Academic Labor United v. Board of Regents of the University of Hawai'i. ( 2023 )

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
05-APR-2023
09:39 AM
Dkt. 12 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
ACADEMIC LABOR UNITED, an unincorporated association; ASHLEY
HIʻILANI SANCHEZ; KAWAENAʻULAOKALĀ KAPAHUA; and CAMERON GRIMM,
Plaintiffs-Appellants,
vs.
BOARD OF REGENTS OF THE UNIVERSITY OF HAWAI‘I; HAWAI‘I
LABOR RELATIONS BOARD; and STATE OF HAWAI‘I,
Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 1CCV-XX-XXXXXXX)
APRIL 5, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.,
AND WILSON, J., ASSIGNED BY REASON OF VACANCY 1
OPINION OF THE COURT BY RECKTENWALD, C.J.
1 See Order of Designation filed on March 29, 2023, in
SCMF-XX-XXXXXXX.
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I. INTRODUCTION
Petitioner Academic Labor United (“ALU”) represents
graduate student employees of the University of Hawai‘i who wish
to engage in collective bargaining. 2 ALU brought suit against
the Board of Regents of the University of Hawai‘i (“BOR”), the
Hawai‘i Labor Relations Board (“HLRB”) and the State of Hawai‘i
(“State”) in the Circuit Court of the First Circuit. ALU
contends that a pair of 1972 decisions from the Hawaiʻi Public
Employment Relations Board (HPERB, predecessor to HLRB) finally
determined that graduate assistants are not “employees” under
Hawaiʻi Revised Statutes (“HRS”) Chapter 89 - and that these
decisions thus foreclosed graduate assistants from exercising
the collective bargaining rights provided to public employees
under article XIII, section 2 of the Hawaiʻi Constitution and HRS
Chapter 89, its implementing legislation.
ALU requested declaratory judgments stating that ALU’s
members are “persons in public employment” under article XIII,
section 2, that they are “public employees” under HRS Chapter
89, and that HLRB’s rules lack any process by which persons in
2 ALU is an “unincorporated association of graduate assistants at
the University of Hawaiʻi” that seeks to “organiz[e] graduate assistants for
the purpose of collective bargaining.” Petitioners Ashley Hi‘ilani Sanchez,
Kawena‘ulaokalā Kapahua, and Cameron Grimm are graduate assistants at the
University of Hawai‘i. Named plaintiffs-appellants and Academic Labor United
are designated collectively as “ALU.”
1
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positions previously excluded from collective bargaining may
seek relief. The circuit court dismissed the case on
jurisdictional grounds. Under HRS § 632-1 (2016), in order to
exercise jurisdiction over ALU’s action, the circuit court must
be satisfied that ALU has exhausted its statutory and
administrative remedies and that declaratory judgment would
“terminate the uncertainty or controversy.” The circuit court
found that neither requirement had been met and dismissed the
case without reaching the merits.
We affirm. ALU has not exhausted its administrative
remedies. HPERB’s 1972 decisions are not final rulings on
whether ALU and its members are excluded from HRS Chapter 89.
Hawai‘i Administrative Rules (“HAR”) § 12-42-9 (effective Feb. 6,
1981) permits an “interested . . . organization” such as ALU to
seek a declaratory judgment from HLRB. Because ALU has not yet
invoked HAR § 12-42-9 to clarify whether its members are
“employees” under HRS Chapter 89, it has not exhausted
administrative remedies, and the circuit court did not have
jurisdiction over ALUʻs action.
II. BACKGROUND
A. The Constitutional Right to Collective Bargaining
In 1968, the Hawai‘i Constitution was amended to
include article XIII, section 2, which gives “[p]ersons in
2
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public employment” the “right to organize for the purpose of
collective bargaining as provided by law.” (Emphasis added.)
Pursuant to article XIII, section 2, the Hawai‘i Legislature
enacted statutes governing how public employees may organize and
collectively bargain. See HRS Chapter 89 (titled “Collective
Bargaining in Public Employment”).
HRS Chapter 89 defined who qualifies as an “employee”
or “public employee” for the purpose of collective bargaining,
and required that all persons qualifying as “public employee[s]”
under the statute be placed in one of the statutorily defined
bargaining units. HRS § 89-2 (2012); HRS § 89-6(a) (Supp.
2021). Many of the rights in HRS Chapter 89 belong to the
unions serving as certified exclusive representatives of the
bargaining units, not to public employees as individuals. See
HRS § 89-8 (2012); HRS § 89-9 (Supp. 2021); HRS § 89-10 (2012)
(setting out the rights of the exclusive representatives of the
statutorily defined bargaining units).
To administer HRS Chapter 89, the legislature created
the HPERB, which later became the HLRB. 3 HPERB was tasked with
determining which positions belonged in each statutorily-defined
3 See 1985 Haw. Sess. Laws Act 251, § 4 at 476-78 (changing HPERB
to HLRB).
3
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bargaining unit, and certifying exclusive representatives for
all units. See 1970 Haw. Sess. Laws Act 171, § 5 at 311—13.
