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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
09-JUN-2020
11:40 AM
SCAP-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
In the Matter of
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Complainant-Appellee-Appellant,
vs.
CHRISTINA M. KISHIMOTO,1 Superintendent, Department of Education,
State of Hawaiʻi; and CONNECTIONS, A New Century Public Charter
School, Appellants-Appellees,
and
HAWAIʻI LABOR RELATIONS BOARD; SESNITA A.D. MOEPONO and J.N.
MUSTO (2003-027), Agency-Appellees-Appellees.
________________________________________________________________
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 07-1-0314)
MEMORANDUM OPINION
(By: McKenna, Pollack, and Wilson, JJ., with Nakayama, J.,
dissenting, with whom Recktenwald, C.J., joins)
I. Introduction
This is a secondary appeal brought by the United Public
Workers, AFSCME, Local 646, AFL-CIO (hereinafter, “UPW”) from
1
Christina Kishimoto has succeeded Patricia Hamamoto (“Hamamoto”) as
Superintendent of the Department of Education, State of Hawaiʻi and, thus, has
been automatically substituted for Hamamoto in this case pursuant to Hawaiʻi
Rules of Appellate Procedure Rule 43(c) (2010).
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rulings of the Circuit Court of the Third Circuit (“circuit
court”) in appeals from decisions of the Hawaiʻi Labor Relations
Board (“HLRB”). UPW first appeals the circuit court’s2 December
3, 2008 interlocutory decision and order vacating the June 8,
2007 HLRB order granting UPW’s motion for summary judgment.
The HLRB’s June 8, 2007 order had concluded James Ah Sing
(“Ah Sing”), who had been a custodian at Connections Public
Charter School (“Connections”) from 2000 to 2003, was covered by
the terms of a March 15, 2004 stipulation signed by parties that
included UPW and the Department of Education of the State of
Hawaiʻi (“DOE”) in another HLRB case concerning civil service
employees at public charter schools. The HLRB had ordered Ah
Sing be reinstated to his position.
The circuit court’s December 3, 2008 order vacated the
HLRB’s June 8, 2007 interlocutory summary judgment order on the
bases that there were genuine issues of material fact as to (1)
whether Ah Sing was a member of bargaining Unit 1 at the time of
his termination; and (2) whether Ah Sing was intended to be in
the class of workers covered by the stipulation in the other
HLRB matter.
On remand, the HLRB ruled in favor of the DOE, and on
appeal, the circuit court affirmed. UPW therefore also appeals
2
The Honorable Glenn S. Hara presided.
2
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the circuit court’s affirmance of the HLRB’s rulings on remand.
UPW raises four points of error on appeal. UPW’s first
point of error maintains that, in the first appeal, the circuit
court erred in failing to recognize the violation of merit
principles and the public policy favoring civil service when it
vacated the HLRB’s interlocutory ruling that Ah Sing was a civil
service member of UPW bargaining Unit 1, who was included in the
stipulation in the other HLRB matter.
We agree with UPW on its first point of error on appeal
that the circuit court erred in vacating the HLRB’s June 8, 2007
interlocutory summary judgment order. We therefore need not and
do not address UPW’s remaining issues on appeal, and we remand
this matter to the HLRB for further proceedings consistent with
this memorandum opinion.3
II. Background
A. Ah Sing’s employment at Connections
Ah Sing was initially appointed on September 5, 2000, to a
nineteen-hours-per-week part-time custodial position at
Connections at its Mountain View campus. All Connections
3
In summary, UPW’s second through fourth points of error arising out of
the second appeal to the circuit court allege the circuit court erred in:
failing to address UPW’s argument that if Ah Sing was in fact not a civil
service employee, Connections and the DOE were required to bargain with UPW
prior to contracting out his position; affirming HLRB’s application of the
exhaustion doctrine to Ah Sing’s claim; and affirming the denial of UPW’s
motion to amend its complaint to include a violation of the stipulation
between UPW and the DOE.
3
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employees were appointed by the local school board on a year-to-
year basis with a not to exceed (“NTE”) date of June 30th of
each school year. Ah Sing’s initial appointment was classified
“exempt,” with a NTE date of June 30, 2001.
