LAW L!BHARY
N0T F0R PUBLICATIQN 1N wEsT's HAWAI‘I REPQRTS AND PAclFlc REPQRTER
N0. 23802
IN THE INTERMEDIATE coURT oF APPEALS
oF THE STATE oF HAWAI‘I
CIVIL NO. 07-1-0529
In the Matter of UNITED PUBLIC WORKERS,
AFSCME, LOCAL 646, AFL-CIO, Complainant~Appell§
and §§
KENNETH NAKAMATSU, Director, Department of §§
Human Resources, City and County of Honolulu and
Mufi Hannemann, Mayor, City and County
of Honolulu (2006-027), Respondents-Appellees,
and
HAWAII LABOR RELATIONS BOARD,
JAMES B. NICHOLSON, NORMAN K KATO II, and
SARAH R. HIRAKAMI, Agency-Appellees.¥
99 18 HW l.-~ ?Hl` BIHZ
CIVIL NO. 07-1-O612
In the Matter of UNITED PUBLIC WORKERS,
AFSCME, Local 646, AFL-CIO, Complainant Appellee-Appellant,
and
KENNETH NAKAMATSU, Director, Department of
Human Resources, City and County of Honolulu and
Mufi Hannemann, Mayor, City and County
of Honolulu (2006-027), Respondents Appellants-Appellees,
and
HAWAIl LABOR RELATIONS BOARD,
JAMES B. NICHOLSON, NORMAN K KATO II, and
SARAH R. HIRAKAMI, Agency Appellees-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley, Leonard, JJ.)
In this secondary appeal arising out of a dispute over
alleged prohibited labor practices, Plaintiff-Appellant United
Public Workers, AFSCME, Local 646, AFL-CIO (UPW) appeals from the
"Judgment of Remand" filed on October 10, 2007, in the Circuit
Court of the First Circuit (circuit court).W Both UPW and
Defendants-Appellees the Mayor and the Director of the Department
of Human Resources, City and County of Honolulu, (collectively,
"Employer") appealed to the circuit court from a decision (Order
y Pursuant to Hawafi Rules of Appellate Procedure Rule 43(c) (2000), we
have substituted the current public officers as parties.
W The Honorable Sabrina S. McKenna presided.
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No. 2432) issued by the Hawaii Labor Relations Board (HLRB), and
the appeals were consolidated. The circuit court remanded the
case regarding Order No. 2432 to the HLRB for further
consideration in light of a stay order issued by this court in a
closely related appeal, Appeal No. 27962, On March l9, 2010, we
issued a memorandum opinion in Appeal No. 27962, In re United §
Public WOrkerS, AFSCME, LOCal 646, AFL-CIO, NO. 27962, 2010 WL
1057102 (Hawai‘i App. Mar. 19, 2010).
On appeal, UPW asserts that the circuit court erred in
refusing to decide the validity of Order No. 2432 on the merits
and remanding the case regarding Order No. 2432 to the HLRB. F0r
the reasons discussed below, we vacate the circuit court's
"Judgment of Remand" and remand the case to the circuit court
with directions to remand the case to the HLRB for
reconsideration and further proceedings in light of our decision
in Appeal No. 27962,
I.
The instant appeal and Appeal No. 27962 arise out of
the following underlying facts, which are summarized below:
A.
Gregory Ortiz ("Ortiz"), a member of UPW, was employed
by the City and County of Honolulu (City) as Heavy Truck Driver I
in the Road Maintenance Division of the Department of Facilities
Maintenance. Ortiz was discharged from his position as a Heavy
Truck Driver I for unauthorized use of a City vehicle. UPW filed
a grievance challenging the discharge. An arbitrator ruled that
the discharge sanction was too severe and ordered that Ortiz be
reinstated. Ortiz returned to work, but on that day was required
to undergo a "pre-employment" controlled substances test before
being permitted to engage in safety-sensitive functions as a
heavy truck driver. Ortiz failed the controlled substances test
and was later terminated.
