In re: Hawaii Fire Fighters Association and Blangiardi ( 2021 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2021
07:55 AM
Dkt. 79 MO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF HAWAII FIRE FIGHTERS ASSOCIATION,
IAFF, LOCAL 1463, AFL-CIO Complainant-Appellant-Appellant,
and
RICK BLANGIARDI, MAYOR, CITY AND COUNTY OF HONOLULU;
LIONEL CAMARA, JR., ACTING FIRE CHIEF,
CITY AND COUNTY OF HONOLULU;
HONOLULU FIRE DEPARTMENT, CITY AND COUNTY OF HONOLULU;
and CITY AND COUNTY OF HONOLULU,
Respondents-Appellees-Appellees,
and
HAWAII LABOR RELATIONS BOARD; KERRY KOMATSUBARA;
SESNITA A.D. MOEPONO; and J N. MUSTO (2016-001),
Agency-Appellees-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 16-1-1390-07)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Complainant-Appellant-Appellant Hawaii Fire Fighters
Association, IAFF, Local 1463, AFL-CIO (HFFA or the Union)
appeals from the November 7, 2017 Final Judgment (Judgment)
entered by the Circuit Court of the First Circuit (Circuit
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Court),1 in favor of Respondents-Appellees-Appellees Rick
Blangiardi, Mayor,2 City and County of Honolulu; Lionel Camara,
Jr., Acting Fire Chief,3 City and County of Honolulu; Honolulu
Fire Department, City and County of Honolulu (HFD); and City and
County of Honolulu (collectively, the City), and Agency-Appellee-
Appellee Hawaii Labor Relations Board (HLRB or the Board),
including Kerry Komatsubara, Sesnita A.D. Moepono, and J.N. Musto
(collectively, the Agency). HFFA also challenges the Circuit
Court's October 19, 2017 Order Affirming [HLRB's] Findings of
Fact [(FOFs)], Conclusions of Law [(COLs)], and Decision and
Order Dated June 21, 2016 (Order Affirming HLRB), and November 7,
2017 Notice of Entry of Final Judgment.
This appeal arises out of a Prohibited Practice
Complaint (Complaint) filed by HFFA with the Board, which alleged
that HFD failed to properly consult and/or negotiate with HFFA
regarding implementation of a Rapid Intervention Team (RIT) fire
fighter training program, in violation of various provisions of
Hawaii Revised Statutes (HRS) Chapter 89, as well as the parties'
collective bargaining agreement (CBA). Upon conclusion of
multiple evidentiary hearings on the Complaint, the Board issued
1
The Honorable Keith K. Hiraoka presided.
2
Pursuant to Rule 25(d) of the Hawai#i Rules of Civil Procedure
(HRCP), Mayor Rick Blangiardi is substituted for former Mayor Kirk Caldwell.
3
Pursuant to HRCP Rule 25(d), Acting Fire Chief Lionel Camara, Jr.
is substituted for former Fire Chief Manuel Neves ( Chief Neves).
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its FOFs, COLs, and Decision and Order (Decision 482), finding no
prohibited practice by HFD and dismissing the Complaint in its
entirety.
HFFA appealed to the Circuit Court, which affirmed
Decision 482. HFFA timely filed a notice of appeal to this court
on November 13, 2017, contending that the Circuit Court erred in
affirming Decision 482.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues and
arguments raised by the parties, we affirm.
I. BACKGROUND
A. Underlying Facts
On February 4, 1972, HFFA was certified as the
exclusive representative for State of Hawai#i fire fighters,
bargaining unit 11 (BU 11), consisting of supervisory and non-
supervisory employees at Hawaii's fire departments.4 The
Certification Order provided that the City and County of
Honolulu, along with the counties of Hawai#i, Kaua#i, and Maui,
was required to "bargain collectively with [HFFA] and enter into
a written agreement with [HFFA] with respect to wages, hours, and
other terms and conditions of employment which are subject to
negotiations under the [Hawai#i Public Employment Relations
4
Pursuant to the Certification of Exclusive Bargaining
Representative and Order to Negotiate (Certification Order), BU 11 does not
include: "Administrative and Service Bureau Captain, Service Officer, Fire
Suppression Operations Commander, Chief, Deputy Chiefs, Hawaii Battalion
Chiefs, Fire Division Commander No. F-149, and all others."
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Act]." The CBA at issue in this case was in effect from July 1,
2011, to June 30, 2017.
On August 5, 2014, HFD issued a Special Notice,5 SN-14-
201, instructing all uniformed personnel to complete mandatory
online International Association of Fire Fighters (IAFF) Fire
Ground Survival (FGS) training and informing them of three days
of FGS field training to be conducted that November by HFD
instructors. A follow-up Special Notice, SN-14-213, issued the
next day, invited fire fighters to sign up for "Train-the-
Trainer" training to become instructors for the planned field
course. Following consultation discussions between HFD and HFFA,
the FGS field training course began in approximately February
2015.
In April of 2015, HFD started planning an RIT training
program6 to build on the FGS training. On October 16, 2015, HFD
5
A Special Notice is "a written notice that disseminates or
distributes information" to HFD personnel. Chief Neves testified that it is
standard practice for Special Notices to be sent to the Union and estimated
that approximately 300 or 400 Special Notices are issued by HFD each year.
6
RIT training is a National Fire Protection Association ( NFPA)
standard designed to promote the "safety of all fire suppression personnel"
and "provide a constant, sustainable rapid intervention capability at the
emergency scene." HFD does not adopt NFPA standards per se but uses them as
best practice guidelines. Chief Neves testified that some form of RIT
training had been part of HFD policy for approximately 10 to 15 years, but
that the training program which began in 2015 was the first course implemented
by HFD specifically to prepare fire fighters to be part of RITs, in accordance
with NFPA standards.
Per the subsection entitled "RIT" of HFD's "Policy & Procedures
Manual, Chapter 4-Fire Operations, Article 3-Emergency Response, Section 2-
Safety":
RIT. The [Incident Commander] shall provide personnel
for the rescue of members operating at emergency incidents
(continued...)
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issued a Special Notice, SN-15-179, inviting fire fighters to be
trained as instructors for the planned RIT training. The Special
Notice specifically provided that "[a]ppropriate compensation for
off-duty attendance is authorized." On November 20, 2015, HFD
issued a Special Notice, SN-15-201, indicating the 33 fire
fighters who were selected to become RIT trainers and providing
that they were to attend a five-day "Train-the-Trainer Training"
from December 7 to 11, 2015. All of the selected fire fighters
were part of BU 11.
Both Chief Neves and Assistant Chief Socrates Bratakos
(AC Bratakos) testified before the Board that HFD communicated
its intent to conduct RIT training to Union representatives at a
January 4, 2016 meeting, and that the parties discussed creating
a working group for the program.7 Chief Neves testified further
that while HFD did not believe the RIT training required
consultation, it was HFD's desire to "open" the planning process
and involve HFFA "from the get-go." On January 7, 2016, HFD sent
HFFA President Robert Lee (President Lee) a letter regarding RIT
(...continued)
if the need arises. A RIT shall consist of at least four
members and be available to rescue downed, trapped, lost, or
disorientated fire fighters during emergency operations. . .
A RIT shall be established at every confirmed building
fire and for any other incident where an extreme life safety
hazard exists for responding fire fighters.
7
Chief Neves testified that the January 4, 2016 meeting was part of
a series of monthly meetings with HFFA, which began in October, 2015.
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training, announcing HFD's desire to form a working group and
requesting HFFA designate its representatives for the group.
By letter dated January 11, 2016 (January 11 Letter),
HFFA requested the following information regarding the RIT
working group:
1. What is meant by 'Working Groups?';
2. What are these group's [sic] charge?;
3. What are the policy, guidelines, and criteria, if any,
provided to the groups to develop recommendations?;
4. What authority does these groups [sic] have in
selecting other BU11 members in the process; and
5. What remuneration, if any, is given to BU11 members
who participate in these groups.