Effective February 8, 2001, after Connections moved from
the Mountain View campus to downtown Hilo, Ah Sing’s employment
was increased to full-time (40 hours per week). At that time,
Ah Sing became a member of UPW bargaining Unit 1. An employee
personnel action report dated July 23, 2001, stated that, as of
that date, Ah Sing was in a temporary, exempt, at-will position
(“Position No. 111418”), and that the employment could “be
terminated at any time within 24 hours notice.”
On January 2, 2001, however, the then-DOE Personnel
Director had memorialized a directive that, beginning with the
2001-02 school year, all charter schools’ employees would be in
“temporary civil service positions” that would be filled
applying normal civil service rules. On July 23, 2001, Ah Sing
therefore submitted an application for a “Custodian II” civil
service position, and on the next day, Connections recommended
Ah Sing to a limited term appointment (“LTA”) as a temporary
“School Custodian II,” with a NTE date of June 30, 2002.4 Ah
4
This is consistent with the January 2, 2001 DOE memorialized directive
that, beginning with the 2001-02 school year, all public charter school
positions would be “temporary civil service positions” and filled in
accordance with normal civil service procedures.
4
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Sing completed the civil service application paperwork, and on
August 1, 2001, Ah Sing submitted a separation notice for his
custodian Position No. 111418 to accept DOE civil service
Position No. 56376. Ah Sing was informed that his job had
changed to a civil service position, and an August 22, 2001
employee personnel action report indicates: (1) Ah Sing was
rehired as a School Custodian II in Position No. 56376 effective
August 2, 2001; (2) his appointment was for a limited term, with
a NTE date of June 30, 2002; and (3) he was a member of
bargaining Unit 1.
An employee personnel action report for Ah Sing dated
October 17, 2002, for the 2002-03 school year reflected that Ah
Sing was appointed to the School Custodian II Position No. 56376
with a NTE date of June 30, 2003, and that effective July 2,
2002, his position was “[c]onver[ted]” to a civil service member
from a probationary appointment. This report also states that
“[t]he personnel actions shown above have been taken in
compliance with the provisions of Chapter[] 76 [], HRS, as
amended.” Hawaiʻi Revised Statutes (“HRS”) Chapter 76 is the
“Civil Service Law.”
As noted, from the 2001-02 school year, the DOE had
officially been treating public charter school employees as
civil service employees. On June 9, 2003, however, the then-
Director of the State of Hawaiʻi Department of Human Resources
5
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Development (“DHRD”) wrote to the then-Superintendent of the DOE
stating the DHRD’s position was that employees of public charter
schools did not have civil service status and that the DHRD had
been unaware until a few days before that its lists of eligible
employees were being used to fill public charter school
positions.
In the meantime, a May 6, 2003 Connections letter addressed
to Ah Sing indicated the school board had taken action the day
before “to decline to renew your 89 day contract as of June 30,
2003.” No reason was stated in the letter. A DOE “Separation
Notice” for “Classified Personnel” was signed by Ah Sing on June
27, 2003, and it indicated a separation date effective June 30,
2003, from the School Custodian II Position No. 56376. The
notice was signed by a Connections representative on June 30,
2003, and by the DOE Assistant or Complex Area Superintendent on
July 8, 2003.
A July 17, 2003 letter from the Connections “CEO” to Ah
Sing stated the school board had decided to eliminate Ah Sing’s
position “given the limited funds we will be receiving for the
coming school year.” After Ah Sing’s position was eliminated,
custodial work was performed at Connections by non-bargaining
unit employees, an independent contractor paid for by the
school’s landlord, and non-profit entities.
6
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B. UPW=s HLRB complaints
1. UPW’s complaint on behalf of Ah Sing
On August 18, 2003, UPW filed a prohibited practices
complaint with the HLRB, challenging the non-renewal of Ah
Sing’s custodian position at Connections.5 In the complaint, UPW
alleged that DOE and Connections (collectively, “Employer”)
violated the collective bargaining agreement (“CBA”) with UPW,
and HRS Chapter 89, by terminating Ah Sing. Specifically, the
complaint alleged the non-renewal of Ah Sing’s position (1)
willfully violated various terms of the bargaining Unit 1 CBA in
violation of HRS § 89-13(a)(8) (1993); and (2) constituted a
willful refusal and failure to comply with the duty to bargain
in good faith over mid-term changes in wages, hours of work,
other terms and conditions of employment under HRS §§ 89-3
(Supp. 2000) and 89-9(a) (Supp. 2000),6 and the duty to recognize
5
HLRB Case No. CE-01-539.