Two of the bargaining units in HRS § 89-6 included employees of
the University of Hawaiʻi. Unit 7 comprises “[f]aculty of the
University of Hawai‘i and the community college system,” HRS
§ 89-6(a)(7) (Supp. 1971), and Unit 8 comprises “[p]ersonnel of
the University of Hawai‘i and the community college system, other
than faculty,” HRS § 89-6(a)(8) (Supp. 1971). 4
B. HPERB’s 1972 Decisions Determining the Composition of
Bargaining Units 7 and 8
In 1972, HPERB initially considered which positions
should be included in Units 7 and 8, and decided that graduate
assistants should be excluded from both units. 5 Haw. Fed’n of
Coll. Tchrs., Case No. R-07-12 (HPERB Sept 15, 1972) (Order
Affirming Hearings Officer’s Findings of Fact, Conclusions of
Law and Recommendations and Direction of Election) (hereinafter
“Decision No. 21: Order”); Haw. Fed’n of Coll. Tchrs., Case No.
R-08-13 (HPERB Dec. 29, 1972) (Order Affirming Hearing Officer’s
4 HRS § 89-2(7)-(8) have not been amended since HPERB Decision Nos.
21 and 25. Compare HRS § 89-2(7)-(8) (Supp. 1971) with HRS § 89-2(7)-(8)
Supp. 1976) and HRS § 89-2(7)-(8) (Supp. 2021).
5 The decision excluding graduate assistants from Unit 7,
“[f]aculty of the University of Hawai‘i and the community college system,” was
numbered as Decision No. 21 by HPERB and is hereinafter referred to as
Decision No. 21. The decision excluding graduate assistants from Unit 8,
“[p]ersonnel of the University of Hawai‘i and the community college system,
other than faculty,” was numbered as Decision No. 25 by HPERB and is
hereinafter referred to as Decision No. 25.
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Findings of Fact, Conclusions of Law and Recommendations and
Direction of Election) (hereinafter “Decision No. 25: Order”).
HPERB Hearings Officer Stephen K. Yamashiro held a
hearing on March 15, 1972 and issued his Findings of Fact,
Conclusions of Law and Recommendations on the positions that
should be included in Bargaining Unit 7 on July 17, 1972.
Decision No. 21: Order at 2. Officer Yamashiro decided that
graduate students should not be included in Unit 7. Haw. Fed’n
of Coll. Tchrs., Case No. R-07-12 (HPERB Sept 15, 1972)
(Findings of Fact, Conclusions of Law, and Recommendations)
(hereinafter “Decision No. 21: FOF/COL”) at 23. He reasoned
that graduate students “are classified on a different
compensation schedule,” “the nature of their appointments
differs substantially from that of the faculty,” and “the nature
of the work performed by the graduate assistants differs from
that performed by the faculty.” Id.
In reaching his decision, Officer Yamashiro found
persuasive a determination from the Michigan Court of Appeals,
in which the court had found that medical interns were not
“public employees” because holding them to be employees would
“impinge, to some degree, upon the constitutional authority of
the Regents to control the educational affairs of the student.”
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Decision No. 21, FOF/COL at 22, paraphrasing Regents of Univ. of
Mich. v. Mich. Emp. Rels. Comm’n, 195 N.W.2d 875, 879 (Mich. Ct.
App. 1972), rev’d sub nom. Regents of Univ. of Mich. v. Mich.
Emp’t Rels. Comm’n, 204 N.W.2d 218 (Mich. 1973). Officer
Yamashiro reasoned that excluding graduate assistants from Unit
7 “entails due regard to the possible infringement upon the
constitutional authority of the Board of Regents” of the
University of Hawaiʻi. Decision No. 21: FOF/COL at 23. In other
words, including graduate assistants in Unit 7 would infringe
upon BOR’s powers under article IX of the constitution (now
article X), which empowers the BOR to govern the operation of
the University of Hawaiʻi. 6 Id. at 22. HPERB adopted Officer
6 In 1972, article IX, section 5 of the Hawai‘i Constitution
provided that:
There shall be a board of regents of the University
of Hawaiʻi, the members of which shall be nominated and, by
and with the advice and consent of the senate, appointed by
the governor. At least part of the membership of the board
shall represent geographic subdivisions of the State. The
board shall have power, in accordance with law, to
formulate policy, and to exercise control over the
university through its executive officer, the president of
the university, who shall be appointed by the board.
Haw. Const. art IX, § 5 (1972) in Comm. Proposal No. 6, in 1
Proceedings of the Constitutional Convention of Hawai‘i of 1978,
at 792 (1980) (1 Proceedings) (emphasis added).
Article IX was renumbered by the Constitutional Convention of
1978 and appears in the current constitution as article X, section 6. It now
further provides that “[t]he board shall also have exclusive jurisdiction
over the internal structure, management, and operation of the university.”
Haw. Const. art. X, § 6.
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Yamashiro’s recommendation as to graduate assistants in full.
Decision No. 21: Order at 4-10.
Officer Yamashiro presided over another hearing on
August 23, 1972 in order to determine which positions should be
included in Unit 8, “personnel of the University of Hawaiʻi and
the community college system, other than faculty.” Decision No.