UPW filed a prohibited practices complaint against
Employer, alleging, among other things, that by requiring Ortiz
to undergo the "pre-employment" controlled substances test,
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Employer did not comply with the arbitrator's order to reinstate
Ortiz. The HLRB ruled in Decision No. 452 that (1) UPW did not
prove that Employer failed to comply with the arbitration award
and committed a prohibited practice by subjecting Ortiz to "pre-
employment" drug testing; and (2) Employer had committed a
prohibited practice by refusing to negotiate or consult with UPW
on appropriate subjects, namely, "procedures for drug testing
employees returning to work after 30 days and/or who have been
removed from the random testing pool." The HLRB ordered Employer
(l) to cease and desist from taking unilateral actions on matters
subject to the negotiations process and deal with the UPW
appropriately and (2) on the matter of drug testing, to negotiate
modifications to Section 63.04 a. of the collective bargaining
agreement (CBA) to conform with United States Department of
Transportation (DOT) Rules § 382.3OlW for commercial driver's
license (CDL) drivers.
UPW and Employer each appealed the HLRB's Decision No.
452 to the circuit court, which consolidated the two appeals.
The circuit court subsequently affirmed the HLRB's decision and
entered its judgment. UPW and Employer appealed the circuit
court's judgment to this court and the appeal was docketed as
Appeal No. 27962, We will refer to the proceedings in the HLRB
that resulted in Decision No. 452 and the proceedings in the
circuit court and this court arising out of Decision No. 452 as
"OrtiZ I."
B.
Employer moved this court for a stay of enforcement of
the HLRB's Decision No. 452 pending appeal. This court denied
without prejudice Employer's motion for stay of enforcement
because Employer did not initially seek relief from the circuit
court and Employer failed to demonstrate that application to the
circuit court for relief was not practicable. Employer
3/ The HLRB's erroneous reference to DOT Rules § 382.102 was later
corrected by the circuit court to DOT Rules § 382.30l, which is set forth at
49 C.F.R. § 382.30l.
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subsequently moved the circuit court for a stay of enforcement,
which the circuit court denied. Employer again filed a motion
for stay of enforcement pending appeal with this court.
C.
Meanwhile, after the circuit court affirmed the HLRB's
Decision No. 452 in Ortiz I, UPW sent Employer a letter
reiterating its request to negotiate modifications to the CBA in
accordance with the HLRB's Decision No. 452 and requesting
further information in connection with the bargaining request to
be produced by Employer. Employer responded that discussions
regarding the requested negotiations should not take place until
the parties were able to obtain a ruling on the Employer's motion
for stay of enforcement in Ortiz I; Employer also requested the
legal bases for the UPW's request for information.
As a result, UPW filed a second prohibited practices
complaint against Employer with the HLRB, alleging violations of
Hawaii Revised Statutes (HRS) § 89~l3(a)(5) and (7).F UPW
contended that Employer breached its statutory duty to negotiate
in good faith and failed to comply with the remedial order of the
HLRB in Decision No. 452, because Employer refused to negotiate
modifications to the CBA and failed to provide the requested
information necessary for the negotiations. j
UPW moved for summary judgment on the second prohibited
practices complaint. On March 6, 2007, the HLRB issued Order No.
2432, ruling that Employer breached its duty to bargain in good
y Hawaii Revised Statutes (HRS) § 89-l3(a) (Supp. 2009) provides, in
relevant part:
(a) It 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;
(7) Refuse or fail to comply with any provision of this
chapter[.]
