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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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
12-MAY-2022
07:58 AM
Dkt. 70 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE MEDIATION BETWEEN

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Union-Appellee,
and
CITY AND COUNTY OF HONOLULU, DEPARTMENT OF ENVIRONMENTAL
SERVICES, REFUSE DIVISION (on bulky item refuse collection)
(KA-13-09)(2013-024), Employer-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1SP181000206)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Employer-Appellant City and County of Honolulu,
Department of Environmental Services, Refuse Division (City or
Employer), appeals from the Judgment entered by the Circuit Court
of the First Circuit on October 22, 2018.1 For the reasons
explained below, we affirm the Judgment.

BACKGROUND

Union-Appellee United Public Workers, AFSCME, Local
646, AFL-CIO (UPW or Union) initiated three class grievances
against the City. UPW and the City agreed to have one person

1
The Honorable Virginia L. Crandall presided.
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serve as arbitrator for all three cases. UPW served a discovery
request upon the City. The City did not respond. UPW filed a
motion to compel and for sanctions. The arbitrator granted the
motion and imposed sanctions against the City. The April 3, 2018
"Order Granting Motion to Compel and for Sanctions" provided, in
relevant part:

I. Employer shall pay to the union sanctions in the
amount of $4,188.48 for continuing and repeated violations
of Section 15.09 and the arbitrator's prior cease and desist
order. . . . Payment of the sanctions by employer to the
union in the amount of $4,188.48 shall be made not later
than 30 days from the date of this order.

J. Employer is hereby ordered to provide prompt,
full, and complete responses to the union's request for
information dated February 9, 2018 by not later than 7 days
from the date of this order, and shall cease and desist from
continuing to violate Section 15.09 of the unit 1 agreement.

K. In the event employer fails to comply with
paragraphs I and J of this decision and order, employer
shall pay to the union a daily assessment to be determined
by the Arbitrator. If there is non-compliance with the
terms and conditions of this order, additional attorney's
fees incurred by the union to enforce compliance with this
decision may be ordered.

(citations omitted).
The City did not comply with the Order Granting Motion
to Compel. UPW moved for entry of a partial final award. The
arbitrator granted the motion and issued a "Partial Final
Arbitration Decision and Award" (Partial Final Award) on June 7,
2018. The Partial Final Award provided:

1. Employer shall pay to the Union daily
assessments of $300.00 per day from April 10, 2018 to May
21, 2018 for a total of $12,300[.] The assessments shall be
paid by the Employer to the Union not later than forty-five
(45) days from the date of this decision and award. In the
event Employer fails to make timely payment of the daily
assessments, Employer shall pay interest on the amounts due
and owing at the rate of ten percent (10%) per annum to the
date payment of the full amount due and owing is actually
made to the Union.
2. Employer shall pay to the Union $4,188.48 for
attorney 's fees which were due and owing on and after May
3, 2018 under the April 3, 2018 order granting the motion to
compel and for sanctions together with interest assessed at
ten percent (10%) per annum from May 3, 2018 to the date
payment is actually made by Employer to the Union.

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3. Employer shall pay to the Union additional
attorney's fees in the amount of $15,078.53 for attorney's
fees and costs in the amount of $562.47 to enforce
compliance with the remedial terms of the April 3, 2018
order granting the motion to compel and for sanctions. The
additional reasonable attorney's fees and costs shall be
paid by the Employer to the Union not later than forty-five
(45) days from the date of this decision and award. In the
event Employer fails to make timely payment of the
additional costs and reasonable attorney's fees, Employer
shall pay interest on the amounts due and owing at the rate
of ten percent (10%) per annum to the date payment of the
full amount due and owing is actually made to the Union.

UPW then initiated a special proceeding in circuit
court to confirm the Partial Final Award. The City did not move
to vacate the Partial Final Award. The record does not contain a
memorandum in opposition filed by the City.2 The circuit court
entered an order granting UPW's motion and the Judgment. This
appeal by the City followed.

POINT OF ERROR

The City raises a single, narrow point of error:

"The circuit court erred as a matter of law in
granting UPW's Motion to Confirm in concluding
that the Partial Final Award was subject to
confirmation under Haw. Rev. Stat. § 658A-22."

2
The City filed a motion to supplement the record on appeal,
contending its memorandum in opposition to UPW's motion was filed using an
incorrect case number. We denied the motion without prejudice because the
City did not demonstrate that the document was presented to or considered by
the circuit court, citing State v. Pacquing, 129 Hawai#i 172, 192, 297 P.3d
188, 208 (2013) ("supplementing the record on appeal with evidence not
presented to the trial court is improper under HRAP [Hawai#i Rules of
Appellate Procedure] Rule l0(e)").

The City filed a renewed motion to supplement the record on
appeal, stating that the circuit court had granted the City's ex parte motion
to re-file the memorandum under the correct case number, but for some reason
"the refiling of the City's opposition memorandum did not make it to the
correct S.P. Number, as the Record on Appeal does not contain the document[.]"
UPW opposed the renewed motion. We denied the motion without prejudice to the
City seeking relief from the circuit court under HRAP Rule 10(e)(1) and
(2)(B), because "the circuit court in the underlying case is better situated
to determine whether it was presented with or considered the [City's
memorandum in opposition], and whether the documents were omitted from the
record on appeal by error or accident." The circuit court clerk did not
thereafter file a supplemental record on appeal.

