upon the disputes.”).

                                           -3-                                       7082

              Alaska Airlines filed a motion to dismiss under Alaska Civil Rule 12(b)(1),3
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 available remedies under the
collective bargaining agreement.
              Bernard opposed the motion and filed an amended complaint, adding
allegations that Alaska Airlines had violated a state employment discrimination statute4
and public policy. Alaska Airlines renewed its motion to dismiss on the exhaustion-of­
remedies theory, arguing that because the collective bargaining agreement incorporated
the company’s anti-discrimination policies, Bernard was required to seek relief through
contractual remedies even for statutory claims, which he had not done.
              Bernard moved for leave to file a second amended complaint, this time to
add a claim that the union had breached its duty of fair representation by failing to notify
him of its decision not to pursue arbitration with the System Board of Adjustment until
after the appeal deadline. The superior court denied Bernard leave to add this claim,
concluding that it was barred by the six-month statute of limitations for “hybrid claims.”5


       3
                “Every defense, in law or fact, to a claim for relief in any pleading, whether
a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the following defenses may at
the option of the pleader be made by motion: (1) lack of jurisdiction over the subject
matter . . . .” Alaska R. Civ. P. 12(b)(1).
       4
             See AS 18.80.220(a) (“[I]t is unlawful for . . . (4) an employer, labor
organization, or employment agency to discharge, expel, or otherwise discriminate
against a person because the person has opposed any practices forbidden under
AS 18.80.200-18.80.280 or because the person has filed a complaint, testified, or assisted
in a proceeding under this chapter.”).
       5
              A “hybrid claim” in this context is one “in which an employee must prove
both that the employer breached a provision of the collective bargaining agreement and
                                                                          (continued...)

                                            -4-                                         7082

              The superior court also dismissed Bernard’s state law claims under Rule
12(b)(1) for lack of subject matter jurisdiction. It first decided that his state law claims
were “not pre-empted to the extent that they plead an independent state law claim for
retaliatory discharge” but were preempted “[t]o the extent they rest on contractual rights
that Mr. Bernard enjoyed under the CBA.” The court went on to conclude that to the
extent not preempted, Bernard’s state law claims were nonetheless subject to the
mandatory arbitration provisions of the collective bargaining agreement because he had
clearly and unmistakably waived his right to pursue judicial remedies instead. The court
held that he had “a personal right to submit his claim to the National Railroad
Adjustment Board (NRAB)” but had not done so, and that his alleged ignorance of this
avenue was not an excuse.
              Bernard appeals.
III.   STANDARDS OF REVIEW
              The superior court dismissed Bernard’s action for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). “We review de novo a superior court’s decision
to dismiss a complaint for lack of subject matter jurisdiction.”6 “In exercising our




       5
        (...continued)
that the union breached its duty of fair representation in order to prevail.” Schaub v.
K&L Distribs., Inc., 115 P.3d 555, 564 (Alaska 2005) (recognizing six-month limitations
period for such claims); see also 29 U.S.C. § 160(b) (2006) (“[N]o complaint shall issue
based upon any unfair labor practice occurring more than six months prior to the filing
of the charge with the Board.”). A hybrid claim may be brought against the union, the
employer, or both. Schaub, 115 P.3d at 565.
       6
            Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)
(quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1033 (Alaska 2004)).

                                           -5-                                        7082

independent judgment, we will adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.”7
              This appeal also requires us to interpret a collective bargaining agreement.
“Contract interpretation presents a question of law that we review de novo.”8 “When
interpreting contracts, the goal is to ‘give effect to the reasonable expectations of the
parties.’ ”9 “In determining the intent of the parties the court looks to the written contract
as well as extrinsic evidence regarding the parties’ intent at the time the contract was
made.”10 “Where there is conflicting extrinsic evidence the court, rather than the jury,
must nonetheless decide the question of meaning except where the written language, read
in context, is reasonably susceptible to both asserted meanings.”11
              Finally, this appeal requires us to interpret the RLA. “We decide questions
of law, including statutory interpretation, using our independent judgment. We will
adopt the most persuasive rule of law in light of precedent, reason, and policy.”12 “This




