Banos v. Hawai‘i Labor Relations Bd.
| Decision Date | 22 November 2019 |
| Docket Number | NO. CAAP-17-0000476,CAAP-17-0000476 |
| Citation | 452 P.3d 765 (Table) |
| Parties | Chad LOS BANOS, Appellant-Appellee, v. HAWAI‘I LABOR RELATIONS BOARD, State of Hawai‘i; Department of Public Safety, State of Hawai‘i, Appellees-Appellees, and United Public Workers, AFSCME Local 646, AFL-CIO, Union Appellee-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Herbert R. Takahashi, Rebecca L. Covert, (Takahashi and Covert), for Union-Appellee-Appellant
Ted H.S. Hong, for Appellant-Appellee.
(
MEMORANDUM OPINIONAppellee-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO (the Union) appeals from the June 15, 2017 Final Judgment (Judgment) entered by the Circuit Court of the Third Circuit (Circuit Court)1 in favor of Appellant-Appellee Chad Los Banos (Los Banos) and against the Union, Appellee-Appellee the State of Hawai‘i, Department of Public Safety (DPS), and Appellee-Appellee the Hawai‘i Labor Relations Board, State of Hawai‘i (2016-008) (Board) . The Union also challenges the Circuit Court's May 19, 2017 Decision and Order on Appeal (Order Remanding to the Board ).
This case arises out of Los Banos's numerous absences as a correctional officer, purportedly in violation of a Memorandum of Understanding on Attendance Program (MOU ), which memorialized an agreement between the Union and the DPS regarding employee attendance (Attendance Program ). As a result of his absences, Los Banos was deemed to have resigned from his position with DPS. Los Banos filed a prohibited practices complaint (Complaint ) against DPS and the Union, which a two-member majority of the Board dismissed after Los Banos presented his case-in-chief. On appeal, the Circuit Court vacated the Board's decision and remanded for entry of appropriate findings of fact and conclusions of law in support of its decision. On secondary appeal, the Union requests that this court vacate the Circuit Court's Judgment and Order Remanding to the Board and dismiss Los Banos's appeal. We affirm for the reasons stated herein.
On July 30, 2010, DPS and the Union executed the MOU, which implemented the Attendance Program as applicable to all Adult Correctional Officers (ACOs ) in Bargaining Unit 10 of the Union. The MOU stated in pertinent part:
), injury (including serious medical procedures, e.g. surgery). [sic] Critical/serious illness or impairment which renders an employee unable to perform one or more activities of daily living as noted in Section 38A.08i.1. through and including 38A.08i.7, or other illnesses or circumstances as determined by the Department Head, or designee shall be exempt from this program.
....
This MEMORANDUM OF UNDERSTANDING shall become effective on September 1, 2010 and shall remain in effect until June 30, 2011, unless the parties mutually agree to extend the duration of this MEMORANDUM OF UNDERSTANDING.
(Emphasis added).
On March 7, 2016, Los Banos, an ACO with DPS prior to his resignation, filed the Complaint with the Board, alleging that DPS and the Union engaged in prohibited practices in violation of Hawaii Revised Statutes (HRS) § 89-13 (2012).2 In pertinent part, the Complaint alleged that from January through March 2015, Los Banos was frequently absent from work, because of severe and debilitating emotional distress and depression he was experiencing due to his ongoing divorce and a co-worker's suicide in December 2014. At some point, Los Banos applied for leave pursuant to the federal Family and Medical Leave Act (FMLA)3 and the Hawai‘i Family Leave Act (FLA).4 His request was granted, in part, to begin March 16, 2015. On or about April 30, 2015, Los Banos became aware that an investigation was being conducted with respect to his absences from work. Los Banos subsequently received a letter from DPS, dated May 26, 2015, which identified a total of twenty days of "leave without pay" and stated that his absences would result in his resignation effective June 15, 2015, in accordance with the Attendance Program and MOU.
On June 19, 2015, the Union filed a "Step 1" grievance on behalf of Los Banos, alleging violations of the terms of the MOU. DPS rejected the grievance on November 2, 2015. On January 21, 2016, the Union notified Los Banos by letter that:
As the affected employee, the Union is informing you that it is submitting the above-cited grievance to arbitration. However, the decision to arbitrate is subject to further review that may result in the grievance being withdrawn from arbitration.
On February 1, 2016, the Union informed Los Banos that it was withdrawing his arbitration request based on "insufficient proof that there is a violation of the CBA," but the Union did not otherwise notify or discuss with Los Banos its intention to withdraw the request for arbitration and did not inform him of any deadlines in the grievance and arbitration process.
Based on these allegations, Los Banos claimed, inter alia, that DPS engaged in prohibited practices by violating the terms of the MOU and Attendance Program, by failing to approve his request for FMLA leave for the entire period during which he was suffering from debilitating emotional distress and, also, by deliberately failing to notify him that his absences were triggering the Attendance Program until after he was subject to resignation. As the basis for his prohibited practices claim against the Union, Los Banos asserted that the Union failed in its duty to represent him in his grievance by failing to contest the DPS's violations of the terms of the MOU and by failing to inform him of its intent not to pursue his grievance to arbitration. Los Banos sought reinstatement without loss in seniority, fringe benefits, back pay, general and special damages, and attorneys' fees and costs, with interest.
DPS and the Union filed answers to the Complaint. On March 30, 2016, DPS filed a Motion to Dismiss Prohibited Practices Complaint (Department's Motion to Dismiss) and, on April 1, 2016, the Union also filed a Motion to Dismiss Complaint (Union's Motion to Dismiss). Los Banos filed oppositions to both motions, reiterating the allegations in his Complaint and arguing that he had adequately pled prohibited practices claims against both DPS and the Union.
The Board heard the motions together at a hearing on April 12, 2016. The Board orally denied the motions to dismiss, in part, determining that questions of fact existed with respect to the Union's breach of its duty of fair representation and whether Los Banos was properly disallowed an exemption from the Attendance Program under Paragraphs 8 and 9 of the MOU.5
The Board noted it was not making a ruling with respect to the MOU's "implementation and application to Mr. Los Banos' specific situation," and that "there may be questions as to the validity of the MOU at the time of its application to Mr. Los Banos." The Board then held the following exchange with counsel for the Union:
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