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Gao v. State, Department of Attorney General

Intermediate Court of Appeals of Hawaii

July 22, 2013

GENBAO GAO, Appellant-Appellant,



Genbao Gao, Appellant-Appellant, pro se.

James E. Halvorson, Maria C. Cook, Deputy Attorneys General, for Appellee-Appellee.

Nakamura, C.J., Foley and Fujise, JJ.


Petitioner-Appellant Genbao Gao (Gao) appeals pro se from the January 24, 2011 Judgment entered by the Circuit Court of the First Circuit (Circuit Court)[1] Judgment was based on the Circuit Court's "Findings of Fact, Conclusions of Law, and Order Granting State of Hawai'i, Department of the Attorney General's [State] Motion to Dismiss Appeal of Arbitration Decision and Award, " entered December 9, 2010; the "Order Denying Appellant's Motion to Strike Appellee's Motion to Dismiss Appeal for Lack of Jurisdiction, " entered December 9, 2010; and the "Order Denying Appellant's Motion to Reconcile the Notice of Appeal and Opening Brief to Motion to Vacate and Motion to Quash, " entered December 9, 2010.

On appeal, Gao contends "the First Circuit orders, decisions, and judgments ignored the violation of [Hawaii Revised Statutes (HRS)] 658a and ignored the facts the arbitration decision and award violates well established public policy and the arbitration decision and award was issued in manifest disregard of the law."

After careful review of the issues raised by the parties, the record, and the applicable authority, we resolve Gao's appeal as follows.

Gao brought three grievances against his employer, the State, with the assistance of his union, the Hawaii Government Employees Association (HGEA or Union) who, at all relevant times, was an "employee organization" and the "exclusive representative" of Bargaining Unit 13, of which Gao was a member. It is undisputed that Gao's grievances followed the grievance procedures established in the Collective Bargaining Agreement (CBA) reached between the State and the HGEA for Bargaining Unit 13.

Article 11 of the CBA provided for a grievance procedure in the event an employee or the Union has a complaint regarding its application or interpretation and Article 8 provided that the same procedures were to be followed for grievances regarding matters of discipline. This procedure included one informal and three formal steps to be taken at the option of the employee. In addition, the CBA also provided a fourth step for arbitration under the following conditions:

H. Step 4. Arbitration. If the grievance is not resolved at Step 3 and the Union desires to proceed with arbitration, it shall serve written notice on the Employer or the Employer's representative of its desire to arbitrate within ten (10) working days after receipt of the Employer's decision at Step 3. Representatives of the parties shall attempt to select an Arbitrator immediately thereafter. If agreement on an Arbitrator is not reached within ten (10) working days after notice for arbitration is submitted, either party may request the Hawai'i Labor Relations Board to submit a list of five (5) Arbitrators. Selection of an Arbitrator shall be made by each party alternately deleting one (1) name at a time from the list. The first party to delete a name shall be determined by lot. The person whose name remains on the list shall be designated the Arbitrator. No grievance may be arbitrated unless it involves an alleged violation of a specific term or provision of the Agreement.
If the Employer disputes the arbitrability of any grievance, the Arbitrator shall first determine whether the Arbitrator has jurisdiction to act; and if the Arbitrator finds that the Arbitrator has no such power, the grievance shall be referred back to the parties without decision or recommendation on its merits.
The Arbitrator shall render the Arbitrator's award in writing no later than thirty (30) calendar days after the conclusion of the hearings or if oral hearings are waived then thirty (30) calendar days from the date statements and proofs were submitted to the Arbitrator. The decision of the Arbitrator shall be final and binding upon the Union, its members, the Employees involved in the grievance and the Employer. There shall be no appeal from the Arbitrator's decision by either party, if such decision is within the scope of the Arbitrator's authority as described below.
1. The Arbitrator shall not have the power to add to, subtract from, disregard, alter, or modify any of ...

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