In re United Pub. Workers
| Decision Date | 05 May 2022 |
| Docket Number | CAAP-18-0000293 |
| 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 |
| Court | Hawaii Court of Appeals |
On the briefs:
Ernest H. Nomura, Deputy Corporation Counsel, for Employer-Appellant.
Herbert R. Takahashi, Rebecca L. Covert, for Union-Appellee.
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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).
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.
The CBA gives the arbitrator the following powers:
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:
(emphasis added).
Section 16 of the CBA concerns seniority. Section 16.03 concerns temporary assignments:
A temporary assignment is the assignment by the [City] and the assumption, without a formal change in position assignment, of all or a major portion of the significant duties and responsibilities of another position because: [the position is vacant or the incumbent is not available.]
Section 16.04 requires:
The arbitrator found that during the summer of 2009, the City temporarily assigned HGEA BU2 members to open supervisor positions that had previously been temporarily filled by UPW BU1 members. The arbitrator concluded that the City violated "the mutual consent provision of Section 1.05 by the [City]'s unilateral change to the past practice and custom of making temporary assignments to BU 1 employees in the baseyard under Sections 16.03 and 16.04[.]" Accordingly, the arbitrator sustained the class grievance; ordered the City to stop unilaterally changing the way it made temporary supervisor assignments; and ordered the City "to make whole affected employees for loss of pay and benefits for denial of temporary assignments from 2009 to the present[.]" All of this was within the arbitrator's powers under the terms of the UPW BU1 CBA.6
The City argues that The CBA does not contain such a limitation; rather, it provides:
16.03 A temporary assignment is the assignment by the [City] and the assumption, without a formal change in position assignment, of all or a major portion of the significant duties and responsibilities of another position because: [the position is vacant or the incumbent is not available.]
(emphasis added). The City does not cite, nor do we find, any provision in the CBA, the Civil Service Law (HRS Chapter 76), or the Collective Bargaining in Public Employment law (HRS Chapter 89) that limits "another position" to positions previously filled by a BU1 member, or that excludes positions filled by a BU2 member.
The City argues that the Award violated "explicit, well defined and dominant" public policy, but cites only to an order of the Hawai‘i Labor Relations Board (HLRB ) directing the State, four counties, HGEA, and UPW to "engage in collective bargaining" to resolve conflicts over "the temporary assignments of UPW nonsupervisory employees to HGEA supervisory positions." The HLRB order — which denied UPW's motion to dismiss a case involving all of those parties — is not binding on us, nor does it support the proposition that the Award violated public policy. The City concedes "[t]here are no appellate cases on point on this issue because this issue has not reached the courts." Nor did the Award purport to decide or declare — specifically or implicitly — public policy over labor union jurisdiction disputes; the HGEA BU2 collective bargaining agreement is not contained in the record, and neither HGEA nor the HGEA BU2 members who temporarily filled the supervisor positions during the summer of 2009 were parties to the arbitration.
The City raises another public policy argument; that the Award violated the City's management rights under HRS § 89-9(d). The City maintains that the UPW BU1 members who would otherwise have been temporarily assigned to the open supervisor positions "were being criminally investigated by the Honolulu Police Department for overtime compensation fraud" and it was therefore a management right to not have "the proverbial fox ... guard the hen house." Even if the City had provided evidence substantiating its allegation about the...
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