Poe v. Hawaii Labor Relations Bd.

• Decision Date: 25 February 2002
• Docket Number: No. 23163.,23163.
• Citation: 97 Haw. 528,40 P.3d 930
• 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.
• Court: Hawaii Supreme Court

40 P.3d 930

97 Haw. 528

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.

No. 23163.

Supreme Court of Hawai`i.

February 25, 2002.

Lewis W. Poe, on the briefs, Complainant/Appellant-Appellant, pro se.

Valri Lei Kunimoto, on the briefs, Honolulu, for Appellee-Appellee Hawai`i Labor Relations Appeals Board, State of Hawai`i.

Kathleen N.A. Watanabe and Sarah R. Hirakami, Deputy Attorneys General, on the briefs, for Respondent/Appellee-Appellee Benjamin J. Cayetano, Governor, State of Hawai`i.

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

Opinion of the Court by ACOBA, J.

We hold that under Hawai`i Revised Statutes (HRS) chapter 89, pertaining to collective bargaining in public employment, a public employee pursuing an individual grievance exhausts his or her administrative remedies when the employee completes every step available to the employee in the grievance process and a request to the employee's exclusive bargaining representative to proceed to the last grievance step, which only the representative can undertake, would be futile. Accordingly, where, as here, the Hawai`i Government Employees Association (HGEA or Union), the exclusive bargaining representative of Complainant/Appellant-Appellant Lewis W. Poe, did not respond to or participate in meetings concerning Poe's individual grievance, but separately engaged in negotiations regarding the general subject matter of the grievance with the public employer, Respondent/Appellee-Appellee Benjamin J. Cayetano, Governor, State of Hawai`i (the Employer), it would be futile for Poe to request that the HGEA proceed to the last grievance step, which only the HGEA could undertake, before filing a prohibited practice complaint against the Employer. That part of the order of Appellee-Appellee Hawai`i Labor Relations Appeals Board, State of Hawai`i (the HLRB) that is to the contrary, while wrong, was not reversible error in this case.

Although we believe Poe had exhausted his administrative remedies, his complaint was properly denied, inasmuch as Poe was not entitled (1) to bring his grievance against the Employer to the HLRB under HRS § 89-11(a) (Supp.2000) or (2) to pursue his grievance beyond the steps outlined in HRS § 89-8(b) (1993) or the individual grievance provision of the collective bargaining agreement in this case. The HLRB thus correctly rejected Poe's claim that the Employer had (1) committed prohibited practice violations under HRS § 89-13(a)(7) and (8) (1993) and (2) contravened the statement of policy of HRS chapter 89 as set forth in HRS § 89-1 (1993). Therefore, we affirm the December 15, 1999 order of the first circuit court (the court)¹ that affirmed the June 15, 1999 order of the HLRB and the court's January 21, 2000 judgment entered thereon.

I.

The HLRB's findings of fact and the record in this case reflect the following. Since 1991, Poe has been employed as a Harbor Traffic Controller I by the State of Hawai`i Department of Transportation (DOT), at the Marine Traffic Control Center at Aloha Tower on O`ahu. He is a public employee within the meaning of HRS § 89-2 (1993).² The HGEA is the collective bargaining representative of Poe's bargaining unit.³ The Governor is a public employer within the meaning of HRS § 89-2.⁴ The Employer and the HGEA have entered into a collective bargaining agreement (agreement)⁵ for Poe's unit.

Article 21 of the agreement provides in pertinent part that "[a]ll [e]mployees shall be allowed rest periods of ten (10) minutes" at intervals during the employees' work shifts.⁶

Article 11 of the agreement⁷ provides that "[a]ny complaint by an Employee or the Union concerning the application and interpretation of this Agreement shall be subject to the grievance procedure." The grievance procedure provides for an informal grievance step,⁸ three formal steps,⁹ and a final formal step of arbitration, which only HGEA can initiate.¹⁰

Poe filed a Step 1 grievance with Thomas T. Fujikawa, the Harbors Administrator, by letter dated June 16, 1997, alleging that the Employer failed to provide rest periods as mandated in Article 21. Fujikawa answered that, at the time Poe was hired, the job applicants indicated that they would have no problem eating and taking their breaks whenever time permitted, because they could not leave the observation area.

By letter dated July 28, 1997, Poe filed a Step 2 grievance with DOT Director, Kazu Hayashida. Hayashida responded to Poe's Step 2 grievance in a letter dated December 10, 1997. Hayashida's letter declared that several meetings were held between Poe and a DOT staff member to resolve the grievance. Because the division was unable to provide rest periods, Poe and the department had tentatively agreed, subject to the concurrence of the Union and other employees by way of a memorandum of agreement, to credit the Controllers with two hours of straight time pay per pay period in lieu of the two ten-minute rest periods per shift, retroactive to June 16, 1997. Hayashida asked that Poe advise when Poe could meet with the Union and the DOT to discuss the terms of the memorandum.