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The City did not move to vacate the Partial Final Award
and the record contains no memorandum in opposition to UPW's
motion to confirm. The only argument the City could not have
waived is that the circuit court lacked jurisdiction under
Chapter 658A of the Hawaii Revised Statutes (HRS) to confirm the
Partial Final Award. See Mathewson v. Aloha Airlines, Inc., 82
Hawai#i 57, 69, 919 P.2d 969, 981 (1996) ("The lack of subject
matter jurisdiction can never be waived by any party at any
time.") (cleaned up).

STANDARD OF REVIEW

"Whether a circuit court possesses subject matter
jurisdiction over a dispute relating to arbitration . . . is a
question of law reviewable de novo." Mathewson, 82 Hawai#i at
69, 919 P.2d at 981 (citations omitted).

Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong standard.
Our statutory construction is guided by the following well
established principles: our foremost obligation is to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. And we must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose.

United Public Workers, AFSCME, Loc. 646 v. City & Cnty. of
Honolulu, 124 Hawai#i 367, 369, 244 P.3d 604, 606 (App. 2010)
(reformatted) (the Sick Leave Credit case).

DISCUSSION

HRS § 658A-22 (2016) provides:

Confirmation of award. After a party to an arbitration
proceeding receives notice of an award, the party may make a
motion to the court for an order confirming the award at
which time the court shall issue a confirming order unless
the award is modified or corrected pursuant to section
658A-20 or 658A-24 or is vacated pursuant to section
658A-23.

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The City contends that HRS § 658A-22 did not authorize
confirmation of the Partial Final Award because the Partial Final
Award "did not address any of the substantive merits of the
underlying labor grievance" and HRS § 658A-22 "contemplates a
final decision on the merits, not an interim, interlocutory
decision, award, or order."
The City relies upon Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 869 P.2d 1334 (1994). Jenkins was an
appeal from a civil lawsuit. The circuit court granted motions
to dismiss filed by six of the seven defendants. The plaintiff
appealed. The six defendants contested appellate jurisdiction
because the orders granting the motions to dismiss did not
resolve the plaintiff's claim against the seventh defendant, and
no separate judgment had been entered as required by Rule 58 of
the Hawai#i Rules of Civil Procedure (HRCP). The supreme court
held:

(1) An appeal may be taken from circuit court orders
resolving claims against parties only after the orders have
been reduced to a judgment and the judgment has been entered
in favor of and against the appropriate parties pursuant to
HRCP 58; (2) if a judgment purports to be the final judgment
in a case involving multiple claims or multiple parties, the
judgment (a) must specifically identify the party or parties
for and against whom the judgment is entered, and (b) must
(i) identify the claims for which it is entered, and
(ii) dismiss any claims not specifically identified; (3) if
the judgment resolves fewer than all claims against all
parties, or reserves any claim for later action by the
court, an appeal may be taken only if the judgment contains
the language necessary for certification under HRCP 54(b);
and (4) an appeal from any judgment will be dismissed as
premature if the judgment does not, on its face, either
resolve all claims against all parties or contain the
finding necessary for certification under HRCP 54(b).

Id. at 119, 869 P.2d at 1338. Jenkins is inapposite because HRCP
Rules 54(b) and 58 do not apply to "[a]pplications to a circuit
court under [HRS] chapter 658A, relating to arbitration, and
proceedings thereon prior to judgment[.]" HRCP Rule 81(a)(5).
The City also relies upon the Sick Leave Credit case.
That case involved two class-action labor grievances. The union
and employer agreed to arbitrate the grievances pursuant to

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provisions in the parties' collective bargaining agreements. The
circuit court appointed an arbitrator. At some point, the City
contested the arbitrability of the grievances. The arbitrator
held a hearing, then issued an "Arbitrator's Determination on the
Issue of Arbitrability[.]" The arbitrator decided "that the
class grievance is arbitrable on its merits and this matter shall
proceed to further arbitration for a determination on the merits
of the class grievance." Id. at 368, 244 P.3d at 605. The union
moved to confirm the arbitrator's decision. The circuit court
granted the motion and entered a judgment. The City appealed.
We held that the legislature "intended [the term] 'award' as used
in HRS § 658A–28(a)[3] to mean a final arbitration award and not
merely any arbitration intermediate decision." Id. at 370, 244
P.3d at 607 (cleaned up) (bold italics added). Because the
arbitrator's decision regarding arbitrability was not an "award"
under HRS § 658A–28(a), we dismissed the appeal for lack of
appellate jurisdiction. We did not decide whether the circuit
court had the authority under HRS § 658A–22 to "issue a
confirming order" on the arbitrator's determination of
arbitrability.
In this case, the arbitrator was authorized to issue
the Order Granting Motion to Compel. HRS § 658A-17 (2016)
provides, in relevant part:

Witnesses; subpoenas; depositions; discovery.

