In re United Public Workers, AFSCME, Local 646 and Hanneman ( 2010 )

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 27962
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAFI
CIVIL NO. 05-1-1388-08 (SSM)
In the Matter of . §§
UNITED PUBLIC WORKERS, AFSCME, ¢@ ”“
LOCAL 646, AFL-CIO,
Complainant-Appellant, Cross-Appellee,
and
MUFI HANNEMAN, Mayor, City and County of Hono1ulu;
KENNETH NAKAMATSU, Director, Department of
Human Resources, City and County of Honolulu;
JEOFFREY S. CUDIAMAT, Director and
Chief Engineer, Department of Facility Maintenance,
City and County of Honolulu;
DISTRICT ROAD SUPERINTENDENT, Department of
Facility Maintenance, City and County of Honolulu;
DEPARTMENT COORDINATOR, Department of
Facility Maintenance, City and County of Honolulu (2005~l24),
Respondents-Appellees, Cross-Appellants,
and
HAWAII LABOR RELATIONS BOARD, State of HawaiWq
Agency-Appellee, Cross-Appellee.9
CIVIL NO. 05-1-1391-08 (SSM)
In the Matter of
UNITED PUBLIC WORKERS, AFSCME,
LOCAL 646, AFL-CIO,
Complainant-Appellant, Cross-Appellee,
and
MUFI HANNEMAN, Mayor, City and County of Honolulu;
KENNETH NAKAMATSU, DireCtor, Department of
Human Resources, City and County of Hono1u1u;
JEOFFREY S. CUDIAMAT, DireCtor and
Chief Engineer, Department of Facility Maintenance,
City and County of Honolulu;
y Pursuant to Hawafi Rules of Appellate Procedure Rule 43(c) (2000), we
have substituted the current public officers as parties or have described
certain public-officer parties by their official title.
N()T FOR PUBLICATI()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
DISTRICT ROAD SUPERINTENDENT, Department of
Facility Maintenance, City and County of Honolulu;
DEPARTMENT COORDINATOR, Department of
Facility Maintenance, City and County of Honolulu,
Respondents-Appellees, Cross-Appellants,
and
HAWAII LABOR RELATIONS BOARD, State of HaWaiTq
Agency-Appellee, Cross-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NOS. 05-1-1388-08 (SSM) and 05-l~139l-08 (SSM))
MEMORANDUM OPINION
(By: Nakamura, Chief Judge, Foley, and Leonard, JJ.)
Complainant-Appellant/Cross-Appellee United Public
Workers, AFSCME, Local 646, AFL-CIO (UPW) appeals from a June l,
2006, Judgment entered by the Circuit Court of the First Circuit
(circuit court),W which affirmed a decision rendered by the
Hawafi Labor Relations Board (HLRB). Respondent~
Appellees/Cross~Appellants the Mayor; the Chief Engineer and
Director, the Department Coordinator, and the District Road
Superintendent of the Department of Facilities Maintenance; and
the Director of the Department of Human Resources, City and
County of Honolulu (collectively, the "Employer"), cross-appeal
from the same Judgment.
Briefly stated, the underlying facts are as follows.
Gregory Ortiz (Ortiz), a City and County of Honolulu (City)
employee and member of UPW, was discharged from his position as a
Heavy Truck Driver I for unauthorized use of a City vehicle. UPW
filed a grievance challenging the discharge. An arbitrator ruled
that the discharge sanction was too severe and ordered that Ortiz
be reinstated. Ortiz returned to work, but on that day was
required to undergo a "pre-employment" controlled substances test
F The Honorable Sabrina S. McKenna presided.
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before being permitted to engage in safety~sensitive functions as
a heavy truck driver. 0rtiz failed the controlled substances
test and was later terminated.
UPW filed a prohibited practices complaint against
Employer, alleging, among other things, that by requiring Ortiz
to undergo the "pre~employment" controlled substances test,
Employer did not comply with the arbitrator's order to reinstate
Ortiz. The HLRB ruled that (1) UPW did not prove that Employer
failed to comply with the arbitration award and committed a
prohibited practice by subjecting Ortiz to "pre-employment"
drugW testing; and (2) Employer did commit a prohibited practice
by breaching its duty to negotiate and consult with UPW regarding
certain drug-testing procedures. The UPW and Employer each
appealed from the adverse portion of the HLRB's decision. After
modifying the HLRB's decision to correct a typographical error,
the circuit court affirmed the HLRB's decision. This appeal
followed.
For the reasons discussed below, we conclude that the
HLRB was correct in denying UPW's claim that Employer failed to
comply with the arbitration award and committed a prohibited
practice by subjecting Ortiz to "pre-employment" drug testing.
We further conclude that the HLRB was partially correct and
partially wrong in determining that Employer did commit a
prohibited practice by breaching its duty to negotiate and
consult with UPW regarding certain drug-testing procedures.
Accordingly, we affirm in part and vacate in part the circuit
court's Judgment.
BACKGROUND
I.
In 1991, Congress passed the Federal Omnibus
Transportation Employee Testing Act (FOTETA), Pub. L. No. 102-
l43, 105 Stat. 952 (l99l). Pursuant to the FOTETA, the Secretary
y The HLRB used the terms "drug" and "controlled substance"
interchangeably and we will do the same in this Memorandum Opinion.
