79 Hawai'i 154, University of Hawai'i Professional Assembly v. Tomasu

• Decision Date: 21 July 1995
• Docket Number: No. 15119,15119
• Citation: 79 Hawaii 154,900 P.2d 161
• Parties: 79 Hawai'i 154, 150 L.R.R.M. (BNA) 2815, 102 Ed. Law Rep. 831 UNIVERSITY OF HAWAI'I PROFESSIONAL ASSEMBLY, Appellant-Appellant, v. Bert M. TOMASU, Russell T. Higa, Sandra H. Ebesu, 1 members of the Hawai'i Labor Relations Board, and Board of Regents, University of Hawai'i, Appellees-Appellees.
• Court: Hawaii Supreme Court

Page 161

900 P.2d 161

79 Hawai'i 154, 150 L.R.R.M. (BNA) 2815,

102 Ed. Law Rep. 831

UNIVERSITY OF HAWAI'I PROFESSIONAL ASSEMBLY, Appellant-Appellant, v. Bert M. TOMASU, Russell T. Higa, Sandra H. Ebesu,¹ members of the Hawai'i Labor Relations Board, and Board of Regents University of Hawai'i Appellees-Appellees No. 15119.

Supreme Court of Hawai'i.

July 21, 1995.

T. Anthony Gill (Wade C. Zukeran, with him on the briefs, of Gill, Park, Park & Kim), Honolulu, for appellant-appellant University of Hawai'i Professional Assembly.

Valri Lei Kunimoto (David T. Ishikawa, with her on the briefs) Honolulu, for appellees-appellees Bert M. Tomasu, Russell T. Higa, and Sandra H. Ebesu, Members of the Hawai'i Labor Relations Bd.

Elton K. Suzuki (Ruth I. Tsujimura and Colette H. Gomoto, on the briefs), Deputy Attys. Gen., Honolulu, for appellee-appellee Bd. of Regents, University of Hawai'i.

Before LUM, C.J., ² WAKATSUKI, ³ MOON and LEVINSON, JJ., and BURNS, Intermediate Court of Appeals Chief Judge, in place of KLEIN, J., recused.

MOON, Chief Justice. ⁴

Appellant University of Hawai'i Professional Assembly (UHPA) appeals from the decision of the First Circuit Court affirming the Hawai'i Labor Relations Board's (HLRB) ruling in favor of appellee Board of Regents, University of Hawai'i (BOR) in a labor dispute over the BOR's promulgation and distribution of a policy statement in accordance with the Drug-Free Workplace Act (DFWA or the Act), 41 U.S.C. §§ 701-707 (1988); 15 U.S.C. § 634(b)(6) (1988). Because the policy statement will affect topics subject to mandatory bargaining, and the DWFA mandates not only promulgation, but also active implementation of the policy statement, the UHPA asserts that the BOR should be compelled to bargain with the UHPA upon demand. The HLRB and the BOR argue that the promulgated policy statement merely complies with federal law, and, as the BOR has not yet attempted to implement the policy statement, the time for bargaining has not arisen.

The circuit court affirmed the HLRB's decision that: (1) because the policy statement merely complies with federal law, its initial promulgation is not bargainable; and (2) the UHPA must wait until the BOR attempts actual implementation of an apparatus to effectuate the policy statement before the UHPA can demand bargaining on bargainable topics. For the reasons discussed below, we affirm part (1) above and reverse part (2).

I. BACKGROUND

On November 18, 1988, the DFWA was signed into law as part of the omnibus anti-drug legislation passed by Congress. The DFWA requires employers who are the recipients of federal grants or contracts to maintain drug-free workplaces by establishing policies on drug awareness and implementing them in the workforce. Specifically, the DFWA requires, inter alia, that an employer, contracting with the federal government or receiving federal grants, certify compliance with the Act by publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the employer's workplace and specifying the actions that will be taken against employees for violations of such prohibitions. 41 U.S.C. §§ 701(a)(1)(A) and 702(a)(1)(A). If an employee is convicted of violating a criminal drug statute, the DFWA also requires the employer to impose sanctions on, or to require the satisfactory participation in a drug abuse assistance or rehabilitation program by, such employee. 41 U.S.C. § 703. The DFWA further provides that continued payments on contracts with the federal government, or continued federal funding to the grantee, is contingent upon compliance with the Act. 41 U.S.C. §§ 701(a)(2), 701(b)(1), 701(a)(2), and 702(b)(1). The DFWA took effect on March 18, 1989.