       7
              Id. (quoting John v. Baker, 982 P.2d 738, 744 (Alaska 1999)).
       8
             Larsen v. Municipality of Anchorage, 993 P.2d 428, 431 (Alaska 1999); see
also Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119 (Alaska 1997).
       9
            Larsen, 993 P.2d at 431 (quoting Stepanov v. Homer Elec. Ass’n, 814 P.2d
731, 734 (Alaska 1991)).
       10
              Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996).
       11
             Johnson v. Schaub, 867 P.2d 812, 818 (Alaska 1994) (quoting Alaska
Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska
1989)).
       12
             Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (internal
citations omitted).

                                            -6-                                         7082

requires us, when interpreting statutes, to ‘look to the meaning of the language, the
legislative history, and the purpose of the statute.’ ”13
IV.    DISCUSSION
       A.     Bernard’s Claims Were Not Subject To Arbitration.
              The superior court ruled that Bernard’s claims were preempted to the extent
they relied on the contract and not preempted to the extent they existed independent of
the contract. Because it went on to hold that Bernard was required to exhaust his
contractual remedies as to both kinds of claims, it did not need to differentiate further
between the preempted claims and the non-preempted claims. But because we hold that
Bernard was not required to exhaust his contractual remedies, we must begin by deciding
whether any of his claims were preempted.
              1.     The RLA did not preempt Bernard’s state law claims.
              The RLA provides a “mandatory arbitral mechanism for ‘the prompt and
orderly settlement’ of two classes of disputes.”14 The first class, deemed “major”
disputes, relates to “the formation of collective agreements or efforts to secure them.”15
The second class, deemed “minor” disputes, includes “controversies over the meaning
of an existing collective bargaining agreement in a particular fact situation.”16 Alaska
Airlines contends that the conflict over Bernard’s firing is a minor dispute that may be


       13
             Id. (quoting ASRC Energy Servs. Power & Commc’ns, LLC v. Golden
Valley Elec. Ass’n, 267 P.3d 1151, 1157 (Alaska 2011)).
       14
             Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (quoting
45 U.S.C. § 151a (1988)).
       15
             Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S. 299, 302 (1989)
(quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945)).
       16
            Norris, 512 U.S. at 253 (quoting Bhd. of R.R. Trainmen v. Chicago River
& Indiana R.R. Co., 353 U.S. 30, 33 (1957)).

                                            -7-                                     7082

resolved only through the mechanisms provided by the RLA, including the collective
bargaining agreement’s internal grievance process culminating in arbitration before a
System Board of Adjustment. We agree with the superior court, however, that “the
underlying conduct for [Bernard’s] claims [was] that Alaska [Airlines] allegedly
retaliated against Mr. Bernard for reporting sexual harassment,” and that these claims
were not preempted to the extent they pleaded an independent state law claim for
retaliatory discharge.
             As a general rule, “the RLA’s mechanism for resolving minor disputes does
not pre-empt causes of action to enforce rights that are independent of the CBA.”17 In
the wrongful termination context, a state law claim may be “pre-empted, not because the
RLA broadly pre-empts state-law claims based on discharge or discipline, but because
the employee’s claim was firmly rooted in a breach of the CBA itself.”18 But when the
collective bargaining agreement is not the “only source” of the right against wrongful
termination –– for example, when an employer has a state law obligation not to fire an
employee for retaliatory reasons or in violation of public policy –– the state law cause
of action is not preempted.19
             Alaska Airlines argues that “garden variety state-law claims for wrongful
termination are absolutely preempted under the Railway Labor Act.” Citing Andrews v.



      17
             Id. at 256; see also Terminal R.R. Ass’n of St. Louis v. Bhd. of R.R.
Trainmen, 318 U.S. 1, 7 (1943) (“[I]t cannot be that the minimum requirements laid
down by state authority are all set aside. We hold that the enactment by Congress of the
[RLA] was not a pre-emption of the field of regulating working conditions themselves
. . . .”).
      18
             Norris, 512 U.S. at 257 (emphasis in original).
      19
             See Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972);
Norris, 512 U.S. at 258.

