90 Hawai'i 9, Bronster v. United Public Workers, AFSCME, Local 646, AFL-CIO, AFL-CI

• Decision Date: 21 January 1999
• Docket Number: AFL-CI,D,No. 21130,21130
• Citation: 975 P.2d 766
• Parties: 90 Hawai'i 9, 161 L.R.R.M. (BNA) 2102 Margery S. BRONSTER, in her official capacity as Attorney General of Hawai'i, Plaintiff-Appellee, v. UNITED PUBLIC WORKERS, AFSCME, LOCAL 646,efendant-Appellant.
• Court: Hawaii Supreme Court

Page 766

975 P.2d 766

90 Hawai'i 9, 161 L.R.R.M. (BNA) 2102

Margery S. BRONSTER, in her official capacity as Attorney General of Hawai'i, Plaintiff-Appellee, v. UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO Defendant-Appellant.

No. 21130.

Supreme Court of Hawai'i.

Jan. 21, 1999.

Herbert R. Takahashi and Rebecca L Covert (of Takahashi Masui & Vasconcellos), Honolulu, on the briefs, for defendant-appellant United Public Workers, AFSCME, Local 646, AFL-CIO.

Ruth I. Tsujimura and Douglas H. Inouye, deputy attorneys general, on the briefs, for plaintiff-appellee Margery S. Bronster.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

Opinion of the Court by LEVINSON, J.

The defendant-appellant United Public Workers, AFSCME, Local 646, AFL-CIO (the UPW) appeals from (1) the orders of the circuit court (a) granting the plaintiff-appellee Margery S. Bronster's motion for summary judgment, (b) denying the UPW's motions (i) to stay proceedings pending arbitration, (ii) to compel arbitration, and (iii) for summary judgment, and (2) the final judgment in favor of Bronster, in her official capacity as the state's attorney general. This case arises out of Bronster's prayer, inter alia, for a declaratory judgment that the Office of the Attorney General is not subject to arbitration pursuant to a collective bargaining agreement (hereinafter, "the agreement") between the State of Hawai'i (the State) and the UPW covering "public employees in the institutional, health and correctional worker's unit, non-supervisory and supervisory," known as "Unit 10 employees," pursuant to Hawai'i Revised Statutes (HRS) § 89-6 (Supp.1998). ¹ The circuit court concurred with Bronster and granted her declaratory relief.

On appeal, the UPW argues that the circuit court erred because (1) as a "representative" or agent of the State, the Attorney General was a "party" to the agreement, (2) the agreement expressly provides that the determination of the arbitrability of a dispute is to be decided by the arbitrator, and (3) the circuit court's rulings violated the presumption in favor of arbitrability. We agree with the UPW's first two points and, therefore, need not reach the third. Accordingly, we vacate the circuit court's orders and judgment and remand for the entry of orders granting the UPW's motions (1) for summary judgment and (2) to compel arbitration.

I. BACKGROUND

A. The Agreement

On June 21, 1994, the State and the UPW entered into the agreement, the effective dates of which were July 1, 1993 through June 30, 1995. The agreement was signed on behalf of the State, inter alia, by Governor John Waihee. The record contains several memoranda of agreement extending the termination date of the agreement, most recently, to June 30, 1996.

The preamble of the agreement recites:

THIS AGREEMENT is entered into this 21st day of June, 1994 by and between the STATE OF HAWAII, THE CITY AND COUNTY OF HONOLULU, THE COUNTY OF HAWAII, the COUNTY OF MAUI, and the COUNTY OF KAUAI, hereinafter collectively called the EMPLOYER, and the UNITED PUBLIC WORKERS, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 646, AFL-CIO, hereinafter called the UNION.

(Underlined text in original and bold-face added as emphasis.) Subsection 1.05 provides in relevant part that "[t]he Employer agrees that it shall consult the Union when formulating and implementing personnel policies, practices and any matter affecting working conditions."

Section 15 of the agreement describes the procedure governing grievances. Subsection 15.01 provides in relevant part that "[i]t shall be the intention of the parties that any grievance which arises out of alleged violation, misinterpretation, or misapplication of the Agreement ... shall be resolved in accordance with provisions set forth herein." In general, section 15 creates a four-step process for addressing grievances that cannot be resolved informally.