By letter dated January 15, 2016 (January 15 Letter),
HFFA responded to HFD's request to form a working group, stating
HFFA's position that a working group was "premature in light of
additional information needed in order to thoroughly discuss all
aspects of the [RIT] Training working group." The January 15
Letter also requested consultation on the RIT training program
and its curriculum, and stated that HFFA would contact HFD to
schedule a consultation meeting after receipt of the requested
information.
On January 20, 2016, HFD responded to the January 11
Letter, providing answers to each of the questions posed therein.
On January 27, 2016, HFD responded to the January 15 Letter: (1)
incorporating by reference the answers provided in its preceding
response; (2) indicating that HFD would produce the requested
materials on the RIT curriculum in advance of the monthly
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HFD/HFFA meeting on February 8, 2016; and (3) noting that due to
the "time sensitive nature" of the RIT program, HFD would like to
schedule a consultation meeting for the week beginning February
16, 2016. On February 3, 2016, HFD emailed HFFA a draft
curriculum, schedule, and instructor list for the RIT program.
On February 4, 2016, HFFA sent HFD an acknowledgment
(February 4 Letter) of HFD's January 20 and January 27 letters,
entitled "[HFD] Working Groups." Therein, HFFA demanded
immediate "consultation on the purpose and function of HFD
Working Groups," and submitted a series of questions regarding
the working group and RIT program which were to be answered in a
requested "proposal" from HFD, to be produced by the following
day. The February 4 Letter did not contain any mention of the
materials HFD provided the previous day.
AC Bratakos testified, and the Board found, that on
February 11, 2016, HFD discussed the RIT program with HFFA and
conducted a "walkthrough" of the facility where the training was
to take place, at which time no objections were raised.8
On February 24, 2016, HFD responded to the February 4
Letter, providing answers to each of the questions posed by HFFA,
incorporating by reference the RIT curriculum, schedule, and
instructor list emailed to HFFA on February 3rd, and attaching an
Emergency Action Plan for the training. HFD also reiterated its
8
President Lee and at least one other HFFA board member were in
attendance.
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invitation for HFFA to participate in the working group and
assist with development of the training program. HFD stated that
it would "request a consultation meeting with [HFFA] when the RIT
Working Group discovers issues that significantly affect wages,
benefits, or working conditions." Chief Neves testified, and the
Board found, that while a working group was formed by HFD, HFFA
did not participate.9 The Board found:
At [that] point, HFD determined that it could not wait
for HFFA to participate in the formulation of the RIT
Program protocols (there were issues with the lapse of
funding by June 30, 2016, and more importantly, starting
training was crucial for the safety of the OPS personnel),
and HFD started to implement the RIT Program.
On March 1, 2016, HFD issued a Special Notice, SN-16-
044, to all fire fighters providing for mandatory participation
in the RIT course for all Fire Operations (OPS) personnel,10
"scheduled for off-duty attendance" beginning April 2016, with
"appropriate compensation authorized." The Special Notice
further stated:
[HFD] RIT instructors will conduct this training,
which encompasses self-survival procedures, panic
management, communications, low/reduced profile rescues,
disentanglement maneuvers, upper floor rescue techniques,
and RIT operations. Training shall be attended on two
consecutive days. Students who successfully completed the
[IAFF] FGS course that was offered in 2015 and also complete
this RIT course will receive an FDTN [(Fire Department
9
At the time of HFD's February 24, 2016 letter to HFFA, the working
group consisted of AC Bratakos and the Battalion Chiefs and Fire Captains from
Fire Operations and the Training and Research Bureau who were responsible for
the training.
10
OPS personnel includes all fire fighters that work in HFD's fire
stations, i.e., HFD's fire suppression forces. RIT training was made
voluntary for bureau personnel, i.e., those not engaged in fire suppression
activities.
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Training Network) 11] Certificate of Completion.
A schedule for the RIT training was attached to Special Notice
SN-16-044.
At the behest of HFFA, Captain Thomas Reppuhn (Captain
Reppuhn), an HFFA board member and representative on the joint
HFD-HFFA safety committee,12 visited the training facility where
RIT training was to take place to evaluate safety aspects during
a "test run" of the program on March 11, 2016. That same day,
Captain Reppuhn advised Assistant Chief Scott Lawton (AC Lawton),
by email, that he had serious concerns regarding the potential
for bodily injury to fire fighters participating in the training
and demanded an emergency meeting of the safety committee.13 AC
Lawton replied later that day to schedule the meeting and solicit
further information regarding Captain Reppuhn's concerns so that
HFD could address them "immediately."
On March 15, 2016, the safety committee convened to
discuss the RIT training program. At the meeting, Captain
Reppuhn stated that based on his observations of the March 11
test run, it was HFFA's position that the training should be
suspended pending "consultation with HFFA" and a "thorough safety
11
FDTN is an organization which provided the RIT curriculum
implemented by both Maui Fire Department and Federal Fire Fighters stationed
in Hawai#i prior to adoption by HFD.
12
Captain Reppuhn was joined at the training facility by fellow HFFA
Board Member Bill Thornock.
13
Captain Reppuhn testified that he did not notify anyone at the
training facility of his safety concerns.
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review of [the] program." AC Lawton testified, and the Board
found, that both he and Battalion Chief Ryan Young (BC Young)
asked Captain Reppuhn to share specifics on his concerns
regarding the RIT program and that Captain Reppuhn refused to do
so. HFD did not resolve to suspend the program but agreed to
schedule a walkthrough of the program for March 28, 2016.
After the emergency meeting, Captain Reppuhn emailed a
list of his safety concerns to President Lee, along with a
summary of the meeting. Captain Reppuhn recommended HFFA contact
Hawaii Occupational Safety and Health (HIOSH) to do an
inspection. In recapping the safety meeting, Captain Reppuhn
commended BC Young for his "immediate intervention" regarding RIT
safety protocols, stating BC Young (1) "identified numerous
concerns," (2) gave "recommendations to HFD to make corrections,"
and (3) had already addressed several of the issues identified at
the March 11 test run.
On March 21, 2016, HFFA filed a "Formal Complaint
Related to the Safety and Health of Hawaii Fire Fighters" with
HIOSH (HIOSH Complaint). The gravamen of the HIOSH Complaint was
that "[t]he RIT program as it is currently being implemented,
threatens physical harm and creates an environment whereby
imminent danger exists that can reasonably cause serious physical
harm and/or death." HFFA requested that HIOSH conduct a site
inspection and review of the RIT program in the presence of its
representatives and asked HIOSH to require full disclosure from
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HFD regarding the training to be reviewed by HIOSH to "insure no
additional safety hazards exists [sic]." Appended to the HIOSH
Complaint was a "Labor Agreement Grievance Form," apparently
filed March 15, 2016, alleging violations of several sections of
the CBA and demanding consultation, negotiation, and suspension
of the RIT training. After exchanges between HIOSH, HFD, and the
Union regarding the HIOSH Complaint, HIOSH found HFD's internal
investigation and corrective actions to be "satisfactory" and
closed the HIOSH Complaint on April 20, 2016.
On March 22, 2016, while the HIOSH Complaint was still
pending, the Union sent HFD a letter demanding HFD cease
implementation of the RIT training and make the training
voluntary, pending negotiation with the Union as to whether the
training may be mandatory. The following day, Captain Reppuhn
sent HFD a similar letter in his capacity as a Union
representative on the safety committee.
On March 28, 2016, HFD held a two-hour walkthrough of
the RIT training facility with Captain Joseph Condlin (Captain
Condlin), who led the training, for the safety committee, with
President Lee and other representatives of HFD and HFFA in
attendance. Captain Reppuhn testified that the walkthrough
consisted of demonstrations of several training elements and was
followed by a meeting wherein the parties discussed their
respective positions. On April 1, 2016, HFFA wrote to Chief
Neves, reiterating its demand for consultation. On April 12,
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2016, the safety committee met to follow-up on the March 28
walkthrough, among other issues; however, Captain Reppuhn
testified that HFFA acquiesced to HFD's position that there was
"no reason to discuss [RIT]" given that the HIOSH Complaint was
pending.