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of the United States Department of Transportation (DOT)
promulgated Federal Motor Carrier Safety Regulations that require
controlled substances and alcohol testing for employees who
operate commercial motor vehicles and thereby engage in "safety-
sensitive" functions. 49 C.F.R. §§ 382.10l~382.605 (hereinafter,
the "DOT Rules“). The collective bargaining agreement (CBA)
between the City and UPW that is applicable in this casey
contains controlled substances testing provisions that are
intended to comply with the DOT Rules. The CBA provides that
"[w]here it is found that a [CBA] section does not comply with
the DOT Rules, the DOT Rules shall prevail where valid and the
parties shall renegotiate to bring the section into compliance."
II.
A.
Ortiz was employed by the City as a Heavy Truck
Driver I in the Road Maintenance Division of the Department of
Facility Maintenance. The job description for this position
includes the operation of a heavy dump truck, with a factory
rated capacity of between five and ten tons, "to haul asphalt,
sand, gravel, cement, rocks, dirt, and other construction
materials, [and] construction waste . . . ." Ortiz's Heavy Truck
Driver I position required Ortiz to possess a commercial driver's
license (CDL) and involved the performance of safety~sensitive
functions, such as driving a commercial motor vehicle. As part
of the conditions of his employment, Ortiz was subject to random
drug testing.
Ortiz was discharged from his employment with the City
for alleged unauthorized use of a City vehicle. Following his
discharge, Ortiz was removed from the random drug testing pool.
UPW filed a grievance challenging Ortiz's discharge,
and the matter was submitted to binding arbitration. The
farbitrator overturned the City's decision to terminate Ortiz and
9 We will use "CBA" to refer to the collective bargaining agreement
between the City and UPW that is applicable in this case.
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issued the following awards
Grievant shall be reinstated to the same or equivalent
position that he held when he was terminated and his
seniority and other rights as an employee shall be
reinstated as they existed on the date of his termination.
The reinstatement shall occur within two weeks of the date
of this decision. Grievant shall not receive any back pay
or credit for the period from his termination until his
reinstatement. In any future disciplinary actions, this
decision and award shall be treated as a suspension without
pay and may be taken into account in the application of
progressive discipline.
The circuit court subsequently granted UPW's motion to confirm
the arbitrator's award.
B.
Pursuant to the arbitration award, Cheryl Okuma-Sepe
(Okuma-Sepe), the City's Director of the Department of Human
Resources, rescinded Ortiz's discharge and reinstated him to
his former Heavy Truck Driver 1 position. Okuma~Sepe also
changed Ortiz's discharge to a "leave of absence without pay--
suspension." By the time Ortiz's discharge was overturned, he
had been out of the random drug testing pool for approximately
nine months.
when Ortiz returned to work, he was instructed to
undergo "pre-employment" controlled substances testing. The
decision to test Ortiz was made by Cynthia Johanson (Johanson),
the departmental coordinator of the drug testing program for the
City. Based on her interpretation of the DOT Rules, Johanson
believed that Ortiz was required to undergo a controlled
substances test before resuming his safety-sensitive duties
because he had been removed from the random drug testing pool.
In this respect, Johanson understood "pre-employment" to be
synonymous with "pre-duty" in that employees who had been removed
from the random drug testing pool were required to undergo "pre~
employment" drug testing.
Ortiz tested positive. Pursuant to provisions in the
CBA applicable to an employee who tests positive for a controlled
substances for the first time, Ortiz signed a "Last Chance
Agreement," was suspended for twenty days, and was placed in a
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drug rehabilitation program. Because Ortiz again tested positive
for a controlled substance in a subsequent drug test, he was
required to and did resign from his job.
C.
Meanwhile, UPW filed a prohibited practices complaint
against Employer. Among other things, the UPW alleged that
Employer had violated the arbitrator's award by refusing to
unconditionally reinstate Ortiz and instead requiring him to
submit to a controlled substances test, while the complaint was
still pending, UPW submitted a proposal to Okuma-Sepe to modify
and amend the CBA to "require[] the City to notify employees of
their continued participation in the City's random controlled
substance testing program whenever they are expected to be out of
work for a period of more than thirty (30) days, so they remain
exempt from 'pre-employment testing' upon their resumption of
duties." Okuma»Sepe did not respond to UPW's proposal.
The HLRB determined that UPW did not prove that
Employer failed to comply the arbitrator's award and committed a
prohibited practice by requiring Ortiz to undergo controlled
substances testing prior to assuming safety-sensitive job
responsibilities. The HLRB found that Employer had rescinded
Ortiz's discharge and reinstated Ortiz to his former Heavy Truck
Driver I position, thereby satisfying the arbitrator's award.
