In THE MATTER OF ARBITRATION BETWEEN UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO v. City and County of Honolulu

NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS OR THE PACIFIC REPORTER

NO. 27945
IN THE INTERMEDIATE COURT OF APPEALS

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In the Matter of the Arbitration Between wW,; §§ §§
UNITED PUBLIC WORKERS, AFSCME, LOCal 646, AFL-CIOjj g3
Union-Appellee, §§ §§ §§

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CITY AND COUNTY OF HONOLULU, BOARD OF WATER SUPP§¥ il

(Griev. of Scot Ouchi); ES-O4~O7; 2006-OO2, w: gp

Employer-Appellant

APPEAL FROM CIRCUIT COURT OF THE FIRST ClRCUIT
(S.P. NO. 06-1-OO63)

MEMORANDUM OPINION

(By: Nakamura, C.J., Foley and Leonard, JJ.)

Employer-Appellant City and County of Honolulu, Board
of water Supply (Employer) appeals from: l) the order granting
the motion of Union-Appellee United Public Workers, AFSCME, Local
646, AFL~CIO (UPW) to confirm the decision and amended decision
of Arbitrator R. Charles Bocken (Confirmation Order), entered by
the Circuit Court of the First Circuit (circuit court) on
April 20, 2006; 2) the circuit court's April 20, 2006, Judgment
that was based on the Confirmation Order; and 3) the circuit
court's June 6, 2006, order denying Employer's motion for
reconsideration and/or clarification of the Confirmation Order.F
The arbitrator's decision and amended decision involved a
grievance filed by UPW which challenged Employer's dismissal of
employee Scot Ouchi (Ouchi).

For the reasons discussed below, we conclude that the
circuit court exceeded its statutory authority in issuing the
Confirmation Order because the circuit court decided matters that
went beyond the arbitration award. We therefore vacate the
portion of the Confirmation Order in which the circuit court
exceeded its authority.

I.
Ouchi was employed by the Board of Water Supply as a

pipefitter. Prior to December 2003, Ouchi possessed a commercial

l/ The Honorable Randal K.O. Lee presided.

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driver's license (CDL), performed safety~sensitive functions, and
was subject to random alcohol and drug testing under the
collective bargaining agreement (CBA) between UPW and Employer.

On December 12, 2003, Ouchi was instructed to take a
random drug test. Ouchi initially provided a urine sample at
7:59 a.m. that was sufficient in volume for testing, but was
outside the acceptable temperature range. Ouchi provided two
more samples at about 10:3O a.m. and l1:OO a.m., both of which
were not sufficient in volume for testing. On December l7, 2003,
Ouchi received a letter from Employer stating that there was
sufficient cause to end Ouchi's employment because his inadequate
urine samples constituted a "refusal to test" under the CBA.
After a pre-termination hearing, Ouchi was discharged effective
January 23, 2004.

On February 20, 2004, UPW filed a grievance which
alleged that Employer violated the CBA by disciplining Ouchi
without just cause. In an arbitration decision dated January 6,
2006, Arbitrator R. Charles Bocken (Bocken) determined that the
drug testing procedure used in Ouchi's case violated United
States Department of Transportation (DOT) rules. Arbitrator
Bocken found that contrary to DOT rules, Employer did not
immediately retest Ouchi under direct supervision after the
initial sample was found to be outside the acceptable temperature
range and did not give Ouchi three hours after the first
inadequate-volume sample to provide a sample with adequate
volume. Arbitrator Bocken set aside Ouchi's discharge and
awarded him back pay for a period of four months, together with
other benefits and seniority for that period. The portion of the

arbitration decision relevant to this appeal stated:

DECISION

Accordingly, I find that the procedural error i[n] not
immediately conducting a test after the 7:59 am collection
and failing to provide three hours after the 10:30 am
collection requires setting aside [Ouchi's] discharqe.
Section 63.12 of the [CBA] provides that “A test which is
not valid as provided in the DOT Rules or violated the
Employee's rights shall not be used for discipline."

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Q@mD

[Ouchi] is awarded back pay for a period of four
months together with other benefits and seniority for that
period. Back pay benefits are to be reduced to the extent
of unemployment benefits received.

(Emphases added.) An amended arbitration decision correcting
typographical errors was issued on January 26, 2006.

After the arbitration decision, as amended, was issued,
Ouchi met with Employer on February 2l, 2006, and informed
Employer that he did not have a valid HawaFi driver's license.
Employer paid Ouchi retroactive back pay in accordance with the
arbitration award. Employer also reinstated Ouchi to his
pipefitter position, but Ouchi was prohibited from performing
safety-sensitive functions. Employer maintained that Ouchi could
not perform safety-sensitive functions until he complied with
federal requirements, including the possession of a valid CDL.
Employer also required Ouchi to enroll in a substance abuse
program (SAP). UPW objected to Employer's failure to permit
Ouchi to perform safety-sensitive duties.

On February 23, 2006, UPW filed a motion with the
circuit court 1) to confirm the January 6, 2006, arbitration
decision and award and the January 26, 2006, amended arbitration
decision and award; 2) to obtain a judgment in favor of UPW
pursuant to these decisions and awards; and 3) for other relief,
as the circuit court deemed appropriate. Employer opposed the
motion, arguing that the January 6, 2006, award could not be
confirmed because it had been amended on January 26, 2006,
Employer also objected to UPW's request that other relief be
awarded as appropriate. UPW filed a reply brief, requesting that
the circuit court l) specifically order Employer to return Ouchi
to the "status quo ante" by reinstating Ouchi to a safety-
sensitive pipefitter position and not requiring him to
participate in any SAP; and 2) award attorney's fees and costs in
favor of UPW and against Employer.