25: Order at 2, 4. In reaching the conclusion that graduate
assistants should be excluded from Unit 8, he discussed graduate
assistants’ duties, compensation, and benefits, compared
graduate assistants’ compensation with that of other non-faculty
staff, and decided that a graduate assistant’s “primary role [at
the University] is that of a student.” Haw. Fed’n of Coll.
Tchrs., Case No. R-08-13 (HPERB December 29, 1972) (Findings of
Fact, Conclusions of Law and Recommendations) (hereinafter
“Decision No. 25: FOF/COL”) at 20-22. He went on to state that
graduate assistants are not “public employees” under HRS Chapter
89 at all:
Under the facts presented it is clearly shown that
graduate assistants are not in the same occupational
grouping nor are they paid on the same salary schedule as
[other non-faculty staff]. Graduate assistants do not have
their compensation subjected to social security and federal
income taxes nor are they members of the State retirement
system. The compensation given to graduate assistants is
treated as a grant or form of financial aid. These factors
combined would justify a finding that graduate assistants
are not employees within Chapter 89, and should be excluded
from Unit 8.
Decision No. 25: FOF/COL at 21 (emphasis added).
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Officer Yamashiro also based his decision to exclude
graduate students from Unit 8 on his analysis of the Hawaiʻi
Constitution. Decision No. 25: FOF/COL at 22. He reasoned that
considering graduate assistants “public employees” under HRS
Chapter 89 would infringe upon the BORʻs powers under article IX
(now article X):
Students at the University are subject to the
policies and standards of enrollment established by the
Regents. Should the terms and conditions of continued
enrollment become subject to collective bargaining, the
constitutional authority of the Regents would be interfered
with. . . . To include graduate assistants into Unit 8
would be to ignore their primary status as students and
would unduly impinge upon the rights and authority of the
Regents.
A constitutional provision must be construed in
connection with other provisions of the instrument, the
circumstances under which it was adopted and the history
which preceded it. The natural consequences of a proposed
construction must be considered in determining the intent
of its framers. Carter v. Gear, 16 Haw. 242, Affirmed 24
S. ct. 491, 197, US 348 (1904). Article XII, Section 2 of
the Hawaiʻi Constitution does not attempt to interfere with
the authority granted the Regents by Article IX of the
Constitution. To find that graduate assistants are public
employees under Chapter 89 would result in an infringment
[sic] upon the power granted the Regents by the
Constitution.
Decision No. 25: FOF/COL at 22 (emphasis added).
HPERB adopted all of Officer Yamashiro’s conclusions
of law with regard to graduate assistants. 7 Decision No. 25:
Order at 1-6. The decisions were not appealed.
7 The only amendment HPERB made to Officer Yamashiro’s
recommendation that implicated graduate assistants was to reject one of his
findings of fact. Decision No. 25: Order at 2-3. HPERB agreed that “once a
graduate assistant completes his academic work he must terminate his
employment” but disagreed that “once a graduate assistant receives his degree
he has no employment possibility with his department.” Id. at 2. HPERB
(continued . . .)
8
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C. Procedural History
In the instant case, ALU argues that HPERB’s 1972
decisions functionally preclude graduate assistants from
exercising the collective bargaining rights that they are due
under article XIII, section 2 of the constitution as “persons in
public employment.” ALU sued the BOR, HLRB, and the State in
the Circuit Court of the First Circuit seeking a series of
declaratory judgments falling into three categories. 8 ALU sought
judgments to the effect that: (1) graduate assistants are
“persons in public employment” within the meaning of article
XIII, section 2; (2) that they are “employee[s]” or “public
employee[s]” under HRS Chapter 89; (3) that HLRB’s rules lack
any process by which persons in positions previously excluded
from collective bargaining may seek relief.
HLRB filed a motion to dismiss or in the alternative
for summary judgment which the State joined, arguing that the
circuit court did not have subject matter jurisdiction over
ALU’s action. HLRB argued that declaratory judgment was
(continued . . .)
noted that while graduate students have no possibility to continue working as
graduate assistants, “the record is silent as to notable examples of graduate
assistants who, once earning their degrees, have gone on to become professors
in their departments.” Id. at 2-3.
8 The Honorable James H. Ashford presided.
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improper under HRS § 632-1 9 because ALU had not exhausted its
administrative remedies before HLRB, citing a number of rules
that HLRB had promulgated to make remedies available as required
by HRS § 91-8 (2012) 10 and HRS § 89-6(g) (2012). 11 HLRB further
argued that granting ALU’s requested relief would not “terminate
the uncertainty or controversy giving rise to the proceeding.”
9 HRS § 632-1(b) provides as follows:
(b) Relief by declaratory judgment may be granted in
civil cases where an actual controversy exists between
contending parties, or where the court is satisfied that
antagonistic claims are present between the parties
involved which indicate imminent and inevitable litigation,
or where in any such case the court is satisfied that a
party asserts a legal relation, status, right, or privilege
in which the party has a concrete interest and that there
is a challenge or denial of the asserted relation, status,
right, or privilege by an adversary party who also has or
asserts a concrete interest therein, and the court is
satisfied also that a declaratory judgment will serve to
terminate the uncertainty or controversy giving rise to the
proceeding. Where, however, a statute provides a special
form of remedy for a specific type of case, that statutory
remedy shall be followed; but the mere fact that an actual
or threatened controversy is susceptible of relief through
a general common law remedy, a remedy equitable in nature,
or an extraordinary legal remedy, whether such remedy is
recognized or regulated by statute or not, shall not debar
a party from the privilege of obtaining a declaratory
judgment in any case where the other essentials to such
relief are present.