6
HRS § 89-3 provides in relevant part:
Rights of employees. [Section effective June 1, 2002. For
present provision, see main volume.] Employees shall have
the right of self-organization and the right to form, join,
or assist any employee organization for the purpose of
bargaining collectively through representatives of their
own choosing on questions of wages, hours, and other terms
and conditions of employment, and to engage in lawful,
concerted activities for the purpose of collective
bargaining of other mutual aid or protection, free from
interference, restraint, or coercion.
(Bracketed material in original.)
HRS § 89-9 provides in relevant part:
(continued. . .)
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UPW as the exclusive bargaining agent under § 89-8(a) (1993).7
UPW’s complaint also alleged Employer’s “willful refusal and
failure to comply with the provisions of [HRS] chapter 89”
constituted prohibited practices under HRS §§ 89-13(a)(1), (5),
and (7).8 Ah Sing’s September 23, 2003 amended complaint added a
(continued. . .)
Scope of negotiations; consultation. [Section effective
July 1, 2002. For section effective June 30, 2002, see
aboe.] (a) The employer and the exclusive representative
shall meet at reasonable times[] . . . and shall negotiate
in good faith with respect to wages, hours . . . and other
terms and conditions of employment which are subject to
collective bargaining and which are to be embodied in a
written agreement as specified in section 89-10, but such
obligation does not compel either party to agree to a
proposal or make a concession[.]
(Bracketed material in original.)
7
HRS § 89-8 provides in relevant part:
Recognition and representation; employee participation.
(a) The employee organization which has been certified by
the board as representing the majority of employees in an
appropriate bargaining unit shall be the exclusive
representatives of all employees in the unit. As exclusive
representative, it shall have the right to act for and
negotiate agreements covering all employees in the unit and
shall be responsible for representing the interests of all
such employees[.]
8
HRS § 89-13 provides in relevant part:
Prohibited practices; evidence of bad faith. (a) It shall
be a prohibited practice for a public employer or its
designated representative wilfully to:
(1) Interfere, restrain, or coerce any employee in
the exercise of any right guaranteed in this
chapter;
. . . .
(5) Refuse to bargain collectively in good faith
with the exclusive representative as required
in section 89-9;
(continued. . .)
8
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claim alleging violation of layoff rights under section 12 of
the CBA.
2. The UPW complaint against the DOE and the UPW/DOE
stipulation
At the time Ah Sing’s HLRB complaint was filed, the status
and rights of employees at public charter schools were the
subject of various additional UPW filings before the HLRB.9
Before filing Ah Sing’s complaint, on July 3, 2003, UPW and the
Hawaiʻi Government Employees Association (“HGEA”) filed a
prohibited practice complaint with the HLRB on behalf of all
employees in bargaining Units 1, 2, 3, 4, and 6, against the
then-Director of the DHRD and then-Governor of the State of
Hawaiʻi, regarding the civil service status of public employees
at charter schools (“UPW complaint”). The UPW complaint, which
was later amended to add the DOE and the Board of Education
(“BOE”), alleged that the DHRD’s position that charter school
employees were not civil service employees and the DOE’s
subsequent implementation of the DHRD directive violated the
collective bargaining rights of affected charter school
(continued. . .)
. . . .
(7) Refuse or fail to comply with any provision of
this chapter; [or]
(8) Violate the terms of a collective bargaining
agreement[.]
9
HLRB Case Nos. CE-01-537a, CE-02-537b, CE-03-537c, and CE-04-537d.
9
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employees.
On July 3, 2003, UPW had obtained from the DOE’s Hawaiʻi
Regional Office’s Personnel Regional Officer in Hilo a list of
Big Island public charter school employees who might be impacted
by the DHRD’s June 9, 2003 directive that public charter school
employees were not civil service employees. The list provided
to UPW by the DOE included Ah Sing.
