In re: Arbitration Between United Public Workers and City and County of Honolulu

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-MAY-2022
07:52 AM
Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE ARBITRATION BETWEEN

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Union-Appellee,
and
CITY & COUNTY OF HONOLULU, DEPARTMENT OF FACILITY MAINTENANCE,
ROADS MAINTENANCE DIVISION (CLASS GRIEVANCE, RE: DENIAL OF
TEMPORARY ASSIGNMENT); SECTIONS 1, 9, 11, 14, 16, 23; JM-09-07
(2009-060), Employer-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1SP171000377)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

Employer-Appellant City and County of Honolulu,
Department of Facility Maintenance, Roads Maintenance Division
appeals from the: (1) "Order Granting Motion to Confirm
Arbitration Decision and Award, Entry of Judgment, and Other
Relief Filed on 11/22/17"; and (2) "Order Denying Motion to
Vacate Arbitration Decision and Award and/or to Modify or Correct
Award Filed on 12/27/17"; both entered by the Circuit Court of
the First Circuit on March 2, 2018.1 For the reasons explained
below, we affirm both orders.

1
The Honorable Gary W.B. Chang presided.
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Union-Appellee United Public Workers, AFSCME, Local
646, AFL-CIO (UPW) is the exclusive bargaining representative of
the City's employees in bargaining unit 1 (BU1).2 On June 25,
2009, UPW submitted a class grievance alleging that the City:

is denying temporary assignment [to three supervisor
positions3] to the qualified employee on duty in the class
immediately below the class of the temporary assignment in
the same or related series with the greatest workplace
seniority because the employees are under investigation for
alleged criminal activity with [sic] in the Street Sweeping
Baseyard.

The collective bargaining agreement between and City
and UPW BU1 (CBA) contained an agreement to arbitrate grievances
that could not be resolved in two prior steps. An arbitrator was
selected on January 13, 2010. Seven hearings were held between
April 30, 2013, and August 7, 2017. The arbitrator issued an
"Arbitration Decision and Award" on November 17, 2017.
UPW initiated a circuit court Special Proceeding by
filing a motion to confirm the Award on November 22, 2017. The
City filed a motion to vacate the Award on December 27, 2017.

2
Hawaii Revised Statutes (HRS) § 89-6 (2012) provides, in relevant
part:
(a) All employees throughout the State within any of the
following categories shall constitute an appropriate
bargaining unit:

(1) Nonsupervisory employees in blue collar
positions;

(2) Supervisory employees in blue collar
positions[.]
. . . .
(c) . . . In differentiating supervisory from
nonsupervisory employees, class titles alone shall not be
the basis for determination. The nature of the work,
including whether a major portion of the working time of a
supervisory employee is spent as part of a crew or team with
nonsupervisory employees, shall be considered also.
3
The City contends, and UPW does not disagree, that the supervisor
positions at issue are covered by the collective bargaining agreement between
the City and the Hawai#i Government Employees Association (HGEA) bargaining
unit 2 (BU2) (supervisory employees in blue collar positions).

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Both motions were heard on January 11, 2018. The circuit court
noted:

We're here for the hearing on two motions: One, the
Union's Motion to Confirm, and two is the Employer's Motion
to Vacate. I'm just going to have a consolidated hearing on
both matters because they are pretty much reciprocal of one
another.[4]

The circuit court entered orders granting UPW's motion
to confirm and denying the City's motion to vacate on March 2,
2018. This appeal followed.
The City raises two points of error: (1) the arbitrator
exceeded her powers; and (2) the circuit court erred by denying
the City's request to join the Hawaii Government Employees
Association (HGEA) as a party to the Special Proceeding.
"Judicial review of an arbitration award is confined to
the strictest possible limits, and a court may only vacate an
award on the grounds specified in HRS § 658A-23[.]"5 In re
Hawai#i State Tchrs. Ass'n, 140 Hawai#i 381, 391, 400 P.3d 582,
592 (2017) (cleaned up). "[I]n reviewing an arbitration award,
circuit courts are powerless to correct an arbitrator's findings
of fact even if clearly erroneous, or an arbitrator's rulings on
the law, even if wrong." Nordic PCL Const., Inc. v. LPIHGC, LLC,
136 Hawai#i 29, 42, 358 P.3d 1, 14 (2015).

4
HRS § 658A-23(d) (2016) provides:

If the court denies a motion to vacate an award, it shall
confirm the award unless a motion to modify or correct the award
is pending.
5
Relevant to this appeal, HRS § 658A-23(a) (2016) provides:

Upon motion to the court by a party to an arbitration
proceeding, the court shall vacate an award made in the
arbitration proceeding if:
. . . .

(4) An arbitrator exceeded the arbitrator's
powers[.]

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1. The Award did not exceed the
arbitrator's powers.

