Therefore, this court does not defer to the superior court but instead reviews the administrative decision de novo. See University of Alaska v. University of Alaska Classified Employees Ass'n, 952 P.2d 1182, 1184 n. 6 (Alaska 1998) (citation omitted). This court applies the substitution of judgment standard.
Findings of misrepresentation involve issues of fact.Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004); Halliburton Energy Servs. v. State, Dep't of Labor, 2 P.3d 41, 44 n. 1 (Alaska 2000) (citing Univ. of Alaska v. Univ. of Alaska Classified Employees Ass'n, 952 P.2d 1182, 1184 n. 6 (Alaska 1998)).Treacy, 91 P.3d at 260 (citation omitted).
But, consistent with the federal courts and with our own precedent, such waiver will be effective only when it is clear and unambiguous. Univ. of Alaska v. Univ. of Alaska Classified Employees Ass'n, 952 P.2d 1182, 1185 (Alaska 1998) (waiver of bargaining subject by express agreement must be in clear and unmistakable language). The collective bargaining agreement negotiated by PSEA and the state clearly and unmistakably waived the employees' right to grieve the state's decision not to provide them with legal representation if they acted beyond the scope of their authority or engaged in willful misconduct or gross negligence.
See State v. Alaska State Employees Ass'n/AFSCME Local 52, 923 P.2d 18, 22 (Alaska 1996).University of Alaska v. University of Alaska Classified Employees Ass'n, 952 P.2d 1182, 1184 n. 6 (Alaska 1998). B. Allen Was an "Interested Person" and Had Standing to Petition for Unitization.
Nothing in the record indicates that the Board, in adopting the "tie affirms" practice for this case, invoked its expertise in interpreting the agency's enabling statutes. See University of Alaska v. University of Alaska Classified Employees Ass'n, 952 P.2d 1182, 1184-85 n. 6 (Alaska 1998) ("Where it appears that the agency has not invoked its expertise, we apply the substitution of judgment standard and review questions of law independently."). We therefore do not defer to the decisions of the Board or the intermediate appellate court.