On March 15, 2004, UPW, the HGEA, the DOE, and the BOE
entered into a stipulation and order in the UPW complaint
(“UPW/DOE stipulation”). The UPW/DOE stipulation provided in
relevant part as follows:
1. The UPW is an employee organization and the exclusive
representative, as provided under HRS § 89-2, of
employees in bargain unit 01, non-supervisory
employees in blue collar positions.
. . . .
4. The UPW [] and the State of Hawaii are at all times
relevant herein part[y] to the collective bargaining
agreement[] covering employees in bargaining unit 01
. . . .
5. Classified employees of the [DOE] covered by these
collective bargaining agreements have historically
and customarily been part of the “merit” or “civil
service” system of the State of Hawaii. There are
approximately 150 classified positions of DOE which
are in public charter schools and covered by such
civil service system.
6. The collective bargaining agreements contain
provisions for the maintenance of prior rights of
employees pursuant to civil service statutes and
rules, and require negotiations before changes in
conditions of work may be implemented.
7. On or about June 9, 2003 the Department of Human
Resources Development (DHRD) informed Employer of its
position (and policy) that employees of public
charter schools in the DOE “do not have civil service
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status” and are no longer part of the merit system.
8. On or about June 12, 2003 DHRD requested Employer to
“convert all public charter school positions to
reflect the fact that these positions do not have
civil service status” by June 30, 2003, and
thereafter informed Employer that DHRD would not
provide “certified lists of eligible applicants” and
“civil service appointments may not be made to fill
public charter school positions.”
9. On and after July 8, 2003 the aforementioned DHRD
position, policy, and actions were communicated to
public charter school administrators and employees.
10. As a direct consequence various public charter school
employees (in order to preserve and maintain their
civil service status, rights and benefits), initiated
transfers and other changes in their terms and
conditions of work.
11. As a further consequence on or about July 1, 2003 and
thereafter, DOE failed to process for hiring
approximately fifteen (15) or more public charter
school employees in classified positions through the
statewide merit system for compliance with civil
service requirements, and as a result these employees
are currently exempt from civil service coverage.
. . . .
14. Employer hereby stipulates and agrees to cease and
desist from implementing the aforementioned DHRD
position or policy regarding loss of civil service
status for public charter school positions and
employees, and to make whole all adversely [affected]
employees (including but not limited to the
restoration or return of said employees to their
former public charter school positions without loss
of rights, privileges, and benefits).
15. Within 30 days from the date of this Stipulation and
Order Employer shall process all currently exempt
public charter school employees in classified
positions through the statewide merit system and
restore them to civil service status. All classified
positions in public charter schools shall be restored
to the merit system within thirty days.
3. HLRB order granting UPW’s motion for summary judgment
in Ah Sing’s case
On March 16, 2004, UPW filed a motion for summary
judgment in Ah Sing’s case before the HLRB, contending it was
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entitled to judgment as a matter of law based on the UPW/DOE
stipulation because Ah Sing fell within the affected class of
the UPW/DOE stipulation. In support of its motion, UPW
attached: (1) a copy of the UPW/DOE stipulation; (2) Ah Sing’s
declaration stating he was notified on June 27, 2003, that his
civil service position was not being renewed; (3) a copy of Ah
Sing’s separation notice from the DOE; and (4) the July 17, 2003
letter from Connections to Ah Sing stating Ah Sing’s position
was being eliminated due to limited funding.
In their memorandum in opposition, Employer argued that UPW
failed to meet its burden of demonstrating that Ah Sing was
adversely affected by the DHRD’s position that public charter
school employees were not entitled to civil service status and
were thus covered by the UPW/DOE stipulation. Employer
contended UPW could not meet this burden because the school
board decided on May 5, 2003, to not renew Ah Sing’s temporary
appointment, which was before the DHRD announced its policy. In
support of its memorandum, Employer attached a declaration from
a DOE personnel specialist stating that “it is [her]
understanding that the decision not to renew Mr. Ah Sing=s
temporary appointment was based upon cost or funding concerns -
not civil service status[] . . . [and] that the decision . . .
was made on or about May 5, 2003.”