                                         -8-                                      7082

Louisville &Nashville Railroad Co., it contends that federal law requires this conclusion
and that subsequent cases have applied little more than “gloss” over an otherwise
sweeping rule.20 But Andrews did not broadly limit independent state law claims for
wrongful termination.21 In Andrews it was “conceded by all that the only source of [the
employee’s] right not to be discharged, and therefore to treat an alleged discharge as a
‘wrongful’ one that entitles him to damages, is the collective-bargaining agreement
between the employer and the union.”22
              We discussed this issue in Norcon, Inc. v. Kotowski, in which we observed
that the federal Labor Management Relations Act23 does not preempt state law claims
when they are “neither founded on rights created by a CBA nor dependent on the




       20
               Compare Andrews, 406 U.S. at 324 (“ ‘[W]rongful discharge’ implies some
sort of statutory or contractual standard that modifies the traditional common-law rule
that a contract of employment is terminable by either party at will. . . . [T]he only source
of petitioner’s right not to be discharged . . . is the collective-bargaining agreement
between the employer and the union.”), with Norris 512 U.S. at 258 (“Here, in contrast
[to Andrews], the CBA is not the ‘only source’ of respondent’s right not to be discharged
wrongfully.”).
       21
               Cf. Norris 512 U.S. at 258 (noting that RLA does not preempt all state law
claims for wrongful termination); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21
(1987) (noting that preemption of employment standards “should not be lightly inferred
in this area, since the establishment of labor standards falls within the traditional police
power of the State”); Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 565
(1987) (“[N]otwithstanding the strong policies encouraging arbitration, ‘different
considerations apply where the employee’s claim is based on rights arising out of a
statute designed to provide minimum substantive guarantees to individual workers.’ ”
(quoting Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 737 (1981))).
       22
              Andrews, 406 U.S. at 324 (emphasis added).
       23
              29 U.S.C. §§ 141-44, 167, & 171-87 (2012).

                                           -9-                                        7082

analysis or interpretation of the CBA.”24 Norcon involved the Labor Management
Relations Act rather than the RLA, but the United States Supreme Court applies that
same preemption analysis to both, so we do the same.25 We concluded in Norcon that
“[s]tates are free to create and enforce causes of action that vest rights in workers, so
long as these rights can be adjudicated without having to interpret collective bargaining
agreements.”26 We specifically addressed an employee’s claim that her termination was
due to sexual discrimination in the workplace in violation of AS 18.80.220, concluding
that the claim was not preempted because “[t]he question of whether [the employee’s]
transfer and termination violated AS 18.80.220 ‘was a question of state law, entirely
independent of any understanding embodied in the collective-bargaining agreement.’ ”27
We held that “[t]he right to a non-discriminatory workplace conferred upon [the
employee] by AS 18.80.220 could not be waived by any contrary contractual provision”
and therefore “no need exists to consult the CBA to determine [the right’s] meaning.”28
We went on to conclude that our decision was “consistent with the Supreme Court’s
reasoning in Hawaiian Airlines, Inc. v. Norris,” in which “the Court observed that purely
factual questions about an employer’s conduct and motives do not require interpretation
of the CBA to answer.”29




      24
             Norcon, Inc. v. Kotowski, 971 P.2d 158, 165 (Alaska 1999).

      25
             Norris, 512 U.S. at 260.

      26

             Norcon, 971 P.2d at 164.
      27
             Id. at 165 (quoting Livadas v. Bradshaw, 512 U.S. 107, 125 (1994)).
      28
             Id.
      29
             Id. at 166 (citing Norris, 512 U.S. at 261).

