Casumpang v. Ilwu Local 142
| Citation | 121 P.3d 391 |
| Decision Date | 18 October 2005 |
| Docket Number | No. 24508.,24508. |
| Parties | Nicanor E. CASUMPANG, Jr., Plaintiff-Appellant/Cross-Appellee, v. ILWU LOCAL 142, Defendant-Appellee/Cross-Appellant. |
| Court | Hawaii Supreme Court |
Shawn A. Luiz, on the briefs, for plaintiff-appellant/cross-appellee.
Herbert R. Takahashi and Rebecca L. Covert (of Takahashi, Masui & Vasconcellos), on the briefs, for defendant-appellee/cross-appellant.
Plaintiff-appellant/cross-appellee Nicanor E. Casumpang, Jr. and defendant-appellee/cross-appellant International Longshore and Warehouse Union, Local 142 [hereinafter, the union or ILWU], respectively, appeal and cross-appeal from the District Court of the Second Circuit's1 July 19, 2001 findings of fact (FOFs), conclusions of law (COLs), and Order dismissing (1) Casumpang's complaint in assumpsit for unused vacation pay against ILWU and (2) ILWU's counterclaim to enforce a fine issued by ILWU's Judicial Panel against Casumpang. On appeal, Casumpang contends that the district court erred in dismissing his complaint inasmuch as (1) the court's finding that ILWU had no policies permitting payment for unused vacation was clearly erroneous and (2) the court's conclusion that the definition of "wages" in Hawai`i Revised Statutes (HRS) § 388-1 (1993) did not include payment for unused vacation constituted an error of law. As discussed more fully in Section III.A., infra, we hold that the district court did not err in dismissing Casumpang's complaint because (1) the policy allegedly allowing the payment of unused vacation was not introduced at trial and (2) "wages," as defined in HRS § 388-1, does not include vacation pay.
In its cross appeal, ILWU contends that the district court erred in dismissing its counterclaim based on its conclusion that it was not obligated to enforce a fine levied by the Judicial Panel against Casumpang. Specifically, ILWU avers that the district court's conclusion was based on an erroneous determination that the union's constitution did not permit the Judicial Panel to impose fines on its members or officers for violating the provisions of the ILWU constitution. For the reasons discussed in Section III.B., infra, we hold that, contrary to the district court's conclusions, the ILWU constitution and bylaws permitted the imposition of a fine against Casumpang. We agree with the district court's determination that the fine was reasonable.
Accordingly, we affirm the district court's dismissal of Casumpang's claim and vacate its dismissal of ILWU's counterclaim. We remand this case to the district court with instructions to enter judgment in favor of ILWU and against Casumpang in the amount of $7,636.
During the 1980's, Casumpang became a member of ILWU by virtue of his employment as an electrician with the Hawaiian Commercial Sugar Company, whose employees were represented by ILWU. On or about February 3, 1993, Casumpang was employed as a full-time official, i.e., division representative, of the ILWU Local 142. In late 1994, Casumpang was elected to serve a three-year term, from January 2, 1995 to December 31, 1997, as an ILWU business agent. Business agents are full-time union officers who are responsible for negotiating collective bargaining agreements, processing grievances, and providing various educational, training, and membership services for members.
The position description for business agents provided for an annual salary of $42,780 per year plus personal, automobile, and travel allowances, resulting in a total annual compensation of $50,050.12. Additionally, the position description provided for, inter alia, "4 weeks of vacation after one year of service."
Although Casumpang's term of office was scheduled to terminate on December 31, 1997, ILWU extended his employment until January 19, 1998, pending the outcome of a contested union election, in which Casumpang was a candidate, and the results of internal disciplinary proceedings that were initiated against him. Casumpang's last day of work as a business agent was January 17, 1998, and he was officially separated from employment with ILWU on January 19, 1998.
On March 20, 1998, Casumpang submitted a written request for twenty-four days of unused vacation leave that he failed to use prior to his separation from the union. ILWU's secretary-treasurer denied this request on the ground that Casumpang was no longer an employee of ILWU. On April 27, 1998, Casumpang filed a complaint with the enforcement division of the Department of Labor and Industrial Relations (DLIR) for unpaid "wages" under HRS Chapter 388. However, on May 19, 1998, the DLIR informed Casumpang that he was exempt from the DLIR's services under HRS § 388-11(b) (Supp.1999) due to his status as a union business agent.2 Casumpang did not appeal the DLIR's decision.
