§ »'=`":».@ARY
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IN THE SUPREME COURT OF THE STATE OF HAWAl‘I
--- oOo ---
HAWAll GOVERNMENT EMPLOYEES ASSOClATlON,
AFSCME LOCAL l52, AFL-CIO, Plaintiff-Appellee,
and
HAWAlI STATE TEACHERS ASSOCIATION and UNITED PUBLIC WORKERS,
AFSCME, Local 646, ALF-CIO, Intervenors-Appellees,
VS.
as Governor of the State of Hawai5i; and DOES 1-lO,
LlNDA LlNGLE,
Defendant-Appellant.
NO. 29972
APPEAL FROM THE FIRST CIRCUIT COURT
(ClV. NO. 09-l-l375)
SEPTEMBER 8, 2010
NAKAYAMA, ACTlNG C.J., DUFFY AND RECKTENWALD,“TJ
ClRCUlT JUDGE AHN IN PLACE OF MOON, C.J., RECUSED,
AND ACOBA, J., DISSENTING
OPlNION OF THE COURT BY NAKAYAMA, J.
Defendant-Appellant, Linda Lingle (“Lingle”), as
appeals from the Circuit Court
2009 final
Governor of the State of HawaiUq
of the First Circuit’s1 (“circuit court’s”) July 28,
judgment and findings of fact, conclusions of law, and order in
favor of Plaintiff-Appellee, Hawaii Government Employees
AFSCME Local l52, AFL-CIO (“HGEA”). On appeal,
Association,
Lingle presents the following points of error: (l) “the circuit
1 The Honorable Karl K. Sakamoto presided.
.,W
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court erred when it acted without jurisdiction and ruled on
whether the furlough plan complied with Hawai‘i Revised Statutes
(HRS) § 89-9(d) [(Supp. 2OO8)2] and the unilateral change
2 HRS § 89-9(d) provides:
Excluded from the subjects of negotiations are matters
of classification, reclassification, benefits of but not
contributions to the Hawaii employer-union health benefits
trust fund or a voluntary employees' beneficiary association
trust; recruitment; eXamination; initial pricing; and
retirement benefits except as provided in section 88-8(h).
The employer and the exclusive representative shall not
agree to any proposal that would be inconsistent with the
merit principle or the principle of equal pay for equal work
pursuant to section 76-1 or that would interfere with the
rights and obligations of a public employer to:
(l) Direct employees;
(2) Determine qualifications, standards for
work, and the nature and contents of examinations;
(3) Hire, promote, transfer, assign, and retain
employees in positions;
(4) Suspend, demote, discharge, or take other
disciplinary action against employees for proper
cause;
(5) Relieve an employee from duties because of
lack of work or other legitimate reason;
1 (6) Maintain efficiency and productivity,
including maximizing the use of advanced technology,
in government operations;
(7) Determine methods, means, and personnel by
which the emplover’s operations are to be conducted;
and
(8) Take such actions as may be necessary to
carry out the missions of the employer in cases of
emergencies.
This subsection shall not be used to invalidate
gprovisions of collective bargaining agreements in effect on
and after June 30, 2007, and shall not preclude negotiations
over the procedures and criteria on promotions, transfers,
assignments, demotions, layoffs, suspensions, terminations,
discharges, or other disciplinary actions as a permissive
subject of bargaining during collective bargaining
negotiations or negotiations over a memorandum of agreement,
memorandum of understanding, or other supplemental
agreement.
Violations of the procedures and criteria so
negotiated may be subject to the grievance procedure in the
collective bargaining agreement,
continue...
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doctrine”; (2) “[t]he circuit court erred when it concluded that
[Lingle's] furlough plan was not a valid exercise of her
management rights under HRS § 89-9(d) and violated the unilateral
change doctrine”; (3) “[t]he circuit court erred when it
incorrectly ruled, as a matter of law, that [Lingle’s] furlough
plan violated the constitutional right to bargain collectively in
the public sector under [a]rticle XIII § 2 of the Hawaii
constitution”;3 and (4) “[t]he circuit court erred in applying the
test for injunctive relief” because “HGEA demonstrated no
irreparable harm, and the public interest did not support
granting the injunction, and the circuit court misread the
law.” Based upon the following analysis, we vacate the circuit
court’s July 28, 2009 final judgment and findings of fact,
conclusions of law and order, and remand this case for further
proceedings consistent with this opinion. More specifically, we
hold that the HawaFi Labor Relations Board (“HLRB”) had
“exclusive original jurisdiction” over the statutory issues
raised by HGEA, and that the circuit court should have deferred
ruling on the constitutional issues until after the HLRB had the
opportunity to resolve the statutory questions.
2...continue
(Emphases added.)
3 Article XIII, section 2 of the Hawafi constitution provides:
“Persons in public employment shall have the right to organize for the purpose
of collective bargaining as provided by law.”
3
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I. BACKGROUND
A. Executive Order 09-02
On June 24, 2009, Lingle issued executive order 09-O2.
Therein it was observed that “the widespread impact of the global
financial crisis and constantly decreasing revenue projections by
the [state] Council on Revenues . . . forced the State of Hawaii
to make drastic and unprecedented revenue and expenditure
adjustments to close a budget shortfall of approximately two
billion dollars ($2,000,000,000) through the fiscal biennium
2009-20ll[.]” (Brackets and ellipsis added.) lt observed
further that, “based on the May 28, 2009 projections by the
[state] Council on Revenue, the State of Hawaii is . . . facing
an additional deficit of seven hundred thirty million dollars
($730,000,000) through the fiscal biennium 2009-20ll, resulting
in an immediate fiscal emergency of unparalleled magnitude[.]”
In light of the current revenue estimates, executive
order 09-02 ordered the furlough“ of certain state executive
branch employees for a total of seventy-two work days over the
fiscal biennium 2009-2Oll,5 which was to become effective on July
l, 2009, and subject to certain terms and conditions. Among
these terms and conditions was the requirement that the affected
state executive branch employees’ pay would be “automatically
4 Executive order number 09-02 defined a “furlough” as “the
placement of an employee temporarily and involuntarily in a non-pay and non-`
duty status by the Employer because of lack of work or funds, or other non-
disciplinary reasons.”