The HLRB held a hearing on UPW’s motion on March 29, 2004,
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where the parties presented their arguments. On June 8, 2007,
the HLRB entered an order granting UPW’s motion for summary
judgment. In its order, the HLRB stated Ah Sing’s employment
status and treatment by the DOE and Connections were “hopelessly
muddled[]” and that “[t]he record reflects at least six
alternative representations[,]” but that it was unnecessary to
sort through the “minutia of [Ah Sing’s] particular
circumstance” because “Ah Sing was in all probability the victim
of the confusion surrounding the employment rights and status of
public charter school workers[.]” The HLRB concluded Ah Sing
fell within the terms of the UPW/DOE stipulation and ordered his
reinstatement.
C. First appeal to the circuit court
1. Parties’ briefs
Employer filed a notice of appeal to the circuit court on
July 27, 2007. In its opening brief, Employer claimed the
HLRB’s grant of summary judgment was improper because there were
genuine issues of material fact. Employer argued the HLRB’s
order itself acknowledged factual disputes. Employer also
asserted Connections could not be found to have willfully
engaged in a prohibited practice based on the entry of the
UPW/DOE stipulation because Connections was not a party to the
stipulation. Employer also claimed the HLRB exceeded its
authority and jurisdiction by ordering Ah Sing’s reinstatement
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to a position that no longer existed.
The HLRB’s answering brief noted that, after hearing
arguments, it had concluded there were no issues of material
fact and that UPW was entitled to judgment as a matter of law.
Based on the circumstances surrounding Ah Sing’s termination,
the HLRB maintained that “Ah Sing should have been reinstated to
his position or a similar position as were other classified
charter school employees by the [UPW/DOE stipulation]” and
viewed Employer’s failure to do so as both violating the UPW/DOE
stipulation and breaching the CBA. With respect to Respondent’s
argument that the HLRB had exceeded its jurisdiction by ordering
Ah Sing’s reinstatement, the HLRB noted its broad authority to
fashion remedies for unfair or prohibited practices. The HLRB
cited this court’s opinion in Del Monte Fresh Produce (Hawaii),
Inc. v. International Longshore and Warehouse Union, Local 142,
AFL-CIO, 112 Hawaiʻi 489, 508-10, 146 P.3d 1066, 1085-87 (2006),
which held that the HLRB had not abused its discretion in
fashioning a substantive remedy for laid-off employees. In Del
Monte, this court noted that because the “legislature empowered
the HLRB with discretion in ordering affirmative remedies” and
because discretion is a flexible concept, only an arbitrary or
capricious decision by the HLRB would be an abuse of discretion.
112 Hawaiʻi at 508-09, 146 P.3d at 1085-86. The HLRB requested
that, absent a showing it had abused its discretion, the circuit
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court affirm its remedial order.
2. Circuit court order vacating the HLRB’s order granting
UPW’s motion for summary judgment
After oral arguments, on December 3, 2008, the circuit
court entered its decision and order vacating the HLRB's order
granting UPW's motion for summary judgment in Civil No. 07-1-
314. The circuit court found the HLRB erroneously granted UPW’s
motion for summary judgment because there were genuine issues of
material fact as to: (1) whether Ah Sing was a member of
bargaining Unit 1 at the time of his termination; and
(2) whether Ah Sing was intended to be in the class of workers
covered by the UPW/DOE stipulation. The circuit court thus
vacated the HLRB’s order granting UPW’s motion for summary
judgment.
