Gealon v. Keala, 6156

• Citation: 591 P.2d 621,60 Haw. 513
• Decision Date: 08 March 1979
• Docket Number: No. 6156,6156
• Parties: Lawrence GEALON, Plaintiff-Appellant, v. Francis KEALA, Chief of Police, Honolulu Police Department, City and County of Honolulu, State of Hawaii, and Harry Boranian, Director of Civil Service, City and County of Honolulu, State of Hawaii, Defendants-Appellees.
• Court: Supreme Court of Hawai'i

Page 621

591 P.2d 621

60 Haw. 513

Lawrence GEALON, Plaintiff-Appellant, v. Francis KEALA, Chief of Police, Honolulu Police Department City and County of Honolulu, State of Hawaii, and Harry Boranian, Director of Civil Service, City and County of Honolulu, State of Hawaii, Defendants-Appellees.

No. 6156.

Supreme Court of Hawai'i.

March 8, 1979.

Syllabus by the Court

1. In considering the validity of granting summary judgment under H.R.C.P., Rule 56(c), this court must determine whether any genuine issue as to a material fact was raised, and if not raised, whether the moving party was entitled to a judgment as a matter of law.

2. On review of a summary judgment proceeding, the standard to be applied by this court is identical to that employed by the trial court. This means that the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion.

3. "Final order" means an order ending the proceedings, leaving nothing further to be accomplished. Consequently, an order is not final if the rights of a party involved remain undetermined or if the matter is retained for further action.

4. In the interpretation of a collective bargaining agreement, the first thing to be considered is the language of the agreement.

5. In the interpretation of a collective bargaining agreement, past interpretations and applications, and past practices, as part of the common law of the shop, may be considered.

6. The meaning of certain words in a collective bargaining agreement may be determined by referring to other words and phrases in the agreement.

7. Interpretation of a collective bargaining agreement may be aided by the use of extrinsic evidence.

Erick T. S. Moon, Honolulu, for plaintiff-appellant.

Francis M. Nakamoto, Deputy Corp. Counsel, Honolulu, for defendants-appellees.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and KOBAYASHI, Retired Justice, assigned by reason of vacancy. ^*

KOBAYASHI, Justice.

Appellant Lawrence Gealon brings this appeal from a summary judgment granted to appellees Francis Keala and Harry Boranian by the circuit court of the first circuit. We affirm.

ISSUES

I. Whether the filing of appellant's complaint in circuit court was timely under Hawaii Rules of Civil Procedure (H.R.C.P.), Rule 72(b).

II. Whether the filing of appellant's grievance under Step 1 of the grievance procedure set forth in Article 32 of the collective bargaining agreement was timely.

A. Whether the twenty-day period began to run when appellant received notice of dismissal or when the dismissal became effective.

B. Whether "twenty days" means twenty calendar days or twenty working days.

III. Whether Article 32, Step 4, paragraph g, which extends the period for filing a grievance under Step 1, is applicable to the instant case.

IV. Whether appellant has shown that appellees' actions were "clearly erroneous" or "arbitrary and capricious" under Hawaii Revised Statutes (HRS) § 91-14(g).

STATEMENT OF THE CASE

Appellant filed a complaint in circuit court. The complaint was an appeal from the administrative decisions below and requested that appellant be reinstated with full back pay or that the case be remanded for further proceedings on the merits.

Appellees filed a motion for summary judgment and a memorandum in support of the motion, stating, in essence that there is no genuine issue as to any material fact and that appellees are entitled to judgment as a matter of law.

After a hearing on appellees' motion for summary judgment, the circuit court granted the motion.

STATEMENT OF FACTS

Appellant Lawrence Gealon was a police officer with the Honolulu Police Department, City and County of Honolulu.

Appellee Francis Keala is the Chief of Police, Honolulu Police Department, and appellee Harry Boranian is the Director of Civil Service, Department of Civil Service, City and County of Honolulu.

On June 8, 1975, appellant received a letter from appellee Keala, dated June 5, 1975, informing appellant that he was being suspended immediately and dismissed from the Police Department, effective in ten days from receipt of the letter.

A collective bargaining agreement between the City and County of Honolulu (hereinafter the City) and the State of Hawaii Organization of Police Officers (hereinafter the Union (SHOPO)), of which the appellant was a member, was in effect from July 1, 1973 to June 30, 1976.