(Emphasis added.)
10 HRS § 91-8 provides that “[a]ny interested person may petition an
agency for a declaratory order as to the applicability of any statutory
provision or of any rule or order of the agency.”
11 HRS § 89-6(g) provides that “[w]here any controversy arises under
this section, the board shall, pursuant to chapter 91, make an investigation
and, after a hearing upon due notice, make a final determination on the
applicability of this section to specific individuals, employees, or
positions.”
10
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HRS § 632-1. The circuit court agreed with both arguments and
granted HLRB’s motion to dismiss.
BOR also filed a motion to dismiss or in the
alternative for summary judgment. The motion incorporated the
jurisdictional arguments HLRB had made in its motion, and
further argued that ALU’s claims were barred pursuant to HRS §
304A-108(a) (2020). 12 That statute provides that “all claims
arising out of the acts or omissions of the university or the
members of its board of regents . . . may be brought only
pursuant to this section and only against the university.” HRS
§ 304A-108(a). BOR also argued that there was no actual
controversy between ALU and BOR. The circuit court agreed with
BOR’s argument under HRS § 304A-108(a), and granted the motion,
dismissing BOR.
ALU appealed from the circuit court’s final judgment
dismissing the case. We accepted transfer from the Intermediate
Court of Appeals.
12 HRS § 304A-108(a) provides in relevant part:
(a) The university may sue and be sued in its
corporate name. Notwithstanding any other law to the
contrary, all claims arising out of the acts or omissions
of the university or the members of its board of regents,
its officers, or its employees, including claims permitted
against the State under chapter 661, part I, and claims for
torts permitted against the State under chapter 662, may be
brought only pursuant to this section and only against the
niversity. . . .
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III. STANDARD OF REVIEW
A. Subject Matter Jurisdiction
The existence of subject matter jurisdiction is
reviewed de novo under the right/wrong standard. Kilakila ʻO
Haleakala v. Bd. Of Land & Nat. Res., 131 Hawaiʻi 193, 199, 317
P.3d 27, 33 (2013).
B. Statutory Interpretation
Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong standard. Guth
v. Freeland, 96 Hawaiʻi 147, 149–50, 28 P.3d 982, 984–85 (2001).
IV. DISCUSSION
The circuit court held that it did not have
jurisdiction under HRS § 632-1 because ALU did not exhaust its
statutory and administrative remedies. We agree. HPERB’s 1972
rulings were not final determinations of whether graduate
assistants are “employee[s]” under HRS Chapter 89. There is an
administrative remedy available to ALU under HAR § 12-42-9,
which allows “interested . . . organization[s]” to petition for
declaratory judgment from HLRB. ALU has not shown that it has
exhausted administrative remedies, that no remedies are
12
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available to it, or that the available remedies would be
futile. 13
We also note that the circuit court erred in
dismissing BOR from this case on the basis of HRS § 304A-108(a).
It should have dismissed BOR on the same basis as HLRB, that it
lacked jurisdiction over the action. However, we affirm the
dismissal because the error was harmless.
A. The Circuit Court Correctly Held That ALU Did Not Exhaust
Administrative Remedies
ALU alleges that the circuit court erred in holding
that it did not exhaust administrative remedies. HRS § 632-1(b)
requires that where “a statute provides a special form of remedy
for a specific type of case, that statutory remedy shall be
followed” before a court can exercise jurisdiction over a
declaratory judgment action. We first assess whether HPERB’s
1972 decisions are final and binding determinations that
graduate assistants are not entitled to collective bargaining
rights under Chapter 89. We then address HLRB’s arguments that
ALU has failed to exhaust the remedies available under HLRB’s
13 Having determined that the circuit court lacks jurisdiction
because ALU has not exhausted its administrative remedies, we do not reach
the circuit court’s other ground for dismissal under HRS § 632-1 (that
declaratory judgment would not “terminate the uncertainty or controversy”).
We also do not reach ALU’s constitutional arguments on the merits, as the
circuit court dismissed the case on jurisdictional grounds and did not reach
those issues.
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regulations. Third and finally, we address ALU’s argument that
pursuit of a declaratory judgment before HLRB would be futile.
1. HPERB’s 1972 rulings are not final, binding
determinations that graduate assistants are not
“public employees” under HRS Chapter 89
ALU argues that HPERB issued a final ruling that
graduate assistants are not “employees” within the meaning of
HRS Chapter 89 in 1972. As a result, there is no administrative
process by which HLRB can now consider graduate assistants’
inclusion in a bargaining unit. According to ALU, because HPERB
has held that graduate assistants are not “public employees” and
because ALU is not an exclusive representative, neither ALU nor
its members may petition to be included in a bargaining unit,
because only an employee or an exclusive representative may
petition for inclusion under HLRB’s regulations.