"Step 1" requires the "grieving party" (1) to set out his or her complaint in writing on a form "provided by the Employer" and (2) to submit the form "to the Superintendent or Administrator of a corrections facility or his designee, or the division head or his designee in the case of a non-corrections facility[.]" If the grieving party is not satisfied after "Step 1," the party may, pursuant to "Step 2," "file a letter of appeal ... with the department head or his designee for settlement[.]" Should the grieving party remain unsatisfied, he or she may, pursuant to "Step 3," file a further "letter of appeal ... with the Employer or his representative[.]" Finally, "[i]f the matter is not satisfactorily settled at Step 3," the grieving party is authorized, pursuant to "Step 4," "to proceed with arbitration."

Subsection 15.26 provides that,

[i]f the Employer disputes the arbitrability of any grievance under the terms of this Agreement, the Arbitrator shall first determine whether he has jurisdiction to act; and if he finds that he has no such power, the grievance shall be referred back to the parties without decision on its merits.

(Emphasis added.) Subsection 15.28 provides in relevant part that "[t]he award of the Arbitrator shall be accepted as final and binding."

Section 54 of the agreement governs "the Employer's" duties with respect to "Defense and Counsel." Subsection 54.01 states that "[t]he Employer shall provide legal counsel upon request to employees sued for actions taken by them in the course and scope of their employment and within the scope of their duties and responsibilities." The remainder of the section fleshes out the parameters of the Employer's duty.

B. The Underlying Dispute

In 1993 and 1994, a dispute arose between the State and the UPW over the interpretation of Section 54. During that period, seven adult correction officers (hereinafter, "ACOs") were sued in civil actions by former female inmates, each alleging sexual harassment and abuse. All seven ACOs requested legal assistance through the UPW, which, in turn, submitted the requests to the State of Hawai'i Department of Public Safety (the DPS) pursuant to subsection 54.01. When the DPS failed to respond to multiple requests, the ACOs filed grievances pursuant to the agreement. The grievances apparently proceeded through the requisite steps and were consolidated for arbitration. During the hearings before the arbitrator, the State evidently characterized the DPS's delay in responding to the UPW's requests as being necessary to conduct an investigation into (1) whether the ACOs had been acting "in the course of and scope of their employment," in order to determine whether the State was required to provide defense and counsel at all and (2) the need for disciplinary action against the ACOs, or any of them, in which case private counsel would have to be hired for the ACOs, by virtue of the conflict of interest in which the Department of the Attorney General would find itself.

In his "Decision and Award" issued on September 14, 1994, the arbitrator determined that the State had breached the agreement through its delay. The award provided in relevant part that,

[i]n view of the length of time and failure to act, which has prejudiced the grievants, the Department of Public Safety is directed to provide private legal counsel for all of the grievants in these matters except where a determination has been made not to provide legal representation by formal notification prior to the arbitration. The Department of Public Safety is not precluded from taking any disciplinary action if warranted against any of the grievants even if it authorizes private legal counsel on the civil matters. However, the DPS obligation to furnish legal counsel[,] once undertaken, cannot be rescinded if it is later determined that the grievant acted outside of the course and scope of employment beyond the scope of assigned duties and responsibilities. To permit a withdrawal would undermine the rights accorded to employees under Section 54.01 of the collective bargaining agreement.

Hereafter, when civil suits are filed against correction officers ..., the Department of Public Safety must undertake its investigation and notify the Attorney General of the pending matter. The Attorney General should be directed to obtain an extension of time to the extent possible and the Department must complete its investigation in enough time to allow the correction officer to obtain his own counsel if it should decline to represent the officer. If it cannot complete a reasonable threshold investigation within the extensions obtained by the Attorney General[,] then it must provide legal assistance though private counsel for its correction officers.

... The arbitrator will retain limited jurisdiction for the purpose of enforcing the award.

The circuit court granted the UPW's motion to confirm the arbitration award on November 28, 1994.

Subsequent to the issuance of the arbitrator's award, the Department of the Attorney General apparently provided the grieving ACOs with a list of approved private attorneys from which they could select private representation in their civil suits. The UPW objected to the Attorney General's "unilateral" selection of counsel for the ACOs. The UPW and the Department of the Attorney General exchanged correspondence regarding the issue, and representatives of the Department of the Attorney General and the UPW met to discuss the matter on at least one occasion.

The record indicates that, as a result of the foregoing communications, Deputy Attorney General Lester Goo, on January 13, 1995, proposed a draft memorandum of understanding (MOU) regarding the selection of counsel pursuant to section 54 of the agreement. The MOU provided in relevant part that "the State and the Union shall present an agreed-upon list of private attorneys to the affected employee." On January 25, 1995, the UPW responded with a letter requesting several changes to the MOU. According to a letter sent by the UPW on April...