D. HLRB proceedings on remand
On remand, in summary, in its July 9, 2014 Order No. 3005,
the HLRB denied Employer’s motion to dismiss for lack of subject
matter jurisdiction, denied Employer’s alternative motion for
summary judgment because the circuit court had overturned the
HLRB’s grant of summary judgment in favor of UPW based on
alleged genuine issues of material fact, and denied UPW’s motion
to amend the Ah Sing complaint to add a claim for breach of the
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UPW/DOE stipulation.10 The HLRB reasoned that, if Ah Sing was
covered by the UPW/DOE stipulation, there was already an amended
UPW/HGEA complaint against the DOE in Case No. CE-01-537a
alleging a violation of the UPW/DOE stipulation and that,
therefore, amending the Ah Sing complaint to add a claim against
the DOE would result in two complaints for the same controversy,
in violation of Hawaiʻi Administrative Rules (“HAR”) § 12-42-
42(f) (1981).11
The HLRB then conducted a hearing on the prohibited
practices complaint on October 22, and 23, 2014, December 11,
2014, and May 21, 2015. On August 16, 2017, the HLRB entered
Decision No. 491 with its findings of fact, conclusions of law,
and an order dismissing Ah Sing’s complaint. The HLRB made
numerous findings of facts and concluded: (1) Ah Sing was a
bargaining Unit 1 member at the time that he was terminated and
was required to exhaust his contractual remedies before filing
the complaint;12 (2) Ah Sing was not covered by the UPW/DOE
10
The HLRB also denied UPW’s motion to amend to add claims for: (1)
breach of the ninety-day layoff notice provision in the CBA; (2) breach of
the HLRB’s oral ruling in Ah Sing’s case; and (3) attorney’s fees and costs;
these denials were not appealed.
11
HAR § 12-42-42(f) states: “Only one complaint shall issue against a
party with respect to a single controversy.”
12
The HLRB noted in Decision No. 491 that it had declined to dismiss the
complaint based on Ah Sing=s alleged failure to exhaust remedies twice before:
Notwithstanding these two prior rulings, following
the hearing on the merits on remand, the Board exercises
(continued. . .)
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stipulation because (a) he was not employed by the DOE in March
2004 when the stipulation became effective; (b) Ah Sing’s
limited term position was eliminated due to lack of funding and
not the DHRD’s directive; and (c) the law of the case did not
constrain the HLRB’s conclusion because its initial decision was
vacated by the circuit court; (3) UPW failed to carry its burden
of showing that the DOE contravened the duty to bargain in good
faith in violation of HRS §§ 89-13(a)(1), (5), and (7); and
(4) Connections willfully retaliated against Ah Sing by
cancelling his rubbish hauling contract in violation of HRS
§ 89-13(a)(4), but that UPW failed to show that the retaliatory
conduct violated HRS § 89-13(a)(1) by interfering with Ah Sing’s
right to bargain collectively.13
(continued. . .)
its discretion to reconsider this issue based on Hawaii
federal precedent. . . .
The Board concludes that the evidence on remand was
“substantially different” on this issue because unlike the
record at the time of the first and second motions to
dismiss, the record on remand is undisputed that Ah Sing
was a Unit 1 member. For this reason, the Board, in its
discretion, reconsiders the exhaustion issue and agrees
with [Employer] based on the record that because Ah Sing
was a Unit 1 member at the time of his termination, he was
required to file a grievance and exhaust[] his contractual
remedies[.]”
13
HRS § 89-13 states in relevant part:
(a) It shall be a prohibited practice for a public employer
or its designated representative wilfully to:
(1) Interfere, restrain, or coerce any employee in
the exercise of any right guaranteed in this
chapter[.]
(continued. . .)
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E. Second appeal to the circuit court
UPW appealed the HLRB’s decisions on remand to the circuit
court.14 On August 28, 2018, the circuit court entered a written
decision and order15 affirming the HLRB’s rulings on remand
entered its judgment on September 19, 2018.
F. Appeal to the ICA and transfer to this court
On September 26, 2018, UPW appealed the circuit court’s
decision to the ICA. This court granted UPW’s application for
transfer of the appeal on July 2, 2019.
III. Standards of review
A. Secondary appeals
Review of a decision made by the circuit court upon
its review of an agency’s decision is a secondary appeal.
The standard of review is one in which [the appellate]
court must determine whether the circuit court was right or
wrong in its decision, applying the standards set forth in
HRS § 91-14(g) [(1993)] to the agency’s decision.
HRS § 91-14, entitled “Judicial review of contested
cases,” provides in relevant part:
(g) Upon review of the record the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or
statutory provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(continued. . .)
14
Employer initially filed a cross-appeal, which it later withdrew.