In response, HLRB argues that Officer Yamashiro’s
statements in the recommendations that HPERB adopted in 1972 are
mere “dicta,” and maintains that it has never ruled on whether
graduate assistants are “employees” under HRS Chapter 89. HLRB
further argues that graduate assistants might still be eligible
for membership in Unit 13, 14 suggesting that exclusion from Units
14 Unit 13 comprises “[p]rofessional and scientific employees, who
cannot be included in any of the other bargaining units.” HRS § 89-6(a)(13)
(Supp. 2021).
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7 and 8 does not necessarily exclude them from HRS Chapter 89
altogether.
The threshold question is whether Officer Yamashiro’s
statements in HPERB’s 1972 decisions can be considered final
determinations that graduate assistants are not “employees”
under HRS Chapter 89. ALU’s argument that HPERB made a final
determination finds support in several passages in the
decisions. In deciding to exclude graduate assistants from Unit
7, Officer Yamashiro reasoned that excluding graduate assistants
from Unit 7 “entails due regard to the possible infringement
upon the constitutional authority of the Board of Regents” of
the University of Hawaiʻi, because graduate assistants’
employment was intertwined with their status as students.
Decision No. 21: FOF/COL at 22-23. This implies that graduate
students are not only excluded from Unit 7, but that they are
also not public employees under the constitution. Decision No.
21: FOF/COL at 23.
Officer Yamashiro expanded that point in Decision No.
25. In the course of giving his reasoning for excluding
15
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graduate assistants from Unit 8, he opined that graduate
assistants should not be under HRS Chapter 89 at all:
Under the facts presented it is clearly shown that
graduate assistants are not in the same occupational
grouping nor are they paid on the same salary schedule as
[other non-faculty staff]. Graduate assistants do not have
their compensation subjected to social security and federal
income taxes nor are they members of the State retirement
system. The compensation given to graduate assistants is
treated as a grant or form of financial aid. These factors
combined would justify a finding that graduate assistants
are not employees within Chapter 89, and should be excluded
from Unit 8.
Decision No. 25: FOF/COL at 21 (emphasis added).
Later, Officer Yamashiro stated that because graduate
assistants are “primarily students,” “[t]o find that graduate
assistants are public employees under Chapter 89 would result in
an infringment [sic] upon the power granted the Regents by the
Constitution.” Decision No. 25: FOF/COL at 21-22.
Though these passages in Decision Nos. 21 and 25 do
provide support for ALU’s position, HLRB is correct that, when
viewed in context, HPERB was not ruling on whether graduate
assistants were “employee[s]” under HRS § 89-2. Neither
proceeding was held to answer that question. The Decision No.
21 hearing was held “to determine the composition of Unit 7,”
and the Decision No. 25 hearing was conducted “to determine
employee inclusions in and exclusions from Unit 8.” Decision
No. 21: FOF/COL at 1; Decision No. 25: Order at 2.
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Thus, the final effect of the orders in Decision Nos.
21 and 25 was to exclude graduate assistants from Unit 7
(“[f]aculty of the University of Hawaiʻi and the community
college system”) and Unit 8 (“[p]ersonnel of the University of
Hawaiʻi and the community college system,” other than faculty).
See Decision No. 21: Order at 10; Decision No. 25: Order at 2;
Decision No. 25: FOF/COL at 12. Critically, neither HPERB nor
HLRB has addressed whether graduate assistants belong in Unit 13
(“[p]rofessional and scientific employees, who cannot be
included in any of the other bargaining units”). HRS § 89-
6(a)(13). Graduate assistants’ exclusion from Units 7 and 8 is
therefore not equivalent to holding that they are excluded from
Chapter 89 altogether. Since HLRB has not ruled that they
should be excluded from Unit 13, the question of the status of
graduate assistants as public employees remains open.
Furthermore, interpreting Officer Yamashiro’s
statements in Decision Nos. 21 and 25 to have final, preclusive
effect would be at odds with HLRB’s duty to administer HRS
Chapter 89. As HLRB has argued, its unit certification
decisions are not “unmovable.” HLRB is required to bring new
positions within the definition of “public employee,” and adjust
the composition of bargaining units, as necessitated by changes
17
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to the law or facts. 15 HRS § 89-2. In Decision Nos. 21 and 25,
HLRB made its bargaining unit composition determinations based
on graduate assistants’ duties in 1972. But ALU has alleged
that the nature of graduate student employment has changed
significantly since then. 16 ALU also contends that the
authorities that Officer Yamashiro relied to support his
decisions are no longer good law. If HLRB is presented with a
petition alleging that graduate assistants’ duties and other
circumstances have substantially changed since it issued
Decision Nos. 21 and 25, HLRB has a statutory duty to reexamine
15 HLRB is required to adjudicate any controversy that arises under
Chapter 89, and is specifically required to making determinations about the
inclusion of particular positions in bargaining units. HRS § 89-5(i)(3)
(Supp. 2021) provides that HLRB shall “resolve controversies under [Chapter
89],” and HRS § 89-6(g), which lays out the statutory bargaining units,
provides that “[w]here any controversy arises under this section, the board
shall, pursuant to chapter 91, make an investigation and, after a hearing
upon due notice, make a final determination on the applicability of this
section to specific individuals, employees, or positions.” Since 1972, HLRB
has adjudicated cases brought by unions and employers requesting
clarification on particular positions’ status as “public employees,” or for
particular positions to be included in, or excluded from, particular
bargaining units. See, e.g., HGEA v. Fasi, Consolidated Case Nos. RA-02-15,
RA-03-16, RA-04-17, RA-13-18, DR-02-12, DR-03-13, DR-04-14, DR-13-15 (HPERB
Nov. 1, 1977) (Decision No. 85) (HAR § 12-49-9 petition to determine if
employees of MTL, Inc., are “public employees” of the City and County of
Honolulu within the meaning of HRS § 89-2); Bd. of Regents v. UHPA, Case Nos.