The HLRB further determined that Employer properly administered
the pre-duty controlled substances test to Ortiz in order to
comply with federal regulations, stating in pertinent part as
follows:
[A]lthough the UWP strenuously argues that [Employer is]
required to negotiate over the drug testing provisions
before requiring Ortiz to be subject to drug testing, the
[HLRB] cannot ignore the federal regulations which require
testing of employees who have been out of the random pool
for more than 30 days, Clearly, the federal regulations
trump any contrary collective bargaining provision and any
[Employer] policy on the matter. In this case, the
collective bargaining agreement does not address the
administration of the test for regular employees who are
disciplined or on leave for an extended period and are
subsequently reinstated or returned to the job. Thus, the
[HLRB] finds that the UPW failed to prove by a preponderance
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of evidence that [Employer] committed a prohibited practice
by failing to comply with the arbitration award when it drug
tested Ortiz prior to his assuming the safety sensitive job
responsibilities.
As part of its decision, the HLRB issued a conclusion
of law which stated in relevant parts
5. . . . . The UPW also failed to prove by a
preponderance of evidence that [Employer] undermined
the [UPW] and diminished its capacity to effectively
represent the employees in the bargaining unit by
disregarding the final and binding effect of the
[arbitration] award as intended by Section 15 [of the
CBA] and unilaterally modifying the provisions of
Section 63 [of the CBA] by requiring a pre-employment
drug test of a regular employee without even notifying
the [UPW] of the mid-term modifications to the
applicable terms and conditions of work. The UPW thus
failed to prove that the City violated HRS § 89-
113(a)(1).
Although the HLRB denied UPW's claim that Employer
failed to comply with the arbitrator's award and committed a
prohibited practice by subjecting Ortiz to a pre-duty drug test,
the HLRB determined that Employer had committed a prohibited
practice in refusing to negotiate or consult with UPW on
appropriate subjects, namely, "procedures for drug testing
employees returning to work after 30 days and/or who have been
removed from the random testing pool." The HLRB determined that
there is no CBA provision that specifically permits the testing
of an employee who is removed from the random drug testing pool
due to a job action and then is returned to his or her job. The
HLRB further determined that the CBA does not address the
conditions or procedures for the removal of an employee from the
random pool or notice to UPW of such removal. The HLRB noted
that Employer had not notified or consulted with UPW about "the
requirement for the drug testing" and that Employer did not
respond to UPW's request to negotiate regarding the procedures
for an employee's removal from the random drug testing pool.
The HLRB issued the following conclusions of law
regarding its determination that the City had committed a
prohibited practice by refusing to negotiate or consult with UPW
on appropriate subjects:
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6. Although certain aspects of controlled substance
testing is nonnegotiable because of the federal
mandates, there are aspects which are negotiable and
are contained in the collective bargaining agreement.
The Unit 01 agreement negotiated between the parties
lfurther requires that sections of the agreement not in
compliance with DOT Rules shall be negotiated into
compliance.
7. The drug testing [of] employees who have been taken
out of the random testing pool because of absence from
the job is clearly not addressed by the agreement.
8. [Employer] failed to notify [UPW] or consult over the
drug testing of an employee being returned to work
after being taken out of the random pool and wilfully
ignored [UPW]‘s request to negotiate over the subject
matter. Consultation and negotiation are provided for
in HRS § 89~9 and Section 1.05 Of the [CBA] . The
[HLRB] concludes that [Employer] violated HRS § 89-9,
thereby committing a prohibited practice in violation
of HRS § 89-13(a)(7). The [HLRB] also concludes that
the City violated Section 1.05, thereby committing a
prohibited practice in violation of HRS § 89-
l3(a)(8).W
Based on these conclusions, the HLRB ordered Employer
to cease and desist from taking unilateral actions on
matters subject to the negotiations process and deal with
[UPW] appropriately. On the matter of drug testing,
[Employer is] ordered to negotiate modifications to Section
63.04a [of the CBA] to conform with the DOT Rules[W] [§]
382.102 [sic] for CDL drivers.
(Footnote added.)
Despite finding that Employer had engaged in a
prohibited practice in failing to negotiate over provisions
relating to testing of employees removed from the random drug
W HRS § 89-13(a)(7) and (8) (Supp. 2009) provide:
(a) It shall be a prohibited practice for a public employer
or its designated representative wilfully to:
(7) Refuse or fail to comply with any provision of this
chapter; [or]
(8) violate the terms of a collective bargaining
agreement[.]
W The HLRB and the circuit court used the introductory designation "DOT
Rules" when referring to a specific section of the Federal Motor Carrier
Safety Regulation (FMCSRs). For consistency, we will likewise use "DOT
Rules," but will add a section symbol, when referring to a particular section
of the FMCSRs.
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testing pool, the HLRB rejected UPW's request that Ortiz be
reinstated to his position. The HLRB ruled that it would not
disturb the consequences of Ortiz's controlled substances
testing, which the parties had bargained for and had resulted in
Ortiz's resignation.
D.
UPW and Employer each appealed the HLRB's decision to
the circuit court. The circuit court consolidated the two
appeals. The circuit court modified the HLRB's decision to
correct an error in the HLRB's order so that the order correctly
refers to DOT Rules § 382.301, rather than DOT Rules § 382.102, a
rule that does not exist. The circuit court affirmed the HLRB's
decision, as modified, and entered Judgment in favor of the HLRB
and against UPW and Employer.
STANDARDS OF REVIEW
Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary appeal.