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faith by (l) refusing to meet, confer, and negotiate
modifications to Section 63.04 a. of the CBA to conform with DOT
Rule 382.301 as previously ordered and (2) failing to provide the
requested information for the purposes of negotiations, both in
violation of HRS § 89-13(a)(5). The HLRB dismissed UPW's
prohibited practice claims based upon an alleged violation of HRS
§ 89-l3(a)(7). The HLRB ordered Employer to cease and desist
from continuing to engage in "the foregoing prohibited
practices"; provide UPW with the requested information; and meet
and confer with UPW "to negotiate over modifications to Section
63.04a [of the CBA] to conform with DOT Rule 382.30l in
accordance with [HLRB] Decision [No.] 452, as modified and
corrected by the First Circuit Court¢"
One day after the HLRB issued Order No. 2432, this
court issued a ruling on Employer's motion for stay of
enforcement in Ortiz I. We granted a stay of the circuit court's
judgment affirming the HLRB's Decision No. 452 and the part of
the HLRB's Decision No. 452 that ordered Employer to negotiate
modifications to Section 63.04 a. of the CBA to conform with DOT
rules for CDL drivers with respect to drug testing.
D. 2
UPW and Employer both appealed the HLRB's Order No.
2432 to the circuit court, which consolidated the two appeals.
we will refer to the proceedings in the HLRB that resulted in
Order No. 2432 and the proceedings in the circuit court and this
court arising out of Order No. 2432 as "Ortiz II." On October
lO, 2007, the circuit court issued its "Judgment of Remand"
pursuant to its order remanding the case regarding the HLRB's
Order No. 2432 to the HLRB. In its order remanding the case, the
circuit court found in relevant part:
After reviewing the entire record and considering the
written submissions of the parties and oral arguments
presented, the Court finds the ripeness doctrine prevents it
at this time from deciding the issue raised on appeal by
[UPW]. The Court further finds that it is unclear what the
[HLRB] . . . would have done if the stay issued by the
Intermediate Court of Appeals . . . in [Appeal] No. 27962
had been granted the day before.
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Accordingly, IT IS HEREBY ORDERED that this case is
remanded to the [HLRB] for further consideration by the
Board to take proceedings consistent with the stay issued by
the ICA in [Appeal] No. 27962. '
II.
A.
On appeal, UPW argues that the circuit court erred by
declining to review the HLRB's Order No. 2432 on the merits and
(l) applying the ripeness doctrine as a basis for remand; (2)
failing to consider the effect of its ruling on public employees;
and (3) exceeding its authority in instructing the HLRB on remand
to recognize the stay issued by the ICA in Ortiz I.
In our memorandum opinion in Ortiz I, we concluded in
relevant part that: (1) the HLRB was correct in denying UPW's
claim that Employer failed to comply with the arbitration award
and committed a prohibited practice by subjecting Ortiz to "pre-
employment" drug testing; and (2) the HLRB was partially correct
and partially wrong in determining that Employer did commit a
prohibited practice by breaching its duty to negotiate and
consult with UPW regarding certain drug-testing procedures.
Accordingly, we affirmed in part and vacated in part the circuit
court's judgment affirming the HLRB's Decision No. 452.
Significant to the instant appeal, we concluded in pertinent part
as follows:
1. We vacate the circuit court's Judgment to the
extent that it affirmed: (a) the HLRB's decision that
Employer committed a prohibited practice based on (i)
Section 63.01 b. of the CBA or (ii) an alleged unilateral
change by Employer of the conditions of employment set forth
in Section 63.04 a. of the CBA by removing employees from
the random drug testing pool; and (b) the resulting order of
the HLRB that Employer negotiate modifications to Section
63.04 a. to conform with DOT Rules § 382.301.
2. we affirm the circuit court's Judgment to the
extent it affirmed the HLRB's decision that Employer
committed a prohibited practice by breaching Employer's duty
to negotiate and consult with UPW when Employer failed to
respond to UPW's letter requesting a modification to Section
63.04 a. Of the CBA.
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B.
