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In re United Public Workers, AFSCME

Intermediate Court of Appeals of Hawaii

December 6, 2013

IN THE MATTER OF UNITED PUBLIC WORKERS, AFSCME, Local 646, AFL-CIO (2008-007), Petitioner/Appellant-Appellant, and KATHRYN S. MATAYOSHI, Superintendent, Department of Education, State of Hawai'i; RESHELA DUPUIS, Director, Charter School Administrative Office; WENDY W. LAGARETA, Director, Wai'alae Elementary School; and NEIL DIETZ, Chief Negotiator, Office of Collective Bargaining, State of Hawai'i, Ihtervenors/Appellees-Appellees, and HAWAII LABOR RELATIONS BOARD; JAMES B. NICHOLSON; EMORY J. SPRINGER; and SARAH R. HIRAKAMI, Agency/Appellees-Appellees

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL No. 09-1-0501).

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

James E. Halvorson Richard H. Thomason Deputy Attorneys General for Intervenors/Appellees-Appellees Valri Lei Kunimoto (Hawaii Labor Relations Board) for Agency/Appellees-Appellees.

Nakamura, Chief Judge, Foley and Leonard, JJ.

MEMORANDUM OPINION

In a secondary appeal arising out of a dispute over collective bargaining, Petitioner/Appellant/Appellant United Public Workers, AFSCME, Local 646, AFL-CIO (UPW), appeals from an August 19, 2009 Circuit Court of the First Circuit (Circuit Court) Judgment in favor of Intervenors/Appellees/Appellees Patricia Hamamoto, Superintendent, Department of Education, State of Hawai'i (Superintendent), Rashela DuPuis, Director, Charter School Administrative Office (Executive Director), Wendy W. Lagareta, Director, Wai'alae Elementary School (Lagareta), and Marie Laderta, Chief Negotiator, Office of Collective Bargaining, State of Hawai'i (Chief Negotiator), [1] and Agency/Appellees/Appellees Hawai'i Labor Relations Board, James B. Nicholson, Emory J. Springer, and Sarah R. Hirakami ("HLRB" or "Board").[2] On March 7, 2008, UPW submitted a Petition for Declaratory Ruling (Petition) to the HLRB seeking a definitive ruling on three issues relating to charter school collective bargaining. In HLRB Order No. 2585, issued February 2, 2009 (HLRB Order), the HLRB agreed with UPW on two issues, but disagreed on the third. UPW appealed to the Circuit Court, which affirmed the HLRB Order. On appeal to this court, UPW raises four points of error related to the Circuit Court's decision to affirm the HLRB Order. We affirm.

I. BACKGROUND FACTS

A. Statutory Framework

"Collective bargaining" is governed by Hawaii Revised Statutes (HRS) Chapter 89, and is defined as:

the performance of the mutual obligations of the public employer and an exclusive representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to wages, hours, amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund, and other terms and conditions of employment, except that by any such obligation neither party shall be compelled to agree to a proposal or be required to make a concession.

HRS § 89-2 (2012). An "exclusive representative" is the "employee organization certified by the board under section 89-8 as the collective bargaining agent to represent all employees in an appropriate bargaining unit[.]" Id. Pursuant to HRS § 89-5 (2012), the HLRB was established, inter alia, "to ensure that collective bargaining is conducted in accordance with" HRS Chapter 89.

Pursuant to HRS § 89-6(a) (2012), all employees throughout the State, within specific enumerated categories, form the various collective bargaining units. HRS § 89-6(d) further specifies the "employers" for the purpose of negotiating collective bargaining agreements for each bargaining unit.

The State of Hawai'i Department of Education (DOE) is an executive department headed by an elected policy-making board, known as the Board of Education (BOE). HRS § 302A-1101(a) (Supp. 2012). The BOE has the power "to formulate statewide educational policy, adopt student performance standards and assessments models, monitor school success, and appoint the superintendent of education as the chief executive officer of the public school system." Id. The DOE Superintendent shall have "jurisdiction over the internal organization, operation, and management of the public school system . . . and shall administer programs of education and public instruction throughout the State[.]" HRS § 302A-llll(a) (2007). While the charter school system is administratively attached to the DOE (see HRS § 302B-3(a) (Supp. 2011)), charter schools "operate independent educational programs from those provided by the department of education statewide." 1999 Haw. Sess. Laws Act 62, § 1 at 77.

The Office of Collective Bargaining and Managed Competition (OCB) was established to assist the Governor in, amongst other things, "negotiations between the State and the exclusive representatives on matters of wages, hours, and other negotiable terms and conditions of employment." HRS §' 89A-l(a) (2012); see also HRS § 89A-2(3) (2012). The OCB is headed by the Chief Negotiator. HRS § 89A-l(b). Amongst other functions and duties, the OCB shall "[c]onduct negotiations with the exclusive representatives of each employee organization and designate employer spokespersons for each negotiation[.]" HRS § 89A-2.

