In the Matter of the Grievance Arbitration Between STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS (SHOPO), exclusive representative for Bargaining Unit 12, Police, on behalf of SHELLY L. RODRIGUES, JAMES A. RODRIGUEZ, and SHANE Y. SOKEI, Respondents/Grievants-Appellants, and COUNTY OF KAUA'I and KAUA'I POLICE DEPARTMENT, Petitioners/Employers-Appellees
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. (CAAP-10-0000077; S.P. NO. 09-1-0031).
Mauna Kea Trask, for petitioner.
Vladimir Devens, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.
[135 Hawai'i 458] OPINION
The County of Kaua'i and Kaua'i Police Department (the Employer) filled five police sergeant positions in 2007 through internal promotions. The State of Hawaii Organization of Police Officers (SHOPO) challenged the non-promotions of three police officers through the grievance procedures of the collective bargaining agreement governing the parties. When the parties were unable to resolve the grievances, the matter was submitted to arbitration for final determination. After finding that the promotions were subjective, arbitrary, and capricious in violation of the collective bargaining agreement, the arbitrator awarded the three officers promotions and back pay. The Circuit Court of the Fifth Circuit (circuit court) found that it was beyond the scope of the arbitrator's authority to award promotions and vacated the arbitrator's remedy. The principal issue before this court is whether it was proper for the circuit court to vacate the arbitrator's remedy.
In May 2007, the Employer notified SHOPO that it would fill five police sergeant positions from the existing promotional eligible list, which was based on the results of written examinations. The acting chief of police decided to add an oral interview to the promotional process. An examination panel was assembled, and the interviews were conducted in August 2007. Five candidates were selected to the police sergeant positions, and following the appointments, three of the unsuccessful candidates filed grievances alleging violations of the collective bargaining agreement.
The grievances were brought under the collective bargaining agreement that pertains to the employment of state and county police officers (agreement).  The agreement is between SHOPO--the exclusive representative for public employees in the police officers unit--and the State of Hawai'i, City and County of Honolulu, County of Hawai'i, County of Maui, and County of Kaua'i. The agreement includes a four-step grievance procedure that provides for the final settlement [135 Hawai'i 459] of unresolved grievances through " final and binding" arbitration.
The four-step grievance procedure is set out in Article 32, which provides for arbitration as the final step and restricts review of the decision on appeal: " The award of the Arbitrator shall be accepted as final and binding. 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 . . . ." Article 32 includes a limitation on the arbitrator's authority: " The Arbitrator shall not have the power to add to, subtract from, disregard, alter, or modify any of the terms of this Agreement." Article 32 also sets forth the arbitrator's authority:
The Arbitrator's authority shall be to decide whether the Employer has violated, misinterpreted or misapplied any of the terms of this Agreement and in the case of any action which the Arbitrator finds unfair, unjust, improper or excessive on the part of the Employer, such action may be set aside, reduced or otherwise changed by the Arbitrator. The Arbitrator may, in the Arbitrator's discretion, award back pay to recompense in whole or in part, the employee for any salary or financial benefits lost, and return to the employee such other rights, benefits, and privileges or portions thereof as may have been lost or suffered.
Article 47 of the agreement specifically addresses promotions: " Promotions shall be based upon fair standards of merit and ability, consistent with applicable civil service statutes, rules and regulations and procedures." The " Rights of the Employer" are provided for in Article 11; it includes a single section titled " Management Rights" that provides, " The Employer reserves and retains, solely and exclusively, all management rights and authority, including the rights set forth in Section 89-9(d)(1)-(8), Hawaii Revised Statutes, except as specifically abridged or modified by this Agreement." 
The grievances of the three police officers asserted violations of the collective bargaining agreement. The grievants contended that the promotional process used by the Employer was subjective, arbitrary, and capricious. Each grievance statement stated the following under the heading " remedy sought" : " That the employer promote the Grievant to Police Sergeant on the effective date of promotion and be made whole."
The parties were not able to settle the grievances through the first three steps of the grievance procedures before the Employer, and in May 2008, SHOPO sent the Employer a Notice of Intent to Arbitrate on behalf of each grievant. Larry L. Cundiff, Sr. was selected as the sole arbitrator for determination of the three grievances (arbitrator). A consolidated arbitration hearing on the grievances was held before the arbitrator for three days in January 2009.
At the beginning of the hearing, the arbitrator stated, " Both parties have agreed that this matter is properly before the arbitrator." After a brief discussion with both attorneys off the record, the arbitrator stated that the parties previously agreed that SHOPO had the right to challenge " the way that the promotions were done; however, they do not challenge the [Employer's] right to make the promotions." During the hearing, a total of seventy-five exhibits were admitted into evidence, and eight witnesses testified. Testimony indicated that there were three to five vacant sergeant positions at that time.
[135 Hawai'i 460] In the arbitrator's June 2, 2009 decision, the arbitrator found that the matter was properly before the arbitrator and that the arbitrator had jurisdiction over the grievances. The arbitrator's decision provided an overview of the testimony presented regarding the three officers' work history and qualifications. The arbitrator found that the grievants were denied promotions " due to subjective, arbitrary and capricious promotional practices." The arbitrator awarded the grievants promotions to sergeant positions, back pay, and " any additional rights, benefits and privileges they would have been entitled to had they been promoted."
SHOPO filed a motion to confirm the arbitrator's award in the circuit court on June 23, 2009, arguing that the award was valid, binding, and issued within the arbitrator's authority. The Employer opposed SHOPO's motion and moved for the circuit court to vacate the award on the basis that the arbitrator " exceeded his authority" under the agreement. The Employer also maintained that the arbitrator's actions " were beyond the jurisdiction of negotiation and arbitration, as well as a violation of public policy." SHOPO opposed the Employer's motion to vacate and contended that the arbitrator had the jurisdiction and authority to decide the matter and noted that the Employer conceded in pre-arbitration proceedings that SHOPO had the right to grieve the subject promotions.
The circuit court heard argument on the motions in a July 29, 2009 hearing. The court stated during the hearing that the grievances were properly before the arbitrator and that the Employer had taken " inconsistent positions" regarding whether the promotions were a proper subject of arbitration. The circuit court stated, " I believe the employer is estopped from arguing otherwise, because they agreed to final and binding arbitration." The circuit court continued, " They agreed that this was a proper subject."
However, the circuit court also found that it was beyond the scope of the arbitrator's authority under the agreement and HRS § 658A-23 to award promotions and back pay. The circuit court found that the agreement in this case was distinguishable from the collective bargaining agreement in University of Hawai'i Professional Assembly v. University of Hawai'i, 66 Haw. 214, 659 P.2d 720 (1983) (per curium) [hereinafter UHPA II], which the circuit court found granted the arbitrator greater authority.
On August 6, 2009, the circuit court granted in part and denied in part the Employer's motion to vacate. The court confirmed the arbitrator's findings of facts and conclusions with the exception of the arbitrator's remedy, which the court vacated. The court reasoned that the grievances were properly before the arbitrator and within his jurisdiction, but the court also found that the arbitrator's remedy exceeded his authority and powers granted under Article 32 of the agreement in violation of HRS § 658A-23. In accordance with its rulings, the court denied SHOPO's motion to confirm the arbitrator's award ...