In re Hgea, Afscme, Local 152, Afl-Cio

• Decision Date: 13 November 2007
• Docket Number: No. 27800.,27800.
• Court: Hawaii Supreme Court
• Parties: In the Matter of HAWAI`I GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME, LOCAL 152, AFL-CIO, Complainant-Appellant-Appellant and Amador Casupang, Labor Relations Specialist, Department of Transportation, State of Hawai`i; Lisa Dau, Department of Transportation, State of Hawai`i; Barry Fukunaga,<SMALL><SUP>1</SUP></SMALL> Director, Department of Transportation, State of Hawai`i; and Linda Lingle, Governor, State of Hawai`i (2004-006), Respondents-Appellees-Appellees, and Hawai`i Labor Relations Board, James B. Nicholson, Emory J. Springer, and Sarah R. Hirakami,<SMALL><SUP>2</SUP></SMALL> Agency-Appellees-Appellees.

170 P.3d 324

In the Matter of HAWAI`I GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME, LOCAL 152, AFL-CIO, Complainant-Appellant-Appellant and Amador Casupang, Labor Relations Specialist, Department of Transportation, State of Hawai`i; Lisa Dau, Department of Transportation, State of Hawai`i; Barry Fukunaga,<sup>1</sup> Director, Department of Transportation, State of Hawai`i; and Linda Lingle, Governor, State of Hawai`i (2004-006), Respondents-Appellees-Appellees, and Hawai`i Labor Relations Board, James B. Nicholson, Emory J. Springer, and Sarah R. Hirakami,² Agency-Appellees-Appellees.

No. 27800.

Supreme Court of Hawai`i.

November 13, 2007.

Rebecca L. Covert (Herbert R. Takahashi on the opening brief and with her on the reply brief) (Takahashi Vasconcellos & Covert), Honolulu, for complainant-appellant-appellant.

David Fitzpatrick, Deputy Attorney General (James E. Halvorson Deputy Attorney General, with him on the brief) for respondents-appellees-appellees.

NAKAYAMA, ACOBA, and DUFFY, JJ.; WITH LEVINSON, J., concurring separately, and with whom MOON, C.J., joins.

Opinion of the Court by ACOBA, J.

This case is before us by virtue of our acceptance of a transfer from the Intermediate Court of Appeals (the ICA), Hawai`i Revised Statutes (HRS) § 602-58 (Supp.2006),<sup>3</sup> filed by Complainant-Appellant-Appellant the Hawai`i Government Employees Association, AFSCME, Local 152, AFL-CIO (HGEA or Appellant).

Appellant appeals from the February 21, 2006 judgment of the first circuit court (the court)⁴ affirming the June 30, 2005 decision and order rendered by the HLRB dismissing a prohibited practice complaint (Complaint) filed by HGEA pursuant to HRS §§ 89-13 (Supp.2006)⁵ and 89-14 (1993)⁶ against Respondents-Appellees-Appellees,⁷ employer and supervisors of affected HGEA members (Respondents or State) and Agency-Appellees-Appellees HLRB, Brian K. Nakamura, Emory J. Springer, and Kathleen Racuya-Markrich, then-members of the HLRB [collectively, HLRB or Board], for removal of election campaign materials from a State bulletin board assigned for "Union Notices."

We hold that the court's February 13, 2006 judgment affirming the June 30, 2005 decision and order rendered by the Board, dismissing HGEA's prohibited practice complaint is affirmed, because (1) there was no constitutional violation of the free speech rights of public employees under the First and Fourteenth Amendments to the United States Constitution or article I, section 4 of the Hawai`i State Constitution, (2) the statutory rights of public employees to engage in "mutual aid or protection," HRS § 89-3 (Supp.2006), were not violated, (3) the Board did not exceed its jurisdiction by applying the State Ethics Code, HRS § 84-13, in this case, and (4) the Board did not misconstrue the preemption clause of HRS § 89-19 (Supp.2006).

I.

The initial relevant facts garnered from the Board's "Findings of Fact" (findings) in its decision follow.

1. The HGEA is an employee organization, as defined in HRS § 89-2,⁸ which represents all white-collar nonsupervisory State employees in bargaining unit (BU) 03. The Union was certified by the Board's predecessor, the Hawai`i Public Employment Relation board, as the exclusive representative of BU 03 on April 3, 1972.

2. [Lingle] is the Governor of the State, and the public employer, as defined in HRS § 89-2, of State employees in BU 03.⁹

3. Casupang, in his capacity as DOT's Labor Relations Specialist and Personnel Management Specialist IV, Dau in her capacity as DOT's Acting Business Manager, and [Fukunaga], in his capacity as DOT Director, are designated representatives of the Governor and are deemed to be public employers within the meaning of HRS § 89-2.

....

5. Since on or about January 1, 1973, the HGEA and the State have been parties to successive collective bargaining agreements (Contract [or CBA]) covering BU 03 employees.

6. At all times relevant, the BU 03 Contract provided for Union Representation Rights covered in Article 7, and states in part as follows:

B. The Union shall be provided adequate space on bulletin boards for posting of usual and customary Union notices. Complainant's Exhibit (Ex.) 15-5, 17-4.