                                         - 10 -                                    7082

              In this case, Bernard’s first amended complaint raised three state law
claims: (1) wrongful termination in violation of AS 18.80.220; (2) wrongful termination
in violation of public policy;30 and (3) wrongful termination in breach of the covenant
of good faith and fair dealing.31 Each claim, as the superior court noted, alleged the same
underlying conduct: that Alaska Airlines retaliated against Bernard for having reported
sexual harassment. The first two claims depend on state law and the employer’s motives
— not the terms of the collective bargaining agreement — and are therefore not
preempted by the RLA. The third claim, for breach of the implied covenant, does
depend in part on the parties’ contractual relationship.32 But we held in Norcon that such
claims are not preempted either, at least in the context of claims for retaliatory discharge.
We held that “[n]othing in the CBA could have altered, circumscribed, or defined” the
employee’s right to report safety violations, drawn from state public policy, and
“[b]ecause the contours of this right are not defined through the bargaining process, they
can be traced out without any reference to the CBA.”33



       30
              We note that Bernard’s public policy-based and statutory claims are
probably redundant. See Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 813
n.13 (Alaska 2005) (noting that “we have typically declined to recognize independent
torts based on contravention of public policy where there are adequate legal
alternatives”).
       31
             Bernard also asserted a count for punitive damages based on allegedly
outrageous conduct, but recovery of punitive damages depended on proof of one of his
three substantive claims. See DeNardo v. GCI Commc’n Corp., 983 P.2d 1288, 1292
(Alaska 1999) (“A punitive damages claim cannot stand alone.”).
       32
             See Castle Props., Inc. v. Wasilla Lake Church of the Nazarene, 347 P.3d
990, 997 (Alaska 2015) (“Under Alaska law, every contract has an implied covenant of
good faith and fair dealing . . . .”).
       33
              Norcon, 971 P.2d at 167.

                                           - 11 -                                      7082

              An employee’s right to report sexual harassment without fear of retaliation
by the employer is grounded in the same public policy we discussed in Norcon, made
explicit in the same statute, AS 18.80.220.34 And state public policy provides the same
remedy in the form of a claim for retaliatory discharge, a claim that depends largely on
proof of the employer’s actions and motivations rather than an interpretation of the
collective bargaining agreement.35 Because the collective bargaining agreement is not
the only source of the right against wrongful discharge at the base of Bernard’s three
claims, the RLA did not preempt them.36

       34
             AS 18.80.220(a)(4) provides that “it is unlawful for . . . an employer . . . to
discharge, expel, or otherwise discriminate against a person because the person has
opposed any practices forbidden under AS 18.80.200 – 18.80.280.” AS 18.80.220(a)(1)
bars workplace discrimination on the basis of sex; it applies to claims of sexual
harassment. French v. Jadon, Inc., 911 P.2d 20, 28 (Alaska 1996). Discharging an
employee in retaliation for the reporting of sexual harassment is therefore a violation of
AS 18.80.220(a)(4).
       35
               As noted above, the collective bargaining agreement at issue here
incorporated Alaska Airlines’ policy against employment discrimination, and Bernard’s
discrimination claim could be characterized as being founded on the contract. But the
fact that a claim involves a violation of a privately enforced policy is irrelevant to the
extent that a statute independently favors the same policy. See Knight v. Am. Guard &
Alert, Inc., 714 P.2d 788, 792 (Alaska 1986); Pub. Safety Emps. Ass’n v. State, 658 P.2d
769, 774-75 (Alaska 1983).
       36
               See, e.g., Owen v. Carpenters’ Dist. Council, 161 F.3d 767, 775-76
(4th Cir. 1998) (predicting that Maryland law would recognize a claim for wrongful
discharge based on an employee’s complaints of sexual harassment and holding that such
a claim is not preempted by the LMRA because it “primarily concerns the conduct of the
employee and the conduct and motivation of the employer” rather than an interpretation
of the collective bargaining agreement); Romero v. Mason & Hanger-Silas Mason Co.,
739 F. Supp. 1472, 1475-77 (D.N.M. 1990) (noting that New Mexico recognizes causes
of action for wrongful and retaliatory termination based on “complaining about safety
violations and about sexual harassment” and that the claim is independent of the
                                                                         (continued...)