During the week of June 23, 1975, upon inquiry made by appellant's attorney, the attorney was informed by Major Naylon of the Honolulu Police Department that the twenty-day period within which to file the grievance under Step 1 of the grievance procedure set forth in Article 32 of the collective bargaining agreement ¹ meant twenty "working days".

On or about June 30, 1975, appellant's attorney spoke with Major Jones of the Honolulu Police Department to inquire as to the grievance forms and was informed at that time that the twenty days meant twenty "consecutive days," or calendar days, rather than "working days".

On July 1, 1975, appellant filed a grievance with Major Roy Kaaa of the Honolulu Police Department ² requesting that he be reinstated with full back pay. Major Kaaa denied appellant's grievance on the ground that it was not filed within the prescribed time limits.

By letter dated July 14, 1975, appellant appealed to appellee Francis Keala, Chief of Police, from the denial of the grievance by Major Kaaa. ³ Chief Keala denied the appeal under Step 2 on the ground that the grievance was not filed within the prescribed Step 1 time limits.

By letter dated August 22, 1975, appellant appealed to appellee Harry Boranian, Director of the Civil Service Commission. ⁴ On August 28, 1975, appellee Boranian denied the appeal from Chief Keala's decision on the ground that the initial grievance was not filed within the prescribed Step 1 time limits.

OPINION

In considering the validity of granting summary judgment under H.R.C.P., Rule 56(c), this court must determine whether any genuine issue as to a material fact was raised, and if not raised, whether the moving party was entitled to a judgment as a matter of law. Technicolor v. Traeger, 57 Haw. 113, 119, 551 P.2d 163, 168 (1976); Gum v. Nakamura, 57 Haw. 39, 42, 549 P.2d 471, 474 (1976); Aku v. Lewis, 52 Haw. 366, 378, 477 P.2d 162, 169 (1970). This court has held:

On review of a summary judgment proceeding, the standard to be applied by this court is identical to that employed by the trial court. (Citation omitted.) This means that ". . . the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion."

Technicolor v. Traeger, supra, 57 Haw. at 118, 551 P.2d at 168; Gum v. Nakamura, 57 Haw. at 42-43, 549 P.2d at 474.

Upon consideration of the record, we are of the opinion that no genuine issue as to a material fact was raised. We, therefore, turn to the question of whether appellees were entitled to judgment as a matter of law.

I. WHETHER THE FILING OF APPELLANT'S COMPLAINT IN CIRCUIT COURT WAS TIMELY UNDER H.R.C.P., RULE 72(b).

HRS § 91-14(a) provides as follows for judicial review of a "final decision and order" of an administrative agency: ⁵

Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law.

HRS § 91-14(b) states that proceedings for such review shall be instituted in circuit court.

H.R.C.P. Rule 72(a) states that where a right of redetermination or review in circuit court is allowed by statute, ⁶

any person adversely affected by the decision, order or action of a governmental official or body other than a court, may appeal from such decision, order or action by filing a notice of appeal in the circuit court having jurisdiction of the matter.

H.R.C.P., Rule 72(b), states that notice of appeal shall be filed in circuit court within thirty days after the person desiring to appeal is notified of the rendering or entry of the decision or order. ⁷

Appellees argue, in effect, that appellee Keala's decision, rendered on July 16, 1975, was the "final decision and order" herein, so that the filing of appellant's complaint in circuit court on September 26, 1975, was outside the thirty-day period prescribed by Rule 72(b).

Appellant argues, in effect, that appellee Boranian's decision, rendered on August 28, 1975, was the "final decision and order" herein, so that the filing of appellant's complaint in circuit court was timely under Rule 72(b).

" Final order" means an order ending the proceedings, leaving nothing further to be accomplished. Consequently, an order is not final if the rights of a party involved remain undetermined or if the matter is retained for further action. Downing v. Board of Zoning Appeals of Whitley County, 149 Ind.App. 687, 689, 274 N.E.2d 542, 544 (1971). See Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). ⁸ But see Ecee, Inc. v. Federal Power Commission, 526 F.2d 1270, 1273-74 (5th Cir. 1976).

In our opinion, appellee Keala's decision under Step 2 clearly was not a "final decision and order." Appellant did proceed to Step 3 of the grievance procedure, as was his right. Downing v. Board of Zoning Appeals of Whitley County, supra, 149 Ind.App. at 689, 274 N.E.2d at 544. Since Step 3 was the last step that appellant could take under Article 32, ⁹ appellee Boranian's ...