B. Board Proceedings
On March 30, 2016, HFFA filed the prohibited practice
Complaint at issue in this appeal, challenging HFD's adoption and
implementation of the RIT training program. The Complaint
alleged that HFD's intentional and willful failure and/or refusal
to consult or negotiate with HFFA regarding the RIT program (1)
violated various provisions of the BU 11 CBA pertaining to
"Recognition,"14 (2) violated the duty to bargain in good faith
14
The Complaint alleged violations of "Section 1(A), (B) and/or (C)
of the [CBA]." Section 1 of the CBA states, in relevant part:
A. Recognition.
The Employer recognizes the Union as the certified
exclusive bargaining representative of all fire fighters,
including supervisory personnel, of the State and its
political subdivisions whose principal duties are to prevent
and respond to fires, attend to search and rescue, HAZMAT
and medical emergencies, except for officers and Employees
who are excluded or may be excluded from the bargaining unit
by law and the Hawaii Labor Relations Board.
. . . .
B. Consultation.
All matters affecting Employee relations, including
those that are, or may be, the subject of a regulation
promulgated by the Employer or any Personnel Director, are
subject to consultation with the Union. The Employer shall
consult with the Union prior to effecting changes in any
major policy affecting Employee relations.
C. Mutual Consent.
No changes in wages, hours or other conditions of
employment contained herein may be made except by mutual
consent.
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over changes in wages, hours, and other terms and conditions of
employment under HRS § 89-9(a) (Supp. 2015) and the duty to
consult under HRS § 89-9(c) (2012),15 (3) constituted "bad
faith," and (4) constituted prohibited labor practices under HRS
§ 89-13(a)(1), (5), (7), and (8) (2012).16
15
HRS § 89-9 provides, in relevant part:
HRS § 89-9 Scope of negotiations; consultation. (a)
The employer and the exclusive representative shall meet at
reasonable times, . . . and shall negotiate in good faith
with respect to wages, hours, the amounts of contributions
by the State and respective counties to the Hawaii employer-
union health benefits trust fund to the extent allowed in
subsection (e), and other terms and conditions of employment
which are subject to collective bargaining and which are to
be embodied in a written agreement as specified in section
89-10, but such obligation does not compel either party to
agree to a proposal or make a concession.
. . . .
(c) Except as otherwise provided in this chapter, all
matters affecting employee relations, including those that
are, or may be, the subject of a rule adopted by the
employer or any director, shall be subject to consultation
with the exclusive representatives of the employees
concerned. The employer shall make every reasonable effort
to consult with exclusive representatives and consider their
input, along with the input of other affected parties, prior
to effecting changes in any major policy affecting employee
relations.
16
HRS § 89-13 (2012) provides, in relevant part:
HRS § 89-13 Prohibited practices; evidence of bad
faith. (a) It shall be a prohibited practice for a public
employer or its designated representative wilfully to:
(1) Interfere, restrain, or coerce any employee in
the exercise of any right guaranteed under this
chapter;
. . . .
(5) Refuse to bargain collectively in good faith with the
exclusive representative as required in section 89-9;
. . . .
(7) Refuse or fail to comply with any provision of this
chapter; [or]
(continued...)
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On April 11, 2016, HFD filed an Answer to the
Complaint, denying all legal conclusions set forth therein,
asserting a variety of defenses,17 and requesting dismissal of
the Complaint as well as attorneys' fees and costs.
On April 15, 2016, HFFA filed a Motion for
Interlocutory Relief seeking to enjoin, restrain, and prohibit
HFD from "further unilateral modification and violation of the
[CBA], and further violations of [HRS Chapter 89], pending the
issuance of a final determination on the instant [Complaint]."
Attached thereto, HFFA submitted, inter alia, Declarations of
Thomas Reppuhn and Irene L.A. Pu#uohau, along with exhibits
depicting alleged safety issues regarding the RIT program. HFD
opposed the motion.
The Board held evidentiary hearings on May 11-12, 16,
and 18-19, 2016. Six witnesses were called and examined by both
parties and HLRB: Chief Neves; AC Lawton; AC Bratakos; Captain
Reppuhn; President Lee; and Captain Condlin.
On June 21, 2016, the Board entered Decision 482,
finding for HFD and dismissing HFFA's Complaint. The Board
(...continued)
(8) Violate the terms of a collective bargaining
agreement[.]
17
HFD's Answer asserted the following defenses: (1) the Complaint
failed to state a claim upon which relief can be granted; (2) HLRB lacked
subject matter jurisdiction to hear the Complaint; (3) HFFA was precluded from
relief by the equitable doctrines of waiver, acquiescence, election,
untimeliness, estoppel, unclean hands and laches; (4) HFFA was precluded from
relief based on its failure to exhaust mandatory and available contractual
remedies; and (5) HFFA failed to establish a violation of HRS Chapter 89
and/or the CBA.
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framed the question presented as follows: "Did [HFD] commit a
'prohibited practice' by adopting and implementing a program to
train fire fighters to rescue trapped or disoriented fire
fighters without negotiating or consulting with the [HFFA]?" The
Board concluded that HFD's adoption of the training program did
not constitute a prohibited practice.
Decision 482 contained extensive FOFs regarding, inter
alia, the CBA, the nature and necessity of RIT training, HFD's
attempts to engage the Union in a working group to develop and
implement the training, the Union's safety concerns regarding the
training, and the corresponding HIOSH Complaint and HFD's
corrective actions.
Based on its FOFs, the Board found and concluded:
(a) The RIT Program is not specialized training, but
instead is standard training for OPS personnel. The RIT
Program is subject to the consultation requirement, and not
the negotiation or mutual consent requirement. First, the
CBA provides in CBA Section 48.B that HFD may require
training as long as the fire fighters are compensated for
working their days off. There is no requirement for mutual
consent or negotiation. Second, and more important, HFFA
treated the RIT Program as a subject of consultation and not
negotiation. Finally, and most importantly, HFFA failed in
its burden of showing, factually and legally, that the RIT
Program was subject to the negotiation requirement.
(b) On January 7, 2016, HFD invited HFFA "to form a
working group for the [RIT Program]." As outlined above,
HFFA did not accept HFD's invitation to discuss the RIT
Program at its inception. Subsequently, HFD did, in fact,
request consultation in its January 27, 2016 letter to HFFA.
However, rather than engaging in consultation over the
implementation of the RIT Program, HFFA changed tactics and
requested consultation on the issue of working groups.
Thus, although HFD attempted to engage HFFA in discussions
over the RIT Program in January 2016, HFFA did not consult
and engaged in efforts to stop implementation of the RIT
Program.
Moreover, the Board finds that HFD's repeated efforts
to have HFFA participate in the RIT Program working group,
even though not called "consultation," amounted to a request
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to engage in meaningful discussions or dialog regarding
implementation of the RIT Program. In substance, if not
form, HFD asked HFFA to be involved in the formulation of
the procedures and protocols for the implementation of the
RIT Program. For reasons not clear to the Board, HFFA
refused to participate. Therefore, in substance, HFD did,
in good faith, initiate the consultation process . HFFA, by
engaging in efforts to question the legitimacy of the
working group concept, was undermining the very purpose of
the consultation requirement -- to have the parties
meaningfully discuss issues to avoid disputes. For the
Board to rule otherwise and to accept the position taken by
HFFA (i.e., the use of a working group did not amount to
consultation) would undermine the utility of the
consultation process by "elevating form over substance," and
the Board refuses to do so.