                                           - 12 -                                     7082

              2     The CBA did not clearly and unmistakably waive the right to
                    sue in court.
              An employee may have the right to pursue a claim in state court — because
the claim is not preempted by the RLA — and still waive that right by agreeing to
arbitrate such claims instead.37 Bernard argues that the collective bargaining agreement
at issue here does not waive his right to pursue his state law claims in court, and we
agree.
              “We will not infer from a general contractual provision that the parties
intended to waive a statutorily protected right unless the undertaking is ‘explicitly
stated.’ More succinctly, the waiver must be clear and unmistakable.”38 In Hammond
we adopted the two-pronged test used by the Second and Fourth Circuits, and later the
United States Supreme Court, for finding a “clear and unmistakable” waiver: The
contract “must either (1) contain an arbitration clause including ‘a provision whereby
employees specifically agree to submit all federal causes of action arising out of their



         36
         (...continued)
collective bargaining agreement, and holding that the claim is therefore not preempted
by the LMRA); Foster v. Albertsons, Inc., 835 P.2d 720, 726-27 (Mont. 1992) (noting
that “Montana has recognized a common law cause of action for retaliatory discharge
related to sexual harassment” and that proving such a claim involves “purely factual
questions” that “pertain[] to the conduct of the [employee] and the conduct and
motivation of the [employer]” rather than “turn[ing] on the meaning of any term of the
collective bargaining agreement,” and holding that the claim is therefore not preempted
by the LMRA).
         37
            Hammond v. State, Dep’t of Transp. & Pub. Facilities, 107 P.3d 871, 877
(Alaska 2005).
         38
             Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (emphasis added);
see also Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79 (1998) (“[A]ny CBA
requirement to arbitrate [a statutory claim] must be particularly clear.”).

                                         - 13 -                                   7082

employment to arbitration’ or (2) contain ‘an explicit incorporation of the statutory
anti-discrimination requirements in addition to a broad and general arbitration clause.’ ”39
              The collective bargaining agreement at issue here does not meet either
prong of the Hammond test. First, it lacks “a provision whereby employees specifically
agree to submit all . . . causes of action arising out of their employment to arbitration.”
Grievances that may “result[] in the loss of pay (suspension and discharge)” are
addressed, as described above, through a two-stage hearing process followed by an
appeal to arbitration before the System Board of Adjustment. According to the collective
bargaining agreement, “[t]he Board shall have jurisdiction over disputes between any
employee or employees covered by this Agreement and the Company growing out of
grievances or out of interpretation or application of any of the terms of this Agreement.”
Although “disputes . . . growing out of grievances” is a very broad category, the
agreement further explains the purpose of the Board as “adjusting and deciding disputes
or grievances which may arise under the terms of this Agreement, and which are
properly submitted to it after exhausting the procedure for settling disputes.” (Emphasis
added.) “Proper submission” is further defined: Describing the results of the secondary
hearing, the agreement provides that “[i]n the event the issue(s) is not settled
satisfactorily, the General Chair may appeal to arbitration within thirty (30) calendar
days”; and defining the duties of the System Board of Adjustment, the agreement
provides that “[t]he Board shall consider any dispute properly submitted to it by the
General Chair of the Union or his/her designee, or by the Representative of the
Company.” (Emphasis added.) The agreement thus emphasizes repeatedly that, on the
employee side, only appeals to arbitration taken by the union or its representatives are
contemplated. There is nothing in the agreement’s plain language that would lead an


       39
             Hammond, 107 P.3d at 877 (quoting Rogers v. N.Y. Univ., 220 F.3d 73, 76
(2d Cir. 2000)).
                                      - 14 -                                   7082
employee to believe that the Board was authorized to consider any appeals other than
those that were “properly submitted to it” by the union, the company, or their authorized
representatives.40
              The contract’s apparent foreclosure of a grievant’s right to arbitrate if the
union declines to do so on the grievant’s behalf is inconsistent with the first prong of the
Hammond test, which requires the employee’s specific agreement to submit all claims
to arbitration; it is also inconsistent with the second prong of the Hammond test, which
requires “a broad and general arbitration clause.”41 We emphasize that we are not
deciding here whether Bernard, regardless of the language of his collective bargaining
agreement, had an individual right to pursue arbitration that he failed to exercise, as
Alaska Airlines urges and as the superior court held. We have not decided whether the
RLA provides a personal right to demand arbitration when the union fails to do so, and




