Winslow v. State, AFL-CIO

• Decision Date: 23 March 1981
• Docket Number: AFL-CIO,No. 6728,6728
• Citation: 2 Haw.App. 50,625 P.2d 1046
• Parties: Rufina WINSLOW, Plaintiff-Appellant, v. STATE of Hawaii; Shirley Smith, individually and in her capacity as Deputy Attorney General; Andrew Chang, individually and in his capacity as Director of the Department of Social Services and Housing; Kayo Chung, individually and in his capacity as Administrator of the Hawaii Youth Correctional Facility at Koolau; Vernon Chang, individually and in his capacity as an Administrator of the Hawaii Youth Correctional Facility at Koolau; Donald Botelho, individually and in his capacity as Director of Civil Services; and the United Public Workers, Local 646, AFSCME,, collectively; and Henry Epstein, individually and in his capacity as State Director of the United Public Workers; and John Does, one through ten (1-10), Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 1046

625 P.2d 1046

2 Haw.App. 50

Rufina WINSLOW, Plaintiff-Appellant, v. STATE of Hawaii; Shirley Smith, individually and in her

capacity as Deputy Attorney General; Andrew Chang,

individually and in his capacity as Director of the

Department of Social Services and Housing; Kayo Chung,

individually and in his capacity as Administrator of the

Hawaii Youth Correctional Facility at Koolau; Vernon Chang,

individually and in his capacity as an Administrator of the

Hawaii Youth Correctional Facility at Koolau; Donald

Botelho, individually and in his capacity as Director of

Civil Services; and the United Public Workers, Local 646,

AFSCME, AFL-CIO, collectively; and Henry Epstein,

individually and in his capacity as State Director of the

United Public Workers; and John Does, one through ten

(1-10), Defendants-Appellees.

No. 6728.

Intermediate Court of Appeals of Hawai'i.

March 23, 1981.

Reconsideration Denied April 28, 1981.

Certiorari Denied May 22, 1981.

Syllabus by the Court

1. Public policy favors arbitration as a means of settling differences to avoid expensive and unnecessary litigation.

2. Where the terms of public employment are governed by a collective bargaining agreement pursuant to Chapter 89 of the Hawaii Revised Statutes (HRS) and the agreement includes a grievance procedure to dispose of employee grievances against the public employer, an aggrieved employee is bound by the terms of the agreement and must fully exhaust the contractual remedies bargained for before an action against the public employer can be brought into circuit court.

3. The question of exhaustion of contractual grievance remedies available against a public employer has no application in an action against the union.

4. In Hawaii, an action in unfair labor practices by a public employee may be either before the Hawaii Public Employment Relations Board (HPERB) or in a court of competent jurisdiction, pursuant to HRS §§ 89-14 and 377-9.

5. Where the proffered facts on a motion for summary judgment or the evidence at trial on a motion for directed verdict and the inferences which may fairly be drawn from them are reasonably susceptible to conflicting interpretations, neither the motion for summary judgment, nor the directed verdict will be given.

E. Courtney Kahr, Lihue, Kauai, for plaintiff-appellant.

Lawrence D. Kumabe, Deputy Atty. Gen., Honolulu, James A. King, Honolulu, for defendants-appellees.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

HAYASHI, Chief Judge.

Appeal is taken from the orders of the court below granting summary judgments to appellees, State of Hawaii; and Shirley Smith, Andrew Chang, Kayo Chung, Vernon Chang, and Donald Botelho, individually and in their capacities as Deputy Attorney General, Director of the Department of Social Services and Housing (DSSH), Administrators of the Hawaii Youth Correctional Facility, and Director of Civil Services, respectively (hereinafter referred to as State), and the United Public Workers, Local 646, AFSCME, AFL-CIO, collectively; and Henry Epstein, individually and in his capacity as State Director of the United Public Workers (hereinafter referred to as Union), in an action for breach of a labor contract.

With respect to the State, only one issue is before us and that is whether a State employee whose employment is governed by a labor agreement is required to exhaust the remedies established in the labor agreement for grievance procedures before an action against the public employer can be brought in circuit court. For the Union, the questions presented are these: (1) Whether grievance procedures established in the labor agreement to resolve disputes between the public employer and union members apply to an action against the union as well; (2) Whether HPERB has exclusive jurisdiction to hear complaints of unfair labor practices brought against a union by a union member; and (3) Whether summary judgment in favor of the union was appropriate in this instance.