In July 1988, the President of the University of Hawai'i notified the UHPA that a task force had been organized to formulate an anti-drug policy covering students, faculty, and staff at the University of Hawai'i. The President first sent a draft of the policy statement, outlining the requirements of the Act to the UHPA and, on February 13, 1989, sent a revised draft of the policy statement to the UHPA. The UHPA's Executive Director acknowledged that he had received the draft of the policy statement for consultation and comment.

On March 30, 1989, after the policy statement was finalized, the University's Vice-President for Research and the University's Director of Personnel both sent a memorandum to all chancellors, deans, and directors requesting their compliance with the policy statement. On May 9, 1989, the UHPA's Executive Director sent a letter to the University's Director of Personnel demanding that the University bargain over implementation of the policy statement. The Executive Director renewed this demand on May 12, 1989, whereupon the Director of Personnel replied that the policy statement was not a bargainable subject.

The UHPA subsequently filed prohibited practice charges under Hawai'i Revised Statutes (HRS) § 89-13(a)(5) (1985) ⁵ against the BOR with the HLRB on May 15, 1989, alleging that the policy statement affected topics subject to mandatory bargaining and that the BOR's refusal to bargain constituted an unfair labor practice. The HLRB ruled that the policy statement was not bargainable because it merely complied with a federal statute and the BOR had not yet attempted to implement the policy statement.

The HLRB held that, although the DFWA requires an employer receiving federal funding to institute various apparatuses to administer procedures related to the implementation of policies mandated by the DFWA, and the DFWA provides the employer with a range of options during implementation, the mere promulgation and distribution of a policy statement in compliance with the DFWA does not trigger the BOR's duty to bargain. See In the Matter of University of Hawai'i Professional Assembly and Board of Regents, University of Hawai'i, Decision No. 303, 4 HLRB 689 (1990) [hereinafter, Decision 303]. The HLRB explicitly noted, however, that "actual implementation of the apparatus required for the execution of the mandates of the DFWA, as opposed to the mere publishing or promulgation of those mandates in policy statements, may give rise to the duty to bargain." Id. at 712. On appeal, the circuit court affirmed the HLRB's findings of fact and conclusions of law. This appeal timely followed.

II. STANDARD OF REVIEW

In Sussel v. Civil Service Commission, 74 Haw. 599, 851 P.2d 311, reconsideration denied, 74 Haw. 650, 857 P.2d 600 (1993), we stated:

Review of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. The standard of review is one in which this court

must determine whether the [circuit] court was right or wrong in its decision, applying the standards set forth in HRS § 91-14(g) to the agency's decision. [This court's] review is further qualified by the principle that the [agency's] decision carries a presumption of validity and [a]ppellant has the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences.

HRS § 91-14(g) (1985) provides:

Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of this agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

HRS § 91-14(g) (1985).

Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5); and an agency's exercise of its discretion under subsection (6). Accordingly, a reviewing court will reverse an agency's finding of fact if it concludes that such agency finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. HRS § 91-14(g)(5). On the other hand, the agency's conclusions of law are freely reviewable.

Id. at 608-10, 851 P.2d at 316-17 (citations omitted) (brackets in original).

III. DISCUSSION

A. Compliance With Federal Law, the Employer's Discretion, and the Duty to Bargain

The UHPA contends that the HLRB erred because the UHPA is entitled to compel the BOR to bargain prior to the BOR's attempt to implement the policy statement. On the other hand, the HLRB and the BOR argue that, because the policy statement merely complies with a mandatory federal statute, and the BOR has not attempted to implement the apparatus of the policy statement, the need for bargaining has not yet arisen.

Both the BOR and the UHPA claim that In the Matter of the Hawaii Fire Fighters Association, Local 1463 and Ariyoshi, Decision No. 242, 4 HLRB 164 (1987), supports their respective positions. In Hawaii Fire Fighters, the HLRB mandated bargaining on the implementation of the wage statutes of the Fair Labor Standards Act because the implementation of the federal statute went beyond mere compliance and allowed the employer some discretion in its implementation. Analyzing federal law, the HLRB concluded that unilateral changes made in a collective bargaining agreement are permissible only when the changes are essential in order to comply with federal law. The HLRB noted:

Cases make clear that compliance with Federal statutes as such is not a negotiable issue, but cases...