       40
              Neither party argues that the employee himself could be the “designee” of
the union’s general chair for purposes of taking an appeal without union backing, and
the record in this case does not show that such a designation was considered. Alaska
Airlines argues that Bernard’s right to submit any claim to the Board is evident in the
following language from the collective bargaining agreement: “Employees . . . may be
represented at Board hearings by such person or persons as they may choose and
designate.” Alaska Airlines suggests that this language, coupled with the union’s explicit
notice to Bernard that he could “acquire a lawyer at any time,” clarified Bernard’s
independent right and is consistent with the first prong of the Hammond test. But
Bernard’s right to representation does not clearly state that he may “properly submit” any
claim to the System Board of Adjustment on his own. Notably, the agreement further
provides that Bernard’s chosen representative must be selected “in conformance with the
constitution of the Union,” and the union accordingly informed Bernard that it “must
give its blessing to have an attorney represent [him] before the System Board of
Adjustment.”
       41
              Hammond, 107 P.3d at 877 (quoting Rogers, 220 F.3d at 76).
                                      - 15 -                                          7082

federal courts are divided.42 But that issue is irrelevant to our resolution of Bernard’s
case, which turns on the language of his collective bargaining agreement and whether it
shows a “clear and unmistakable” waiver of his right to pursue state law claims in state
court.
              The collective bargaining agreement at issue here also lacks the “explicit
incorporation of the statutory anti-discrimination requirements” necessary to the second
prong of the Hammond test.43 As noted above, the agreement included a general
provision incorporating Alaska Airlines’ other rules and policies, stating that employees
“shall be governed by the Company’s General Policy and Operating Manuals, and the
System Regulation and Customer Service Manuals and by all other applicable rules,
regulations and orders issued by properly designated authorities of the Company, which
are not in conflict with the terms of this Agreement.” Among these incorporated policies
is the company’s Code of Conduct and Ethics, which includes this anti-discrimination
provision:
              The Company is an equal opportunity employer. This means
              the Company is committed to providing equal consideration
              in all employment decisions (including, for example,
              recruiting, hiring, training, promotions, pay practices,
              benefits, disciplinary actions and terminations) without
              regard to age, race, color, gender, national origin, religion,
              marital status, sexual orientation, disability, veteran status or
              any other classification protected by federal, state, or local
              laws.

         42
             Compare Martin v. Am. Airlines, Inc., 390 F.3d 601, 608-09 (8th Cir. 2004)
(holding that 45 U.S.C. § 153(j) does not provide independent right to appeal to the
System Adjustment Board, but collective bargaining agreement may), with Santiago v.
United Air Lines, Inc., 969 F. Supp. 2d 955, 966 (N.D. Ill. 2013) (holding that while
section 153(j) does not provide independent right to appeal to the System Adjustment
Board, 45 U.S.C. § 184 (2011) does).
         43
              Hammond, 107 P.3d at 877 (quoting Rogers, 220 F.3d at 76).
                                      - 16 -                                       7082

The provision goes on to say that the company “will not tolerate any form of
discrimination or harassment that encourages or could create an offensive, hostile or
intimidating work environment,” and that “[a]cts of discrimination and harassment not
only violate our Company values and policies, but may also violate federal, state, and
local laws and are strictly prohibited.” Other “System Regulations” set out general
standards of expected conduct. None of the incorporated provisions to which Alaska
Airlines directs us expressly cites Alaska law.
             More importantly, the collective bargaining agreement expressly retains
Alaska Airlines’ right to modify the referenced policies and codes of conduct unilaterally
“during the term of the Agreement.” Even assuming that the agreement contains, by its
reference to general policies and codes of conduct, “an explicit incorporation of the
statutory anti-discrimination requirements” of Alaska law,44 we could not find a “clear
and unmistakable” waiver of the employee’s right to pursue state law claims in state
court when the employer retains a unilateral right to modify or eliminate the language
on which the waiver is based.
             We hold that the collective bargaining agreement did not clearly and
unmistakably waive Bernard’s right to pursue his state law claims in state court. He
therefore had that right and did not need to exhaust his contractual remedies before
bringing suit. It was error to dismiss Bernard’s claims as either preempted by federal law
or barred by the exhaustion doctrine.45