(c) HFD did not violate its obligation to consult
with HFFA. Consultation does not require the agreement of
the parties. As stated by the Board in In the matter of
HGEA, AFSCME, Local 152, AFL-CIO, Complainant, and Linda
Lingle, et al., Respondents, Decision 468 (June 13, 2007) at
p. 9 (adopting the position taken in, and quoting from,
Hawaii Nurses Association, 2 HPERB 218 (1979)):
"Matters of consultation do not require a resolution
of differences. 'All that is required is that the
employer inform the exclusive representative of the
new or modified policy and that a dialogue as to the
merits and disadvantages of the new or proposed policy
or policy change take place.' Cites omitted."
The Board, then confirmed its adoption of the test
articulated in Decision No. 394, Hawaii Government Employees
Association, AFSCME, Local 152, AFL-CIO, VI HLRB 1 (1978).
Decision No. 394 requires management to comply with the
following factors:
"(1) [N]otice to the union, (2) on proposed personnel
practices and policies of a major, substantial and
critical nature, other than those requiring
negotiations, (3) in reasonable completeness and
detail, (4) requesting the opinion, advice or input of
the Union thereto, (5) listening to, comparing views
and deliberating together thereon (i.e., 'meaningful
dialog'), and (6) without requirement of either side
to concede or agreement on any differences or
conflicts arising or resulting from such
consultation."
Here, HFD, in fact, complied with the Decision 394
factors because:
(1) HFFA was notified (orally and in writing) in
January 2016 that, as part of its new training program, HFD
was contemplating the adoption of the RIT Program to better
equip OPS personnel to engage in fire fighter rescue. This
was early in the process. In addition, HFD proposed the
formation and use of the RIT working group to foster
discussions over the RIT Program. While the RIT working
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group was not intended to supplant consultation, it was the
start -- it was an opportunity to identify those issues
which required either consultation or negotiation and then
begin the appropriate process.
Furthermore, on March 11, 2016, when Captain Reppuhn
advised AC Lawton that he had serious safety concerns
regarding the RIT Program, HFFA did not disclose those
concerns to HFD, HFFA did not discuss those concerns with
HFD, and was, as of March 15, 2016, already preparing to
file the HIOSH complaint. If any party did not engage in
consultation, it would have been HFFA.
(2) While not subject to the negotiation requirement,
the RIT Program involved proposed training which was "major,
substantial and critical" to the safety of OPS personnel.
(3) Since the RIT Program was in its infancy, HFD
provided as much material as it could to HFFA. In addition,
HFFA and its members were well aware of the RIT Program
because of the initiation of the "train-the-trainer" program
initiated and completed in October or December 2015. Thus,
in its response to various inquiries from HFFA and by
initiating the "train-the-trainer" program, HFD provided
HFFA with available information with reasonable detail and
completeness.
(4) By proposing the RIT working group, HFD was
"requesting the opinion, advice or input of" HFFA. Again,
in substance, HFD was inviting HFFA to participate
meaningfully in the process of finalizing the implementation
of the RIT Program.
(5) There was no "meaningful dialog" because HFFA,
rather than engaging in discussions, sought to delay or
otherwise prevent the initiation of discussions.
(6) Finally, HFD never stated that the RIT working
group required that either side needed to agree. HFD
understood that consultation meant exactly that, i.e.,
seeking the input from HFFA on a crucially important safety
program.
Based on the foregoing, the Board finds that HFD
fulfilled its obligation to consult with HFFA over the RIT
Program implementation.
(d) HFFA failed to provide any factual basis for a
finding that HFD violated the CBA. Other than point to
[President] Lee's testimony that there may be:
"potential violations of Section 1. Recognition,
consult, negotiate; Section 4. Management Rights,
Respondents abuse their management rights; Section 6.
Prior Rights, Benefits and Perquisites, because
according to the Special Notice, the training can
impact where you are assigned; Section 12.
Promotions, because failing to attend or participate
in the full two days of the training could impact a
promotion, or future promotional opportunity; Section
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14. Duties, because the RIT training changes the
duties of a firefighter; Section 20. Hours of Work,
because Respondents are compelling employees to come
in or work on their scheduled days off; Section 21.
Overtime, clearly may be impacted; Section 30. Meals,
because the Special Notice requires employees to bring
in their own lunch; when it should be provided by the
Employer; Section 39. Safety and Health, because of
the misinterpretation by Scott Lawton; Section 43.
Equipment, could be impacted based on the employees
being provided the proper safety equipment during the
RIT training; Section 14. Employer Required Training,
because Respondents are misinterpreting what an
employer-required training is. (Italics added.)"
There are no facts to support a showing that there was
an actual violation of the CBA by HFD. Further, as
addressed above in detail, although the RIT Program was
mandatory, it was not "pass/fail" (as was the Maui training)
and was participatory only. The RIT Program was part of OPS
personnel regular training and was not a new minimum
requirement. Finally, all of the issues raised by
[President] Lee could have been discussed in detail in the
working group suggested by HFD in January 7, 2016. Thus,
the Board finds that there is simply no violation of the
CBA.
(e) There are no facts showing that HFD acted
wilfully, which is a required element to prove a prohibited
practice pursuant to HRS Chapter 89. Although there was
much evidence regarding the circumstances surrounding the
implementation of the RIT Program, there was no evidence to
show that HFD consciously, knowingly, and deliberately
intended to violate the provisions of HRS Chapter 89 or the
CBA. In fact, the whole intent of adopting and implementing
the RIT Program was to adequately train OPS personnel in
rapid intervention team techniques, procedures and equipment
to save lives and prevent serious injuries -- to help HFFA's
members when they become trapped or disoriented while
fighting a fire. This was prompted by, among other things,
Chief Neves losing a fire fighter, national efforts to
improve fire fighter safety, the implementation of rapid
intervention team training by Maui and Hawaii Counties
(without, apparently, objection by HFFA) and the Hawaii
based Federal Fire Fighters and the need to train fire
fighters in an operation required by HFD Policy -- rapid
intervention teams. In other words, OPS personnel need to
be properly and continuously trained because worker safety
in an inherently dangerous profession is a constant concern.
Thus, to make its rapid intervention teams effective in
emergency situations was HFD's motivation for training all
OPS personnel and HFD's motivation to adopt and implement
the RIT Program, and HFFA provided no evidence to the
contrary.
(f) With respect to HFFA's request for injunctive
relief, the Board finds that:
(1) The Board, based on the foregoing, finds and
holds that HFFA does not prevail on the merits. Thus, since
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HFFA cannot prevail on the merits, it is not entitled to
injunctive relief, whether preliminary or permanent.
(2) Further, there has been no showing of irreparable
harm. There are no worker safety issues extant with respect
to the HFD's Charles H. Thurston Fire Training Center where
the RIT training is conducted. There is no showing that the
OPS personnel, who must meet certain minimum fitness and
training requirements separate and apart from the RIT
Program, would be subject to any unreasonable risk of harm.
(3) Finally, it is clear that the public interest
overwhelmingly tips in favor of HFD. The purpose of the RIT
Program is to train HFD's OPS personnel (the personnel
actually fighting fires and who are the most at risk) in
rescue techniques and preparation to rescue their fellow
fire fighters. The purpose of the RIT Program is not to set
different or additional minimum qualifications but to
prepare HFD's personnel to save fire fighters who get into
trouble, i.e., to prevent or minimize the risk of line-of-
duty deaths and serious injuries.
HFFA was given the opportunity to comment upon and
actually be involved in developing protocols for the
implementation of the RIT Program through the RIT working
group. HFFA failed to cooperate and collaborate with HFD.
It cannot now be heard to complain.
(Emphasis added; footnotes omitted; format altered).
The Board entered, inter alia, the following COLs:
(a) The adoption and implementation of the RIT
Program, and the mandatory training required to implement
the RIT Program, are not topics subject to mandatory
bargaining. This is because:
(1) The CBA does not require negotiation over
employer required training so long as overtime is paid when
training occurs on employees' days off. HFFA could not
identify any provision which required negotiations over
required training.
