United Pub. Workers v. Abercrombie

• Decision Date: 28 February 2014
• Docket Number: No. SCWC–12–0000505.,SCWC–12–0000505.
• Citation: 325 P.3d 600,133 Hawai'i 188
• Court: Hawaii Supreme Court
• Parties: UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL–CIO, Petitioner/Plaintiff–Appellant, v. Neil ABERCROMBIE, Governor, State of Hawai‘i; Kalbert K. Young, Director, Department of Budget and Finance, State of Hawai‘i; Barbara A. Krieg, Director, Department of Human Resources Development, State of Hawai‘i; Ted Sakai, Director, Department of Public Safety, State of Hawai‘i, Respondents/Defendants–Appellees.

133 Hawai'i 188

325 P.3d 600

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL–CIO, Petitioner/Plaintiff–Appellant,

v.Neil ABERCROMBIE,¹ Governor, State of Hawai‘i; Kalbert K. Young, Director, Department of Budget and Finance, State of Hawai‘i; Barbara A. Krieg, Director, Department of Human Resources Development, State of Hawai‘i; Ted Sakai, Director, Department of Public Safety, State of Hawai‘i,² Respondents/Defendants–Appellees.

No. SCWC–12–0000505.

Supreme Court of Hawai‘i.

Feb. 28, 2014.

Rebecca Covert, Herbert R. Takahashi, Honolulu, and Davina W. Lam, for petitioner.

Richard H. Thomason, for respondent.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., with ACOBA, J., Concurring and Dissenting, with Whom POLLACK, J. Joins.

Opinion of the Court by McKENNA, J.

I. Introduction

This case concerns the application of the primary jurisdiction doctrine by the Intermediate Court of Appeals ("ICA") to a lawsuit filed in circuit court by the United Public Workers, AFSCME, Local 646, AFL–CIO ("UPW"), on behalf of the employees ("Employees") it represents. UPW presents the following question: "Whether the ICA erred by ordering the circuit court to stay this case under the doctrine of ‘primary jurisdiction’ even though the claims are within the original jurisdiction of the circuit courts and do not present issues committed to the specialized administrative expertise of the Hawai‘i Labor Relations Board."

UPW sought relief in the Circuit Court of the First Circuit ("circuit court") alleging that then-Governor Lingle and members of her administration retaliated against UPW members for filing a lawsuit opposing her 2009 statewide furlough plan. In addition, UPW alleged that the State was unlawfully privatizing positions historically and customarily performed by civil servants under the merit system. UPW's retaliation claims were brought under (1) the Hawai‘i Whistleblowers' Protection Act ("HWPA"),³ and (2) article I, section 4 of the Hawai‘i Constitution ("Free Speech Clause" or "Free Speech retaliation claim")⁴ . UPW's privatization claims were brought under (1) article XVI, section 1 of the Hawai‘i Constitution,⁵ and (2) Hawai‘'i Revised Statutes ("HRS") § 76–43 (Supp. 2010).⁶

We hold that UPW's retaliation claims are originally cognizable in the circuit courts; however, the ICA correctly ruled that pursuant to the doctrine of primary jurisdiction, the enforcement of UPW's retaliation claims requires the resolution of issues that have been placed within the special competence of the Hawai‘i Labor Relations Board ("HLRB") under HRS Chapter 89. The ICA also correctly ruled that the circuit court should have stayed rather than dismissed the UPW's retaliation claims pending the HLRB's determination of issues within UPW's claims that were within the HLRB's special competence. We hold that pursuant to Konno v. County of Hawai‘i, 85 Hawai‘i 61, 937 P.2d 397 (1997), however, the primary jurisdiction doctrine does not apply to UPW's privatization claims.

Accordingly, we affirm the ICA's judgment on appeal vacating the circuit court's "Order Granting Defendants' Second Motion to Dismiss Plaintiff's Complaint Filed September 16, 2009" and May 15, 2012 Final Judgment. We disagree, however, with the ICA's remand instructions to the extent that it ordered the circuit court to stay UPW's privatization claims. We agree that the circuit court must stay the retaliation claims pursuant to the primary jurisdiction doctrine, but the primary jurisdiction doctrine does not apply to UPW's privatization claims; therefore, we instruct the circuit court to proceed consistent with this opinion.

II. Background

A. Factual Background⁷

1. Attempted Furlough and Injunction

On June 1, 2009, then-Governor Linda Lingle announced that state employees would be furloughed three days per month for two years to allow the state to avoid having to lay off employees. On June 16, 2009, UPW filed a complaint in the circuit court ("Furlough Lawsuit") "for violations of state law under Article XIII, Section 2,⁸ and other State Constitution provisions," and sought injunctive relief to enjoin the state from implementing the furloughs.⁹ On July 2, 2009, the circuit court¹⁰ concluded that the defendants had violated the State Constitution by attempting to impose the furloughs without collective bargaining, and granted UPW's injunction, enjoining the unilateral statewide furloughs.