On October 13, 1998, Casumpang filed a complaint in the district court against ILWU for $5,688.24, the amount he claimed ILWU was contractually obligated to compensate him for his twenty-four days of unused vacation. On July 12, 1999, the district court dismissed Casumpang's complaint for lack of subject matter jurisdiction. Casumpang appealed the dismissal, and this court reversed and remanded the case in Casumpang v. ILWU Local 142, 94 Hawai`i 330, 13 P.3d 1235 (2000). Following a bench trial on June 25, 2001, the district court entered FOFs, COLs, and an Order, dismissing Casumpang's complaint on July 19, 2001. Therein, the district court concluded:
Conclusions of Law
. . . .
3. Casumpang has "fashioned his claim for relief as one in assumpsit for $5,688.24 allegedly owed him by the union as vacation pay." Casumpang v. ILWU Local 142, 9[4] Hawai`i 330, 335, 13 P.3d 1235 (2000).
4. A claim for assumpsit is a common law form of action which allows for the recovery of damages for non-performance of a contract, either express or implied, written or verbal. Helfand v. Gerson, 105 F.3d 530 (9th Cir.1997); Forbes v. Hawaii Culinary Corp., 85 Hawai`i 501, 507-08, 946 P.2d 609 (App.1997); Schulz v. Honsador, 67 Haw. 433, 435, 690 P.2d 279, 281 (1984).
5. It has long been recognized under Hawai`i law that an employee is not entitled to "pay" for vacation benefits which are unused during the period of employment, unless there is an express policy (or contractual obligation) to the contrary. Lim v. Motor Supply, Ltd., 45 Haw. 111, 122, 364 P.2d 38, 44-45, reh'g denied, 45 Haw. 198, 364 P.2d 38 (1961). Other state courts have also held that absent a contract which requires an employer to pay for unused vacation at the time of separation or termination, an employer is not obligated to pay for such a claim as "wages." Kafka v. State of Illinois, 1982 WL 43377 (Ill.Ct.Cl.1982) (); New Mexico State Labor & Indus. Comm'n v. Tolman v. Deming Nat'l Bank, 96 N.M. 673, 634 P.2d 695 (1981) (); Phillips v. Memphis Furniture Mfg. Co., 573 S.W.2d 493 (Tenn.App.1978) (); see also 53 Am.Jur.2d Master and Servant § 80 (1970) ().
6. Section 388-1, HRS, does not specifically include within the definition of "wages" unused vacation leave following separation or termination from employment.
7. In this case since Casumpang has failed to establish any proof that ILWU Local 142 has a written or oral policy, house rule, convention resolution or practice which affords to its employees the right to convert unused vacation leave benefits at the time of separation or termination from employment into "pay," he fails to state a claim for relief in "assumpsit" or a claim for unpaid wages under chapter 388, HRS.
Casumpang subsequently filed his notice of appeal, which, although premature, was deemed timely filed on September 21, 2001.3
On August 27, 2001, Casumpang filed a motion for relief under Rule 60(b) of the District Court Rules of Civil Procedure (DCRCP)4 from the July 19, 2001 order on the ground that ILWU failed to produce at trial a 1997 vacation policy that would afford him compensation. The district court granted the motion on October 19, 2001.5 Subsequently Casumpang moved to dismiss this appeal and ILWU's cross appeal, discussed infra, for lack of jurisdiction, arguing that the July 19, 2001 order is no longer final and appealable because of the October 19, 2001 order granting him relief. This court denied Casumpang's motion to dismiss on December 5, 2001.
On April 2, 1996, members of ILWU filed written charges against Casumpang for allegedly violating Article II, section 1 of ILWU's Constitution6 by engaging in electrical contractor work while serving as a full-time union official.7 Article II, section 1 provides in pertinent part that "[e]lected and appointed full-time officials of the [union], while on the [union] payroll, shall not be permitted to hold any other gainful position unless authorized by the Executive Committee with the approval of the Local Executive Board." The intent and purpose of Article II, section 1 is
to ensure that full-time officials of the ILWU Local 142 perform their duties and responsibilities with complete loyalty to the interests of employees represented by the union and a single minded purpose, i.e. to protect and advance their interests. Assuming any other "gainful position" while serving as a full-time elected official of the Local is a "conflict of interest."
The written charges were referred to ILWU's Trial Committee8 and trial was scheduled for April 16, 1996. Prior thereto, the parties agreed to waive their right to a trial and to...
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