(2) Pursuant to HRS § 89-9(d), by requiring OPS
personnel to attend required training sessions (with the
payment of overtime), HFD was exercising its management
rights. HFD retained the right to direct its employees,
maintain efficiency and productivity, and determine the
means, methods and personnel by which its operations were to
be conducted. Clearly, the adoption of the RIT Program and
its implementation through the mandatory RIT Program
training for OPS personnel was the exercise of a management
right (i.e., directing HFD's OPS personnel to attend
training, maintaining the efficiency of its personnel in
rescue operation and determining how rescue operations were
to be conducted and how its personnel were to be trained in
rescue techniques).
(b) The adoption and implementation of the RIT
Program was, however, subject to the "consultation"
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requirement. As outlined in detail above, HFD did not
violate its obligation to consult with HFFA. In fact, the
Board found that HFD attempted, early on, to engage
(through, for example, the proposed RIT working group) HFFA
in meaningful dialog or discussions regarding the RIT
Program. However, HFFA was not willing to participate,
listen and have meaningful dialog with HFD over the RIT
Program.
(c) Based on the foregoing, the Board concludes that
HFD, in implementing the RIT Program did not violate its
obligations under the CBA or HRS Chapter 89. There was
simply no showing of any violation by HFD.
(d) Further, there was no showing the HFD acted
wilfully. . . .
(Footnotes omitted; format altered).
Having determined that HFFA failed to establish by a
preponderance of the evidence that HFD committed a prohibited
practice, the Board concluded that HFFA was not entitled to any
of the requested relief and dismissed the Complaint in its
entirety. With respect to the RIT training program, the Board
ordered the parties to "engage in meet and confer" via the
working group, and that future disputes regarding the RIT program
were to be handled via the grievance process set forth in the
CBA.
On July 12, 2016, approximately three weeks after entry
of Decision 482, HFFA filed a motion for reconsideration pursuant
to HRCP Rule 59(e), arguing that the Board misconstrued and
misapplied HRS § 89-9(a) and (d) (2012 and Supp. 2015) (Motion
for Reconsideration). On July 22, 2016, the Board summarily
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denied the Motion for Reconsideration as untimely under HRCP Rule
59(e).18
C. Appeal to the Circuit Court
HFFA appealed from Decision 482 to the Circuit Court,
claiming that the substantial rights of BU 11 employees were
prejudiced by the decision and seeking reversal and modification
on the grounds that the decision was made:
(1) in violation of constitutional and statutory provisions,
(2) in excess of statutory authority or jurisdiction of the
agency, (3) made upon unlawful procedure, (4) affected by
other error of law, (5) clearly erroneous in view of the
reliable, probative and substantive evidence on the whole
record, and/or (6) arbitrary, capricious, and characterized
by abuse of discretion and a clearly unwarranted exercise of
discretion.
After briefing was complete, the Circuit Court heard
oral argument on September 21, 2017. At the close of oral
argument, the Circuit Court concluded that there was substantial
evidence in the record to support the FOFs and COLs contained in
Decision 482. The court affirmed Decision 482 and entered the
Order Affirming Decision, denying and dismissing HFFA's appeal
with prejudice. On November 7, 2017, the court entered Final
Judgment in favor of the City and the Agency.
On November 13, 2017, HFFA filed its notice of appeal
to this court.
II. POINTS OF ERROR
HFFA raises four points of error on appeal, contending
that the Circuit Court was wrong when it: (1) affirmed the
18
HFFA does not challenge this ruling.
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Board's findings and conclusions that the training of fire
fighters affecting their safety, health, and other terms of
employment were not mandatory subjects of bargaining; (2)
affirmed Decision 482 despite the City's unilateral changes to
existing terms of employment which constitute a refusal to
bargain in good faith under HRS § 89-9(a); (3) disregarded the
Union's contention that the Board erred as a matter of law over
the City's circumvention of the Union as the exclusive bargaining
agent of fire fighters; and (4) affirmed Decision No. 482 based
on the management rights clause in HRS § 89-9(d)(7), contrary to
the Constitution and legislative amendments.
III. APPLICABLE STANDARDS OF REVIEW
Our review of a circuit court decision on an appeal
from an administrative agency determination is a secondary
appeal; we must determine whether the circuit court was right or
wrong in its decision, applying the standards set forth in HRS
§ 91-14(g) (2012 and Supp. 2019) to the agency's decision.
Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d
469, 475 (2018).
HRS § 91-14 provides in relevant part:
(g) 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
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(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.
"Under HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4); questions
regarding procedural defects under subsection (3); findings of
fact under subsection (5); and an agency's exercise of discretion
under subsection (6)." Flores, 143 Hawai#i at 121, 424 P.3d at
476 (citations omitted). The Hawai#i Supreme Court has stated:
An agency's conclusions of law are reviewed de novo,
while an agency's factual findings are reviewed for clear
error. A conclusion of law that presents mixed questions of
fact and law is reviewed under the clearly erroneous
standard because the conclusion is dependent upon the facts
and circumstances of the particular case.
As a general matter, a finding of fact or a mixed
determination of law and fact is clearly erroneous when (1)
the record lacks substantial evidence to support the finding
or determination, or (2) despite substantial evidence to
support the finding or determination, the appellate court is
left with the definite and firm conviction that a mistake
has been made. Substantial evidence is credible evidence
which is of sufficient quality and probative value to enable
a person of reasonable caution to support a conclusion.
Del Monte Fresh Produce (Haw.), Inc. v. Int'l Longshore &
Warehouse Union, Local 142, 128 Hawai#i 289, 302, 287 P.3d 190,
203 (2012) (Del Monte II) (citation omitted).
Additionally, our review is tempered by the "principle
that the agency's decision carries a presumption of validity and
appellant has the heavy burden of making a convincing showing
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that the decision is invalid because it is unjust and
unreasonable in its consequences." Konno v. Cty. of Haw., 85
Hawai#i 61, 77, 937 P.2d 397, 413 (1997) (citation omitted).
"Where both mixed questions of fact and law are presented,
deference will be given to the agency's expertise and experience
in the particular field and the court should not substitute its
own judgment for that of the agency." Dole Hawaii Div.-Castle &
Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118
(1990) (citation omitted).
"Statutory interpretation is a question of law
reviewable de novo." Del Monte Fresh Produce (Haw.), Inc. v.
Int'l Longshore & Warehouse Union, Local 142, 112 Hawai#i 489,
499, 146 P.3d 1066, 1076 (2006) (Del Monte I) (citation and
internal quotation marks omitted). Statutory construction is
grounded in the following principles:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
When there is ambiguity in a statute, the meaning of
the ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative history,
or the reason and spirit of the law.
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State v. Abihai, 146 Hawai#i 398, 406, 463 P.3d 1055, 1063 (2020)
(citation omitted).
In addition, it is a "'well established rule of
statutory construction that, where an administrative agency is
charged with the responsibility of carrying out the mandate of a
statute which contains words of broad and indefinite meaning,
courts accord persuasive weight to administrative construction
and follow the same, unless the construction is palpably
erroneous.'" Del Monte I, 112 Hawai#i at 501 n.17, 146 P.3d at1078 n.17 (citation omitted).
IV. DISCUSSION
The pivotal issue here concerns whether HFD had a duty
to bargain with HFFA prior to implementation of the RIT training
program. HFFA contends that the Board was incorrect to conclude
that the adoption and implementation of the RIT training program
were not topics subject to mandatory bargaining. HFFA also
contends that the Board erred in concluding that HFD was
exercising its protected management rights in implementing the
program. Accordingly, HFFA maintains that the Circuit Court was
wrong to affirm the Board's denial and dismissal of HFFA's
Complaint.