We conclude that this case (Ortiz II) should be
remanded to the HLRB to reconsider its Order No. 2432 in light of
our decision in Ortiz I. In Ortiz I, we effectively vacated a
significant portion of the HLRB's Decision No. 452, which UPW
sought to enforce and relied upon in its prohibited practices
claims in Ortiz II, and we remanded the case (Ortiz I) for
further proceedings consistent with our decision. In the HLRB's
Order No. 2432 in Ortiz II, the HLRB ordered Employer "to
negotiate [with UPW] over modifications to Section 63.04a [of the
CBA] to conform with DOT Rule 382.301 in accordance with [HLRB]
Decision [No.] 452, as modified and corrected by the First
Circuit Court.“ However, in Ortiz I, we concluded that "the HLRB
was not justified in ordering Employer to negotiate modifications
to Section 63.04 a. to conform with DOT Rules § 382.30l"
(emphasis in original), and we vacated the circuit court's
judgment to the extent that it affirmed "the resulting order of
the HLRB that Employer negotiate modifications to Section
63.04 a. to conform with DOT Rules § 382.301." Accordingly, in
Ortiz I, we invalidated a portion of the HLRB's Decision No. 452
upon which the HLRB's Order Noi 2432 in Ortiz II was based.
In addition, in Ortiz I, we concluded that Employer
breached its duty to negotiate and consult with UPW by failing to
respond to UPW's letter, which advised Employer of UPW's desire
to negotiate and consult over a requested modification to Section
63.04 a. of the CBA regarding "[t]he issue of whether an employee
who was discharged pending grievance or will be absent from work
for more than thirty days would be permitted to remain in the
random drug testing pool and thus be exempt from having to
undergo a controlled substances test before resuming safety-
sensitive functions . . . ." We affirmed the circuit court's
judgment to the extent "it affirmed the HLRB's decision that
Employer committed a prohibited practice by breaching Employer's
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duty to negotiate and consult with UPW when Employer failed to
respond to UPW's letter requesting a modification to Section
63.04 a. of the CBA." Ortiz 1 therefore clarified the nature and
scope of Employer's duty to negotiate and consult which may
affect the HLRB's evaluation of issues raised in Ortiz II.
Accordingly, we vacate the circuit court's "Judgment of
Remand," and we remand the case to the circuit court with
directions to remand the case to the HLRB for reconsideration and
further proceedings in light of our decision in Ortiz I.
We conclude that our decision in Ortiz 1 and our
decision to send this case back to the HLRB to reconsider its
Order No. 2432 in light of Ortiz 1 renders moot the issues raised
by UPW in this appeal. UPW argues on appeal that the circuit
court erred by refusing to address the validity of the HLRB's
Order No. 2432 on the merits and instead remanding the case to
the HLRB. As noted, however, in Ortiz I, we invalidated a
portion of the HLRB's Decision No. 452 upon which the HLRB's
Order No. 2432 was based. Our decision in Ortiz I means that the
assumptions underlying the HLRB's Order No. 2432 have changed,
and the HLRB will need to reevaluate its decision in Ortiz II in
light of our decision in Ortiz I. Accordingly, the remedy sought
by UPW--to have the circuit court rule on the merits of the
HLRB's Order No. 2432--has been compromised by subsequent events.
See Lathrop v. Sakatani, 111 HawaiT.307, 312-13, 141 P.3d 480,
485-86 (2006) ("The [mootness] doctrine seems appropriate where
events subsequent to the judgment of the trial court have so
affected the relations between the parties that the two
conditions for justiciability relevant on appeal--adverse
interest and effective remedy--have been compromised." (Block
quote format and citation omitted.)).
III.
Based on the foregoing, we vacate the circuit court's
October 10, 2007, "Judgment of Remand," and we remand the case to
the circuit court with directions to remand the case to the HLRB
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for reconsideration and further proceedings in light of our
decision in Ortiz I.
DATED= Honolulu, Hawai‘i, July 7, 2010.
On the briefs:
Herbert R. Takahashi
Rebecca L. Covert
(Takahashi Vasconcellos &
Covert)
for Complainant-Appellant/
Complainant Appellee-Appellant
John S. Mukai
Deputy Corporation Counsel
City and County of Honolulu
for Respondents-Appellees/
Respondents Appellants-Appellees
Valri Lei Kunimoto
for Agency-Appellees/
Agency Appellees-Appellees
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Chief Judge
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Associ te Judge