The standard of review is one in which this court must
determine whether the circuit court was right or wrong in
its decision, applying the standards set forth in HRS §
91-14(g) (1993) to the agency's decision.
HRS § 91-l4, entitled "Judicial review of contested cases,"
provides in relevant parts
(g) Up0n 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
(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
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defects under subsection (3),- findings of fact under subsection
(5); and an agency's exercise of discretion under subsection (6).
United Public workers, AFSCME, Local 646, AFL-CIO v. Hanneman,
106 HaWaFi 359, 363, 105 P.3d 236, 240 (2005) (braCketS Omitted)
(quoting Paul's Elec. Serv., Inc. v. Befitel, 104 Hawafi 412,
4l6, 91 P.3d 494, 498 (2004)).
DISCUSSION
I.
In its appeal, the UPW argues that: (1) the circuit
court erred in affirming the HLRB's decision that UPW did not
prove that Employer failed to comply with the arbitrator's award,
which ordered Ortiz's reinstatement, and committed a prohibited
practice by requiring Ortiz to undergo controlled substances
testing before performing safety-sensitive duties; (2) Ortiz's
due process rights were violated because he was not given notice
that Employer would subject him to controlled substances testing
upon his reinstatement and because he was dismissed after testing
positive without a pre-termination hearing; and (3) the circuit
court erred in affirming the HLRB's decision to refuse UPw's
request that Ortiz be reinstated with back pay as a remedy for
Employer's prohibited practice in refusing to negotiate and
consult with UPw on appropriate subjects. we resolve the
arguments raised by UPw on appeal as follows.
A.
we conclude that the HLRB was correct in denying UPw's
claim that Employer failed to comply with the arbitration award
and committed a prohibited practice when Employer required Ortiz
to undergo a controlled substances test prior to allowing Ortiz
to resume his safety sensitive duties. The circuit court
properly affirmed the HLRB's decision on this issue.
l.
As noted, the Secretary of the DOT has promulgated the
DOT Rules which mandate controlled substances and alcohol testing
for employees who operate commercial motor vehicles and thereby
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engage in
safety-sensitive functions. Section 63 of the CBA is
the section that contains provisions regarding controlled
substances and alcohol testing.
The CBA makes clear that Section
63 is intended to comply with the DOT Rules and that the DOT
Rules shall prevail if there is any inconsistency between the CBA
and the DOT Rules.F
follows:
DOT Rules § 382.301 states in pertinent part as
§ 382.301 Pre-employment testing.
(a) Prior to the first time a driver performs safety-
sensitive functions for an employer, the driver shall
.undergo testing for controlled substances as a condition
prior to being used, unless the employer uses the exception
in paragraph (b) of this section. No employer shall allow a
driver, who the employer intends to hire or use, to perform
safety-sensitive functions unless the employer has received
a controlled substances test result from the MRO or
C/TPA[W] indicating a verified negative test result for
that driver.
(b)
substances test required by paragraph
if:
An employer is not required to administer a controlled
(a) of this section
(1) The driver has participated in a controlled
substances testing program that meets the requirements
of this part within the previous 30 days; and
W Section 63 of the CBA provides in relevant part as follows:
63.
Ol
STATEMENT OF PURPOSE
63.0l .
a Section 63. is intended to comply with the Omnibus
Transportation Employee Testing Act of 1991 and the U.S.
Department of Transportation's rules and regulations adopted
as provided by the Act, hereinafter "DOT Rules."
63.0l .
§_/ \\MRO\¢
b where it is found that a section does not comply with
the DOT Rules, the DOT Rules shall prevail where valid
and the parties shall renegotiate to bring the section
into compliance.
and
stands for "medical review officer," 49 C.F.R. § 40.3,
"C/TPA" stands for "Consortium/Third party administrator," who is "a service
agent that provides or coordinates one or more drug and/or alcohol testing
services to DOT-regulated employers."
49 C.F.R. § 382.l07.
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(2) while participating in that program, either:
(i) was tested for controlled substances within the
past 6 months (from the date of application with the
employer), or
(ii) Participated in the random controlled substances
testing program for the previous 12 months (from the
date of application with the employer); and
(3) The employer ensures that no prior employer of
the driver of whom the employer has knowledge has
records of a violation of this part or the controlled
substances use rule of another DOT agency within the
previous six months.
(c)(1) An employer who exercises the exception in paragraph
(b) of this section shall contact the controlled substances
testing program(s) in which the driver participates or
participated and shall obtain and retain from the testing
program(s) the following information:
(i) Name(s) and address(es) of the program(s).
(ii) verification that the driver participates or
participated in the program(s).
(iii) Verification that the program(s) conforms to
part 40 of this title.
(iv) verification that the driver is qualified under
the rules of this part, including that the driver has
not refused to be tested for controlled substances.
(v) The date the driver was last tested for
controlled substances.
(vi) The results of any tests taken within the
previous six months and any other violations of
subpart B of this part.
(2) An employer who uses, but does not employ a driver
more-than once a year to operate commercial motor
vehicles must obtain the information in paragraph
(c)(1) of this section at least once every six months.