Conversely, HFD submits that the Circuit Court's Order
Affirming HLRB must be affirmed because:
(1) the HLRB did not commit clear error when it found that
Employer did not have a duty to negotiate over RIT training,
(2) the Board's application of the management rights
doctrine under [HRS] § 89-9(d) was not clearly erroneous,
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(3) the Board properly found that Employer satisfied its
duty to consult, (4) HFFA failed to claim before the Board
that Employer committed a prohibited practice when it
solicited, trained, and used BU 11 members as trainers for
RIT training without prior negotiation or consultation, (5)
HFFA failed to prove that any violation of [HRS] Ch. 89 was
willful, (6) the Union's appeal is moot, and (7) none of
HFFA's other arguments have legal or factual merit.
A. Mootness
At the outset, we consider HFD's argument that the
instant appeal must be dismissed as moot given that the RIT
training is completed, leaving no "live" case and controversy for
this court to decide. "It is axiomatic that mootness is an issue
of subject matter jurisdiction." In re Thomas H. Gentry
Revocable Tr., 138 Hawai#i 158, 168, 378 P.3d 874, 884 (2016)
(internal quotation marks and citation omitted).
A case is moot where the question to be determined is
abstract and does not rest on existing facts or rights.
Thus, the mootness doctrine is properly invoked where
"events . . . have so affected the relations between the
parties that the two conditions for justiciability relevant
on appeal—adverse interest and effective remedy—have been
compromised."
In re Thomas, 73 Haw. 223, 226, 832 P.2d 253, 254 (1992)
(citation omitted).
The supreme court has held that an agency's
"[u]nchallenged findings are binding on appeal." Poe v. HLRB, 97
Hawai#i 528, 536, 40 P.3d 930, 938 (2002). Here, HLRB found that
"the initial training held pursuant to the RIT Program would be
followed by 'refresher' sessions." HLRB also found that the RIT
training was part of a larger scheme of ongoing training.
Considering that neither party challenges these findings -- which
are supported by HFD testimony during evidentiary hearings before
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the Board -- and that HFFA sought injunctive and declaratory
relief to prevent both the completed training as well as future
planned trainings, we conclude that relations between the parties
have not been so affected as to eliminate the requisite adverse
interest and effective remedy necessary for justiciability of
HFFA's claims. See In re Thomas, 73 Haw. at 225-26, 832 P.2d at
254; see also State v. Nakanelua, 134 Hawai#i 489, 502, 345 P.3d
155, 168 (2015). Thus, we conclude that the case is not moot.
B. Duty to Negotiate
HFFA argues that the Circuit Court erred in affirming
Decision 482 because the Board erred in concluding that HFD did
not have a duty to negotiate over its implementation of the RIT
program. Specifically, HFFA contends that "RIT training vitally
affected multiple terms and condition of employment of fire
fighters and therefore constituted mandatory subjects of
collective bargaining under [HRS § 89-9(a)]." In addition, HFFA
maintains that "the Board used the wrong standard to determine
what subject matters required bargaining by looking solely to the
[CBA] and [HRS § 89-9(d)] to determine the scope of bargaining."
HFFA's arguments are unpersuasive.
The Complaint alleged, inter alia, violations of HRS
§ 89-13(a)(1), (5), (7) and (8). In pertinent part, HRS § 89-
13(a)(1) prohibits wilful interference with the right to
collective bargaining under HRS Chapter 89. HRS § 89-13(a)(5)
makes it a prohibited labor practice for a public employer to
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"[r]efuse to bargain collectively in good faith with the
exclusive representative as required in section 89-9." HRS § 89-
13(a)(7) constitutes a general prohibition on wilful refusal or
failure to comply with the provisions of Chapter 89, while HRS
§ 89-13(a)(8) proscribes wilful violation of the terms of a CBA.
Concerning the duty to negotiate, HRS § 89-9(a)
requires public employers to
negotiate in good faith with respect to wages, hours, the
amounts of contributions by the State and respective
counties to the Hawaii employer-union health benefits trust
fund to the extent allowed in subsection (e), and other
terms and conditions of employment which are subject to
collective bargaining and which are to be embodied in a
written agreement as specified in section 89-10[.]
HRS § 89-9(c) states:
Except as otherwise provided in this chapter, all
matters affecting employee relations, including those that
are, or may be, the subject of a rule adopted by the
employer or any director, shall be subject to consultation
with the exclusive representatives of the employees
concerned. The employer shall make every reasonable effort
to consult with exclusive representatives and consider their
input, along with the input of other affected parties, prior
to effecting changes in any major policy affecting employee
relations.
HRS § 89-9(d),19 however, provides certain "management
rights," which are intended to avoid interference through
collective bargaining with certain employer's functions. See,
e.g., State of Haw. Org. of Police Officers ex rel. Rodrigues v.
Cty. of Kaua#i, 135 Hawai#i 456, 466, 353 P.3d 998, 1008 (2015).
The management rights doctrine establishes that mandatory
19
We note that subsequent to the filing of the Complaint, HRS
§ 89-9(d) was amended to more specifically state that an employer may not
invoke its management rights to preclude negotiations over "the implementation
of management decisions that affect terms and conditions of employment that
are subject to collective bargaining." 2018 Haw. Sess. Laws Act 10, Section
§ 1 at 37-38.
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collective bargaining may not "interfere with the rights and
obligations of the employer to," inter alia:
(1) Direct employees;
(2) Determine qualifications, standards for work, and the
nature and contents of examinations;
(3) Hire, promote, transfer, assign, and retain employees
in positions;
. . . .
(6) Maintain efficiency and productivity, including
maximizing the use of advanced technology, in government
operations; [and]
(7) Determine methods, means, and personnel by which the
employer's operations are to be conducted[.]
HRS § 89-9(d)(1)-(3) and (6)-(7).
Notwithstanding these management rights, it is well-
settled that an employer may not make a change to wages, hours,
or other terms and conditions of employment without first sitting
down at the negotiating table. See, e.g., Univ. of Haw. Prof'l
Assembly v. Tomasu, 79 Hawai#i 154, 159-61, 900 P.2d 161, 166-68
(1995). In any case, the charging party -- in this case HFFA --
has the burdens of proof and persuasion, both by a preponderance
of the evidence, to establish the alleged violation of HRS § 89-
9. See HRS § 91-10(5) (2012); Hawai#i Administrative Rules (HAR)
§ 12-42-8(g)(16).
Our supreme court has explained:
[HRS §§] 89–9(a), (c) and (d) must be considered in
relationship to each other in determining the scope of
bargaining. For if Section 89–9(a) were considered
disjunctively, on the one hand, all matters affecting the
terms and conditions of employment would be referred to the
bargaining table, regardless of employer rights. On the
other hand, Section 89–9(d), viewed in isolation, would
preclude nearly every matter affecting terms and conditions
of employment from the scope of bargaining. . . .
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Bearing in mind that the Legislature intended Chapter
89 to be a positive piece of legislation establishing
guidelines for joint-decision making . . . we are of the
opinion that all matters affecting wages, hours and working
conditions are negotiable and bargainable, subject only to
the limitations set forth in Section 89–9(d) .
United Pub. Workers, Local 646 v. Hanneman, 106 Hawai#i 359, 364,
105 P.3d 236, 241 (2005) (quoting Tomasu, 79 Hawai#i at 161, 900
P.2d at 168). In that connection, the United States Supreme
Court has held that the essential inquiry in determining the
scope of mandatory collective bargaining -- ordinarily limited to
"issues that settle an aspect of the relationship between the
employer and employees" -- is whether an employer's action
"vitally affects the 'terms and conditions' of [the bargaining
unit's] employment." Allied Chem. & Alkali Workers of America,
Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404
U.S. 157, 178-79 (1971).
While the first thing to be considered in interpreting
whether a term or condition of employment has been changed is the
plain language of the CBA, "past interpretations and
applications, and past practices, as part of the common law of
the shop, may be considered." See Gealon v. Keala, 60 Haw. 513,
521, 591 P.2d 621, 626 (1979) (citing, inter alia, United
Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574,
578-79 (1960) ("The [CBA] states the rights and duties of the
parties. It is more than a contract; it is a generalized code to
govern a myriad of cases which the draftsmen cannot wholly
anticipate.")).