7. At all times relevant, the BU 03 Contract provided for Personnel Policy Changes in Article 4, which states in part as follows:

B. No changes in wages, hours or other conditions of work contained herein may be made except by mutual consent. Complainant's Ex. 15-4.

8. At all times relevant, Arvid Youngquist (Youngquist), a DOT State employee and member of HGEA's BU 03, in his capacity as an HGEA shop steward, posted "usual and customary union notices" on DOT's bulletin board located on the fourth floor of its office building consistent with Article 7B of the BU 03 contract.¹⁰ To keep its membership informed and educated, the Union mails materials to its members, including Youngquist, in the form of general membership fliers and steward bulletins, or distributes information at steward meetings.

9. The Union mailed its members cards and fliers of political endorsements and newsletters asking members to support Democrats on November 2, 2004. Included in the mailings was an article entitled — "Talking Story with Mufi Hannemann" whom the HGEA endorsed for mayor in the HGEA Public Employee, July 2004, Vol. 39 issue; and a 2004 legislative score card that not only showed how U.S. House and Senate voted on issues important to HGEA, but also identified candidates that the HGEA opposed and supported. The Union's purpose for these mailings was "to educate [the] members on why it is important to support certain candidates or a certain party for their benefit, whether it be salary, retirement, or health benefits."

10. Sometime before October 14, 2004, Youngquist posted on the DOT's fourth floor bulletin board the following materials: 1) an HGEA mailed card entitled: "Veto-Proof: Lingle Wins, You Lose" message, encouraging members to "Elect Democrats on November 2nd"; 2) HGEA Public Employee, July 2004 Vol. 39 Newsletter that includes a letter from HGEA Executive Director Russell Okata endorsing Mufi Hannemann and John Kerry, a "Why It's Important to Vote" article, and HGEA's early endorsements of candidates for Congress, State Senate and House of Representatives, Hawai`i County and City and County of Honolulu races; 3) Malama Pono, Volume XXXVII, No. 6, an official publication of the United Public Workers (UPW) AFSCME, Local 646, AFL-CIO, October 2004, issue that includes a Report of the State Director "Mufi Hanneman for Mayor"; and 4) 2004 Legislative score card of key votes by the Congressional Delegation on issues important to HGEA. Youngquist obtained these materials from HGEA either through the mail or at the steward or union membership meetings.

11. On or about October 14, 2004, Dau saw a picture of Mufi Hannemann and the words "vote for Mufi Hannemann" in a UPW newsletter posted on DOT's fourth floor bulletin board for Union notices. Dau sought the advice of Casupang about the appropriateness of having campaign literature posted. Casupang advised Dau that based on the Hawai`i State Ethics Commission's campaign restrictions flier, the DOT is not allowed to have campaign literature on the bulletin board; and Casupang recommended that Dau meet with Youngquist about the materials he posted. Dau and Casupang met with Youngquist and his supervisor, Robert M. Unangst (Unangst) to discuss the materials posted. Dau asked Youngquist to remove the campaign literature that included the Union's political endorsements on the bulletin board, because she believed the UPW's "vote for Mufi Hanneman" newsletter on DOT's bulletin board should not be posted based on her interpretation of the Hawai`i State Ethics Commissions flier covering campaign restrictions under [HRS] § 84-13.¹¹ Dau agreed to Youngquist's request to get an opinion from the Hawai`i State Ethics Commission about the campaign materials that Youngquist had posted. (CRA 360-363)

12. Dau and Casupang relied on a bulletin issued by the Hawaii State Ethics Commission entitled "Campaign Restrictions for State Officials and State Employees [HRS chapter 84]" which reads in part as follows:

INTRODUCTION: The following restrictions on campaign activities are based on [HRS § ]84-13, entitled the "Fair Treatment" section of the State Ethics Code. In general, [HRS § ]84-13 prohibits the preferential use of state resources or incidents of state office. Examples of campaign activities, described below, that violate or may violate the ethics code are for illustration only and are not meant to be all inclusive.

STATE OFFICIALS AND EMPLOYEES WHO MUST COMPLY WITH THE RESTRICTIONS: All state officials, state employees, state legislators, and state board and commission members. State justices and judges are not subject to the jurisdiction of the State Ethics Commission, but are subject to the Commission on Judicial Conduct.

CAMPAIGN RESTRICTIONS

THE FOLLOWING ACTIVITIES BY STATE OFFICIALS AND STATE EMPLOYEES VIOLATE THE STATE ETHICS CODE:

1. Using state time, equipment[,] supplies, or state premises for campaign activities or campaign purposes.

* * *

State premises include state offices, conference rooms, working areas, and so forth. State premises or facilities that are available to the public for use (e.g., for holding meetings or conducting business) may also be used for campaign activities on the same basis as the facilities are available to the public.

Campaign activities or campaign purposes include: (a) selling, purchasing, or distributing campaign fundraiser tickets, including complimentary tickets; (b) conducting campaign meetings; (c) distributing campaign literature and materials; (d) soliciting campaign assistance or support; or (e) producing campaign literature or materials or storing such materials.

....

14. By letter dated October 18, 2004, Unangst forwarded the campaign materials to the Hawai`i State Ethics Commission, and asked for an opinion as to whether...