The records prepared under this paragraph shall be
maintained in accordance with § 382.401. If the
employer cannot verify that the driver is
participating in a controlled substances testing
program in accordance with this part and part 40 of
this title, the employer shall conduct a
pre-employment controlled substances test,
49 C.F.R. § 382.301 (emphasis and footnote added).
The DOT has interpreted DOT Rules § 382.301 to require
a "pre-employment" controlled substance test whenever a driver
has been terminated for more than thirty days and has not
participated in a controlled substances testing program
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satisfying the DOT requirements. The DOT has provided the
following guidance in interpreting DOT Rules § 382.301:
Question 3: ls a pre-employment controlled substances test
required if a driver returns to a previous employer after
his/her employment had been terminated?
Guidance: Yes. A controlled substances test must be
administered any time employment has been terminated for
more than 30 days and the exceptions under § 382.301(c) were
not met.
Question 4: Must all drivers who do not work for an
extended period of time (such as layoffs over the winter or
summer months) be pre-employment drug tested each season
when they return to work?
Guidance: If the driver is considered to be an employee of
the company during the extended (layoff) period, a
pre-employment test would not be required so long as the
driver has been included in the company's random testing
program during the layoff period, However, if the driver
was not considered to be an employee of the company at any
point during the layoff period, or was not covered by a
program, or was not covered for more than 30 days, then a
pre-employment test would be required.
Regulatory Guidance for the DOT Rules, 62 Fed. Reg. 16370-01
(April 4, l997).
In addition to the DOT‘s regulatory guidance, Employer,
after UPw had filed its prohibited practice complaint, sought
confirmation from a DOT official that under the DOT Rules,
Employer had been required to drug test Ortiz before permitting
him to resume safety-sensitive functions. In response to
Employer's inquiry, Donald wayne Carr (Carr), a Field Office
Supervisor with the DOT, wrote:
You[r] letter describes the circumstances of an employee who
was terminated and later reinstated by an arbitrator. The
employee had been terminated almost a year before being
reinstated as if he had never left. You also note that the
employee was removed from your random pool at the time he
was terminated and did not participate in a similar program
during the time prior to his reinstatement, You ask if a
pre-employment (pre-duty) test for controlled substances is
required.
Your employee is required to take a pre-employment
controlled substances test, with a negative result reported
to you, prior to allowing the employee to perform safety
sensitive functions. .
The reinstatement of the employee by the arbitrator “as if
he never left" may well have economic or other
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employer/employee related effects, but would not preempt the
federal requirement to conduct a pre-employment controlled
substances test prior to his return to safety sensitive
functions.
2.
Thus, DOT Rules § 382.301 required Employer to subject
Ortiz to a controlled substances test before permitting him to
resume his safety-sensitive duties as a Heavy Truck Driver I.
Section 63.04 a. of the CBA provides: "Prior to the first time an
Employee performs a safety sensitive function and/or being placed
on a temporary assignment list, the Employee shall be subject to
a controlled substance test, except as provided in the DOT Rules
referred to in Section 63.01 a." Section 63.04 a. closely tracks
the language of DOT Rules § 382.301. §ge 49 C.F.R. § 382.301.
In addition, Section 63 of the CBA is intended to comply with the
DOT Rules. Under these circumstances, we conclude that it is
reasonable to interpret Section 63.04 a. in a manner consistent
with the corresponding DOT Rules § 382.301.
In any event, the DOT Rules required Employer to
subject 0rtiz to a controlled substances test before permitting
him to engage in safety-sensitive functions because he had been
removed from the random testing pool for more than thirty days.
Employer was required to comply with the DOT Rules. Although the
arbitration award reinstated Ortiz to the same or equivalent
position that he held when he was terminated, this reinstatement
was necessarily subject to Ortiz passing a controlled substances
test before resuming his safety-sensitive duties. Accordingly,
the HLRB properly denied UPW's claim that Employer had failed to
comply with the arbitration award reinstating Ortiz by requiring
him to undergo a controlled substances test, lt therefore
follows that the HLRB also properly denied UPW's claim that
Employer committed a prohibited practice by failing to comply
with the arbitration award.
3.
UPW does not dispute that the DOT Rules required
Employer to subject Ortiz to the pre-duty controlled substances
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test. Nevertheless, UPW challenges the HLRB's determination that
Employer's actions satisfied the arbitration award. 1n
particular, UPW argues that (1) the HLRB's finding that Employer
rescinded Ortiz's discharge and reinstated Ortiz to his former
position was clearly erroneous; and (2) Employer was collaterally
estopped from asserting that Ortiz should be subject to a "pre-
employment" drug test. we disagree.
The HLRB's finding that Employer rescinded Ortiz's
discharge and reinstated Ortiz to his former position was not
clearly erroneous. The record shows that Employer took personnel
actions which rescinded Ortiz's discharge and changed it to a
"leave of absence without pay--suspension." There was also
testimony that although Ortiz was not permitted to drive, he was
reinstated and worked for four hours on the day he returned to
work. On that day, Ortiz was given the controlled substances
test and was placed on authorized leave with pay pending the
results of the test. The HLRB's finding was supported by
substantial evidence in the record.
Ortiz's argument that Employer was "estopped" or
"collaterally estopped" from requiring Ortiz to submit to a
controlled substances test upon reinstatement is without merit.