5 Executive order number 09-02 required that thirty-six furlough
days were to be taken during each of fiscal years 2009-2010 and 2010-20ll.
4
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adjusted” by reducing the affected employee's pay between l3.8%
and l5.8% each pay period to account for the furlough days.
Although executive order 09-02 was issued on June 24,
2009, on June l, 2009, Lingle publicly announced her plan to,
among other things, furlough certain state executive branch
employees for “3 days/24 hours each month, from July l, 2009 to
June 30, 20ll, thereby unilaterally reducing employees’ hours and
cutting employees’ wages approximately l3.8%.”
B. Circuit Court Proceedings
After Lingle’s June l, 2009 announcement, on June l6,
2009, HGEA filed a complaint in the circuit court that sought,
among other things, a declaratory judgment that Lingle “cannot
unilaterally impose the furloughs,” and a preliminary and
permanent injunction enjoining Lingle from “unilaterally
imposing” the same. HGEA based its request for relief on article
XIII, section 2 of the HawaiT_constitution and HRS Chapter 89.
In a first amended complaint filed on June 22, 2009,
HGEA averred that Lingle “intends to unilaterally implement new
procedures regarding layoffs after June 20, 2009 and impose mass
state employee[] layoffs” “if her furlough plan is blocked by the
courts.” As such, HGEA also sought a declaratory judgment that
Lingle cannot “unilaterally impose new layoff procedures,” and a
preliminary and permanent injunction enjoining Lingle from
“unilaterally imposing” the same.
0n June 23, 2009, HGEA filed a motion for preliminary
injunction. Briefly summarized, in its memorandum in support of
its motion, HGEA asserted that collective bargaining is a
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constitutionally protected right and statutorily mandated. HGEA
also asserted that furloughs are a “mandatory and core subject of
collective bargaining” pursuant to HRS Chapter 89 and common law,
and the common law “unilateral change” doctrine prevents Lingle
from unilaterally imposing furloughs during the pendency of an
arbitration process between it and the public employers.6
On June 29, 2009, Lingle filed her opposition to HGEA’s
motion for preliminary injunction. Among the arguments made,
Lingle asserted that HGEA’s assertions are “predominately
prohibited practices complaints that fall under HLRB's ‘exclusive
primary jurisdiction.’” Lingle also asserted that (l) the
“management rights” in HRS § 89-9(d) gives her authority to
furlough “unionized workers” and these “rights” are not subject
to collective bargaining, (2) the furlough order is consistent
with article XlII, section 2 of the Hawafi constitution, (3) the
furlough order does not violate the unilateral change doctrine,
(4) HGEA’s complaints about layoff procedures are premature and
within HLRB’s jurisdiction even when ripe, (5) HGEA has not shown
that they will suffer irreparable damage if the preliminary
6 we note that the circuit court made the following findings that
appear to be undisputed between the parties:
3. HGEA, as the exclusive collective bargaining
representative for collective bargaining units 2, 3, 4, 9,
and l3, entered into collective bargaining agreements with
the public employers, including the State of Hawaii, for the
period July l, 2007 to June 30, 2009.
4. By Memorandum of Agreement, dated February 20,
2009, HGEA and the public employers, including the State of
Hawaii, agreed to an impasse, negotiation, mediation, and
interest arbitration procedure for reaching the successor
collective bargaining agreements, effective July l, 2009.
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injunction is denied, and (6) the public interest requires
denying the injunction.
0n July 28, 2009, the circuit court filed its findings
of fact, conclusions of law, and order that, among other things,
granted in part HGEA’s motion for preliminary injunction.7
Therein, the circuit court made the following pertinent
conclusions: (1) pursuant to United Pub. Workers, AFSCME, Local
646, AFL-CIO v. Yoqi, 101 HawaiU,46, 62 P.3d 189 (2002) and
Malahoff v. Saito, 111 Hawafi 168, 140 P.3d 401 (2006), Lingle's
unilateral decision to furlough certain unionized state executive
branch employees “infringed on core subjects of collective
bargaining [(namely, wages)], in violation of article XIIl,
section.2 of the Hawaii constitution[,]”; (2) pursuant to NLRB v.
§a;;, 369 U.S. 736 (1962), “certain terms and conditions of an
expired agreement continue in effect by operation of law” and,
inasmuch as the furloughs “change wages,” the furloughs 9cannot
be imposed by unilateral action[,]”; (3) essentially, inasmuch as
“the courts retain jurisdiction to consider constitutional
claims[,]” Lingle's assertion that the HLRB has exclusive
jurisdiction over this matter is unpersuasive; (4) United Pub.
Workers, AFSCME, Local 646, AFL-CIO v. Hannemann, 106 HawaiT.359,
105 P.3d 236 (2005) is inapposite; (5) Lingle's reliance on the
“managerial rights” provisions in HRS § 89-9(d) “to justify
unilateral imposition of the furlough program cannot be accepted
because it would allow lawmakers absolute discretion to define
7 The circuit court, "in the interests of judicial efficiency," also
entered a permanent injunction in favor of HGEA and against Lingle.
7
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the scope of collective bargaining, thereby defeating the intent
of [a]rticle Xlll, [s]ection 2{,]”; and (6) the issues of layoff
procedures and criteria are not ripe for consideration at this
time.
A final judgment was filed on June 28, 2009. On
July 31, 2009, Lingle timely filed a notice of appeal.
On September 1, 2009, Lingle filed an application to
transfer her appeal from the Intermediate Court of Appeals to
this court. On September 22, 2009, this court granted Lingle's
application for transfer.
II. STANDARDS OF REVIEW '
A. Subject Matter Jurisdiction
“Whether a court possesses subject matter jurisdiction
is a question of law reviewable de gQyQ.” Hawaii Mgmt. Alliance
Ass’n v. Ins. Comm'r, 106 HawaFi 21, 27, 100 P.3d 952, 957 (2004)
(citation and internal quotation marks omitted).