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Here, the Board determined that the RIT training
program was a "standard training" within the terms and conditions
of the BU 11 CBA and that, to the extent that the program may
have an impact on hours, HFD was exercising its management rights
under HRS § 89-9(d)(1), (6), and (7). Relying on Section 48-B of
the CBA, which expressly contemplates "Employer-Required
Training" and states that "time spent by Employees who are
required by the Employer to attend training sessions on their
days off shall be considered as time worked," the Board found
that "HFD may require training as long as the fire fighters are
compensated for working their days off. There is no requirement
for mutual consent or negotiation." The Board thus concluded
that HFD complied with its obligations under HRS Chapter 89 and
the CBA in implementing the RIT training program.20
On appeal to this court, HFFA does not challenge the
Board's interpretation of Section 48-B or any of the Board's
FOFs, but rather invokes the unilateral change doctrine to argue
that HFD "made multiple changes to [other] existing terms and
conditions of employment without first giving notice and
conferring in good faith with HFFA." In particular, HFFA claims
that the RIT program effected four unilateral changes to terms
20
Although the Board concluded that the training was not subject to
mandatory bargaining, it found that HFD had a duty to consult with HFFA under
Section 1.B of the CBA, which tracks HRS § 89-9(c) and mandates consultation
over "all matters affecting employee relations." The Board determined that
HFFA treated the RIT training program as within the consultation requirement,
not the negotiation requirement, and that "HFD did, in fact, initiate and
fulfill its duty to consult."
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and conditions of fire fighters' employment: (1) requiring fire
fighters to complete training consisting of "hazardous work
assignments and 'search and rescue squad' type duties" without
providing hazardous duty pay; (2) requiring fire fighters to
attend training on their days off without first notifying and
negotiating with HFFA; (3) requiring fire fighters to bring a
meal to the training; and (4) requiring fire fighters to perform
instructional duties without providing additional pay. For the
reasons that follow, we conclude that this argument is without
merit.
Where, like here, there is a valid CBA in operation
under HRS Chapter 89, an exclusive representative asserting a
violation of an employer's duty to negotiate terms and conditions
of employment must establish by a preponderance of the evidence
that the employer's actions in fact changed said terms and/or
exceeded the bounds of what the parties negotiated. See Tomasu,
79 Hawai#i at 159, 900 P.2d at 166; see also HRS § 91-10(5);
Malahoff v. Saito, 111 Hawai#i 168, 189-91, 140 P.3d 401, 422-24
(2006) (legislative act delaying payment of wages did not invoke
"core subject of collective bargaining").
Upon conclusion of five days of hearings and submission
of pre- and post-hearing briefs, along with myriad pleadings,
declarations, exhibits, notices, and orders, the Board entered
the following pertinent "Factual Conclusions" regarding the
nature of the RIT program: (1) "The RIT program is not
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specialized training, but instead is standard training for OPS
personnel;" (2) "[t]he purpose of the RIT Program is not to set
different or additional minimum qualifications but to prepare
HFD's personnel to save fire fighters who get into trouble;" (3)
such training did not exceed the bounds of the CBA; (4) HFFA
treated the training as a subject of consultation, not
negotiation; (5) "HFFA failed to provide any factual basis for a
finding that HFD violated the CBA;" (6) there was no showing of
continuing worker safety issues or unreasonable risk of harm; and
(7) "there was no evidence to show that HFD consciously,
knowingly, and deliberately intended to violate the provisions of
HRS Chapter 89 or the CBA."
The issue of whether the RIT program constituted such a
material change in the terms and conditions of BU 11 fire
fighters' employment as to give rise to a duty to bargain
reflects a mixed question of fact and law, requiring application
of legal standards to the factual conduct of the parties. See
Del Monte I, 112 Hawai#i at 500, 146 P.3d at 1077 ("[w]hether a
party failed to bargain in good faith is a mixed question of fact
and law, as it consists of the application of the legal standard
. . . to the factual conduct of the parties" (citing, inter alia,
Price v. Zoning Bd. of Appeals, 77 Hawai#i 168, 172, 883 P.2d
629, 633 (1994) (defining mixed questions of law and fact as
conclusions of law that are "dependent upon the facts and
circumstances of the particular case"))); see also Del Monte II,
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128 Hawai#i at 302, 287 P.3d at 203 ("a mixed determination of
law and fact is clearly erroneous when (1) the record lacks
substantial evidence to support the finding or determination, or
(2) despite substantial evidence to support the finding or
determination, the appellate court is left with the definite and
firm conviction that a mistake has been made"). Thus, the
Circuit Court applied the correct standard of review in
determining whether the challenged findings were supported by
substantial evidence and we apply the same standard here.
1. Safety and Hazard Pay
HFFA contends first that "the training exercises
involved hazardous work assignments and 'search and rescue squad'
type duties" which (1) affected fire fighters' health and safety,
and (2) necessitated a pay increase per Section 44-D of the CBA,
governing pay for Hazardous Duty.21 This argument falls flat.
While there is no dispute that worker safety is a term
and/or condition of employment, as the Board's unchallenged FOF
3(a) states: "[f]ighting fires is an inherently dangerous
activity, and fire fighters must be properly trained in their
jobs to minimize, as much as possible, loss of life or serious
21
Section 44-D provides, in relevant part:
Employees assigned to units that are designated for search
and rescue responses which require them to be trained and/or
certified beyond that which is required for other members of
their class (and such is not recognized in the pricing of
their class), shall be paid a hazardous assignment
differential of 8.126% of the Employee's regular salary in
addition to base pay and applicable differentials and
premiums.
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injury." As such, the Board further found in FOF 3(b), and HFFA
does not contest, that fire fighter training is a "continuous
effort" for HFD and a "crucial function to reduce line-of-duty
deaths and injuries." HFFA also raises no argument against the
Board's determinations that RIT training was "crucial . . . for
safety purposes" and that "any time a company is dispatched to a
fire, there is a potential that a fire fighter could be
designated as part of a [RIT] . . . Thus, the necessity [is] to
train all [OPS] personnel in [RIT] techniques."22 To be sure,
the fact that the training was mandatory for all OPS personnel,
as opposed to designated search and rescue personnel trained
beyond the standard for others of their class, supports the
Board's finding that it was not specialized, and cuts against
HFFA's assertion that the Hazardous Pay provision of the CBA
applied.23
Although the Board found that the RIT training program
was HFD's first training course specifically geared to RITs, it
determined that the training effectively implemented an existing
HFD policy stating that "[an] RIT shall be established at every
confirmed building fire and for any other incident where an
extreme life safety hazard exists for responding fire fighters."
As Chief Neves testified, RITs had been a part of HFD policy for
22
HFFA's safety committee representative, Captain Reppuhn,
testified: "RIT training is an excellent idea" and addressed a "real situation
on the fireground that [fire fighters] need to be able to handle."
23
HFFA President Lee testified on direct examination that hazardous
pay was "[p]robably not" a concern for RIT training.
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at least 10 to 15 years, thus its adoption predated the CBA in
effect at the time of this particular training program's
implementation.
The Board concluded, and HFFA does not contest, that
the training's intensity reflects the serious and occasionally
dangerous nature of fire fighting generally, as well as the need
to prepare fire fighters for those situations.
Furthermore, the Board found, and HFFA does not
challenge, that fire fighters could elect to observe the physical
portions of the training and that these "observers" would still
receive a certificate of completion. The Board determined that
although some injuries were recorded, HFD satisfactorily
addressed the concerns raised in the HIOSH Complaint, the closure
of which HFFA did not appeal, and that there were no reports of
serious injury. The Board thus concluded that there were "no
worker safety issues extant" at the facility where RIT training
took place and there was no showing that OPS personnel would be
subject to any unreasonable risk of harm.