The original grievance that was submitted to arbitration did not
involve controlled substance testing. In addition, whether Ortiz
would be subject to a controlled substances test before resuming
his duties was not an issue brought before or decided by the
arbitrator. Indeed, the propriety of subjecting Ortiz to such
testing was an issue controlled by federal regulations. In
confirming the arbitrator's award, the circuit court did not
decide whether the award precluded pre-duty controlled substances
testing. The circuit court, in orally announcing its decision to
grant the UPw's motion to confirm the arbitration award, stated
that "the Court is not in any way suggesting that the Court's
order requires the City to do anything that is not otherwise
legal, that's for the City to respond to in an appropriate manner
in an appropriate proceeding."
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B.
Ortiz was not denied due process when Employer
administered the pre-duty controlled substances test or when
Ortiz was dismissed after the second positive test without a pre-
termination hearing. Both the CBAW and the DOT RulesW/ require
an employer to provide educational materials to employees that
explain and put the employees "on notice" regarding controlled
substance testing requirements and procedures.
On October 13, 1995, the City distributed a memorandum
to employees in safety-sensitive positions, describing the
procedures for DOT controlled substances and alcohol testing.
The memorandum stated, "[i]n addition to the City's policy and
9 Section 63.16 a. of the CBA provides:
63.16 a. EDUCATIONAL MATERIALS.
The [City] shall provide detailed educational
materials to a covered Employee that explains federal
regulations and Section 63. At a minimum, the
materials shall include the following:
63.16 a.l. The categories of Employees who are subject to the
regulations.
63.16 a.2. Information about safety-sensitive functions to make clear
what period of the work day Employee is required to be in
compliance.
63.16 a.3. Specific information on conduct that is prohibited.
63.16 a.4. The circumstances under which a Employee may be
subject to an alcohol and controlled substance test.
63.16 a.5. The procedures that will be used to test for alcohol
or controlled substance.
63.16 a.6. The requirement that an Employee submit to a test.
63.16 a.7. An explanation of what constitutes a refusal to submit
to a test.
63.16 a.8. The consequences for an Employee found to have
violated Section 63.
63.16 a.9. Information on the effects of alcohol and controlled
substance.
63.16 a.10. The [City] designee to be contacted for questions or
additional information.
ly See DOT Rules § 382.60l, 49 C.F.R. § 382.60l.
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the educational materials on drugs and alcohol which you already
have, these internal procedures will help to define the process
and explain the responsibilities of people involved in the
testing procedures." The memorandum elaborated on the various
situations in which testing was required and provided examples of
when an employee would be subject to "pre-employment" or "pre-
duty" controlled substances testing. Included in these examples
was the situation involving a "City employee not currently
performing safety-sensitive duties, who will begin performing
safety-sensitive duties." This example adequately describes
Ortiz's situation.
The record indicates that Ortiz was an employee who
would have received this memorandum. we conclude that this
memorandum provided Ortiz with sufficient notice to satisfy the
due process requirements of the CBA and the DOT Rules.
Ortiz's resignation pursuant to the Last Chance
Agreement (LCA) did not violate his due process rights. Upon his
reinstatement, Ortiz underwent a controlled substances test and
tested positive. An employee who tests positive is given written
notice of the test with a copy of the documents to verify the
chain of custody. Section 63.12 d. of the CBA provides that
"[p]rior to making a final decision to verify or report a
positive test, the Medical Review Officer (MRO) shall give the
Employee an opportunity to discuss the test." An employee may
also request an analysis of the split sample within 72 hours of
being informed of a verified positive test, and the employee may
instruct the MRO to have the analysis performed at another
certified laboratory.
Under the CBA, an employee who tests positive for a
controlled substance for the first time shall be discharged
unless the employee agrees to sign an LCA. Under the LCA, the
employee is suspended for twenty work days instead of being
discharged. The employee agrees to resign on "a no-fault basis"
if the employee tests positive for a controlled substance for a
second time within a time frame specified in the LCA. The LCA
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also provides that a resignation from employment deprives the
employee of the right to grieve or challenge the resignation.
Because Ortiz tested positive for a controlled substance for a
second time within the time frame specified in the LCA, Ortiz was
deemed to have resigned.
Ortiz's entry into the LCA and his subsequent
resignation were pursuant to, and in conformance with, the terms
of the CBA. By signing the LCA, Ortiz waived any due process
rights he may have had to a pre-termination hearing.
C.
The HLRB did not err in denying UPW's request to
reinstate Ortiz with back pay as a remedy for Employer's
prohibited practice in breaching its duty to negotiate and
consult with UPw on appropriate subjects. Employer was required
by federal regulations to have Ortiz undergo a pre-duty
controlled substances test. Employer followed the procedures set
forth in the CBA for responding to Ortiz's first positive test
and second positive test. Ortiz's resignation as a consequence
of his second positive test was in accordance with the CBA.
Moreover, as explained below, we conclude that
Employer's prohibited practice in breaching its duty to negotiate
and consult did not occur until after Ortiz had tested positive.
Thus, Ortiz's resignation was not caused by Employer's prohibited
practice and reinstating Ortiz with back pay was not an»
appropriate remedy for Employer's breach of its duty to negotiate
and consult.