B. Statutory Interpretation
“Questions of statutory interpretation are questions of
ll
law reviewable de novo. Gump v. Wal-Mart Stores, 1nc., 93
HawaiU_417, 420, 5 P.3d 407, 410 (2000). ln our review of
questions of statutory interpretation, this court follows certain
well-established principles, as follows:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself. Second,
where the statutory language is plain and unambiguous, our sole
8
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duty is to give effect to its plain and obvious meaning. Third,
implicit in the task of statutory construction is our foremost
obligation 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. Fourth, when there is doubt,
doubleness of meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists. And fifth, in
construing an ambiguous statute, the meaning of the ambiguous
words may be sought by examining the context, with which the
ambiguous words, phrases, and sentences may be c0mpared, in order
to ascertain their true meaning,
Awakuni v. Awana, 115 Hawai‘i 126, 133, 165 P.3d 1027, 1034 (2007)
(citation omitted).
C. Constitutional Law
“[T]his court reviews questions of constitutional law
de nQyQ, under the right/wrong standard.” Jou v. Dai-TokVo RoVal
State Ins. Co., 116 HawaiH 159, 164-65, 172 P.3d 471, 476-77
(2007) (quoting Onaka v. Onaka, 112 Hawafi 374, 378, 146 P.3d 89,
93 (2006)) (internal quotation marks omitted).
III. DISCUSSION
Lingle asserts that HRS § 89-14 (1993) gives the HLRB
original jurisdiction over the statutory claims in this case, and
the circuit court acted beyond its jurisdiction by ruling on
questions intended exclusively for HLRB. HGEA asserts that the
circuit court properly exercised jurisdiction in this case
because HLRB’s jurisdiction is limited to the extent that the
courts, and not the HLRB, “can (1) decide constitutional
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questions and (2) grant injunctive relief.”8
HRS § 89-14 provides, in its entirety:
Any controversy concerning prohibited practices may be
submitted to the board in the same manner and with the same
effect as provided in section 377-9; provided that the board
shall have exclusive original jurisdiction over such a
controversy except that nothing herein shall preclude (l)
the institution of appropriate proceedings in circuit court
pursuant to section 89-12(e) or (2) the judicial review of
decisions or orders of the board in prohibited practice
controversies in accordance with section 377-9 and chapter
91. All references in section 377-9 to “labor organization”
shall include employee organization.
Contrary to HGEA's assertions, pursuant to HRS § 89-14,
original jurisdiction in this case properly resided with the HLRB
and not the circuit court. ln 1981, the lntermediate Court of
Appeals (“1CA”) filed a published opinion in Winslow v. State, 2
Haw. App. 50, 625 P.zd 1046 <1931>. in winsi@w`, two of the
issues addressed by the lCA were (1) “[w]hether grievance
procedures established in the labor agreement to resolve disputes
between the public employer and union members apply to an action
against the union as well[,]” and (2) “[w]hether~[the Hawaii
8 We agree with the dissent that “the litigation between HGEA and
[Lingle] is settled and the furlough controversy is moot.” Dissent at 10.
However, the instant case satisfies the public interest exception to the
mootness doctrine. “[W]hen the question involved affects the public interest
and an authoritative determination is desirable for the guidance of public
officia1s, a case will not be considered moot.” Doe v. Doe, 116 Hawafi 323,
327, 172 P.3d 1067, 1071 (2007) (quoting Slupecki v. Admin. Dir; of the
Courts, 110 HawaiU_407, 409 n.4, 133 P.3d 1199, 1201 n.4 (2006)) (internal
quotation marks omitted). Under this exception to the mootness doctrine, “we
look to ‘(1) the public or private nature of the question presented, (2) the
desirability of an authoritative determination for future guidance of public
officers, and (3) the likelihood of future recurrence of the question.” lQ¢
(citation omitted). We also agree with the dissent's analysis of these three
factors, see dissent at 14 n.8, inasmuch as we conclude that the public
interest exception to the mootness doctrine is satisfied by these reasons.
10
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Public Employment Relations Board (‘HPERB’)9] has exclusive
jurisdiction to hear complaints of unfair labor practices brought
against a union by a union member[.]” lQL at 51-52, 625 P.2d at
1048-49.
With regard to the first issue, the lCA ultimately held
that the “appellant could not be required to exhaust contractual
remedies in an action against the union where no such remedies
actually exist” because, “in the enactment of the contract’s
grievance procedures, it was not contemplated that the employee
would utilize the procedures in a grievance against the union[]
itself[.]” lQ; at 56, 625 P.2d at l051.
However, with regard to the second issue, the lCA
pointed out that an employee in this situation “is not left
remediless,” and, in HawaiUq “such an employee apparently has two
options.” ld; The first option recognized by the lCA in its
opinion was the filing of a complaint in the HPERB. See id.
However, the ICA stated that the HPERB's “jurisdiction in these
matters . . . is not exclusive.” Id. (ellipsis added).
According to the lCA: “ln the face of the allegations that the
9 ln 1985, the HPERB became the HLRB. ee 1985 Haw. Sess. Laws Act
251, § 4 at 476.
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union is guilty of prohibited practices,[] the statutes[w] permit
such action to be brought before the [HPERB] or in a court of
competent jurisdiction.”“ lee (footnote added and omitted); see
Santos v. State, Dept. of Transp., Kauai Div., 64 Haw. 648, 655
n.12, 646 P.2d 962, 967 n.l2 (1982) (recognizing that Winslow
held in part that “under HRS § 89-14 prohibited practices whether
committed by the employer, employee, or employee organization can
be taken before HPERB or in a court of competent jurisdiction”).
As such, the second option recognized by the ICA was the filing
of a complaint “in a court of competent jurisdiction.” §ee
Winslow, 2 Haw. App. at 56, 625 P.2d at 1051.