In light of the substantial evidence in the record
supporting the Board's findings regarding the nature of fire
fighter safety and training generally, and specifically as
concerning the RIT program, we conclude that the Board did not
clearly err in determining that HFFA failed to establish that OPS
personnel were subject to any unreasonable risk of harm which
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affected the terms and conditions of their employment and which
would have necessitated bargaining and/or hazard pay.
2. Hours
HFFA next contends that RIT training violated the Hours
of Work provision of the CBA by requiring fire fighters to attend
training on their off days.24 This argument is without merit.
As noted above, Section 48-B of the CBA, "Employer-
Required Training," expressly contemplates that HFD may require
training on employees days off and states that "time spent by
Employees who are required by the Employer to attend training
sessions on their days off shall be considered as time worked."
In addition, Section 21-A of CBA, concerning overtime work,
provides: "Overtime work will occur when an Employee performs
service at the direction of or as scheduled by proper authority
(including while attending training sessions required by the
employer)," and includes work "1. in excess of the normal
scheduled work hours on a day or shift; [and] 2. on the
Employee's scheduled day or shift off and there has been no
permanent change in the Employee's work schedule." Here, there
is no evidence that the RIT training program constitutes a
permanent change in schedule, or that HFD does not have authority
24
Section 20 of the CBA, concerning Hours of Work, states:
In the event the fire chief (employer) desires to
change a work schedule, the fire chief (employer) shall
notify the union (30) days prior to the tentative
implementation date of the anticipated change in order to
afford the union an opportunity to negotiate with the
employer with reference to said change.
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to direct fire fighters to work overtime as contemplated in
Section 21-A.
To the contrary, the Board found and the record
supports that HFD followed an established method in implementing
the RIT program. Like the FGS training which preceded it, RIT
training was mandatory, requiring a "certificate of completion,"
and included a rigorous field training course which involved
overtime scheduling and permitted fire fighters a choice of three
2-day periods, spread over several months, on which to complete
the training. HFFA did not complain or demand negotiation
regarding the FGS training and on appeal does not challenge the
Board's finding that HFD followed the FGS model in implementing
RIT training.
HFFA thus has not met its "heavy burden of making a
convincing showing that the decision is invalid because it is
unjust and unreasonable in its consequences." Konno, 85 Hawai#i
at 77, 937 P.2d at 413. Therefore, we conclude that the Board
did not clearly err in determining that the practice of requiring
fire fighters to complete training on days off did not affect
their hours, and therefore, that practice was not subject to
mandatory bargaining under HRS § 89-9(a), especially in light of
the fact that off-duty training is expressly allowed in the CBA.
3. Meals
HFFA argues that under CBA Section 30-A, employees
working beyond their normal shift are entitled to "a meal after
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two hours." In pertinent part, Section 30-A provides: "When
required to work beyond the normal work shift with less than one
work shift prior notice, an Employee shall be entitled to a meal
after the first two (2) hours and an additional meal at the end
of each five (5) hours of continuous work thereafter." Special
Notice SN-16-044 was issued on March 1, 2016, and informed fire
fighters that they were to schedule their training session by
March 21, 2016, with mandatory training to begin April 4, 2016.
HFFA produced no evidence that two weeks' notice did not meet the
"one work shift" condition for requiring BU 11 employees to bring
a meal for training scheduled during off days. This argument is
without merit.
4. Trainer Wages
Finally, HFFA contends that the 33 RIT trainers "did
not receive additional pay or compensation for their added
duties." The issue of trainer wages was not raised before the
Board, hence the issue is waived. See HRS § 89-14 (2012)
(providing that the Board has exclusive original jurisdiction
over any controversy concerning prohibited practices); HAR § 12-
42-42(a) & (f) (prohibited practice complaint must be filed
within 90 days of the alleged violation; only one complaint shall
issue arising from a single controversy);25 see also Hawai#i Rules
of Appellate Procedure (HRAP) Rule 28(b)(4)(iii) (appellant shall
25
Although a complaint may be amended in the discretion of the Board
prior to the issuance of a final order thereon, pursuant to HAR § 12-42-43,
the Complaint herein was not amended to allege trainer wages.
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state "where in the record the alleged error was objected to or
the manner in which the alleged error was brought to the
attention of the court or agency" or the point will be
disregarded); Waikiki Resort Hotel, Inc. v. City & Cty. of
Honolulu, 63 Haw. 222, 250, 624 P.2d 1353, 1372 (1981) ("the
general rule that an appellate court will consider only such
questions as were raised and reserved in the lower court applies
on review by courts of administrative determinations so as to
preclude from consideration questions or issues which were not
raised in administrative proceedings.").
C. Circumvention and Direct Dealing
Lastly, the Union contends that the Circuit Court was
wrong to affirm Decision 482 because HFD violated HRS § 89-
13(a)(1) and (7)26 by circumventing HFFA as the exclusive
bargaining representative of fire fighters and engaging in direct
dealing with employees. HFFA argues on appeal that the
solicitation of fire fighters to serve as instructors for the RIT
training program and to participate in the RIT working group
interfered, restrained, and/or coerced employees in their
exercise of the right to collective bargaining.
26
HRS § 89-13(a)(1) makes it a prohibited practice to wilfully
"[i]nterfere, restrain, or coerce any employee in the exercise of any right
guaranteed under [HRS Chapter 89]" and HRS § 89-13(a)(7) generally prohibits
wilful refusal or failure to comply with Chapter 89.
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First, HFFA's argument that the solicitation of fire
fighters to serve as instructors for the RIT program constituted
circumvention and/or direct dealing was not raised in the
Complaint filed with the Board.27 Instead, the Complaint alleged
that the City failed to properly consult and/or negotiate with
the Union when it issued Special Notice SN-16-044, which gave
notice of the RIT training program, and that the implementation
of the mandatory RIT training without proper consultation
constituted prohibited practices. There were no allegations
before the Board of circumvention or direct dealing concerning
the solicitation of instructors. Thus, this argument was waived.
See HRS § 89-14; HAR §§ 12-42-42 & 12-42-43; see also HRAP Rule
28(b)(4); Waikiki Resort Hotel, Inc., 63 Haw. at 250, 624 P.2d at
1372 (1981).
Similarly, HFFA did not allege in the Complaint that
HFD engaged in unlawful circumvention of the Union or direct
dealing with employees when it asked the Union, in the first
instance at a monthly meeting between HFD and HFFA, to
participate in a working group to look at, inter alia, the
curriculum, schedule, equipment, and safety measures for the RIT
training program. Indeed, there was no allegation of
27
As the City pointed out in its answering briefs in both the
primary appeal and this secondary appeal, this issue was raised by HFFA for
the first time on appeal to the Circuit Court. HFFA does not point to where
in the record any allegation of direct dealing or circumvention of the Union
was made. We reject HFFA's assertion that the allegations in the Complaint,
none of which assert direct dealing or circumvention of the Union, adequately
provided notice to the City or raised such issues for determination by the
HLRB.
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circumvention of the Union or direct dealing with employees as to
the RIT working group. While HFFA later pointed to HFD's request
that the Union participate in the RIT working group, it did so in
support of its argument that HFD failed to properly negotiate
and/or consult with the Union concerning the RIT training
program. Thus, we conclude that the argument that HFD
circumvented the Union and/or engaged in direct dealings with
employees was not raised before the Board and this argument is
waived.
V. CONCLUSION
For these reasons, we conclude that the Circuit Court
was not wrong to affirm Decision 482. The Circuit Court's
November 7, 2017 Judgment is affirmed.
DATED: Honolulu, Hawai#i, August 31, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Herbert R. Takahashi, Chief Judge
Rebecca L. Covert,
(Takahashi and Covert), /s/ Katherine G. Leonard
for Complainant-Appellant- Associate Judge
Appellant.
/s/ Karen T. Nakasone
Amanda Furman, Associate Judge
Ernest H. Nomura,
Gabriele V. Provenza,
Deputies Corporation Counsel,
City and County of Honolulu,
for Respondents-Appellees-
Appellees.
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