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In re United Public Workers, AFSCME, AFL-CIO, Union

Intermediate Court of Appeals of Hawaii

October 30, 2013



Herbert R. Takahashi Danny J. Vasconcellos Rebecca L. Covert (Takahashi, Vasconcellos & Covert) for Petitioner-Appellant.

James E. Halvorson Jeffrey A. KeatingDeputy Attorneys Generalfor Intervenor-AppelleeNEIL ABERCROMBIE, Governor, State of Hawai'i.

Diane A. Noda Joseph K. KamelamelaDeputies Corporation CounselCounty of Hawai'i for Intervenor-AppelleeCOUNTY OF HAWAI'I.

John S. Mukai Deputy Corporation Counsel City and County of Honolulu for Intervenor-Appellee KIRK CALDWELL, Mayor, City and County of Honolulu.




Petitioner-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO, Union (UPW) appeals from the Final Judgment (Judgment) entered on September 29, 2008, by the Circuit Court of the First Circuit (Circuit Court), and also challenges the Circuit Court's Order Reversing Hawaii Labor Relations Board Decision No. 470, Findings of Fact, Conclusions of Law, and Declaratory Order (Circuit Court Order).[1]

In this secondary appeal, UPW argues that the Circuit Court erred in reversing the declaratory ruling of the Hawaii Labor Relations Board (Board or HLRB) on the basis that the ruling exceeded the Board's jurisdiction. Because the Circuit Court ruled, in effect, that the Board had no jurisdiction to enter its Decision No. 470, Findings of Facts, Conclusions of Law, and Declaratory Order (Decision No. 470), the Circuit Court did not otherwise address the merits of Decision No. 470. Therefore, the central issue on this appeal is whether the Circuit Court erred when it concluded that the Board lacked jurisdiction to enter a ruling on the UPW petition underlying Decision No. 470, which sought a declaratory ruling concerning whether certain conduct by public employers constituted "prohibited practices" under Hawaii's public sector collective bargaining law. We conclude that the HLRB had jurisdiction over UPW's petition and therefore vacate the Circuit Court Order and Judgment.


Hawaii's public sector collective bargaining law is codified at Hawaii Revised Statutes (HRS) Chapter 89. This chapter, inter alia, provides public employees with the right of self-organization; the right to collectively bargain on wages, hours, and other terms and conditions of employment; and the right to a grievance procedure. HRS §§ 89-3 (2012); 89-10.8 (2012). It also sets forth a number of "prohibited practices, " making it unlawful, inter alia, for public employers to wilfully "[i]nterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter." HRS § 89-13 (a) (1) (2012) .

With the enactment of Chapter 8 9, the Hawai'i Legislature tasked the HLRB with the administration of the public sector collective bargaining law. See generally HRS 89-5 (i) (2012). In addition to its other powers and functions, the HLRB has exclusive original jurisdiction over any controversy concerning prohibited practices. More specifically, HRS § 89-14 (2012) provides:

§ 89-14 Prevention of prohibited practices. Any controversy concerning prohibited practices may be submitted to the [HLRB] in the same manner and with the same effect as provided in section 377-9; provided that the [HLRB] shall have exclusive original jurisdiction over such a controversy except that nothing herein shall preclude (1) the institution of appropriate proceedings in circuit court pursuant to section 89-12(c) or (2) the judicial review of decisions or orders of the [HLRB] 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.

As stated, controversies concerning prohibited practices are to be submitted to the HLRB "in the same manner and with the same effect" as an unfair labor practice controversy, the procedures for which are set forth in HRS § 377-9 as follows:

(b) Any 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. The board shall serve a copy of the complaint upon the person charged, hereinafter referred to as the respondent. If the board has reasonable cause to believe that the respondent is a member of or represented by a labor union, then service upon an officer of the union shall be deemed to be service upon the respondent. . . . Any other person claiming interest in the dispute or controversy, as an employer, an employee or their representative, shall be made a party upon proof of the interest. The board may bring in additional parties by service of a copy of the complaint. Only one complaint shall issue against a person with respect to a single controversy, but any complaint may be amended in the discretion of the board at any time prior to the issuance of a final order based thereon. The respondent may file an answer to the original or amended complaint but the board may find to be true any allegation in the complaint in the event either no answer is filed or the answer neither specifically denies nor explains the allegation nor states that the respondent is without knowledge concerning the allegation. The respondent shall have the right to appear in person or otherwise give testimony at the place and time fixed in the notice of hearing. The hearing on the complaint shall be before either the board or a hearings officer of the board, as the board may determine.
(d) After the final hearing, the board shall promptly make and file an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. Final orders may dismiss the complaint or require the person complained of to cease and desist from the unfair labor practices found to have been committed, suspend the person's rights, immunities, privileges, or remedies granted or afforded by this chapter for not more than one year, and require the person to take affirmative action, including reinstatement of employees and make orders in favor of employees making them whole, including back pay with interest, costs, and attorneys ' fees. Any order may further require the person to make reports from time to time showing the extent to which the person has complied with the order. Furthermore, an employer or employee who wilfully or repeatedly commits unfair or prohibited practices that interfere with the statutory rights of an employer or employees or discriminates against an employer or employees for the exercise of protected conduct shall be subject to a civil penalty not to exceed $10, 000 for each violation. In determining the amount of any penalty under this section, the board shall consider the gravity of the unfair or prohibited practice and the impact of the practice on the charging party, on other persons seeking to exercise rights guaranteed by this section, or on public interest.
(f) Any person aggrieved by the decision or order of the board may obtain a review thereof as provided in chapter 91 by instituting proceedings in the circuit court of the judicial circuit in which the person or any party resides or transacts business [.] . . . 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. 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.
(j) Any party may appeal from the judgment of a circuit court entered under this chapter, subject to chapter 602, in the manner provided for civil appeals from the circuit courts.
(k) A substantial compliance with the procedure of this chapter shall be sufficient to give effect to the decisions and orders of the board, and they shall not be declared inoperative, illegal, or void for any nonprejudicial irregularity in respect thereof.
(1) No complaints of any specific unfair labor practice shall be considered unless filed within ninety days of its occurrence.

HRS § 377-9 (2012) (emphasis added with bolded and underlined text; italicized text indicates modifications and/or additions to the statute subsequent to the proceedings at issue in this case; these amendments are not relevant to this appeal).

Another key statutory provision is found in Hawai'i's Administrative Procedures Act, specifically HRS § 91-8 (2012), which provides:

§ 91-8 Declaratory rulings by agencies. Any interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency. Each agency shall adopt rules prescribing the form of the petitions and the procedures for their submission, consideration, and prompt disposition. Orders disposing of petitions in such cases shall have the same status as other agency orders.

Administrative rules promulgated to govern the proceedings before the HRLB include:

§ 12-42-9 Declaratory rulings by the board, (a) Any public employee, employee organization, public employer, or interested person or organization may petition the board for a declaratory order as to the applicability of any statutory provision or of any rule or order of the board.
(b) The petition shall be prepared on a form furnished by the board, and the original and five copies shall be filed with the board.
(c) The petition shall contain the following:
(1) The name, address, and telephone number of the petitioner .
(2) A statement of the nature of the petitioner's interest, including reasons for submission of the petition.
(3) A designation of the specific provision, rule, or order in question.
(4) A clear and concise statement of the position or contention of the petitioner.
(5) A memorandum of authorities, containing a full discussion of the reasons, including legal authorities, in support ...

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