At the time Winslow was decided, HRS § 89-14 provided:
“Any controversy concerning prohibited practices may be submitted
to the board in the same manner and with the same effect as
provided in section 377-9. All references in section 377-9 to
w Apparently, the 1CA was referring to the versions of HRS § 89-14
and HRS § 377-9 in effect at the time, see Winslow, 2 Haw. App. at 56-57, 625
P.2d at 1051-52, and are quoted infra.
“ In other words, the ICA concluded:
lt seems clear . . . that under HRS § 89-14 prohibited
practices whether committed by the employer, employee, or
employee organization are to be treated in the same manner
as unfair labor practices under HRS § 377-9. From a policy
standpoint, it may have been preferable for appellant to
pursue her relief from HPERB; however, nothing in the
statute precludes this action from being brought in circuit
court as well.
Winslow, 2 Haw. App. at 57, 625 P.2d at 1052 (ellipsis, emphasis, and brackets
added).
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‘board’ shall include the Hawaii public employment relations
board and ‘labor organization’ shall include employee
organization.” 2 Haw. App. at 56-57, 625 P.2d at 1051 (quoting
HRs § 89-14> .12
However, in l982, Hawaii’s legislature amended HRS §
89-14 to “legislatively . . . overrule[]” Winslow because it
disagreed with the lCA's interpretation of HRS § 89-14 and HRS §
377-9. A standing committee report was issued by the Committee
on Public Employment and Government Operations that stated, in
pertinent part, as follows:
The purpose of this bill is to make the jurisdiction
of the [HPERB] in controversies relating to prohibited
practices exclusive except as otherwise provided in Chapter
89, [HRS].
Recently, the [ICA], in [Winslow], construed sections
89-14 and 377-9, HRS, and concluded that the jurisdiction of
the [HPERB] over controversies concerning prohibited (unfair
labor) practices in the public sector is ppg exclusive, and
that a prohibited practice complaint or action may be
brought either before HPERB pp in circuit court. In other
words, the [ICA] concluded that under these two statutory
sections, HPERB and the circuit courts have concurrent
jurisdiction over prohibited practice complaints in the
public sector.
By making the jurisdiction of HPERB exclusive in
controversies concerning prohibited practices, this bill
legislatively rectifies or overrules the judicial conclusion
or statutory construction enunciated in [Winslow].
H. Stand. Comm. Rep. No. 134-82, in 1982 House Journal, at 943
(emphases in original, brackets added).
n We note that, at the time Winslow was decided, HRS § 377-9(a)
provided: “Any controversy concerning unfair labor practices may be submitted
to the employment relations board in the manner and with the effect provided
in this chapter, but nothing herein shall prevent the pursuit of relief in
courts of competent jurisdiction.” 2 Haw. App. at 57, 625 P.2d at 1052
(quoting HRS § 377-9(a)).
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Committee
H. Stand.
(brackets
Resources:
S. Stand.
(brackets
A separate standing committee report was issued by the
on Judiciary, which stated:
The purpose of this bill is to clarify that the
[HPERB], rather than the courts, has primary jurisdiction
over prohibited practice complaints filed under Chapter 89,
Hawaii Revised Statutes.
A recent Hawaii Court of Appeals decision interprets
Section 89-14 and 377-9, Hawaii Revised Statutes, to give
HPERB and the circuit courts concurrent jurisdiction over
prohibited practice complaints. This bill will make it
clear that HPERB has exclusive original jurisdiction over
prohibited practice complaints. Appeals from HPERB will
continue to be filed in Circuit Court.
in 1982 House Journal, at 1164
Comm. Rep. No. 589-82,
added).
As further explained by the Committee on Human
In 1970, the Legislature created the [HPERB] to
administer the provisions of Chapter 89 in an effort to
promote cooperative relations between the government and its
employees and to protect the public by ensuring orderly
government operations. Thus, the board was given
jurisdiction of prohibited practice cases. Your Committee
believes the original intent of this provision was to allow
the board, who is the administrative agency with the
expertise in public employment relations, to have primary
jurisdiction of prohibited practice complaints. However,
recent Hawaii Court of Appeals decision interprets Section
89-14 and 377-9, Hawaii Revised Statutes, to give HPERB and
the circuit court concurrent jurisdiction over prohibited
practice complaints.
This bill will make it clear that HPERB has exclusive
original jurisdiction over prohibited practice complaints.
Appeals from HPERB will continue to be filed in Circuit
Court.
3.
at 1202
597-82, in 1982 Senate Journal,
Comm. Rep. No.
added).
As enacted, the pertinent portions of HRS § 89-14 were
14
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amended to read as it does today.“ §ee 1982 Haw. Sess. Laws Act
27, § 1 at 38.
ln light of the foregoing, the legislature clearly
intended for the HLRB to have exclusive original jurisdiction
over prohibited practice complaints, and the lCA's contrary
interpretation in Winslow was incorrect. See, e.g., H. Stand.
Comm. Rep. No. 134-82, in 1982 House Journal, at 943. As it
applies to this case, what constitutes a “prohibited practice” is
set forth in HRS § 89-13(a) (Supp. 2003), as follows:
lt shall be a prohibited practice for a public
employer or its designated representative wilfully to:
. (5) Refuse to bargain collectively in good faith
with the exclusive representative as required'in
section 89-9;
(6) Refuse to participate in good faith in the
mediation and arbitration procedures set forth in
section 89-1l;
(7) Refuse or fail to comply with any provision
of this chapter;
(8) Violate the terms of a collective bargaining
agreement.
(Ellipsis added.)
Paragraphs 5 and 7 of HGEA's first amended complaint
alleges:
5. The Governor cannot unilaterally impose furloughs
and circumvent the collective bargaining process. Furloughs
reduce employee hours and wages and affect terms and
conditions of employment and, therefore, are a mandatory
subject of collective bargaining negotiation protected by
Article XIII, Section 2 of the Hawaii State Constitution and
“ We note that HRS § 89-14 was amended again in 1985 only to remove
any language referring to the HPERB, inasmuch as the HPERB became the HLRB in
that year. See 1985 Haw. Sess. Laws Act 251, § 6 at 479-80.
