Hawaii State Teachers Ass'n v. Hawaii Public Employment Relations Bd.

• Decision Date: 08 February 1979
• Docket Number: No. 6193,6193
• Citation: 590 P.2d 993,60 Haw. 361
• Parties: , 101 L.R.R.M. (BNA) 2323 The HAWAII STATE TEACHERS ASSOCIATION, Appellant, v. The HAWAII PUBLIC EMPLOYMENT RELATIONS BOARD and the Board of Education of the State of Hawaii, Appellees.
• Court: Hawaii Supreme Court

Page 993

590 P.2d 993

60 Haw. 361, 101 L.R.R.M. (BNA) 2323

The HAWAII STATE TEACHERS ASSOCIATION, Appellant, v. The HAWAII PUBLIC EMPLOYMENT RELATIONS BOARD and the Board of Education of the State of Hawaii, Appellees.

No. 6193.

Supreme Court of Hawai'i.

Feb. 8, 1979.

Rehearing Denied March 8, 1979.

Syllabus by the Court

1. Only interference with a lawful employee activity may be the subject of a prohibited practice charge under HRS § 89-13(a)(1), which proscribes a public employer from wilfully interfering, restraining, or coercing any employee in the exercise of the right to participate in collective activity.

2. Only discrimination affecting employee exercise of protected rights may be the subject of a prohibited practice charge under HRS § 89-13(a)(3), which proscribes a public employer from wilfully discriminating in regard to hiring, tenure, or any term or condition of employment for the purpose of encouraging or discouraging membership in any employee organization.

3. Condonation of an employee's illegal activity occurs when the employer has forgiven the employee for his unlawful conduct; but the doctrine may be invoked only where there is clear and convincing evidence that the employer has completely forgiven the employee and has agreed to the resumption of the employer-employee relationship as though no misconduct had occurred.

4. Strike settlement agreements are to be construed and enforced in accordance with contract law.

5. The interpretation of the terms of a strike settlement agreement, like other forms of contract, depends on the intent of the parties.

6. The party seeking to enforce its view of an agreement has the burden of showing that what was intended by the parties was its claimed version of the agreement.

7. Where reasonable minds may fairly differ as to whether certain evidence establishes a fact in issue, the factfinder is free to select that interpretation of the evidence which, in its sound judgment, most reasonably reflects the intent of the parties.

8. Determinations of fact made by the factfinder will not be set aside on appeal unless found to be clearly erroneous.

Sean Kim, Honolulu, for appellant.

Lawrence D. Kumabe, Deputy Atty. Gen., Honolulu, for Bd. of Ed., appellee.

A. Sonia Faust, Honolulu, for Hawaii Public Employment Relations Bd., appellee. Before RICHARDSON, C. J., and OGATA, MENOR and KIDWELL, JJ., and KOBAYASHI, Retired Justice for the vacancy.

MENOR, Justice.

This is an appeal by the Hawaii State Teachers Association (hereinafter HSTA) from a circuit court decision, which sustains a finding by appellee Hawaii Public Employment Relations Board (hereinafter HPERB) that appellee Board of Education (hereinafter BOE) had not committed any prohibited practice within the meaning of HRS Chapter 89. We affirm.

This action had its genesis in a strike threat scheduled by the HSTA to go into effect on October 24, 1972. Before it could take place, however, HPERB, on October 20, 1972, obtained a preliminary injunction which put a halt to the threatened strike. We upheld the validity of the order in Hawaii Pub. Emp. Rel. Bd. v. Haw. State Teachers Ass'n., 54 Haw. 531, 511 P.2d 1080 (1973). In March, 1973, the HSTA again threatened to strike, and on March 30, 1973, HPERB responded with an application for another injunction. The circuit court denied the petition, but at the same time advised the parties that it considered the injunction of October 20, 1972, to be in full force and effect. In spite of this, the HSTA, on April 2, 1973, commenced a strike which lasted until April 18, 1973, when the bargaining unit ratified a strike settlement agreement, also referred to as the "Kagel Agreement." Subsequently, we held that the strike was violative of HRS § 89-12(b), ¹ and hence, illegal, as no impasse existed at the time of the strike and, further, that it was in violation of the October 20, 1972 preliminary injunction. Hawaii Pub. Emp. Rel. Bd. v. Haw. State Teachers Ass'n., 55 Haw. 386, 520 P.2d 422 (1974); Board of Education v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P.2d 809 (1974).