RA-07-37, RA-08-37 (HLRB July 18, 1980) (Decision No. 132) (BOR’s petition to
transfer seven positions from Unit 7 to Unit 8). As HLRB argued, the
cumulative result of its decisions is that “the composition of the bargaining
units has changed over time.”
16 ALU alleges that there have been several important changes since
1972. In 1972, graduate student teaching was part of their education or
training within their degree program, but present-day graduate students teach
with the goal of receiving a salary, and they often teach courses far removed
from their area of expertise that do not provide educational benefit. Also,
in contrast to HPERB’s findings in 1972, graduate students today teach with
minimal or no faculty supervision.
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those decisions, and issue a ruling based on graduate
assistants’ current status.
We hold that HPERB’s 1972 statements are not a
binding, final adjudication that graduate assistants are not
“employee[s]” within the meaning of HRS § 89-2. Since HPERB’s
decisions do not finally resolve the issue, ALU should pursue
further administrative remedies before HLRB to seek an answer to
this question, provided such remedies are available.
2. An administrative remedy is available to ALU under HAR
§ 12-42-9
Though we find that HPERB’s 1972 rulings are not final
and binding on ALU and its members, if there is no
administrative remedy open to ALU to seek clarification of
graduate assistants’ status under HRS Chapter 89, ALU may seek
declaratory relief in the circuit court. Hokama v. Univ. of
Haw., 92 Hawaiʻi 268, 273, 990 P.2d 1150, 1155 (1999) (“An
aggrieved party need not exhaust administrative remedies where
no effective remedies exist.”). HLRB has proposed a number of
administrative remedies that it argues are available to ALU,
citing HAR §§ 12-42-9, -17, -18, -19, and -20 (effective Feb. 6,
1981). We analyze each rule that HLRB has raised in order to
determine if it provides a remedy ALU should reasonably have
been expected to exhaust.
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Notably, several statutes empower HLRB to adjudicate
controversies relating to Chapter 89. HRS § 89-5(i)(3)
generally gives HLRB the power to “[r]esolve controversies under
[Chapter 89].” In HRS § 89-6, which governs bargaining unit
determinations, section (g) provides that “[w]here any
controversy arises under this section, the board shall, pursuant
to Chapter 91, make an investigation and, after a hearing upon
due notice, make a final determination on the applicability of
this section to specific individuals, employees, or positions.”
Moreover, HRS § 91-8 provides that “[a]ny interested person may
petition an agency for a declaratory order as to the
applicability of any statutory provision or of any rule or order
of the agency.” Read together, these statutes give HLRB broad
authority to decide questions of the applicability of Chapter
89, and the applicability of its own regulations and orders.
HLRB has promulgated rules to give effect to these
statutes and has suggested that ALU pursue remedies provided by
those rules. However, most of these procedures are not open to
ALU. What HLRB calls the “established procedure” for adding a
position to a bargaining unit, in HAR § 12-42-20, may only be
used by an “exclusive bargaining representative or any public
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employer[.]” 17 To use § 12-42-20, ALU would have to request that
the exclusive representative of Unit 7, 8 or 13 petition HLRB to
include the position of “graduate assistant” in its unit. It
would be unreasonable to require ALU to exhaust administrative
procedures that require it to first secure representation by a
third party. HLRB also cites HAR §§ 12-42-17 and -18, but only
an “employee organization or anyone authorized to act in its
behalf” can invoke these procedures, and ALU has not been
recognized as such. 18 HAR §§ 12-42-17, -18 and -20 are more
properly considered administrative remedies belonging to
employers and exclusive representatives, not to ALU.
HLRB also cites HAR § 12-42-19, a rule enabling a
public employee to petition for the decertification of the
17 HAR § 12-42-20(a) provides that “[a] petition for clarification
of an appropriate bargaining or optional appropriate bargaining unit or
amendment of certification may be filed by the exclusive bargaining
representative or any public employer at any time.” HAR § 12-42-20(a)
(emphasis added).
18 HAR § 12-42-17(b) provides that “[a] petition to determine an
optional appropriate bargaining unit may be filed by an employee organization
or anyone authorized to act in its behalf.” HAR § 12-42-17(b) (emphasis
added). The optional bargaining units include “[p]rofessional and scientific
employees, other than registered professional nurses,” which appears to
correspond with Unit 13 from HRS 89-6, “[p]rofessional and scientific
employees, who cannot be included in any of the other bargaining units.” See
HRS 89-6(a)(13); HAR § 12-42-17.