15
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as prescribed by HRS § 89-9(a). Any disputes over
negotiable subjects, when properly presented, must be
resolved in accordance with the impasse, mediation, and
arbitration process prescribed by HRS § 89-11 and the
Memorandum of Agreement, dated February 20, 2009, between
HGEA and the Employer. The Governor does not have the
implied right to unilaterally impose furloughs pursuant to
HRS § 89-9(d). ‘
7. Alternative1y, even if furloughs are not a
mandatory subject of collective bargaining negotiati0n, and
they are, the procedures for implementing furloughs are
subject to negotiation under Article XllI, Section 2 of the
Hawaii State Constitution and HRS Chapter 89 and are also,
if properly presented, subject to the above-described
arbitration process.
(Italics in original, ellipsis added.)
ln light of these and other allegations, HGEA asserted
in its first amended complaint, as follows:
COUNT 1
8. HGEA requests, and is entitled to receive, a
declaratory judgment that the Governor cannot unilaterally
impose the furloughs. '
COUNT ll
9. HGEA requests, and is entitled to receive in order
to avoid irreparable harm, a preliminary and permanent
injunction from this court enjoining the Governor from
unilaterally imposing the furloughs.
COUNT IlI
13. The Governor’s unilateral action is a violation
of the Hawaii Constitution, Article X1II, Section 2.
COUNT IV
15. Layoff procedures are subject to negotiation
under Article XlII, Section 2 of the Hawaii State
Constitution and HRS Chapter 89 and are also, if properly
presented, subject to the above-described arbitration
process.
17. HGEA requests, and is entitled to receive, a
declaratory judgment that the Governor cannot unilaterally
impose new layoff procedures.
l8. HGEA also requests, and is entitled to receive in
order to avoid irreparable harm, a preliminary and permanent
injunction from this court enjoining the Governor from
unilaterally imposing new layoff procedures.
(Ellipses added.)
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viewing the assertions made by HGEA in its first
amended complaint in light of HRS § 89-l3(a), it appears that
HGEA alleges that Lingle essentially engaged in a “prohibited
practice” when she unilaterally imposed furloughs. §ee HRS § 89-
13(a). For example, HRS § 89-13(a)(5) mandates that “[i]t shall
be a prohibited practice for a public employer . . . willfully to
[r]efuse to bargain collectively in good faith with the
exclusive representative as required in [HRS §] 89-9[,]” while
paragraph 5 of HGEA's complaint alleges that “[t]he Governor does
not have the implied right to unilaterally impose furloughs
pursuant to HRS § 89-9(d)” thereby “circumvent[ing] the
collective bargaining process” because “[f]urloughs reduce
employee hours and wages and affect terms and conditions of
employment and, therefore, are a mandatory subject of collective-
bargaining negotiation protected by Article XIlI, Section 2 of
the Hawaii State Constitution and as prescribed by HRS § 89-
9(a).” (Brackets added.) Pertinent statutes clearly provide
that the HLRB has jurisdiction to “[r]eso1ve controversies under
[HRS chapter 89.]” HRS § 89-5(i)(3) (Supp. 2005) (brackets
added); eee ide § 89-5(a) (“There is created a Hawaii labor
relations board to ensure that collective bargaining is conducted
in accordance with this chapter . . . .”); lQi § 89-5(i)(4) (“ln
addition to the powers and functions provided in other sections
of this chapter, the board shall . . . conduct proceedings on
complaints of prohibited practices by employers . . . and take
such actions with respect thereto as it deems necessary and
proper[.]”); see also HRS § 89-1(b)(3) (Supp. 2005) (“The
17
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legislature declares that it is the public policy of the State to
promote harmonious and cooperative relations between government
and its employees and to protect the public by assuring effective
and orderly operations of government. These policies are best
effectuated by . . . [c]reating a labor relations board to
administer the provisions of [HRS] chapters 89 and 377.”). HRS §
89-14 provides that the HLRB “shall have exclusive original
jurisdiction over” “[a]ny controversy concerning prohibited
practices.” Although HGEA's complaint does not expressly use the
words “prohibited practice,” a prohibited practice can be
logically inferred therefrom because HGEA’s complaint essentially
alleges, among other things, that Lingle “[r]efuse{d] to bargain
collectively in good faith with the exclusive representative as
required in [HRS] section 89-9[,]”, and HRS § 89-l3(a)(5)
mandates that it “shall be a prohibited practice for a public
employer . . . [to] wil[l]fully . . . [r]efuseV to bargain
collectively as such, (Emphasis added); eee Au v. Au, 63 Haw.
210, 221, 626 P.2d l73, 181 (1981) (“Generally, pleadings should
be construed liberally and not technically.”); see also Hawafi
Rules of Civil Procedure (HRCP) Rule 8(a) (instructing that a
“pleading which sets forth a claim for relief . . . shall
contain” among other things “a short and plain statement of the
claim showing that the pleader is entitled to relief”), 8(f)
(“All pleadings shall be so construed as to do substantial
18
*** FoR PUBLIiCATIoN IN WEST’S HAWAII REPoRTs AND PACIFIC REPoRTER ***
justice.”).“ As such, the HLRB has exclusive original
jurisdiction over the statutory claims raised in HGEA’s
complaint. §ee HRS § 89-l4; HRS § 89-13(a); see also, e.g., H.
Stand. Comm. Rep. No. 134-82, in 1982 House Journal, at 943.
Nonetheless, HGEA asserts that the HLRB’s jurisdiction
is limited to the extent that a court, and not the HLRB, has
jurisdiction to decide constitutional questions because HRS § 89-
14 states that “nothing herein shall preclude the judicial review
of decisions or orders of the [HLRB] in accordance with [HRS]
section 377-9.” In support of its assertion, HGEA then points to
the following portion of HRS § 377-9(a) (1993): “Any controversy
concerning unfair labor practices may be submitted to the board
in the manner and with the effect provided in this chapter, but
nothing herein shall prevent the pursuit of relief in courts of
competent jurisdiction.”