      44
             Id.
      45
              Alaska Airlines also asks us to affirm the dismissal of Bernard’s claims on
alternate grounds. First, it contends that the 20-month time between Bernard’s allegation
of sexual harassment in 2009 and his termination in 2011 is too long as a matter of law
to support a finding of retaliatory discharge. But Bernard’s first amended complaint
alleged a course of conduct commencing in 2009 and continuing through his termination.
                                                                            (continued...)
                                             - 17 -                                  7082

       B.	    Bernard’s Hybrid Claim For Breach Of The Duty Of Fair
              Representation Was Time-Barred.
              In his proposed second amended complaint Bernard included a hybrid claim
for breach of the duty of fair representation, based on the union’s alleged failure to notify
him of its decision not to pursue arbitration until after the filing deadline. The superior
court dismissed the hybrid claim as time-barred. It found that Bernard “had notice that
the grievance process had terminated to his disadvantage” when he received the union’s
notice “that it would not appeal his case on November 14, 2011,” and that his complaint
in state court, filed August 16, 2013, “was well outside the six-month window for hybrid
claims.” We agree with the superior court’s decision of this claim.
              Employee claims for violation of the duty of fair representation are
exceptions to the exclusive jurisdiction of the RLA.46 Like other courts, we recognize

       45
         (...continued)
And the lack of factual findings in a case decided on motions to dismiss precludes us
from deciding the case on fact-based grounds. Alaska Airlines also argues conclusorily
that Bernard’s policy-based claim is barred by the two-year tort statute of limitations,
AS 09.10.070. Bernard was discharged on June 24, 2011, the decision of the secondary
hearing is dated August 17, and Bernard filed his complaint two years later on
August 16, 2013. His two-month pursuit of the grievance process equitably tolled the
statute of limitations. See Richardson v. Municipality of Anchorage, 360 P.3d 79, 89
(Alaska 2015) (describing elements of equitable tolling where a plaintiff pursues one
available course of legal redress, fails to obtain relief, and is allowed to pursue the other
course); Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines,
Inc., 790 F.2d 727, 738 (9th Cir. 1986) (holding that it would be inconsistent with the
underlying policies of federal labor law to deny equitable tolling to parties who have
engaged in good faith in a contractual grievance process).
       46
             See Sisco v. Consol. Rail Corp., 732 F.2d 1188, 1190 (3d Cir. 1984)
(“Three exceptions to the exhaustion requirement in actions against employers calling
for the resolution of minor disputes have been recognized: (1) when the employer
repudiates the private grievance machinery; (2) when resort to administrative remedies
would be futile; (3) when the employer is joined in a [duty of fair representation] claim
                                                                           (continued...)
                                        - 18 -	                                      7082

that in rare instances “the statutorily-created arbitration scheme is simply insufficient to
accomplish the very ends it was designed to further.”47 One such instance is “[w]here
the employee’s failure to personally resort to the Board [for arbitration of an employment
dispute] arises solely out of reliance on the union’s expertise and is a function of his or
her own lack of the same.”48 In that event, “failure to afford the employee a judicial
remedy is tantamount to a denial of the right to be a party to a legally enforceable
collective bargaining agreement.”49 In wrongful discharge cases, in order to avoid the
RLA’s arbitration requirement, the employee must “demonstrate both that his discharge
violated the collective bargaining agreement and that his union breached its duty of fair
representation.”50 This makes the claim a hybrid, even when the employee chooses to




       46
         (...continued)
against the union.”). Bernard raises only the futility exception in his appeal. See Czosek
v. O’Mara, 397 U.S. 25, 27-28 (1970) (“[I]t is beyond cavil that a suit against the union
for breach of its duty of fair representation is not within the jurisdiction of the National
Railroad Adjustment Board or subject to the ordinary rule that administrative remedies
should be exhausted before resort to the courts.”).
       47
             Kaschak v. Consol. Rail Corp., 707 F.2d 902, 907 (6th Cir. 1983); see also
Childs v. Pa. Fed’n Bhd. of Maint. Way Emps., 831 F.2d 429, 437-41 (3d Cir. 1987)
(recognizing the three Sisco exceptions but holding that the fourth exception in Kaschak
excused the employee from exhausting administrative remedies).
       48
              Kaschak, 707 F.2d at 910 (emphasis in original).
       49
              Id.
       50
             Schaub v. K & L Distribs., Inc., 115 P.3d 555, 564 (Alaska 2005); see also
Vaca v. Sipes, 386 U.S. 171, 186 (1967); United Parcel Serv., Inc., v. Mitchell, 451 U.S.
56, 62 (1981).
                                         - 19 -                                     7082

