Poe v. Hawaii Labor Relations Bd.

• Decision Date: 21 July 2004
• Docket Number: No. 24073.,24073.
• Citation: 105 Haw. 97,94 P.3d 652
• Parties: Lewis W. POE, Complainant/Appellant-Appellant, v. HAWAI`I LABOR RELATIONS BOARD, State of Hawai`i, Appellee-Appellee, and Benjamin J. Cayetano, Governor, State of Hawai`i, Respondent/Appellee-Appellee. Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Benjamin J. Cayetano, Governor, State of Hawai`i, Respondent/Appellee-Appellee. Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Davis Yogi, Director, Department of Human Resources Development, State of Hawai`i; Kazu Hayashida, Director, Department of Transportation, State of Hawai`i; Thomas Fujikawa, Harbors Administrator, State of Hawai`i, Respondents/Appellees-Appellees. Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Kazu Hayashida, Director, Department of Transportation, State of Hawai`i, Respondent/Appellee-Appellee. Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Davis Yogi, Director, Department of Human Resources Development, State of Hawai`i, Respondents/Appellees-Appellees.
• Court: Hawaii Supreme Court

94 P.3d 652

105 Haw. 97

Lewis W. POE, Complainant/Appellant-Appellant, v. HAWAI`I LABOR RELATIONS BOARD, State of Hawai`i, Appellee-Appellee, and Benjamin J. Cayetano, Governor, State of Hawai`i, Respondent/Appellee-Appellee.

Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Benjamin J. Cayetano, Governor, State of Hawai`i, Respondent/Appellee-Appellee.

Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Davis Yogi, Director, Department of Human Resources Development, State of Hawai`i; Kazu Hayashida, Director, Department of Transportation, State of Hawai`i; Thomas Fujikawa, Harbors Administrator, State of Hawai`i, Respondents/Appellees-Appellees.

Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Kazu Hayashida, Director, Department of Transportation, State of Hawai`i, Respondent/Appellee-Appellee.

Lewis W. Poe, Complainant/Appellant-Appellant, v. Hawai`i Labor Relations Board, State of Hawai`i, Appellee-Appellee, and Davis Yogi, Director, Department of Human Resources Development, State of Hawai`i, Respondents/Appellees-Appellees.

No. 24073.

Supreme Court of Hawai`i.

July 21, 2004.

Lewis W. Poe, complainant/appellant-appellant, on the briefs, appearing pro se.

Valri Lei Kunimoto, Honolulu, on the briefs, for appellee-appellee Hawai`i Labor Relations Board.

Kathleen N.A. Watanabe and Sarah R. Hirakami, Deputy Attorneys General, on the briefs, for respondents/appellees-appellees.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by MOON, C.J.

Complainant-appellant Lewis W. Poe appeals from the January 9, 2001 judgment of the Circuit Court of the First Circuit, the Honorable Eden Elizabeth Hifo presiding, affirming the dismissal of Poe's five consolidated prohibited practice complaints by appellee Hawai`i Labor Relations Board [hereinafter, HLRB or the Board]. On appeal, Poe contends that the circuit court erred in affirming the decision of the HLRB because the Board had incorrectly determined that Poe (1) failed to exhaust his remedies under the applicable collective bargaining agreement and (2) failed to prove that his union, the Hawai`i Governmental Employees Association (HGEA) breached its duty of fair representation with respect to Poe's grievances. For the following reasons, we affirm the circuit court's decision.

I. BACKGROUND

A. Facts

Poe was employed by respondent-appellee State of Hawai`i (Employer) as a Tower Operator I at Aloha Tower. His duties included controlling the movement of marine traffic through Honolulu Harbor.

1. The Collective Bargaining Agreement

As a member of Bargaining Unit 3 (BU 03) of HGEA, Poe was bound by the terms of the collective bargaining agreement between Employer and HGEA. The Memorandum of Agreement appended to the collective bargaining agreement, in force from August 2, 1995 through the germane time periods in this case, stated in relevant part:

ARTICLE 11 — GRIEVANCE PROCEDURE

A. Any complaint by an Employee or the Union concerning the application and interpretation of this Agreement shall be subject to the grievance procedure....

B. An individual Employee may present a grievance [to the Employee's immediate supervisor, and have the grievance heard] without intervention of the Union, up to and including Step 3, provided the Union has been afforded an opportunity to be present at the [conference(s)] meeting(s) on the grievance....

C. Informal Step. A grievance shall, whenever possible, be discussed informally between the Employee and the immediate supervisor.... The [grievant] Employee may be assisted by a Union representative. If the immediate supervisor does not reply by seven (7) working days, the Employee or the Union may pursue the grievance to the next step.