On April 20, 2006, the circuit court issued the
Confirmation Order and the Judgment in favor of UPW. In the
portion of the Confirmation Order pertinent to this appeal, the

circuit court stated:n

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4. [Employer] has failed to fully comply with the
remedial terms of the January 6, 2006 and January 26, 2006
arbitration awards. Although Scot Ouchi, the grievant, has
received back pay as ordered, he has not been fully
reinstated to perform safety sensitive functions as a
pipefitter, and the status quo ante which preceded his
discharge (which the Arbitrator Bocken ordered be "set
aside") has not been entirely restored. . . . Under the
circumstances, Employer shall pay to [UPW] . . . costs in
the amount of $378.60 and attorney's fees in the amount of
$948.6O . . . in accordance with Section 658A-25, HRS
[(Hawaii Revised Statutes)]. . . . Employer is hereby
ordered forthwith to fully abide by the remedial terms of
the January 6, 2006 and January 26, 2006 awards.

Employer filed a motion for reconsideration and/or clarification
of the Confirmation Order, which was denied on June 6, 2006.
II.

On appeal, Employer argues that: 1) the circuit court
exceeded its jurisdiction and authority when it concluded that
Employer failed to comply with the remedial terms of the
arbitration award by not fully reinstating Ouchi to perform
safety-sensitive functions as a pipefitter;W 2) to the extent
that the arbitration award was ambiguous, the circuit court
should have remanded the matter back to the arbitrator for
clarification; 3) the circuit court erred in ordering Employer to
pay attorney's fees; and 4) the circuit court erred in denying
Employer's motion for reconsideration and/or clarification of the
Confirmation_Order.F

III.

"We review the circuit court's ruling on an arbitration
award de novo, but we also are mindful that the circuit court's
review of arbitral awards must be extremely narrow and
exceedingly deferential." Tatibouet v. Ellsworth, 99 HawaiU.

226, 233, 54 P.3d 397, 404 (2002) (internal quotation marks,

brackets, and citations omitted). "Although formulated under the

3/ Although Employer argued to the circuit court that the circuit court

could not confirm the January 6, 2006, award because an amended decision
correcting typographical errors was issued on January 26, 2006, Employer has
not raised this claim on appeal. For simplicity, we will refer to the January
6, 2006, arbitration decision and award, as amended by the January 26, 2006,
arbitration decision, as a single decision and award,

5/ Employer also summarily asserts that the circuit court exceeded its

jurisdiction when it ordered Employer to fully abide by the remedial terms of
the arbitration award, Employer offers no specific argument or authority for
this contention, and we therefore deem it to have been waived. §§§ Hawafi
Rules of Appellate Procedure Rule 28(b)(7).

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prior arbitration statute, this standard of review is equally
applicable to arbitrations conducted under [(Hawaii Revised
Statutes (HRS)] Chapter 658A." Kona village Realtv, Inc. v.
Sunstone Realtv Partners, 121 Hawafi 110, 113, 214 P.3d 1100,
1103 .1‘-/

IV.

we resolve the arguments raised by Employer in this
appeal as follows:

A.

Employer frames the issue as whether the circuit court
exceeded its jurisdiction in issuing the Confirmation Order. The
circuit court had jurisdiction to decide UPw's confirmation
motion pursuant to HRS Chapter 658A. The pertinent question is
whether the circuit court exceeded its statutory authority in
issuing the Confirmation Order. we conclude that the circuit
court exceeded its statutory authority in issuing the
Confirmation Order because it decided matters that went beyond
confirming the arbitration award,

"It is well established that [the HawaFi Supreme
Court] has confined judicial review of arbitration awards to the
strictest possible limits. This is because of the legislative
policy encouraging arbitration and thereby discouraging
litigation." Gepava v. State Farm Mut. Auto. Ins. Co., 94
Hawafi 362, 365, 14 P.3d 1043, 1046 (2000) (internal quotations
marks, brackets, ellipsis points, and citations omitted). with
respect to arbitration awards, "[t]he circuit court cannot act
except as allowed by . . . [statute]." United Pub. workers,
AFSCME, Local 646, AFL-CIO v. Dawson Int'l, Inc., 113 HawaiT_
127, 145, 149 P.3d 495, 513 (2006) (referring to HRS Chapter 658)
(internal quotation marks, brackets, and citation omitted).
"[w]hen faced with a motion to confirm an arbitration award, the
circuit court is limited to whether the arbitration award was

correctly rendered as measured against specific standards."

i/ In 2001, Hawaii Revised Statutes (HRS) Chapter 658 was repealed and

replaced with the Uniform Arbitration Act, codified in HRS Chapter 658A. HRS
Chapter 658A is similar in many respects to the repealed HRS Chapter 658, and
therefore certain decisions under HRS Chapter 658 remain instructive.

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Labrador v. Liberty Mut. Group, 103 HawaiE.206, 212, 81 P.3d

386, 392 (2003).

Under HRS Chapter 658A, the circuit court may vacate an
arbitration award "only on the six grounds specified in HRS
§ 658A=23(a)"W and may modify or correct an arbitration award
"only on the three grounds specified in HRS § 658A-24."-‘i/ I_