HAR § 12-42-18 provides that “[a] petition to select an exclusive
bargaining representative of an appropriate bargaining or optional
appropriate bargaining unit may be filed by an employee organization or
anyone authorized to act in its behalf.” HAR § 12-42-18(a) (emphasis added).
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exclusive representative of a bargaining unit. 19 It is unclear
why HLRB suggests this regulation because decertifying the
exclusive representatives in Unit 7 or 8 would not bring ALU
relief. In any event, HAR § 12-42-19 is designed to be invoked
by a “public employee.” ALU’s members have not been recognized
as public employees - this is the controversy they seek to
resolve.
Finally, HLRB suggests a declaratory judgment action
under § 12-42-9. In contrast to §§ 12-42-17, -18, -19, and -20,
§ 12-42-9 is not limited to employee organizations or public
employees. HAR § 12-42-9 enables any “interested person or
organization” to ask for a declaratory ruling to determine the
applicability of HLRB’s rules or orders. HAR § 12-42-9(a) (“Any
public employee, employee organization, public employer, or
interested person or organization may petition the board for a
declaratory order as to the applicability of any statutory
provision or of any rule or order of the board.”) (emphasis
added).
19 HAR § 12-42-19(a) provides:
A petition for decertification of an exclusive
bargaining representative may be filed by any public
employee, or representative authorized to act in the
employee’s behalf, alleging that the certified exclusive
bargaining representative is no longer the majority
representative of the employees in the appropriate
bargaining or optional appropriate bargaining unit.
HAR § 12-42-19(a) (emphasis added).
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Based on the plain text of HAR § 12-42-9, we see no
reason that ALU would be foreclosed from petitioning HLRB for
declaratory judgment directly under that provision. Allowing
HLRB to speak first on whether today’s graduate assistants are
“employees” has the advantage of mobilizing HLRB’s expertise in
administering HRS Chapter 89 and making bargaining unit
determinations. ALU contends that the position of graduate
assistants today is fundamentally different than in 1972. It
argues that many aspects of graduate assistant work are now
“indistinguishable from that performed by university faculty and
administrative, professional and technical staff.” HLRB’s
§ 12-42-9 procedure would allow HLRB to consider the application
of the definition of “employee[s]” under HRS § 89-2 to present-
day graduate assistants, given their allegedly changed duties.
HLRB would then have the opportunity to clarify the scope and
applicability of HPERB’s 1972 rulings. And if HLRB’s
determination is appealed, the courts will be able to review the
record of proceedings before HLRB and its reasoning for its
decision.
3. Petitioning for declaratory judgment under HAR
§ 12-42-9 would not be futile
ALU has not shown that a declaratory judgment petition
under HAR § 12-42-9 would be futile. See Poe v. Haw. Lab. Rels.
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Bd., 97 Hawaiʻi 528, 536, 40 P.3d 930, 938 (2002) (“Whenever
exhaustion [of administrative remedies] will be futile it is not
required.” (quoting 4 Kenneth C. Davis, Administrative Law
Treatise § 26:11 (2d ed. 1983) (alteration in original)); In re
Doe, 96 Hawaiʻi 272, 287 n.20, 30 P.3d 878, 893 n.20 (2001)
(“[T]he burden of proving that any particular administrative
remedy is futile rests with the litigant seeking to bypass
it.”).
ALU argues that petitioning for declaratory judgment
under HAR § 12-42-9 would be futile because declaratory rulings
may not be used to review already-made agency decisions.
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City
& Cnty. of Honolulu (“CARD”), 114 Hawai‘i 184, 196—97, 159 P.3d
143, 155—56 (2007) (holding that declaratory rulings are “not
intended to allow review of concrete agency decisions for which
other means of review are available”). 20
HLRB argues that ALU’s citation to CARD is inapposite.
In CARD, petitioners sought a declaratory ruling under HRS
20 ALU does not specify which “other means of review are available”
that would preclude the applicability of declaratory judgment in this case.
CARD, 114 Hawai‘i at 197, 159 P.3d at 156. By analogy to the facts of CARD,
it appears that ALU is referring to an appeal of HPERB’s 1972 decisions under
HRS § 91-14.
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§ 91-8 to challenge a specific, final agency ruling. Id. But
here, there is no definitive ruling or order by HLRB on the
issue of whether graduate assistants are “employee[s]” under HRS
§ 89-2. Therefore, ALU’s prospective petition for declaratory
judgment before HLRB would not be a “second bite at the apple,”
because no first bite was taken.
We agree with HLRB. CARD does not preclude ALU from
petitioning for declaratory judgment from HLRB. In CARD, we
distinguished between “a method of review of a determination
already made,” and “a method of requesting an agency to make a
determination.” Id. at 199, 159 P.3d at 158 (quoting Wis.
Fertilizer Ass’n v. Karns, 158 N.W.2d 294, 300 (Wis. 1968)).