D. Step 1. If the [grievant is not satisfied with the result of the informal conference] grievance is not satisfactorily resolved at the informal step, the [grievant] Employee or the Union may submit a written statement of the grievance within seven (7) working days after [receiving the answers] receipt of the reply to the informal complaint to the division head or designee....

A meeting to discuss the grievance shall be held (between the grievant and a Union representative with the division head or designee) within seven (7) working days after receipt of the written grievance [is received]....

E. Step 2. If the grievance is not satisfactorily resolved at Step 1, the [grievant] Employee or the Union may appeal the grievance in writing to the department head or designee within seven (7) working days after [receiving the written answer] receipt of the reply at Step 1. ...

A meeting to discuss the grievance shall be held within seven (7) working days after receipt of the appeal....

....

G. Step 3. If the grievance is not satisfactorily resolved at Step 2, the [grievant] Employee or the Union may appeal the grievance in writing to the Employer or designee within seven (7) working days after receipt of the [answer] reply at Step 2....

A meeting to discuss the grievance shall be held within seven (7) working days after receipt of the appeal. The Employer or designee shall reply in writing to the [grievant or] Employee and within seven (7) working days after the meeting.

H. Step 4. Arbitration. If the grievance is not satisfactorily resolved at Step 3 and the Union desires to proceed with arbitration, it shall serve written notice on the Employer or designated representative of its desire to arbitrate within (10) working days after receipt of the [Employer's decision] reply at Step 3....

(Internal brackets and underscoring in original.)

2. Poe's Grievances

Poe filed five grievances with his employer, alleging that the employer had violated the collective bargaining agreement in various ways. In every case, Poe, without the assistance of his union, pursued his grievances through Step 3 of the grievance procedure. Each time, Poe was not satisfied with the result. In one of the five grievances giving rise to the present appeal, Poe requested that his union sponsor his complaint at Step 4 arbitration. The union declined on the basis that Poe's grievance lacked merit. In the other four grievances, Poe did not request arbitration prior to filing suit.

B. Prior Proceedings

Poe subsequently filed five prohibited practice complaints with the HLRB, based on the same collective bargaining agreement violations alleged in the grievance procedure.¹ Each of Poe's complaints were dismissed by the HLRB, essentially concluding each time that:

Complainant must exhaust his available contractual remedies prior to bringing a prohibited practice complaint against the Employer alleging a violation of the collective bargaining agreement. In order to maintain an action against his Employer alleging a breach of the collective bargaining agreement, Complainant must establish that the union breached its duty of fair representation in failing to pursue his grievance to arbitration. Absent such a claim, the Board hereby dismisses the instant complaint for failure to exhaust contractual remedies.

Poe then appealed to the circuit court, alleging that the HLRB erred because he had indeed exhausted his contractual remedies under the collective bargaining agreement. On October 19, 2000, the circuit court consolidated all of Poe's five complaints and affirmed each of the HLRB's dismissals in one order. Judgment was entered on January 9, 2001. Poe timely appealed on February 8, 2001.

II. STANDARDS OF REVIEW

Review of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. Steinberg v. Hoshijo, 88 Hawai`i 10, 15, 960 P.2d 1218, 1223 (1998). Hawai`i Revised Statutes (HRS) § 91-14(g) (1993) provides:

Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

"An agency's findings are not clearly erroneous and will be upheld if supported by reliable, probative and substantial evidence unless the reviewing court is left with a firm and definite conviction that a mistake has been made." Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw.App. 227, 229-30, 751 P.2d 1031, 1034 (1988).

Conclusions of law are freely reviewable under a right/wrong standard. Poe v. Hawai`i Labor Relations Bd., 97 Hawai`i 528, 535, 40 P.3d 930, 937 (2002) [hereinafter, Poe I].

III. DISCUSSION

Poe contends that the circuit court erred in affirming the decision of the HLRB because the Board incorrectly determined that Poe had failed to exhaust his remedies under the collective bargaining agreement. HLRB and Employer argue, inter alia, that Poe's suit was barred because he failed to prove that HGEA breached its duty of fair representation in not advancing Poe's claims through Step 3 arbitration.

This court has used federal precedent to guide its interpretation of state public employment law. Hokama v. Univ. of Hawai`i, 92 Hawai`i 268, 272 n. 5, 990 P.2d 1150, 1154 n. 5 (1999); see also Poe I, 97 Hawai`i at 536-37,

40 P.3d at 938-39; Santos v. State Dep't. of Transp., 64 Haw. 648, 655, 646 P.2d 962, 967 (1982). Based on federal precedent, we have held it "well-settled that an...