By ART CHANCE
SENIOR CONTRIBUTOR
Today asbestos is a known carcinogen, but in its time it was widely used for fire-proofing and insulation.
It is also labor relations slang for an employee who is fire-proof, and the most fire-proof employee is the one you tried to fire — but failed.
I was part of rearranging the career plans of more State employees than anyone, during a point in my labor relations work, but I lost some firings, and I assure you I remember every one that I lost.
I never bothered me to lose one that we should have lost. State managers and supervisors do stupid things sometimes. Political management is out to get somebody sometimes, and, yes, it happens with Republicans and Democrats, though more with Democrats.
Only in the last few years of my career was I far enough up the food chain to just say I wasn’t going to try to defend their decision.
But then there are the ones where the arbitrator was a flake or your management witnesses were flakes. And there were the ones that went to court.
Unionized employees have to exhaust the grievance arbitration process in their contracts before they can go to court, with some esoteric exceptions we don’t need to discuss. If you’ve been fired, lost the arbitration, and try to sue, then the odds are not in your favor. The courts don’t want a lot of employment disputes on their docket, and second, they as a matter of law give great deference to arbitrators. I have some problems with that deference in the public sector, but that is for another column that will be real “inside baseball.”
I always advised my political principals that anytime they went to court they could expect to lose at the trial court level.
First, most Superior Court judges and their clerks don’t know jack about employment law, so they’re going to have to look it all up. Second, they figure the State can fix anything with money, so they’ll grant the injunction to give themselves some time to puzzle it out. And, third, there are a lot of Superior Court judges who’d love to have a Democrat governor appoint them to the Supreme Court, so they’ll rule for the employee or the union as a “great service” to the unions.
In other words, if you’re not prepared to go to the Supreme Court, don’t start the fight.
To bring this to contemporary events: We have some people whose resignations were demanded and accepted by the Dunleavy Administration.
They and the American Communist Lawyers Union (otherwise known as the ACLU) have sued the State. I’ll meet the first 20 lefties who hate me most in the bar of their choice and buy rounds until they’re crawling if the State doesn’t lose at the Superior Court level.
Some have posited that the Administration was simply following my advice during that “resignation epidemic,” but if the Administration had asked me what State employees were “at will,” would have said “None.”
I don’t know if the list of “at will” employees the Administration received was based on incompetence or sabotage, but it was one or the other.
My money is on that the lady known as “One Hot Mess Alaska” going back to work for the State, based on what I predict will be a finding of wrongful discharge.
The odds are pretty good that the two shrinks at Alaska Psychiatric Institute will be reemployed by the State as well.
If they’re smart, they’ll just try to get some money out of the State and go away. But if they do take their jobs back, that will make them “asbestos employees,” untouchable, no matter what they might do. They’ll just assert discrimination for participation in the protected activity of challenging a State decision or using an appeal process, and they’ll win, over and over again, if necessary for them.
My guess is they’ll stick their hand in the State’s purse and walk away laughing, but we’re talking a lot of money here, probably millions collectively.
So, the Dunleavy Administration has to be willing to take these disputes to the Supreme Court, and the Administration may not win there. The Hickel Administration lost some cases over summary dismissal of partially exempt and exempt employees, but none of them were advanced to the Supreme Court, so the law is uncertain.
The Attorney General needs to be prepared to take these cases to the Alaska Supreme Court, but he has to deal with the risk of having “A Hot Mess” on his hands if he isn’t successful.
Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.