Charter schools were first authorized by the Hawai'i State Legislature (Legislature) in 1999, pursuant to Act 62, in order to "increase the flexibility and autonomy at the school level by allowing existing public schools and new schools to be designated as new century charter schools." 1999 Haw. Sess. Laws Act 62, § 1 at 77. The Legislature's intent was to

nurture the ideal of more autonomous and flexible decisionmaking at the school level . . . free of bureaucratic red tape and accommodating of the individual needs of students to allow the State to dramatically improve its educational standards for the twenty-first century.

Id. In order to allow educators to better tailor the curriculum to enhance student learning, each new century charter school

shall have a local school board as a governing body, and shall operate independent educational programs from those provided by the department of education statewide.

Id. Schools designated as new century charter schools were to be "exempt from all applicable state laws, " except, in relevant part, laws regarding

(1) Collective bargaining under chapter 89; provided that:
(A) The exclusive representatives defined in chapter 89 may enter into agreements that contain cost and noncost items to facilitate decentralized decisionmaking;
(B) The exclusive representatives and the local school board of the new century charter school may enter into agreements that contain cost and noncost items; [and]
(D) These agreements may differ from the master contracts [ . ]

Id., § 2 at 79-80 (HRS § 302A-1184). Act 62 of 1999 was originally codified as HRS Chapter 302A-1181 through 1192, and was subsequently repealed and replaced in 2006. 2006 Haw. Sess. Laws Act 298, § 3 at 1216.

In order to "create consistency and to clarify laws relating to the governance of charter schools, " in 2006, the Legislature enacted Act 298, relating to charter schools. S. Stand. Comm. Rep. No. 2881, in 2006 Senate Journal, at 1402; 2006 Haw. Sess. Laws Act 298, § 1 at 1200-01. Act 298 repealed HRS Chapter 302A §§ 1181 through 1192, and recodified and reorganized the statutes relating to charter schools into a new chapter, codified as HRS Chapter 302B.[3] 2006 Haw. Sess. Laws Act 298, §§ 1-2 at 1201-16. In addition to providing general consistency and clarity, Act 298 was intended to help "[c]larify[] collective bargaining provisions for charter school employees[.]" H. Stand. Comm. Rep. No. 1259, in 2006 House Journal, at 1580.

Pursuant to Act 298, HRS Chapter 302B authorized the establishment of a charter school system and set forth standards for the governance, administration, support, financing, autonomy, and accountability of charter schools. 2006 Haw. Sess. Laws Act 298, § 1 at 1201. Pursuant to HRS Chapter 302B, operational control over charter school workers is vested with the local school board (LSB) of each charter school; a LSB is the

governing body of its charter school and shall be responsible for the financial and academic viability of the charter school, implementation of the charter, and the independent authority to determine the organization and management of the school, the curriculum, virtual education, and' compliance with applicable federal and state laws. The local school board shall have the power to negotiate supplemental collective bargaining agreements with the exclusive representatives of their employees.

2006 Haw. Sess. Laws Act 298, § 2 at 1209 (HRS § 302B-7(c));[4] see also id. at 1202 (HRS § 302B-1).

Act 298 also established a "charter school administrative office" (CSAO), which was attached to the DOE "for administrative purposes only."[5] 2006 Haw. Sess. Laws Act 298, § 2 at 1209 (HRS § 302B-8).[6] The CSAO is administered by the Executive Director and, in consultation with the charter schools, is responsible for, inter alia, representing charter schools and the charter school system in communications with the Board, the Governor, and the Legislature, "[c]omplying with applicable state laws related to the administration of the charter schools[, ]" and "[u]pon request by one or more charter schools, assisting in the negotiation of a collective bargaining agreement with the exclusive representative of its employees." 2006 Haw. Sess. Laws Act 298, § 2 at 1210 (HRS § 302B-8(b)(3), (15) (Supp. 2011)).

Act 298 also amended HRS Chapter 89 in order to "make conforming amendments ... in accordance with the provisions of the new charter school law." 2006 Haw. Sess. Laws Act 298, § 4 at 1216. A new section governing charter'school collective bargaining was added in order to clarify ambiguity with regard to how charter schools "fit" into the scheme of collective bargaining over master collective bargaining agreements (CBA), and provides:

(a) Employees of charter schools shall be assigned to an appropriate bargaining unit as specified in section 89-6 [.]
(b) For the purpose of negotiating a collective bargaining agreement for charter school employees who are assigned to an appropriate bargaining unit, the employer shall be determined as provided in section 89-6(d).
(c) For the purpose of negotiating a memorandum of agreement or a supplemental agreement that only applies to employees of a charter school, the employer shall mean the local school board, subject to the conditions and requirements contained in the applicable sections of this chapter governing any memorandum of agreement or supplemental agreement.
(d) Negotiations over matters covered by this section shall be conducted between the employer and exclusive representative pursuant to this chapter. . . .