sue only the employer or only the union.51 Bernard sought to bring such a claim when
he asked for leave to file his second amended complaint.
              But federal law subjects all such claims to the six-month limitations period
found in § 160(b) of the National Labor Relations Act (NLRA),52 governing complaints
of unfair labor practices. In DelCostello v. International Brotherhood of Teamsters the
United States Supreme Court applied the six-month limitations period to hybrid claims
brought under the NLRA.53 We followed DelCostello when we applied the six-month
limitations period to hybrid claims brought under the Labor Management Relations Act
(LMRA).54 Most federal circuit courts have applied the six-month limitation to hybrid
suits brought under the RLA,55 and we see no reason not to do the same. Bernard’s claim


       51
             DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 (1983) (“The
employee may, if he chooses, sue one defendant and not the other; but the case he must
prove is the same whether he sues one, the other, or both. The suit is thus not a
straightforward breach of contract suit . . . , but a hybrid []fair representation claim,
amounting to a ‘direct challenge to “the private settlement of disputes under [the
collective-bargaining agreement].” ’ ” (third alteration in original) (quoting Mitchell, 451
U.S. at 66 (Stewart, J., concurring))).
       52
              29 U.S.C. § 160(b) (2012).
       53
              462 U.S. at 172.
       54
          See Schaub, 115 P.3d at 564 (“Because Schaub’s claim is hybrid [under the
LMRA], we conclude that it is subject to the six-month statute of limitations . . . .”).
       55
              See Brock v. Republic Airlines, Inc., 776 F.2d 523, 525-26 (5th Cir. 1985)
(“Because the duty of fair representation under the Railway Labor Act is identical to the
duty of fair representation under the National Labor Relations Act, and because the
federal policies and interests articulated in DelCostello are present in hybrid actions
under the Railway Labor Act, . . . the six-month statute of limitations in § 10(b) of the
National Labor Relations Act also controls duty of fair representation claims and hybrid
actions brought under the Railway Labor Act.”); Dozier v. Trans World Airlines, Inc.,
                                                                           (continued...)

                                           - 20 -                                     7082

was brought 21 months after the union declined to appeal his grievance to arbitration,
and it is barred by the six-month limitations period.
V.    CONCLUSION
             We AFFIRM the superior court’s order dismissing Bernard’s hybrid claim
for breach of the duty of fair representation. We REVERSE the order dismissing
Bernard’s other claims as either preempted or subject to the arbitration provisions of the
collective bargaining agreement, and we REMAND for further proceedings consistent
with this opinion.




      55
         (...continued)
760 F.2d 849, 851 (7th Cir. 1985) (“The same policies that led the Court to adopt a
federal limitations statute for hybrid claims brought under the LMRA apply with equal
force to actions brought under the RLA, which similarly governs labor-management
disputes although only in common-carrier industries. Thus, the reasoning and analysis
of DelCostello control in the instant case.”); Barnett v. United Air Lines, Inc., 738 F.2d
358, 363-64 (10th Cir. 1984) (applying the limitations period recognized in DelCostello
to a hybrid action); Welyczko v. U.S. Air, Inc., 733 F.2d 239, 241 (2d Cir. 1984)
(applying the limitations period recognized in DelCostello to a hybrid action); Sisco v.
Consol. Rail Corp., 732 F.2d 1188, 1191-94 (3rd Cir. 1984) (applying the NLRA statute
of limitations period to an action against a union for breach of the duty of fair
representation); Hunt v. Mo. Pac. R.R., 729 F.2d 578, 581 (8th Cir. 1984) (applying the
NLRA statute of limitations period to an action against a union for breach of the duty of
fair representation).

                                          - 21 -                                    7082