Declaratory judgment was not appropriate for “review of agency
determinations that have already been made and which have not
been timely appealed.” Id. at 196, 159 P.3d at 155. But
declaratory judgment is appropriate when “requesting an agency
to make a determination” on a question that has not yet been
resolved. Id. at 199, 159 P.3d at 158 (quoting Karns, 158
N.W.2d at 300). As we have explained, HLRB has not definitively
ruled that graduate assistants are not “employee[s]” under HRS
§ 89-2, so the declaratory judgment action here is not
“review[ing] . . . a determination already made” within the
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meaning of CARD. Id. ALU may therefore ask HLRB for a
determination on the questions raised in this action: whether
graduate assistants fall within the definition of “employee[s]”
under HRS § 89-2, whether graduate students may be included in
Unit 13 under HRS § 89-6, or whether HPERB’s 1972 decisions
continue to exclude graduate assistants from Units 7 and 8 given
that their duties have allegedly changed.
Counsel for HLRB represented at oral argument that if
ALU were to bring a HAR § 12-42-9 petition, none of the members
of HLRB’s current board would find that HPERB’s 1972 rulings
preclude HLRB from considering whether ALU’s members are
employees under HRS § 89-2. 21 Given that the import of Decision
Nos. 21 and 25 is at best unclear, that HAR § 12-42-9 is open to
“interested person[s] or organization[s]” like ALU, and that
HLRB has indicated that ALU is not precluded from a declaratory
21 Counsel for HLRB represented to the court that the three members
of its board at the time of oral argument (held January 19, 2023), all
believe that Decision Nos. 21 and 25 do not have preclusive effect on the
question of whether graduate assistants are “employee[s]” under HRS § 89-2
because HLRB has not ruled on that issue. Oral Argument at 41:03,
https://www.courts.state.hi.us/oral-argument-before-the-hawaii-supreme-court-
scap-XX-XXXXXXX [https://perma.cc/KBX5-8J9L]. Counsel for HLRB noted that
one member of the board (the holdover board member) may change before a
proceeding raising those issues, and that it could not make any
representations as to the new board member’s position. Id. at 41:03, 42:00.
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judgment action, we conclude that the § 12-42-9 procedure
remains available to ALU. Accordingly, the circuit court was
correct to hold that it lacked jurisdiction to issue a
declaratory judgment.
B. The Circuit Court Erred in Dismissing BOR on the Basis of
HRS § 304A-108(a), but the Error was Harmless
The circuit court granted HLRB’s motion to dismiss on
the ground that it had no jurisdiction over ALU’s action, then
granted BOR’s motion to dismiss on the basis that BOR was not a
proper party under HRS § 304A-108(a). 22 Having granted these two
motions to dismiss, the circuit court issued a Final Judgment
dismissing the case. The circuit court erred in dismissing BOR
on the basis of HRS § 304A-108(a) after it had determined it had
no jurisdiction over the action. Norris v. Six Flags Theme
Parks, Inc., 102 Hawaiʻi 203, 207, 74 P.3d 26, 30 (2003) (noting
22 HRS § 304A-108(a) provides:
The university may sue and be sued in its corporate
name. Notwithstanding any other law to the contrary, all
claims arising out of the acts or omissions of the
university or the members of its board of regents, its
officers, or its employees, including claims permitted
against the State under chapter 661, part I, and claims for
torts permitted against the State under chapter 662, may be
brought only pursuant to this section and only against the
university. . . .
(Emphasis added.)
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that “jurisdiction should be determined before consideration of
the merits of any claim or defense”); HRCP Rule 12(h)(3) (2018,
last amended January 1, 2000) (“Whenever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action.”).
The circuit court’s error, however, was harmless. 23
Reyes v. Kuboyama, 76 Hawaiʻi 137, 140, 870 P.2d 1281, 1284
(1994) (“[W]here the circuit court’s decision is correct, its
conclusion will not be disturbed on the ground that it gave the
wrong reason for its ruling.” (citing Brooks v. Minn, 73 Haw.
566, 576—77, 836 P.2d 1081, 1087 (1992))).
V. CONCLUSION
Though we recognize that ALU spent several years in
pursuit of collective bargaining rights for its members through
this lawsuit, the circuit courts cannot entertain a declaratory
judgment action until ALU has exhausted its administrative
23 The circuit court also erred when it stated in its order granting
BOR’s motion to dismiss that State had joined BOR’s motion to dismiss. State
joined HLRB’s motion to dismiss, not BOR’s. This error was also harmless.
The circuit court reached the correct result when it dismissed the suit in
its entirety.
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remedies. Accordingly, we affirm the circuit court’s
January 28, 2022 Final Judgment dismissing the action.
Lance D. Collins, and /s/ Mark E. Recktenwald
Bianca K. Isaki,
for appellants /s/ Paula A. Nakayama
Academic Labor United,
Ashley Hi͑ilani Sanchez, /s/ Sabrina S. McKenna
Kawaena͑ulaokalā Kapahua,
and Cameron Grimm /s/ Todd W. Eddins
Joseph F. Kotowski III, /s/ Michael D. Wilson
for appellee
Board of Regents of the
University of Hawai͑i
Midori K. Hirai,
Linda K. Goto (on the briefs),
for appellee
Hawai͑i Labor Relations Board
Richard H. Thomason,
James E. Halvorson (on the briefs),
for appellee
State of Hawai͑i
29