Judge sides with state after union asks for temporary restraining order

Judge agreed there were coronavirus concerns, but says legal action isn’t merited

An Anchorage judge denied a state employees’ union’s request for a temporary restraining order Tuesday, saying the union’s request would essentially halt state operations and was unlikely to succeed in court.

The court acknowledged some of the Alaska State Employees Association’s claims have merit if true, but said the union’s complaint fails to address the disaster declaration issued by Gov. Mike Dunleavy.

An emergency declaration grants a governor special authority, Judge Thomas Matthews wrote in his opinion, “among the specific power granted during a disaster, the Governor may suspend the provisions of any regulatory statute prescribing procedures for the conduct of state business.”

In a March 24 complaint, ASEA alleged the state had failed to follow its own health recommendations and was not providing a safe work environment for employees.

The state had shown “failure to allow telecommuting agreements, the failure to maximize social distancing, the failure to adequately train employees, the failure to treat ASEA members with dignity and respect, the failure to modify work spaces and schedules, the failure to adequately protect employees from exposed hazards, and failure to provide adequate PPE,” wrote attorney for ASEA Molly Brown in the complaint.

ASEA’s complaint alleges although the governor said employees would be able to work from home and telecommute, “many ASEA members’ telework was denied with no explanation or rationale.”

On March 28, the Empire published an article quoting state employees in Juneau making similar allegations they were not allowed to work from home despite their work being done from a computer.

[Known COVID-19 case had ‘contact’ at state offices in Juneau]

The governor has said that state services need to be maintained during the pandemic, and that telework arrangements were to be discussed between employees and their managers. But ASEA, as well as state employees interviewed by the Empire said managers have largely not granted telework requests.

Information officer for the Department of Environmental Conservation Laura Achee said in an email 293 of DEC’s 485 employees were currently working from home.

Matthews agreed this was an issue in his opinion but didn’t agree that a temporary restraining order was the right avenue to redress the matter.

“ASEA offers anecdotal evidence of complaints by members that the State is acting arbitrarily in the implementation of its telecommuting policy. It also offers photos showing cubicles in some state office locations that are closer than six feet,” Matthews wrote.

If those allegations are true, Matthews said, then it could potentially violate the state’s collective bargaining agreement with the union and possibly be considered an unsafe work space. But what ASEA is asking for is a “wholesale injunction ordering the State to ‘follow its policies’ without regard to the Governor’s declaration that Individuals providing ‘Essential Governmental Functions’ are critical.”

In a statement Tuesday, Attorney General Kevin Clarkson praised Matthews’ ruling saying, “Judge Matthews recognized that government power regarding how to address the COVID-19 pandemic, while continuing to maintain essential state services, is entrusted to the Governor and not the judiciary.”

Assistant Attorney General Maria Bahr said in an email the Department of Law was unable to comment as the matter was before the courts.

“The Court today did not say that state employees are safe. It said that the Governor has the discretion under this emergency declaration to determine who is essential and who is not,” said ASEA Executive Director Jake Metcalfe in an email. “And for some reason this Governor seems to want to make sure everyone is working despite the risk of violating serious safety measures and mandates that are in place for the rest of the state.”

A status update will be held telephonically at 3 p.m. Monday, April 6, Matthews wrote.

• Contact reporter Peter Segall at Follow him on Twitter at @SegallJnoEmpire.

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