The appellant, a State employee, is a member of the Unit 10, Non-Professional Hospital and Institutional Workers' bargaining unit. The United Public Workers' Union is the exclusive bargaining representative for this unit. Section 15 of the labor agreement between Unit 10 and the State establishes the procedures to be followed where an employee alleges that the employer has violated terms of the agreement. Section 15.03 permits the employee to pursue the grievance without union representation if the employee so desires. ¹ The agreement encourages the informal settling of grievances between the employee and the immediate supervisor. ² If a grievance cannot be settled on an informal basis, the contract provides formal procedures as follows:

At Step 1, formal written grievance is filed.

15.11 The grievance shall be presented to the Superintendent or Administrator of a facility or his designee in writing....

Step 2 is appeal to the division head.

15.13 Step 2. If the matter is not satisfactorily settled at Step 1, the grieving party may file a letter of appeal ... with the appropriate Division Head....

Step 3 is appeal to the department head.

15.16 Step 3. If the matter is not satisfactorily settled at Step 2, the grieving party may file a letter of appeal ... with the department head or his designee....

Step 4 is appeal to the employer.

15.19 Step 4. If the matter is not satisfactorily settled at Step 3, the grieving party may file a letter of appeal ... with the Employer or his representative....

Step 5 provides for arbitration.

15.23 Step 5. Arbitration. If the matter is not settled at Step 4, and the Union desires to proceed with Arbitration, it shall serve written notice on the Employer or his representative of its desire to arbitrate within ten (10) days of receipt of the decision of the Employer in Step 4.

15.24 No grievance may be arbitrated unless it involves an alleged violation, misinterpretation or misapplication of a specific term or provision of the Agreement.

In the instant case, appellant was employed as a youth correctional officer at the Hawaii Youth Correctional Facility at Koolau. While employed there, appellant was the victim of a strangulation attempt after she was subpoenaed to testify in a case involving one of the youths being held there. The medical and psychological treatment she required was covered through Workmen's Compensation. As a result of the incident, appellant feared for her safety.

In a letter to the director of the DSSH on April 17, 1975, appellant requested transfer to another position. On April 30, 1975, the director responded by granting her leave without pay while he explored the possibility of her transfer to another position. Appellant filed a grievance on May 5, 1975, in accordance with the grievance procedures set out above alleging that the failure to grant her request for paid administrative leave and transfer violated the terms of the collective bargaining agreement, specifically, Sections 11 (Discipline), 12 (Layoff), 49 (Sanitary Conditions), 50 (Staffing and Workload), and 46 (Working Conditions and Safety). In her grievance, appellant also made allegations of sex discrimination and unspecified Occupational Safety and Health Act (OSHA) violations. By letter dated May 14, 1975, the director acknowledged receipt of appellant's grievance and a subsequent letter relating to her personal dissatisfaction with his decision. He scheduled a meeting with appellant and her union representative for the 16th of May, 1975. However, on May 15, appellant filed suit in circuit court against the State and the Union alleging essentially the same claims that were initially raised in the grievance. ³ On May 16, 1975, the director met with the appellant and her attorney, E. Courtney Kahr, together with representatives from her union, at the director's office. The first two steps of the grievance procedure were waived to permit appellant to meet with the director at the third step level. The grievance was not resolved at Step 3; in a letter dated June 6, 1975, the director advised the appellant to pursue to the next step in the grievance procedure (Step 4). Appellant, however, with the advice of counsel, chose not to do so and, instead, pursued the action in circuit court.

On February 18, 1976, the State filed a motion for summary judgment pursuant to Rule 56(b) of the Hawaii Rules of Civil Procedure (HRCP). On June 23, 1976, after a hearing, the trial court granted the State's motion for summary judgment. ⁴ On July 7, 1977, approximately a year later, the Union filed a motion for summary judgment. On July 25, 1977, appellant filed a memorandum in opposition to the Union's motion for summary judgment together with counter-affidavits pursuant to Rule 56(e), HRCP. After hearing on August 4, 1977, the trial court granted the Union's motion for summary judgment.

We affirm the judgment favoring the State and reverse the judgment in favor of the Union.

As a member of the Unit 10 bargaining unit, appellant's employment was governed by the terms and conditions of the Unit 10 collective bargaining agreement and, specifically, the grievance procedure set forth therein. The trial court found that appellant had filed a grievance pursuant to the terms of the Unit 10 agreement and abandoned it in favor of the court action. Having failed to exhaust the contractual remedies she was bound by, appellant could not pursue her claim in circuit court. The trial court granted summary judgment with respect to those counts chargeable to the State.

Given the well-settled rule of the doctrine of exhaustion of remedies in administrative law, 2 Am.Jur.2d Administrative Law § 595; this state's public policy favoring arbitration as a means of settling differences to avoid expensive and unnecessary litigation, Kendall v. Kauhi, 53 Haw. 88, 488 P.2d 136 (1971); Rules 52(a) and 56(c), HRCP; and the facts of this case, we find no error in the court's ruling that the State was entitled to...