On April 11, 1974, HSTA filed a prohibited practice charge with HPERB, alleging that the BOE was unlawfully discriminating against those teachers who had participated in the strike by denying them seniority credit for the month of April, 1973.

BOE policy required that a teacher be on paid status for at least one-half of the total working days in any given month in order for the employee to be entitled to service credit for that particular month. By this formula, striking teachers who failed to work for the duration of the strike were denied service credit, while others of them who reported back in time to qualify were credited with service time for that month. This service credit formula was embodied in the 5400 series of the BOE School Code. In particular, School Code Regulation No. 5401(D) provided that only under certain specified conditions could an employee on leave without pay "qualify for service credit and credit on the salary schedule." The striking teachers represented by HSTA, who were denied seniority credit for the month of April, failed to meet any of these stated conditions.

HSTA, however, has taken the position that the effect of the BOE refusal to grant seniority credit to these striking teachers was to discourage union membership, in violation of HRS §§ 89-13(a)(1) and 89-13(a)(3). It also contends that a further effect of this refusal was to cause a breach of the strike settlement agreement, in violation of HRS § 89-13(a)(8).

I

The initial question for our determination is whether the computation of seniority credit in this case was a prohibited practice under the provisions of HRS §§ 89-13(a)(1) and 89-13(a)(3). HRS § 89-13(a), in pertinent part, reads:

"It shall be a prohibited practice for a public employer or its designated representative wilfully to:

(1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter;

(3) Discriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization. " ²

HSTA argues, with respect to HRS § 89-13(a)(1), that the application of the BOE's service credit formula to striking teachers would have a chilling effect upon the exercise by the union membership of their right to act collectively. It also asserts that the application of the formula to these teachers was an act of discrimination proscribed by HRS § 89-13(a)(3). We disagree.

Only interference with a lawful employee activity, or discrimination affecting the employee exercise of a protected right, may be the subject of a prohibited practice charge under the statute. HRS § 89-3 provides:

"Employees shall have the right of self-organization and the right to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing . . . and to engage in Lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion. . . . " (Emphasis added)

The HSTA strike in this case was unlawful, Hawaii Pub. Emp. Rel. Bd. v. Haw. State Teachers Ass'n., supra; Board of Education v. Haw. Pub. Emp. Bd., supra, and was therefore not a protected activity under the statute.

Federal cases on the subject are particularly instructive. In Publicity Engravers, Inc., 161 N.L.R.B. 221, 222 (1966) the Board said:

"(W)e find the Respondents' action did not constitute substantial interference with a protected activity, since it was responsive to the Union's unlawful strike . . . and was not directed toward restraining employees in their exercise of other, and protected, statutory rights."

See also American Ship Bldg. v. Labor Board, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965).

" Discrimination" as contemplated by the federal statute refers to those discriminatory acts of the employer which affect the employee exercise of protected rights, NLRB v. Great Dane Trailers, 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), and only interference with such rights may be the subject of an unlawful discrimination charge. ³ See Auto. Workers v. Wis. Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949); Labor Board v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); N. L. R. B. v. Community Motor Bus Co., 439 F.2d 965 (4th Cir. 1971); Mackay Radio and Telegraph Co. Inc., 96 N.L.R.B. 740 (1951).

Alternatively, however, HSTA contends that even if the strike was unlawful, the effect of the strike settlement agreement was to condone the strike, thus transforming it into a protected activity. For this contention, HSTA relies upon paragraph 3 of the strike settlement agreement which provides:

"There shall be no discrimination of any kind by any of the parties against any participants or nonparticipants in the strike."

Condonation occurs when the employer has forgiven the employee completely for his unlawful conduct. In N. L. R. B. v. Colonial Press, Inc., 509 F.2d 850 (8th Cir. 1975), the principle of condonation was explained as follows:

"(I)f after an employee commits acts of misconduct lawfully justifying his discharge, and thereafter the employer, fully cognizant of the acts, agrees not to discipline him, the employer may not thereafter rely on the same misconduct as the basis for discharging or refusing to reinstate (or otherwise discriminating against) the employee." 509 F.2d at 854.

But this doctrine may be invoked only where there is clear and convincing evidence that the employer has completely forgiven the employee and has agreed to the resumption of the employer-employee relationship as though no misconduct had occurred. Packers Hide Association v. N. L. R. B., 360 F.2d 59 (8th Cir. 1966). It requires a demonstrated willingness to "wipe the slate clean." Confectionary & Tobacco Drivers and Ware....