2006 Haw. Sess. Laws Act 298, § 5 at 1216-17 (HRS § 89-10.55) (emphasis added).[7] The 2006 amendments to HRS Chapter 89 made clear, for the first time, that charter schools were subject to the master CBA negotiated by the State, and which apply generally to an entire bargaining unit (to non-charter school employees and charter school employees alike). The 2006 amendments also stated, for the first time, that LSBs were empowered to "negotiate memorandums of agreement or supplemental collective bargaining agreements with the exclusive representatives of their employees."[8] Io\. § 1 at 1201 (HRS § 89-10.55 (c)) . Act 298 further provided that charter schools are required to adhere to collective bargaining laws under HRS Chapter 89:

(A) The exclusive representatives as defined in chapter 89 and the local school board of the charter school may enter into supplemental agreements that contain cost and noncost items to facilitate decentralized decision-making; [and]
(C) These supplemental agreements may differ from the master contracts negotiated with the department [of education.]

2006 Haw. Sess. Laws Act 298, § 2 at 1211 (HRS § 302B-9).[9]

B: Proceedings Below

On October 20, 1971, UPW was certified as the exclusive bargaining representative of blue collar non-supervisory employees in bargaining unit 1 (Unit 1). As the exclusive representative of all employees in Unit 1, UPW has "the right to act for and negotiate agreements covering all employees in the unit[.]" HRS § 89-8(a) (2012).

Prior to the repeal of HRS § 302A-1184, which extended the provisions of HRS Chapter 89 to the charter schools, UPW negotiated a memorandum of agreement (MOA) with the State and the DOE, signed on July 21, 2000. The July 21, 2000 MOA required the charter schools to comply with the requirements of the Unit 1 CBA "until it is replaced by a new Collective Bargaining Agreement, " and to negotiate supplemental agreements to modify the Unit 1 CBA "under the auspices of the Office of Collective Bargaining."[10]Pursuant to HRS § 89-10.55, UPW and the relevant Unit 1 employer group subsequently negotiated a Unit 01 Master CBA covering the period from July 1, 2007 through June 30, 2009 (Master Agreement). The Master Agreement set forth the wages, hours, and other terms and conditions of employment for employees in bargaining Unit 1.

By letter dated December 12, 2007, addressed to the Chief Negotiator, the UPW requested negotiations "with all New Century Charter Schools through the Office of Collective Bargaining on supplemental agreements modifying the current collective bargaining agreement with all public employees." UPW indicated that its request was being made pursuant to HRS § 89-6(d) and the July 21, 2000 MOA, because "since July 21, 2000 all MOA's have been extended to each successive term of the Unit 1 Agreements to June 30, 2009 by mutual consent of the parties." UPW further requested that the OCB "designate one spokesperson for negotiations with all New Century Charter schools, and to submit all proposals (if any) from the New Century Charter Schools ... to modify any section or provision of the existing Unit 1 Agreement[.]"

By letter dated January 15, 2008, Laderta responded to UPW s request for negotiations over supplemental agreements by stating that HRS § 89-6(d)

does not require that the Office of Collective Bargaining handle negotiation of such supplemental agreements. On the contrary, by statute, it is entirely up to each of the local school boards to determine for themselves who shall represent them in this regard. OCB has not been given such authority at this time.

Laderta further stated that the OCB did not have the authority to comply with UPW's request to designate one spokesperson for negotiations with all New Century Schools, as such authority "could only be granted by way of the unanimous consent of the respective local school boards of those Charter Schools[.]" In so concluding, Laderta pointed to HRS § 302B-9(1) (A) (2007), which provided:

The exclusive representatives as defined in chapter 8 9 and the local school board of the charter school may enter into supplemental agreements that contain cost and noncost items to facilitate decentralized decision-making.

Accordingly, Laderta referred the UPW to the CSAO.

By letter dated January 30, 2008, UPW sent a request for negotiations over supplemental agreements to the CSAO. In the letter, UPW requested that the CSAO and each of the public charter schools "submit responses to the specific request for information . . . and have the representative contact the [UPW] to schedule negotiations."

On March 7, 2008, UPW filed a Petition for Declaratory Ruling (Petition) with the HLRB, requesting a declaratory order pursuant to HRS § 91-8[11] and Hawaii Administrative Rules (HAR) § 12-42-9[12] that:

a. The authority to negotiate the terms and provisions of the master unit 1 agreement for the period covered by July 1, 2007 to June 30, [2009] rests exclusively with the UPW, Governor, the mayors of the various counties, the chief justice, and the Hawaii Health Systems Board of Directors pursuant to Section 89-10.55, (b), HRS, and in accordance with Section 89-6(d), HRS.
b. Local school boards of charter schools may not repudiate the terms of said unit 1 master agreement or supplemental agreements entered by and between the UPW and the Department of Education pursuant to Section 8 9-6(e), HRS.
c. Although local school boards of charter schools may negotiate memorandum of agreement or supplemental agreements that apply only to employees of their particular charter school under Section 89-10.55 (c), HRS, such agreements may not be inconsistent (or in conflict) with the master unit 1 agreement entered pursuant to Section 89-6(d), HRS, or prior memoranda of agreement or supplemental agreements entered by and ...

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