. . . .
(c) An arbitrator may permit such discovery as the
arbitrator decides is appropriate in the circumstances,
taking into account the needs of the parties to the
arbitration proceeding and other affected persons and the

3
HRS § 658A-28 (2016) provides, in relevant part:
Appeals. (a) An appeal may be taken from:

. . . .
(3) An order confirming or denying confirmation of
an award[.]

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desirability of making the proceeding fair, expeditious, and
cost effective.
(d) If an arbitrator permits discovery under
subsection (c), the arbitrator may order a party to the
arbitration proceeding to comply with the arbitrator's
discovery-related orders, issue subpoenas for the attendance
of a witness and for the production of records and other
evidence at a discovery proceeding, and take action against
a noncomplying party to the extent a court could if the
controversy were the subject of a civil action in this
State.

(bold italics added). HRCP Rule 37(b) authorizes a court to
impose sanctions, including an award of attorneys' fees, against
a party that fails to comply with a discovery order.
After the City failed to comply with the Order Granting
Motion to Compel, UPW moved for summary disposition of the issue
under HRS § 658A-15(b)(2). HRS § 658A-15 (2016) provides, in
relevant part:

(b) An arbitrator may decide a request for summary
disposition of a claim or particular issue:

. . . .

(2) Upon request of one party to the arbitration
proceeding if that party gives notice to all
other parties to the proceeding, and the other
parties have a reasonable opportunity to
respond.

(bold italics added).
In addition, HRS § 658A-18 (2016) provides in relevant
part:

Judicial enforcement of pre-award ruling by arbitrator. If
an arbitrator makes a pre-award ruling in favor of a party
to the arbitration proceeding, the party may request the
arbitrator to incorporate the ruling into an award under
section 658A-19. A prevailing party may make a motion to
the court for an expedited order to confirm the award under
section 658A-22, in which case the court shall summarily
decide the motion. The court shall issue an order to
confirm the award unless the court vacates, modifies, or
corrects the award[.]

(bold italics added). The Order Granting Motion to Compel was a
pre-award ruling by the arbitrator.

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The City argues that HRS § 658A-18 only allows the
incorporation of a pre-award ruling into a final award. But the
plain language of HRS § 658A-18 refers to the arbitrator
incorporating a pre-award ruling into "an" award, not "the" award
or "the final" award. That is also what HRS Chapter 658A, read
as a whole, comprehends. HRS § 658A-19 (2016) provides, in
relevant part:

Award. (a) An arbitrator shall make a record of an award.
The record shall be signed or otherwise authenticated by any
arbitrator who concurs with the award. The arbitrator or
the arbitration organization shall give notice of the award,
including a copy of the award, to each party to the
arbitration proceeding.

(bold italics added). A "record" is "information that is
inscribed on a tangible medium or that is stored in an electronic
or other medium and is retrievable in perceivable form." HRS
§ 658A-1 (2016). The Partial Final Award was a record signed by
the arbitrator. Nothing in HRS Chapter 658A limits the
arbitrator to issuing one "final" award.
The Partial Final Award was an interim award. HRS
§ 658A-8 (2016) provides, in relevant part:

Provisional remedies.

. . . .

(b) After an arbitrator is appointed and is
authorized and able to act:

(1) The arbitrator may issue such orders for
provisional remedies, including interim awards,
as the arbitrator finds necessary to protect the
effectiveness of the arbitration proceeding and
to promote the fair and expeditious resolution
of the controversy, to the same extent and under
the same conditions as if the controversy were
the subject of a civil action[.]

(bold italics added). HRS § 658A-18 authorized UPW to "make a
motion to the [circuit] court for an expedited order to confirm
the [interim] award under section 658A-22[.]" That is what UPW
did below. The circuit court had jurisdiction to enter the order
granting UPW's motion to confirm the Partial Final Award.

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Having confirmed the Partial Final Award, the circuit
court also had jurisdiction to enter the Judgment. HRS § 658A-25
(2016) provides, in relevant part:

Judgment on award; attorney's fees and litigation expenses.
(a) Upon granting an order confirming . . . an award, the
court shall enter a judgment in conformity therewith. The
judgment may be recorded, docketed, and enforced as any
other judgment in a civil action.

CONCLUSION

The Order Granting Motion to Compel was a pre-award
ruling authorized by HRS § 658A-17. UPW moved for it to be
incorporated into an "award" as allowed by HRS §§ 658A-18 and -
19. The arbitrator granted the motion and issued the Partial
Final Award, which was an interim award, under HRS § 658A-8. UPW
then utilized HRS §§ 658A-18 and -25 to move the circuit court
for an expedited order to confirm the Partial Final Award under
HRS § 658A-22. The circuit court had jurisdiction to confirm the
Partial Final Award and to enter the Judgment. For the foregoing
reasons, the Judgment entered by the circuit court on October 22,
2018, is affirmed.
DATED: Honolulu, Hawai#i, May 12, 2022.

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

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