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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 the terms of this Agreement.
2. The Arbitrator's power shall be limited to deciding whether the Employer has violated any of the terms of this Agreement.
3. The Arbitrator shall not consider any alleged violations or charges other than those presented in Step 3.

(Emphasis supplied). In this case, the Union opted to take this matter to arbitration and the State agreed that the grievances were properly before the Arbitrator. The Arbitrator rendered his decision sustaining the employer in each of the three grievances on May 28, 2010.

On August 18, 2010, Gao pro se, filed a "Notice of Appeal" "from the decision and order of the Walter Ikeda (arbitrator)" and on August 26, 2010 filed a document entitled "Initial Motion of Genbao Gao" but captioned as "Opening Brief to Vacate an Award in the Arbitration Proceeding on May 28, 2010."

After the State moved to dismiss Gao's appeal for lack of jurisdiction and to strike Gao's opening brief, Gao filed a "Motion to Reconcile the Notice of Appeal and Opening Brief to Motion to Vacate, " (Motion to Reconcile) explaining that, "My intention was to file a motion to vacate the arbitrator's decision and award on my own in accordance with HRS 658a after the HGEA turned down my request." Gao stated that his motion was based on a claim that there was "evident partiality" on the part of the arbitrator and, acknowledging that such a motion must be brought by a "party, " relied on language in HRS § 377-9(b)[2] and "Title 12-42-42(d)"[3] providing that, upon proof of interest, "an employee . . . shall be made a party." Similarly, at the hearing on the State's motions to dismiss and to strike Gao's opening brief, Gao again asserted this intent.

Notwithstanding these requests, the Circuit Court denied Gao's Motion to Reconcile, "as moot, because the appeal had been dismissed pursuant to the [Circuit] Court's order granting [State's] motion to dismiss appeal."[4] However, we need not decide whether the Circuit Court erred in this regard because, Gao could not seek to vacate the arbitration award under HRS § 658A-23.

As the employee for whom the arbitration proceeding was brought in this matter, Gao was bound by the decision of the arbitrator under the plain language of the arbitration provision in the CBA. Gao v. Hawai'i Labor Relations Bd., 129 Hawai'i 106, 294 P.3d 1092, CAAP-12-0000424 at *2 (App. Feb. 22, 2013) (SDO) . See also Poe v. Hawai'i Labor Relations Bd., 97 Hawai'i 528, 537, 40 P.3d 930, 939 (2002). That language explicitly provided that the arbitration was final, that it bound "the Union, its members, the Employees involved in the grievance and the Employer, " and "no appeal" could be brought by "either party." Thus, except for those limited circumstances where the arbitrator acted outside his or her authority, no appeal from the award is allowed.

However, Gao attempted to style his review of the arbitration award as a motion to vacate under HRS § 658A-23, part of Hawai'i's version of the Uniform Arbitration Act. It provides, in pertinent part,

Vacating award. (a) Upon motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
(2) There was:
(A) Evident partiality by an arbitrator appointed as a neutral arbitrator [ . ]

HRS § 658A-23 (Supp. 2012) .

The language of this section plainly limits its application to a "party to an arbitration proceeding." Thus, any reading of this phrase must be made in the context of the provisions of the arbitration agreement. As the CBA structures the arbitrations to resolve grievances, only the Union, and not Gao, had the ability to invoke the arbitration provision and only the Union, along with the employer, were considered parties to the arbitration. See, Eisen v. State, Dep't of Public Welfare, 352 N.W.2d 731, 737 (Minn. 1984) (held that employee was not considered a "party" for the purposes of a challenge to an arbitration under the Uniform Arbitration Act where the agreement expressly permitted the union, not the employee, to invoke the arbitration provisions of the agreement and the only parties named in the agreement under the arbitration provision were the union and the state negotiator, who, respectively, represent the employee and the employer in the arbitration).

As Gao was not a "party" to the arbitration, he could not move to vacate the arbitration award and the Circuit Court was correct in dismissing the case.

Therefore, the Circuit Court of the First Circuit's January 24, 2011 Judgment is affirmed.

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