Banos v. Hawai‘i Labor Relations Bd., CAAP-17-0000476

Citation452 P.3d 765 (Table)
Decision Date22 November 2019
Docket NumberNO. CAAP-17-0000476,CAAP-17-0000476
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
CourtCourt of Appeals of Hawai'i

452 P.3d 765 (Table)

Chad LOS BANOS, Appellant-Appellee,
HAWAI‘I LABOR RELATIONS BOARD, State of Hawai‘i; Department of Public Safety, State of Hawai‘i, Appellees-Appellees,
United Public Workers, AFSCME Local 646, AFL-CIO, Union Appellee-Appellant

NO. CAAP-17-0000476

Intermediate Court of Appeals of Hawai‘i.

November 22, 2019

On the briefs:

Herbert R. Takahashi, Rebecca L. Covert, (Takahashi and Covert), for Union-Appellee-Appellant

Ted H.S. Hong, for Appellant-Appellee.

(By: Fujise, Presiding Judge, Leonard and Hiraoka, JJ.)


Appellee-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.


A. The MOU

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:

WHEREAS, the EMPLOYER and UNION recognize that attendance ultimately affects the safety and health of those staff who show up for work, as well as the safety and health of inmates and general public;

WHEREAS, the EMPLOYER and UNION wish to resolve the matter and will hold Section 37.17b., Bargaining 10 Agreement, in abeyance with the implementation of this program;

WHEREAS, the EMPLOYER and UNION, in resolving the matter, agrees to hold in abeyance Section 37,04b., and 38A.11;

NOW, THEREFORE, the EMPLOYER and UNION agree as follows:

1. Unless specifically exempted below, this program will apply to any absence from work without pay [ (LWOP) ], with or without authorization.


4. When [DPS] decides to remedy an Employee on LWOP as provided by this document, such action shall be taken as follows:

a. Each day of leave without pay (authorized or unauthorized), including partial LWOP day, shall be considered as one (1) LWOP/incident.

b. Each day shall be considered as leave without pay for payroll purposes and each day shall be considered as one incident and result in the following remedy and schedule:
Levels of LWOP Day/Incident Required Action
1st Two (2) consecutive days of work
2nd Four (4) consecutive days of work
3rd Six (6) consecutive days of work
5th Resignation with Stipulation that Employee not seek re-employment with [DPS]

6. If the Employee does not show up/report for work during the imposed Required Action schedule, then [DPS] shall conduct an investigation pursuant to [DPS]'s investigative process developed to manage Section 38A.11 of the Bargaining Unit 10 Agreement.

The employee must still serve and complete the required number of work days imposed on the current required action.

Once a determination is made that the Employee did not show up/report for work in accordance with the Required Action schedule, the remedy is to impose the next scheduled Required Action period per LWOP day/incident, up to and including 15th, resignation with stipulation that Employee shall not seek re-employment with [DPS].

7. The schedule of incident/required action shall be counted continuously for a period of two (2) years retroactive from the date of the most current violation.

8. Only those valid claims for federal and state benefits shall be exempt from this program, including military leave, family and medical leave act, worker's compensation, and TDI. Such exemption shall be for the purpose and period of the specific leave of absence only. During the exemption, the Employee who does not have accumulated sick leave shall have the option to use accumulated vacation leave or compensatory time as applicable.


9. Only those valid claims for LWOP resulting from catastrophic illness (e.g. cancer ), 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).

B. The Agency Proceedings

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...

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