The City contends:

The circuit court erred in confirming the Award (and in
denying the vacation of the Award) in which the Arbitrator
exceeded her power and authority by enforcing a 'past
practice' in favor of non-supervisory UPW employees to be
temporarily assigned [TA] to supervisory HGEA positions,
thereby vitiating and rending null and of no force and
effect the TA provision of the HGEA collective bargaining
agreement that entitled HGEA supervisory employees to be
temporarily assigned vacant HGEA positions.

In In re Hawaii Organization of Police Officers and
Cnty. of Kaua#i and Kaua#i Police Dep't, 134 Hawai#i 155, 338 P.3d
1170 (App. 2014), aff'd on other grounds, 135 Hawai#i 456, 353
P.3d 998 (2015), we held:

The scope of an arbitrator's authority is determined by agreement
of the parties. An arbitrator must act within the scope of the
authority conferred upon [them] by the parties and cannot exceed
[their] power by deciding matters not submitted. Where an
arbitrator has exceeded [their] powers . . . the resulting
arbitration award must be vacated.

Id. at 159, 338 P.3d at 1174.
The CBA gives the arbitrator the following powers:

15.19 ARBITRABILITY.

15.19a. A grievance may not be arbitrated unless it
involves an alleged violation,
misinterpretation, or misapplication of a
specific section of this Agreement.

. . . .
15.20 b.2. The Arbitrator shall be limited to deciding
whether the Employer has violated,
misinterpreted, or misapplied any of the
sections of this Agreement.

The dispute submitted to the arbitrator was whether the
City violated sections 1.05 and 16 of the UPW CBA "because the
[City] denied temporary assignment to the qualified employee on
duty in the class immediately below the class of the temporary

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assignment in the same or related series with the greatest
workplace seniority[.]"
Section 1.05 of the CBA provides:

CONSULT OR MUTUAL CONSENT.

The [City] shall consult the Union when formulating and
implementing personnel policies, practices and any matter
affecting working conditions. No changes in wages, hours or
other conditions of work contained herein may be made except
by mutual consent.

(emphasis added).
Section 16 of the CBA concerns seniority. Section
16.03 concerns temporary assignments:

A temporary assignment is the assignment by the [City] and
the assumption, without a formal change in position
assignment, of all or a major portion of the significant
duties and responsibilities of another position because:
[the position is vacant or the incumbent is not available.]

Section 16.04 requires:

TEMPORARY ASSIGNMENTS SHALL BE MADE AS FOLLOWS:

16.04a. SAME SERIES PROCEDURE.
The qualified Employee at work in the class
immediately below the class of the temporary
assignment in the same series with the greatest
Baseyard/Workplace or Institutional Workplace
Seniority. If there is no qualified Employee at
work in the next lower class in the same series,
the procedure will be continued within the same
series until the series has been exhausted.

The arbitrator found that during the summer of 2009,
the City temporarily assigned HGEA BU2 members to open supervisor
positions that had previously been temporarily filled by UPW BU1
members. The arbitrator concluded that the City violated "the
mutual consent provision of Section 1.05 by the [City]'s
unilateral change to the past practice and custom of making
temporary assignments to BU 1 employees in the baseyard under
Sections 16.03 and 16.04[.]" Accordingly, the arbitrator
sustained the class grievance; ordered the City to stop
unilaterally changing the way it made temporary supervisor

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assignments; and ordered the City "to make whole affected
employees for loss of pay and benefits for denial of temporary
assignments from 2009 to the present[.]" All of this was within
the arbitrator's powers under the terms of the UPW BU1 CBA.6
The City argues that "[t]he [temporary assignment]
provision of the UPW collective bargaining agreement details the
implementation of intra-bargaining unit temporary assignments.
It cannot and should have [sic] been used to bootstrap inter-
bargaining unit temporary assignments that involved another
union." The CBA does not contain such a limitation; rather, it
provides:

16.03 A temporary assignment is the assignment by the
[City] and the assumption, without a formal
change in position assignment, of all or a major
portion of the significant duties and
responsibilities of another position because:
[the position is vacant or the incumbent is not
available.]

(emphasis added). The City does not cite, nor do we find, any
provision in the CBA, the Civil Service Law (HRS Chapter 76), or
the Collective Bargaining in Public Employment law (HRS Chapter
89) that limits "another position" to positions previously filled
by a BU1 member, or that excludes positions filled by a BU2
member.
The City argues that the Award violated "explicit, well
defined and dominant" public policy, but cites only to an order
of the Hawai#i Labor Relations Board (HLRB) directing the State,
four counties, HGEA, and UPW to "engage in collective bargaining"
to resolve conflicts over "the temporary assignments of UPW non-
supervisory employees to HGEA supervisory positions." The HLRB
order — which denied UPW's motion to dismiss a case involving all
of those parties — is not binding on us, nor does it support the
proposition that the Award violated public policy. The City
concedes "[t]here are no appellate cases on point on this issue