II.
On cross-appeal, Employer argues that: (1) the HLRB
erred in concluding that Employer violated Section 1.05 of the
CBA, which imposes a duty on Employer to consult with UPw on
certain matters, by failing to comply with Section 63.01 b. of
the CBA,H/ thereby committing a prohibited practice in violation
-1-¥/ See footnote 7, supra.
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of HRS § 89-13(a)(8);lW (2) the HLRB erred in concluding that
Employer violated its duty to negotiate under HRS § 89-9 (Supp.
2002), thereby committing a prohibited practice in violation of
HRS § 89-13(a)(7);lY (3) the HLRB erred in ordering that Employer
negotiate modifications to Section 63.04 a. of the CBA to conform
with the DOT Rules § 382.301;-W and 4) the circuit court erred in
modifying the HLRB's decision to correct the HLRB's reference to
DOT Rules § 382.102. we resolve the arguments raised by Employer
on cross-appeal as follows.
A.
l.
Employer had a duty to negotiate and consult with UPw
on appropriate matters pursuant to HRS § 89-9 and the CBA. At
the time relevant to this case, HRS § 89-9(a) provided in
pertinent part:
(a) The employer and the exclusive representative
shall meet at reasonable times, including meetings
sufficiently in advance of the April 16 impasse date under
section 89-11, and shall negotiate in good faith with
respect to wages, hours, the amounts of contributions by the
State and respective counties to the Hawaii public employees
health 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 . .
Section 1.05 of the CBA provides that "[t]he [City]
shall consult [UPw] when formulating and implementing personnel
policies, practices and any matter affecting working conditions.
No changes in wages, hours or other conditions of work contained
herein may be made except by mutual consent." Under Section
39 See footnote 5, supra.
ly See footnote 5, supra.
ly The HLRB's written order actually ordered Employer to negotiate
modifications to Section 63.04 a. to conform with "DOT Rules [§] 382.102."
However, as discussed infra, it is clear that the HLRB's reference to "DOT
Rules [§] 382.102," was a typographical error and that the HLRB intended to
refer to "DOT Rules § 382.301." we will analyze the HLRB's order as if it had
referred to "DOT Rules § 382.301."
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63.01 b. of the CBA, "[w]here it is found that a section does not
comply with the DOT Rules, the DOT Rules shall prevail where
valid and the parties shall renegotiate to bring the section into
compliance."
In University of HawaFi Professional Assemblv v.
Tomasu, 79 Hawafi 154, 900 P.2d 161 (1995), the Hawafi Supreme
Court concluded that a public employer's duty to bargain includes
the duty to engage in midterm bargaining on appropriate subjects
when requested by a union. ld; at 159, 900 P.2d at 166. The
supreme court stated that "the duty to bargain also arises if a
union unilaterally demands 'midterm' bargaining, that is,
bargaining midway through an active applicable collective
bargaining agreement on bargainable subjects such as wages,
hours, or terms of employment." ld4
2 .
we conclude that the HLRB was wrong to the extent
that it based its prohibited practice determination on Section
63.01 b. of the CBA. That section only requires Employer to
renegotiate a controlled substances testing provision of the CBA
where the provision does not comply with the DOT Rules. The HLRB
apparently concluded that as applied to Ortiz, Section 63.04 a.
of the CBA did not comply with DOT Rules § 382.301.
Section 63.04 a. of the CBA provides that an
employee shall be subject to a controlled substances test
"[p]rior to the first time an Employee performs a safety
sensitive function . . . ." DOT Rules § 382.301, which uses
almost identical language, has been interpreted as requiring a
driver who had been terminated and has not participated in a
controlled substances testing program for more than thirty days
to take and pass a controlled substances test before performing
safety-sensitive functions. Because Section 63.04 a. of the CBA
closely tracks the language of DOT Rules § 382.301, it is
difficult to see how Section 63.04 a. fails to comply with DOT
Rules § 382.301. In light of the parallel language of the two
provisions and the intent of the CBA to comply with the DOT
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Rules, it would be reasonable to construe Section 63.04 a. in a
manner consistent with DOT Rule § 382.301.
In any event, Section 63.04 a. clearly does not
prohibit Employer from requiring an employee, like Ortiz, who has
not participated in a controlled substances testing program for
more than thirty days due to termination or other prolonged
absence, to take a controlled substances test before permitting
the employee to engage in safety-sensitive functions. Thus, it
cannot be said that Section 63.04 a. fails to comply with the DOT
Rules. Accordingly, Employer was not required to negotiate with
UPW over Section 63.04 a. pursuant to Section 63.01 b. of the
CBA .
we also conclude that the HLRB's decision was wrong to
the extent it was premised on a determination that Employer had
made a unilateral change in the conditions of employment set
forth in Section 63.04 a. by removing employees who were absent
or were expected to be absent from work for a prolonged time
period from the random drug testing pool. Section 63.04 a. is
silent on the subject on when an employee can be removed from the
random testing pool. Thus, the removal of Ortiz from the random
testing pool as a result of his discharge did not constitute a
unilateral change in matters covered by the CBA.