Poe requested, in a letter dated June 17, 1998, that his union, the HGEA, represent the Controllers as a class to enforce the provisions of Article 21, retroactive to July 1993. By a letter dated June 26, 1998, Poe transmitted his June 17, 1998 letter to HGEA to Amador Casupang, DOT Personnel Specialist. Poe temporarily deferred pursuit of his grievance on the condition that HGEA undertake representation of the Controllers on the rest period matter. If the HGEA did not do so, Poe indicated he would advance his own grievance.

In a letter dated July 19, 1998, Poe informed Casupang that the HGEA did not respond and requested that his individual grievance be processed at Step 2, indicating that he represented only himself. Poe wrote to Hayashida regarding a Step 2 meeting held on July 27, 1998. The letter dated July 29, 1998, stated, inter alia, that Casupang had informed Poe that the DOT made inquiry "only initially with the HGEA (for its input) and ha[d] been consulting with the [Department of Human Resources Development (DHRD)] ... regarding ... rest periods."

James Takushi, then-director of DHRD, responded in a letter dated September 23, 1998, that the DOT issued a Step 2 reply to Poe on December 10, 1997. While the reply was not DOT's final position, Takushi explained that it served to further discussions and that the DOT and the HGEA were engaged in ongoing discussions to resolve the Article 21 issue on behalf of all Controllers.

By letter dated December 6, 1998, Poe filed a Step 3 grievance appeal on the rest periods matter.

Mike McCartney, then-director of DHRD, wrote a letter to Poe, dated January 22, 1999, indicating that the DOT and HGEA were engaged in efforts to resolve the rest period dispute and denied the remedy Poe sought as an individual.

II.

On February 17, 1999, Poe filed a prohibited practice complaint against the Employer with the HLRB.

In his complaint, Poe contended that his individual grievance was "independent of any... discussion between the DOT and the HGEA" in resolving the rest periods issue and "[did] not preempt [his] grievance." Thus, he apparently maintained that, by denying him the relief sought as an individual for the Article 21 violation, the Employer "deliberately refused or failed to comply with one or more provisions of chapter 89," thereby "violat[ing][HRS] § 89-13(a)(7)." Additionally, by continuing to contravene Article 21, Poe asserted that the Employer has violated HRS § 89-13(a)(8).¹¹ Poe maintained that McCarthy's January 22, 1999 letter, which disclosed that the DOT and the HGEA were attempting to resolve the rest period dispute and denied his individual grievance, had "elevated ... the legal status ... of the HGEA ... above the legal status ... of [himself]," thereby "violat[ing], negat[ing], and/or nullify[ing] ... HRS §§ 89-8(b)¹² and/or 89-11(a)."¹³

Finally, Poe asserted that, by "continuing to violate Article 21," the Employer "violated the declared public policy of HRS § 89-1"¹⁴ by not "promot[ing] harmonious and/or cooperative relations between itself and ... its employees[.]"

III.

The HLRB dismissed the complaint with respect to Poe's allegations that HRS §§ 89-13(a)(8), 89-1, and 89-11(a) had been violated, and granted summary judgment in favor of Employer as to the alleged violation of HRS § 89-8(b).¹⁵

In its decision, the HLRB observed that (1) "Article 11 of the [agreement] provides a grievance procedure consisting of an informal step and four steps," Step 4 being arbitration that "only the union can request," and that (2) "Poe filed his individual grievance" and "pursued [it] through [Steps 1, 2, and 3]." Citing Santos v. State, 64 Haw. 648, 646 P.2d 962 (1982),¹⁶ the HLRB explained that, "before an individual can maintain an action against his [or her] employer, the individual must at least attempt to utilize the contract procedures agreed upon between his [or her] employer and the union." According to the HLRB, Poe, however, did not request the HGEA to take his grievance to arbitration. The HLRB determined that "[i]f the [HGEA had] decline[d] to take [Poe's] case to arbitration, [then] Poe [could have] file[d] a prohibited practice complaint against the Union alleging a breach of its duty of fair representative [sic] because of [its] refusal to take the matter to arbitration."

Rather, Poe filed his complaint with the HLRB "to have [the HLRB] determine the Employer's alleged ... violation[ ] [of Article 21] in the same way that an arbitrator would review the grievance at Step 4 [pursuant to] the grievance procedure." Relying on Winslow v. State, 2 Haw.App. 50, 625 P.2d 1046 (1981), the HLRB concluded that "Poe cannot seek remedies for alleged contractual violations before the [HL...