In re United Pub. Workers, CAAP-18-0000293

CourtCourt of Appeals of Hawai'i
Parties In the MATTER OF the ARBITRATION BETWEEN UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO, Union-Appellee, and CITY & COUNTY OF HONOLULU, DEPARTMENT OF FACILITY MAINTENANCE, ROADS MAINTENANCE DIVISION (Class Grievance, Re: Denial of Temporary Assignment); Sections 1, 9, 11, 14, 16, 23; JM-09-07 (2009-060), Employer-Appellant
Docket NumberCAAP-18-0000293
Decision Date05 May 2022

151 Hawai‘i 130
508 P.3d 1216 (Table)

In the MATTER OF the ARBITRATION BETWEEN UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO, Union-Appellee,
and
CITY & COUNTY OF HONOLULU, DEPARTMENT OF FACILITY MAINTENANCE, ROADS MAINTENANCE DIVISION (Class Grievance, Re: Denial of Temporary Assignment); Sections 1, 9, 11, 14, 16, 23; JM-09-07 (2009-060), Employer-Appellant

NO. CAAP-18-0000293

Intermediate Court of Appeals of Hawai‘i.

May 5, 2022


On the briefs:

Ernest H. Nomura, Deputy Corporation Counsel, for Employer-Appellant.

Herbert R. Takahashi, Rebecca L. Covert, for Union-Appellee.

(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

Employer-Appellant City and County of Honolulu, Department of Facility Maintenance, Roads Maintenance Division appeals from the: (1) "Order Granting Motion to Confirm Arbitration Decision and Award, Entry of Judgment, and Other Relief Filed on 11/22/17"; and (2) "Order Denying Motion to Vacate Arbitration Decision and Award and/or to Modify or Correct Award Filed on 12/27/17"; both entered by the Circuit Court of the First Circuit on March 2, 2018.1 For the reasons explained below, we affirm both orders.

Union-Appellee United Public Workers, AFSCME, Local 646, AFL-CIO (UPW ) is the exclusive bargaining representative of the City's employees in bargaining unit 1 (BU1 ).2 On June 25, 2009, UPW submitted a class grievance alleging that the City:

is denying temporary assignment [to three supervisor positions3 ] to the qualified employee on duty in the class immediately below the class of the temporary assignment in the same or related series with the greatest workplace seniority because the employees are under investigation for alleged criminal activity with [sic] in the Street Sweeping Baseyard.

The collective bargaining agreement between and City and UPW BU1 (CBA ) contained an agreement to arbitrate grievances that could not be resolved in two prior steps. An arbitrator was selected on January 13, 2010. Seven hearings were held between April 30, 2013, and August 7, 2017. The arbitrator issued an "Arbitration Decision and Award " on November 17, 2017.

UPW initiated a circuit court Special Proceeding by filing a motion to confirm the Award on November 22, 2017. The City filed a motion to vacate the Award on December 27, 2017. Both motions were heard on January 11, 2018. The circuit court noted:

We're here for the hearing on two motions: One, the Union's Motion to Confirm, and two is the Employer's Motion to Vacate. I'm just going to have a consolidated hearing on both matters because they are pretty much reciprocal of one another.4

The circuit court entered orders granting UPW's motion to confirm and denying the City's motion to vacate on March 2, 2018. This appeal followed.

The City raises two points of error: (1) the arbitrator exceeded her powers; and (2) the circuit court erred by denying the City's request to join the Hawaii Government Employees Association (HGEA ) as a party to the Special Proceeding.

"Judicial review of an arbitration award is confined to the strictest possible limits, and a court may only vacate an award on the grounds specified in HRS § 658A-23 [.]"5 In re Hawai‘i State Tchrs. Ass'n, 140 Hawai‘i 381, 391, 400 P.3d 582, 592 (2017) (cleaned up). "[I]n reviewing an arbitration award, circuit courts are powerless to correct an arbitrator's findings of fact even if clearly erroneous, or an arbitrator's rulings on the law, even if wrong." Nordic PCL Const., Inc. v. LPIHGC, LLC, 136 Hawai‘i 29, 42, 358 P.3d 1, 14 (2015).

1. The Award did not exceed the arbitrator's powers.

The City contends:

The circuit court erred in confirming the Award (and in denying the vacation of the Award) in which the Arbitrator exceeded her power and authority by enforcing a ‘past practice’ in favor of non-supervisory UPW employees to be temporarily assigned [TA] to supervisory HGEA positions, thereby vitiating and rending null and of no force and effect the TA provision of the HGEA collective bargaining agreement that entitled HGEA supervisory employees to be temporarily assigned vacant HGEA positions.

In In re Hawaii Organization of Police Officers and Cnty. of Kaua‘i and Kaua‘i Police Dep't, 134 Hawai‘i 155, 338 P.3d 1170 (App. 2014), aff'd on other grounds, 135 Hawai‘i 456, 353 P.3d 998 (2015), we held:

The scope of an arbitrator's authority is determined by agreement of the parties. An arbitrator must act within the scope of the authority conferred upon [them] by the parties and cannot exceed [their] power by deciding matters not submitted. Where an arbitrator has exceeded [their] powers ... the resulting arbitration award must be vacated.

Id. at 159, 338 P.3d at 1174.

The CBA gives the arbitrator the following powers:

15.19 ARBITRABILITY.

15.19a. A grievance may not be arbitrated unless it involves an alleged violation, misinterpretation, or misapplication of a specific section of this Agreement.

....

15.20 b.2. The Arbitrator shall be limited to deciding whether the Employer has violated, misinterpreted, or misapplied any of the sections of this Agreement.

The dispute submitted to the arbitrator was whether the City violated sections 1.05 and 16 of the UPW CBA "because the [City] denied temporary assignment to the qualified employee on duty in the class immediately below the class of the temporary assignment in the same or related series with the greatest workplace seniority[.]"

Section 1.05 of the CBA provides:

...

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