15
The Honorable Henry T. Nakamoto presided.
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(4) Affected by other error of law; or
(5) Clearly erroneous in view of the
reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary, or capricious, or
characterized by abuse of discretion or
clearly unwarranted exercise of
discretion.
[U]nder HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4); questions
regarding procedural defects under subsection (3); findings
of fact under subsection (5); and an agency’s exercise of
discretion under subsection (6).
United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 106
Hawaiʻi 359, 363, 105 P.3d 236, 240 (2005) (second and third
alterations in original). “Pursuant to HRS § 91-14(g), an
agency’s conclusions of law are reviewed de novo.” 106 Hawaiʻi
at 363, 105 P.3d at 240. “A circuit court’s conclusions of law
are subject to de novo review.” Paul’s Elec. Serv., Inc. v.
Befitel, 104 Hawaiʻi 412, 420, 91 P.3d 494, 502 (2004).
B. Summary judgment
An appellate court reviews a grant of summary judgment de
novo:
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.
Uyeda v. Schermer, 144 Hawaiʻi 163, 170, 439 P.3d 115, 122
(2019).
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IV. Discussion
In its opening brief, UPW raises the following points of
error:
1. The circuit court erroneously failed to recognize the clear
violation of the merit principles and public policy
favoring civil service when it vacated the [HLRB’s] prior
grant of summary judgment and then affirmed the [HLRB’s]
later conclusion that the [UPW/DOE stipulation] and order
did not extend to Ah Sing and his civil service position at
Connections.
2. The circuit court erroneously failed to recognize
[Employer’s] duty to negotiate over the elimination of
Connections’ only unit 1 employee and their duty to bargain
over the decision of privatizing the work if Ah Sing was in
fact not a civil service employee.
3. The circuit court erred in affirming the [HLRB’s]
abrogation of its exclusive original jurisdiction as
delegated by the legislature when HLRB misapplied the
exhaustion doctrine to refuse to decide [UPW’s] claims for
violations of the [CBA] under [HRS § 89-13(a)(8)].
4. The circuit court erroneously determined that the [HLRB]
did not err in denying [UPW’s] motion to amend the original
complaint to include the violation of the [UPW/DOE
stipulation].
As noted earlier, we agree with UPW’s first point of error
on appeal. For the reasons explained below, the circuit court
erred in vacating the HLRB’s June 8, 2007 order granting summary
judgment in favor of UPW on the grounds that there were genuine
issues of material fact as to: (1) whether Ah Sing was a member
of bargaining Unit 1 at the time of his termination; and
(2) whether Ah Sing was intended to be in the class of workers
covered by the UPW/DOE stipulation. Based upon our de novo
review, the circuit court erred because there were no such
genuine issues of material fact. We therefore need not and do
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not address UPW’s remaining issues on appeal, and we remand this
matter to the HLRB for further proceedings consistent with this
memorandum opinion.
First, there is no genuine issue of material fact regarding
whether Ah Sing was a member of bargaining Unit 1 at the time of
his termination. When Ah Sing accepted DOE civil service
Position No. 56376 in August 2001, the August 22, 2001 employee
personnel action report clearly indicated he was a member of
bargaining Unit 1. His employee personnel action report of
October 17, 2002, for the school year ending June 30, 2003, also
clearly indicated he was a member of bargaining Unit 1. Thus,
the circuit court erred by ruling in its December 3, 2008
decision and order that the HLRB erred in granting UPW’s motion
for summary judgment on the grounds that there was a genuine
issue of material fact as to whether Ah Sing was a member of
bargaining Unit 1 at the time of his termination on June 30,
2003.
The circuit court also based its vacatur of the HLRB’s June
8, 2007 summary judgment order, however, based on its conclusion
that there was also a genuine issue of material fact as to
whether Ah Sing was intended to be covered by the UPW/DOE
stipulation. The HLRB’s June 8, 2007 decision did state that
“[t]he record reflects at least six alternative representations
of [Ah Sing’s] employment status and consequent reasons for
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termination[,]” and that “Ah Sing was in all probability the
victim of the confusion surrounding the employment rights and
status of public charter school workers[.]” These observations,
however, do not raise genuine issues of material fact as to
whether or not Ah Sing was covered by the UPW/DOE stipulation.