However, HGEA overlooks that the language that it
relies on in HRS § 89-14 refers to an appeal from, or “judicial
review” of, a “decision[] or order[] of the [HLRB].” §ee HRS §
89-14. Indeed, HRS § 377-9(f) to (h) provides instruction in
this regard." The HLRB has obviously not filed a decision or
“ Moreover, we point out that lntervenors-Appellees, Hawaii State
Teachers Association and United Public Workers, AFSCME, Local 646, AFL-CIO
(collectively, “lntervenors”) “acknowledge[d]” in their answering brief “that
the HLRB might have concluded that [Lingle's] Executive Order was a
‘prohibited practice' because it violated the statutory duty to bargain in HRS
Chapter 89.” (Emphasis in original.)
w HRS § 377-9(f) to (h) provides:
(f) Any person aggrieved by the decision or order of
the board may obtain a review thereof as provided in chapter
continue...
19
*** FoR PUBLICATIoN 1N WEST’S HAWAII REPoRTs AND PACIFIC REPQRTER ***
order in this case. Accordingly, HGEA's assertion is
unpersuasive because the language that it relies on in HRS § 89-
14 does not refer to original jurisdiction.
HGEA also points out that, (l) in §egi, this court
“addressed whether a legislative statute involving Chapter 89
violated a constitutional provision and the §egi court did not
decide that the constitutional issue was within the exclusive
jurisdiction of the HLRB,” and (2) the HLRB “itself has held that,
it lacks jurisdiction to decide constitutional questions.”
However, the issue in Yogi was whether a legislative amendment to
”...continue
91 by instituting proceedings in the circuit court of the
judicial circuit in which the person or any party resides or
transacts business, subject, however, to the general
provisions of law for a change of the place of trial or the
calling in of another judge. Where different parties in the
same proceeding file petitions for review in two or more
courts having proper jurisdiction, the jurisdiction of the
judge first petitioned shall be exclusive and the other
persons shall be transferred to the judge. The petition
shall state the grounds upon which a review is sought and
copies thereof shall be served upon the other parties and
the board. Service may be made by mailing such copies to
the last known post office address of the parties concerned.
When the proceedings are at issue, they may be brought on
for hearing before the court upon the record by any party on
ten days' written notice to the others. Upon the hearing,
the court may confirm, modify, or set aside the decision or
order of the board and enter an appropriate decree. No
objection that has not been urged before the board shall be
considered by the court unless the failure or neglect to
urge the objection shall be excused because of extraordinary
circumstances.
(g) In any proceedings for review of a decision or
order of the board, the judge shall disregard any
irregularity or error unless it is made to appear
affirmatively that the complaining party was prejudiced
thereby.
(h) Commencement of proceedings under subsection (f)
of this section shall not stay enforcement of the board
decisions or order; but the board, or the reviewing court
may order a stay upon such terms as it deems proper.
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HRS § 89-9(a) violated the plaintiffs’ constitutional right to
organize for the purpose of collective bargaining. §ee 101
HawaiH_at 47, 62 P.3d at 190. As such, the issue presented in
§egi differs from the issue presented here inasmuch as §egi did
not address whether a public employer’s action either violates or
satisfies a statute that defines the scope of negotiations. §ee
HRS § 89-9. On the one hand, HGEA asserted in its first amended
complaint that, ip;e; elie, “[f]urloughs reduce employee hours
and wages and affect terms and conditions of employment and,
therefore, are a mandatory subject of collective bargaining
negotiation protected by Article Xlll, Section 2 of the Hawaii
State Constitution and as prescribed by HRS § 89-9(a).”
(Emphasis added.) On the other hand, Lingle asserted.in her
opposition to HGEA's motion for preliminary injunction that,
ippe; elie, certain “management rights” in HRS § 89-9(d) gives
her authority to order the furlough of “unionized workers”
without regard to collective bargaining, ln light of these
arguments, the statutory issue here is quite unlike the issue
presented in §egi where a legislative amendment to HRS § 89-9(a)
was held to have violated the rights of public employees under
article XllI, section 2 of the Hawafi Constitution, §ee 101
HawaiH at 54, 62 P.3d at l97. More specifically, unlike Lingle's
reliance on HRS § 89-9(d) in this case, the issue presented in
§pgi was whether the phrase “as provided by law” in article Xlll,
§ 2 of the Hawai‘i Constitution “grant[ed] the legislature
'unfettered discretion to infringe on the core principles of
collective bargaining.” ld. at 55, 62 P.3d at 198 (Nakayama, J.,
21
*** FoR PUBLICATIoN IN WEST’S HAWAII REPoRTs AND PACIFIC REPQRTER ***
concurring). Moreover, original jurisdiction was not at issue in
;egi. Therefore, §egi is inapposite because §pgi did not address
(l) the jurisdiction issue that is presented in this case, and
(2) whether a public employer’s action either violates or
satisfies HRS § 89-9(a) or (d), respectively.
With regard to HGEA’s second point, we read HGEA’s
first amended complaint as raising the following eye pertinent
issues: (l) whether Lingle's furlough constitutes “a mandatory
subject of collective bargaining negotiation protected by Article
XIll, Section 2 of the Hawaii State Constitution[,]” and (2)
whether the furlough constitutes “a mandatory subject of
collective bargaining negotiation . . . as prescribed by HRS §
189-9(a).” Although it appears that the HLRB lacks jurisdiction
to consider the constitutional issue, pertinent statutes reveal
that the HLRB has jurisdiction to “[r]esolve controversies under
[HRS chapter 89.]” HRS § 89-5(i)(3); see iep § 89-5(a); lQi §
89-5(i)(4); see also HRS § 89-1(b)(3).V As such, a constitutional
analysis is unnecessary for the HLRB to adjudicate the statutory
issues that are presented in HGEA's first amended complaint.
lnstead, the HLRB’s analysis may be guided by rules of statutory
construction” or any other rule it may deem to be appropriate.
“ We point out that this court follows certain well-established
rules of statutory construction that are in addition to those rules quoted
supra in section II.B. Namely, it is well-established that,
[w]hen construing a statute, our foremost obligation is to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language of the statute itself. And we must read statutory
language in the context of the entire statute and construe
continue...