In addition, we note that the record indicates that
Employer had an established practice of removing employees who
were absent or were expected to be absent from work for a
prolonged time period from the random drug testing pool.
Employer also had an established practice of requiring those
employees to undergo a controlled substances test before resuming
safety-sensitive functions. Thus, removing Ortiz from the random
testing pool and requiring him to undergo a controlled substances
test upon his return to work after a prolonged absence was not a
unilateral change effected by Employer, but was consistent with
Employer's established practice.
DOT Rules § 382.301 provides employers with the
discretionary authority to exempt individuals already
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participating in an approved testing program from having to
undergo a pre-employment controlled substances test. DOT Rules
§ 382.301 does not require that employers establish specific
procedures on when an employee will be removed from participation
in a testing program.
we conclude that the HLRB was not justified in ordering
Employer to negotiate modifications to Section 63.04 a. §§
conform with DOT Rules § 382.301 based on either (1) Section
63.01 b. of the CBA; or (2) an alleged unilateral change by
Employer of the conditions of employment set forth in Section
63.04 a. of the CBA by removing employees from the random drug
testing pool.
3.
On the other hand, after Ortiz failed the controlled
substances test that was administered upon his return to work,
UPw sent a letter to the City requesting that Section 63.04 a. be
modified to provide that
CDL employees who are suspended more than 30 days, on leave
of absence more than 30 days, or discharged pending
grievance shall be notified in writing by [the City] of
their continued participation in random controlled testing
prior to the expiration of the 30 days to remain exempt from
pre-employment testing upon their resumption of duties after
an absence of more than 30 days pursuant to DOT [Rules §]
382.30l(b) .
The issue of whether an employee who was discharged pending
grievance or will be absent from work for more than thirty days
would be permitted to remain in the random drug testing pool and
thus be exempt from having to undergo a controlled substances
test before resuming safety-sensitive functions is not expressly
covered by the CBA. This issue involves a term or condition of
employment and is a matter affecting working conditions. Thus,
once UPW sent its letter advising Employer of UPW's desire to
negotiate and consult over this issue, Employer had a duty under
HRS § 89-9(a) and Section 1.05 of the CBA to negotiate and
consult with UPw. §ee Tomasu, 79 Hawafi at 159-63, 900 P.2d at
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166-70. By failing to respond to UPW's letter, Employer breached
this duty.LS-/
B.
we reject Employer's argument that the circuit court
erred in modifying the HLRB's decision to refer to DOT Rules
§ 382.301 instead of DOT Rules § 382.102. The HRLB's reference
to DOT Rules § 382.102, which is a non-existent section, was
clearly a typographical error that was subject to correction by
the circuit court. See State v. DeMille, 7 Haw. App. 323, 326-
27, 763 P.2d 5, 7-8 (l988).
CONCLUSION
with respect to the issues raised by UPw in its appeal
to this court, we affirm the June 1, 2006, Judgment of the
circuit court.
with respect to the issues raised by Employer in its
cross-appeal to this court, we hold as follows:
1. we vacate the circuit court's Judgment to the
extent that it affirmed: (a) the HLRB's decision that Employer
committed a prohibited practice based on (i) Section 63.01 b. of
the CBA or (ii) an alleged unilateral change by Employer of the
conditions of employment set forth in Section 63.04 a. of the CBA
by removing employees from the random drug testing pool; and (b)
the resulting order of the HLRB that Employer negotiate
modifications to Section 63.04 a. to conform with DOT Rules
§ 382.301.
2. we affirm the circuit court's Judgment to the
extent it affirmed the HLRB's decision that Employer committed a
lW Although Employer was required by the DOT Rules to subject drivers
who had not participated in a controlled substances testing program for more
than thirty days to a controlled substances test before permitting the driver
to resume safety-sensitive functions, the DOT Rules did not address the
circumstances under which an employee would be subject to removal from a
testing program. Thus the issue over which UPW asked Employer to negotiate
and consult was not precluded by the DOT Rules. §§§ Tomasu, 79 Hawafi at
158, 900 P.2d at 165 (concluding that while compliance with federal law is not
negotiable, "where the employer has discretion under federal law, regulation,
or administrative opinions in implementing federal law, the duty to bargain
applies").
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» for Respondents-Appellees,
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prohibited practice by breaching Employer's duty to negotiate and
consult with UPW when Employer failed to respond to UPw's letter
requesting a modification to Section 63.04 a. of the CBA.
3. we affirm the circuit court's decision to modify
the HLRB's decision to correct an error in the HLRB's order so
that the order correctly refers to DOT Rules § 382.301, rather
than DOT Rules § 382.102.
4. we remand the case to the circuit court for
further proceedings consistent with this Memorandum Opinion.
DATED: Honolulu, Hawafi, March 19, 2010.
On the briefs:
Herbert Takahashi
Rebecca L. Covert Chief Judge
(Takahashi Vasconcellos & Covert) ir
for Complainant-Appellant, - }::
Cross-Appellee CJé§4p£jd?;P
Associate/Qudge
Carrie K.S. Okinaga
Corporation Counsel
Paul K.w. Au
Deputy Corporation Counsel
City and County of Honolulu
Cross-Appellants 7 §
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