Ah Sing’s employee personnel action report of October 17,
2002, for the school year ending June 30, 2003, indicates he was
hired effective July 2, 2002, in DOE civil service Position No.
56376 for a one-year period with a NTE date of June 30, 2003,
and that he was a member of bargaining Unit 1. Also, the DOE
itself included Ah Sing in the July 3, 2003 list of Big Island
public charter school employees impacted by the DHRD’s June 9,
2003 directive that public charter school employees were not
civil service employees.
The plain language of the UPW/DOE stipulation states it
applied to “approximately 150 classified positions of DOE [] in
public charter schools [] covered by [the] civil service system”
(paragraph 5), which included bargaining Unit 1 employees
(paragraphs 1 and 4), for whom DOE was informed that “[o]n or
about June 9, 2003 . . . that employees of public charter
schools in the DOE ‘do not have civil service status’”
(paragraph 7).
In paragraph 14 of the stipulation, Employer agreed to
“cease and desist from implementing the aforementioned DHRD
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position or policy regarding loss of civil service status for
public charter school positions and employees[.]” The
“aforementioned” DHRD position or policy included the DHRD’s
statement that “[o]n or about June 9, 2003 . . . that employees
of public charter schools in the DOE ‘do not have civil service
status’” (paragraph 7), which included Ah Sing, who was still a
civil service public charter school employee as of that date.
Then, as stated in paragraph 6 of the UPW/DOE stipulation,
“[t]he collective bargaining agreements contain provisions for
the maintenance of prior rights of employees pursuant to civil
service statutes and rules, and require negotiations before
changes in conditions of work may be implemented.” Ah Sing had
such civil service rights as a bargaining Unit 1 civil service
employee.
Employer argues that despite including Ah Sing’s name in
the list of employees affected by the DHRD’s June 9, 2003
directive in its July 3, 2003 letter to UPW, Ah Sing was not
included in the stipulation because he had been notified in May
6, 2003, that Connections would not be renewing his contract due
to budget limitations. This, however, is not a genuine issue of
material fact as to whether Ah Sing was covered by the UPW/DOE
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stipulation.16 The stipulation included civil service bargaining
Unit 1 public charter school employees as of June 9, 2003, when
the DHRD stated he did not enjoy civil service rights. Ah Sing
was denied rights as a civil service employee, which existed
whether or not Connections had reduced funding. Therefore, he
is included in the UPW/DOE stipulation, and the circuit court
also erred in vacating the HLRB’s June 8, 2007 summary judgment
order based on its conclusion that there was a genuine issue of
material fact as to whether Ah Sing was intended to be covered
by the UPW/DOE stipulation.
Accordingly, we need not address UPW’s additional points of
error arising out of the HLRB’s decisions after remand.
V. Conclusion
Based on the reasons explained above, we remand this matter
to the HLRB for further proceedings consistent with this
memorandum opinion. If the remedy ordered by the HLRB in its
June 8, 2007 order is no longer available or appropriate, as
stated in Del Monte, the “legislature empowered the HLRB with
16
Accordingly, we disagree with the dissent. Also, Connections’
purported May 6, 2003 non-renewal of Ah Sing and the DOE employee’s
attestation that Ah Sing’s non-renewal was not related to DHRD’s position
regarding civil service status of the various employees does not create a
genuine issue of material fact because Ah Sing was still a civil service
employee as of June 9, 2003; the DOE itself included Ah Sing in the July 3,
2003 list of Big Island public charter school employees impacted by the
DHRD’s June 9, 2003 directive that public charter school employees were not
civil service employees.
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discretion in ordering affirmative remedies[.]” 112 Hawaiʻi at
508, 146 P.3d at 1085.
DATED: Honolulu, Hawaiʻi, June 9, 2020.
Rebecca L. Covert, /s/ Sabrina S. McKenna
(Herbert R. Takahashi
with her on the briefs) /s/ Richard W. Pollack
for claimant
/s/ Michael D. Wilson
James E. Halvorson and
Richard H. Thomason,
for appellants-appellees
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