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For this reason, HGEA's assertion is unpersuasive."
ln other words, if the HLRB determined that the
furlough plan constituted a valid exercise of Lingle's management
rights under HRS § 89-9(d), then the circuit court would have
jurisdiction to determine whether the exercise of such a
~statutory management right violates article Xlll, section 2.
However, if the HLRB reached the contrary conclusion and
determined that Lingle's actions were not authorized under HRS-
Chapter 89, then the circuit court would not need to reach the
constitutional issue.
Thus, the circuit court erred by reaching the
constitutional issue without first giving the HLRB the
M...continue
it in a manner consistent with its purpose.
Coon v. City & County of Honolulu, 98 Hawafi 233, 245, 47 P.3d 348, 360
(2002) (citation omitted) (emphasis added). Moreover, “the legislature is
presumed not to intend an absurd result, and legislation will be construed to
avoid, if possible, inconsistency, contradiction, and illogicality.” Gray v.
Adm'r Dir. of the Court, 84 Hawafi 138, 148, 931 P.2d 580, 590 (l997)
(citation and internal quotation marks omitted). “[A] rational, sensible and
practicable interpretation of [a statute] is preferred to one which is
unreasonable or impracticable[.]” Keliipuleole v. Wilson, 85 Hawafi 217,
221-22, 941 P.2d 300, 304-05 (l997) (brackets added and in original) (citation
and internal quotation marks omitted).
lt is a cardinal rule of statutory construction that courts
are bound, if rational and practicable, to give effect to
all parts of a statute, and that no clause, sentence, or
word shall be construed as superfluous, void, or
insignificant if a construction can be legitimately found
which will give force to and preserve all the words of the
statute,
Camara v. Agsalud, 67 Haw. 2l2, 215-16, 685 P.2d 794, 797 (1984).
" However, we point out that, although not presented, there may be
certain circumstances where the circuit court may decide interim relief. For
example, the circuit court can provide temporary relief in cases involving
alleged prohibited practices upon application by the HLRB. see infra note 20
and discussion on page 27.
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opportunity to address the issues arising under HRS Chapter 89.
As we noted in CitV & County of Honolulu v. Sherman, 110 HawaFi
39, 56 n.7, 129 P.3d 542, 559 n.7 (2006), “[a] fundamental and
longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the
necessity of deciding them.”' (Citation omitted.) Moreover,
requiring that statutory issues be submitted to the HLRB furthers
the legislative policy, reflected in HRS § 89-14’s grant of
“exclusive original jurisdiction,” of having the administrative
agency with expertise in these matters decide them in the first
instance. Stated differently, that legislative purpose is
frustrated if the HLRB's jurisdiction can be defeated by
characterizing issues that fall within the scope of HRS Chapter
89 as constitutional claims and then addressing them directly to
the circuit court.
Similar to HGEA’s assertions, lntervenors assert that
the HLRB’s jurisdiction “is limited to resolving claims of
prohibited practices under the labor relations statutes, not
constitutional vio1ations, so the HLRB could not have decided the
constitutional claim.” ln support of their assertion,
lntervenors rely on HRS § 89-14 by reading the statute in the
following way: “HLRB has jurisdiction over controversies
‘concerning prohibited practices . . . as provided in [HRS]
section 377-9[.]’” (Brackets added.) lntervenors then rely on
the following language in HRS § 377-9: “Any controversy
concerning unfair labor practices may be submitted to the board .
ll
¢
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Through their reading of these statutes, lntervenors
apparently suggest that because alleged constitutional violations
are not included among the “prohibited practices . . . as
provided in [HRS] section 377-9,” jurisdiction over the
constitutional issue properly resided in the circuit court.
Such was the reasoning and conclusion of the circuit court in
this case.”
However, we cannot say that HRS § 89-14’s reference to
HRS § 377-9 indicates any intent to distinguish between either
different types of prohibited practices, or a prohibited practice
on the one hand and constitutional violations on the other hand,
lnstead, our reading of HRS § 89-14 indicates that its reference
to HRS § 377-9 is made to merely point to a statute that
illustrates in what “manner” and “effect” a “controversy
m ln detail, the circuit court concluded that the instant case was
properly before the [c]ourt for issuance of injunctive and
declaratory relief, because the issue is whether [Lingle’s]
June 1, 2009 decision, and implementation of that decision
through Executive Order 09-02 (June 24, 2009), are a
violation of Article Xlll, Section 2 of the Hawaii State
Constitution, just as the issue in Yogi was whether a
statute violated Article Xlll, Section 2 of the Hawaii State
Constitution,
(Emphasis in original, brackets added.) As such, the circuit court
“reject[ed] [Lingle's] contention that this case must be presented to the
[HLRB]” because “[t]he jurisdiction of the [HLRB] is limited.” (Brackets
added.) According to the court's interpretation of HRS § 89-14, “‘the board
shall have exclusive original jurisdiction' only over ‘[a] controversy
concerning prohibited practices . . . as provided in section 377-9.' Section
377-9, HRS, provides, in turn, that ‘{a]ny controversy involving unfair labor
practices may be submitted to the board.' None of the prohibited practices in
Chapter 377 include constitutional violations.” (Emphases, brackets, and
ellipsis in original.) The circuit court also pointed out that “HRS § 89-13
addresses various prohibited practices that the HLRB is required to render
factual findings concerning whether or not a prohibited practice occurred.”
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*** FoR PUBLICATION IN WEST’S HAWAII REPoRTs AND PAclFlc REPoRTER ***
concerning prohibited practices may be submitted to the [HLRB.]”
see HRS § 89-14. lndeed, the portion of HRS § 89-14 that
lntervenors are referring to provides, in its entirety: “Any
controversy concerning prohibited practices may be submitted to
the board in the same manner and with the same effect as provided
in section 377-9 . . . .” (Emphasis added.)