2. Reduction in Force Announcement

Soon thereafter, on July 17, 2009, Marie Laderta (Defendant Laderta), Director of the Department of Human Resources Development, notified various public employees that their names would be included on layoff lists. Approximately 216 UPW employees were on the list. On July 23, 2009, Clayton Frank ("Defendant Frank"), Director of the Department of Public Safety, notified UPW of an impending layoff due to the closure of the Kulani Correctional Facility. On August 4, 2009, Defendant Lingle announced a decision to implement a reduction in force ("RIF") that would discharge approximately 1,100 State employees.

3. Privatization

UPW alleged that on June 8, 2009, UPW requested that Defendants Lingle and Laderta terminate all contracts for services that have historically and customarily been performed by civil servants in bargaining units 1 and 10. UPW alleged that the Defendants refused.¹¹

UPW also alleged that Defendants refused to negotiate over the (1) decision to close Kulani Correctional Facility, and (2) implementation of that decision. On August 3, 2009, Defendant Frank informed the inmates at Kulani of their relocation by the end of September 2009. UPW alleged that the Department of Public Safety then subcontracted with private contractors to house approximately 2,000 Hawai‘i inmates on the mainland.

B. Procedural History

1. HLRB Prohibited Practice Complaint

On August 27, 2009, UPW filed an amended complaint with the HLRB ("HLRB Complaint") against Defendants Laderta, Lingle, and Frank ("Defendants").¹² The HLRB Complaint alleged a number of violations under HRS § 89–13(a) ("prohibited practice violations"). In relevant part, the HLRB Complaint alleged that the Defendants: (1) violated HRS § 89–13(a)(1) when Defendant Lingle interfered, restrained, and coerced employees in their exercise of statutory and constitutional rights by threatening mass layoffs and the shutdown of programs; (2) violated HRS § 89–13(a)(3) when Defendants discriminated regarding terms and conditions of employment to discourage membership in an employee organization through threats to job security, implementation of RIF, layoffs, and discharges; (3) violated HRS § 89–13(a)(5) by refusing to bargain collectively in good faith over furloughs as an alternative to layoffs, and for unilaterally implementing procedures and criteria for RIF displacements, and discharges of bargaining unit employees; (4) violated HRS § 89–13(a)(7) by refusing to comply with provisions of Chapter 89, including HRS §§ 89–3¹³ and 89–9(a)¹⁴ , (c)¹⁵ , and (d)¹⁶ ; and (5) violated HRS § 89–13(a)(8) by violating the terms of the unit 1 and 10 collective bargaining agreements.

The HLRB entered its Findings of Fact and Conclusions of Law on October 23, 2009. In relevant part, the HLRB found: (1) the record indicated that the State at all relevant times was facing a severe fiscal crisis that required it to balance its budget in the face of ever-increasing revenue shortfalls; (2) Defendant Lingle's consideration of layoffs of public employees as a means of addressing the predicted revenue shortfall preceded the filing of grievances or civil lawsuits by UPW; (3) the State had presented a legitimate, non-discriminatory, and nonretaliatory reason for its decision to lay off workers, and the Union had not presented evidence to rebut the State's assertions (the decline of revenues) or demonstrated that the stated reason was merely pretextual.

2. Circuit Court Complaint

Before the HLRB had issued its findings, UPW filed a complaint in the circuit court ("First Circuit Complaint") on September 16, 2009, alleging that Defendants' actions: (1) constituted acts of retaliation, reprisal, and intimidation in violation of the HWPA; (2) violated Employees' rights guaranteed by the Free Speech Clause; (3) violated the merit principle¹⁷ mandated by article XVI, section 1 of the Hawai‘i Constitution ; and (4) violated Employees' rights under HRS § 76–43 by " refusing to negotiate the criteria, procedures, timing, and manner of handling mass layoffs for reasons other than ‘lack of work’ or ‘lack of funds' with UPW prior to unilateral implementation of the layoffs, reductions in force, and discharges of unit 1 and 10 employees."¹⁸

Defendants then filed a Motion to Dismiss the First Circuit Complaint on the grounds that: (1) UPW did not identify any "employees" protected by HWPA, and UPW is not an employee itself; (2) UPW's complaints did not include any facts that could "underlie a freestanding constitutional claim premised on access to the courts"; (3) this court in Konno v. County of Hawai‘i, 85 Hawai‘i 61, 70, 937 P.2d 397, 406 (1997) had already held, "the Hawai‘i Constitution does not establish an independently enforceable right to the protection of merit principles"; and (4) UPW's allegations under HRS § 76–43 are premised on the requirements of Chapter 89, Hawaii's collecting bargaining law; therefore, the HLRB had exclusive original jurisdiction over such complaints. The circuit court¹⁹ denied Defendants' motion in its entirety.

Two years later, on September 14, 2011, Defendants filed a second Motion to Dismiss in the circuit court on the basis that this court had recently clarified that the HLRB had "exclusive original jurisdiction over the controversy" in Hawai‘i Government Employees Association v. Lingle ("HGEA "), 124 Hawai‘i 197, 239 P.3d 1 (2010).²⁰ On January 17, 2012, this court published Hawai‘i State Teachers Association v. Abercrombie ("HSTA "), 126 Hawai‘i 318, 271 P.3d 613 (2012),²¹ which further clarified and affirmed our decision in HG...