6
The City does not contend that the arbitrator lacked the power to
award a remedy.

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because this issue has not reached the courts." Nor did the
Award purport to decide or declare — specifically or implicitly —
public policy over labor union jurisdiction disputes; the HGEA
BU2 collective bargaining agreement is not contained in the
record, and neither HGEA nor the HGEA BU2 members who temporarily
filled the supervisor positions during the summer of 2009 were
parties to the arbitration.
The City raises another public policy argument; that
the Award violated the City's management rights under HRS § 89-
9(d). The City maintains that the UPW BU1 members who would
otherwise have been temporarily assigned to the open supervisor
positions "were being criminally investigated by the Honolulu
Police Department for overtime compensation fraud" and it was
therefore a management right to not have "the proverbial fox
. . . guard the hen house." Even if the City had provided
evidence substantiating its allegation about the criminal
investigation, "management rights enumerated in HRS § 89–9(d) do
not invalidate or preclude negotiations concerning agreements on
procedures and criteria on . . . assignments[.]" In re Hawaii
Organization of Police Officers, 134 Hawai#i at 163, 338 P.3d at
1178 (cleaned up) (citing S. Stand. Comm. Rep. No. 889, in 2007
Senate Journal, at 1438 ("[t][he purpose of this measure is to
amend [HRS § 89–9(d)] by clarifying that certain statutory
actions shall not be used to invalidate collective bargaining
agreements in effect on and after June 30, 2007, and such actions
may be included in collective bargaining agreements.")).
The City argues that the arbitrator improperly applied
res judicata and collateral estoppel. That argument fails
because even if the arbitrator made a clearly erroneous finding
of fact (for example, that a claim or issue had previously been
decided) or a wrong conclusion of law (for example, that claim or
issue preclusion did or did not apply), that would not be grounds
for a court to vacate the Award. Nordic PCL, 136 Hawai#i at 42,
358 P.3d at 14.

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Based upon the foregoing, we conclude that the Award
did not exceed the arbitrator's powers.

2. The circuit court did not err by failing
to join HGEA in the Special Proceeding.

The City contends: "The circuit court abused its
discretion and committed error in denying the City's request to
have HGEA join as a party in the Special Proceeding by operation
of [Hawai#i Rules of Civil Procedure (HRCP) Rule] 19(a)." The
contention is without merit.
The City never moved to join HGEA in the Special
Proceeding. The circuit court's order denying the City's motion
to vacate noted that the City's request to join HGEA was made "in
its reply brief dated January 8, 2017[,] and during oral argument
on January 11, 2018[.]" The record does not show that the City
filed a motion to join HGEA for the circuit court to grant or
deny.
Even if the City had filed a motion to join HGEA in the
Special Proceeding, HRCP Rule 81 provides:

APPLICABILITY.

(a) To what proceedings not applicable. Except as
expressly otherwise provided in this Rule 81 or another rule
of court, these rules shall not apply to the following
proceedings (pursuant to specific provisions of the Hawai#i
[sic] Revised Statutes when cited below) in any circuit
court:

. . . .
(5) Applications to a circuit court under chapter
658A, relating to arbitration, and proceedings thereon
prior to judgment[.]

The City cites no authority other than HRCP Rule 19(a) to support
its joinder argument.
The City's reply brief cites — for the first time —
HRCP Rule 81(h), which provides in relevant part:

Order of Court. In any proceeding . . . listed in
subdivision (a) of Rule 81 the court may by order direct
that any one or more of these rules, not otherwise

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applicable to said proceeding pursuant to this Rule 81,
shall be applicable to said proceeding.

(emphasis added). HRCP Rule 81(h) gives the circuit court
discretion to apply HRCP Rule 19(a) to special proceedings under
HRS Chapter 658A relating to an arbitration. But the City did
not file a motion under HRCP Rule 81(h) seeking leave to file a
motion to join HGEA under HRCP Rule 19(a). We cannot rule that
the circuit court abused its discretion by denying a motion that
was never made.
For the foregoing reasons, the "Order Granting Motion
to Confirm Arbitration Decision and Award, Entry of Judgment, and
Other Relief Filed on 11/22/17" and the "Order Denying Motion to
Vacate Arbitration Decision and Award and/or to Modify or Correct
Award Filed on 12/27/17" entered by the circuit court on March 2,
2018, are affirmed.
DATED: Honolulu, Hawai#i, May 5, 2022.

On the briefs:
/s/ Keith K. Hiraoka
Ernest H. Nomura, Presiding Judge
Deputy Corporation Counsel,
for Employer-Appellant. /s/ Karen T. Nakasone
Associate Judge
Herbert R. Takahashi,
Rebecca L. Covert, /s/ Sonja M.P. McCullen
for Union-Appellee. Associate Judge

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