Among HRS § 377-9's subsections that illustrate in what
“manner” and “effect” a “controversy concerning prohibited
practices may be submitted to the [HLRB]” is HRS § 377-9(b),
which provides in part that “[a]ny party in interest may file
with the board a written complaint, on a form provided by the
board, charging any.person with having engaged in any specific
unfair labor practice.” Therefore, lntervenors’ assertion is
unpersuasive because HRS § 89-14’s reference to HRS § 377-9 does
not make the alleged distinction, and instead merely points to a
statute that illustrates in what “manner” and “effect” a
“controversy concerning prohibited practices may be submitted to
the [HLRB] . . . ."
'HGEA also asserts that jurisdiction properly resided in
the circuit court in this case because the courts, and not the
HLRB, “may grant the preliminary injunctive relief sought by
HGEA.” According to HGEA, “[Lingle’s] oral announcement of
furloughs on June 1, 2009, and written executive order on June
24, 2009, to be implemented by duly l, 2010 [sic], provided only
a short time frame to act, thereby creating exigent
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circumstances.””
However, HGEA does not cite to any authority that
supports its position that, essentially, “exigent circumstances”
justified the circuit court in proceeding directly to the
constitutional issues without first allowing the HLR8 to rule on
the statutory questions. lnstead, HGEA admits that “HRS § 380-
14(b) provides that the [HLRB] shall have the power to petition
any circuit court for appropriate temporary relief or restraining
order[.]”” (Brackets added.) Accordingly, viewing HRS § 380-
14(b) in light of HRS § 89-l4, we remain mindful that
“[p]rudential rules of judicial self-governance properly limit
the role of the courts in a democratic society[,]” and one such
rule is that, “even in the absence of constitutional
restrictions, [courts] must still weigh the wisdom, efficacy, and
timeliness of an exercise of their power before acting,
especially where there may be an intrusion into areas committed
to other branches of government.” ln re Attorney’s Fees of Mohr,
97 Hawafi 1, 9-10, 32 P.3d 647, 655-56 (200l) (emphasis in
” We note that lntervenors assert a similar position as HGEA.
w HRS § 380-l4(b) (1993) provides:
The board shall have power, upon the filing of a
complaint as provided in section 377-9 to petition any
circuit court of the State within any circuit wherein the
unfair labor practice in question is alleged to have
occurred or wherein the person resides or transacts
business, for appropriate temporary relief or restraining
order, Upon the filing of any such petition the court shall
cause notice thereof to be served upon the person, and
thereupon shall have jurisdiction to grant to the board such
temporary relief or restraining order as it deems just and
proper.
27
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original, brackets added and in original, internal quotation
marks and citation omitted); see Ross v. Stouffer Hotel Co.
ij§ewei;LL_Lpdy, 76 Hawai‘i 454, 467, 879 P.2d 1037, 1050 (1994)
(Klein, J., concurring and dissenting) (“[T]he Court’s function
in the application and interpretation of . . . laws must be
carefully limited to avoid encroaching on the power of [the
legislature] to determine policies and make laws to carry them
out.” (Quoting Boys Mkts.n lnc. v. Retail Clerks Union, Local
'770, 398 U.S. 235, 256-57 (1970).) (lnternal quotation marks
omitted, brackets in original and added, and ellipsis added.)).
The record in this case does not establish that recourse to the
procedure set forth in HRS § 380-14(b) would be either futile or
impractical, and it would be unwise for us to bring about a
policy that effectively circumscribes HLRB’s exclusive original
jurisdiction over “[a]ny controversy concerning prohibited
practices[,]” as mandated by the legislature in HRS § 89-l4. As
such, HGEA's assertion is unpersuasive on the present record.
ln light of the foregoing, we hold that the HLRB had
exclusive original jurisdiction over the statutory issues raised
in HGEA’s complaint, and the circuit court erred in addressing
the constitutional issues without first giving the HLRB the
opportunity to address the statutory questions.” §ee HRS § 89-
l4; HRS § 89-13(a); Sherman, 110 Hawafi at 56 n.7, 129 P.3d at
559 n.7; Garcia; 90 Hawai‘i at 440-41, 978 P.2d at 878-79; see
also¢ e.g., H. Stand. Comm. Rep. No. 134-82, in 1982 House
21 ln light of the foregoing disposition, resolution of Lingle's
remaining points of error is unnecessary.
28
*** FoR PUBLICATIQN 1N WEST’S HAWAII REPoRTs AND PACIFIC REPQRTER ***
Journal, at 943. However, we point out that, once the HLRB
reaches a decision on the issues presented, that decision is
subject to appeal, or “judicial review,” “in accordance with
[HRS] section 377-9 and [HRS] chapter 9l.” HRS § 89-14(2)
(brackets added). 1
IV. CONCLUSION
Based upon the foregoing analysis, we vacate the
circuit court's July 28, 2009 final judgment and findings of
fact, conclusions of law, and order, and remand this case for
further proceedings consistent with this opinion.”
M k J. B tt, Att ,~
ar enne orney >> 9 CLurw%@LL1ajT£N
General, (Lisa M. Ginoza,
First Deputy Attorney General
and Deirdre Marie-lha, (§¢ ,;,,S.,@Q,,Qv
Deputy Solicitor General with
him on the briefs) for Defendant-
Appellant Linda Lingle, as /4¢/‘“‘ ’Z‘”L'¢WW"(/
Governor of the State of Hawafi
Charles A. Price (James E.T.
Koshiba with him on the brief)
of Koshiba Agena & Kubota for
Plaintiff-Appellee Hawaii
Government Employees Association,
AFSCME Local 152, AFL-ClO
” Whether upon remand the circuit court should either dismiss or
stay this case pending the outcome of any proceedings before the HLRB has not
been argued on appeal. As such, we decline to express any opinion on this
issue.
29
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Herbert R. Takahashi (Rebecca L.
Covert, Danny J. Vasconcellos and
Rebecca L. Covert with him on the
brief) of Takahashi Vasconcellos
& Covert and Scott A. Kronland of
A1tshuler Berzon LLP, pro hac vice,
for lntervenor-Appellee _
Hawaii State Teachers Association
and United Public Workers, AFSCME,
Local 646, AFL-ClO
30