In re: Hawaii State Teachers Association and Board of Education ( 2022 )


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  •   NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    18-AUG-2022
    09:56 AM
    Dkt. 75 MO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    IN THE MATTER OF
    HAWAII STATE TEACHERS ASSOCIATION,
    Complainant-Appellant-Appellant,
    and
    BOARD OF EDUCATION, DEPARTMENT OF EDUCATION,
    STATE OF HAWAII; PATRICIA HAMAMOTO, SUPERINTENDENT,
    DEPARTMENT OF EDUCATION, STATE OF HAWAII;
    AND SUSAN H. KITSU, DEPARTMENT OF EDUCATION,
    STATE OF HAWAII, Respondents-Appellees-Appellees,
    and
    HAWAII LABOR RELATIONS BOARD, KERRY KOMATSUBARA,
    SESNITA A.D. MOEPONO, AND J.N. MUSTO,
    Agency-Appellees-Appellees
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (Civil No. 1CC161001878)
    MEMORANDUM OPINION
    (By: Leonard, Presiding Judge and Hiraoka, J. and Kubota,
    Circuit Court J. (in place of Ginoza, Chief Judge, Wadsworth
    and Nakasone, JJ., recused))
    This appeal involves Hawaii Revised Statutes (HRS)
    § 89-9. The statute deals with collective bargaining in public
    employment. Complainant-Appellant-Appellant Hawaii State
    Teachers Association (HSTA) contends that Respondents-Appellees-
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    Appellees Hawai#i State Board of Education (BOE)1 and the State
    of Hawai#i Department of Education (DOE) adopted a policy and
    approved rules and a plan to implement the policy without
    negotiating terms with HSTA. We hold that BOE and DOE were not
    required to negotiate with HSTA over terms of the policy, rules,
    or implementation plan because: they did not change HSTA's
    collective bargaining agreement (CBA); they were specifically
    subject to the terms of the CBA; and they were within DOE's
    management rights. Accordingly, we affirm the Judgment entered
    by the Circuit Court of the First Circuit on July 14, 2017,2
    which affirmed Decision No. 484 of Agency-Appellee-Appellee the
    Hawaii Labor Relations Board (HLRB).
    BACKGROUND
    HRS Chapter 89 deals with collective bargaining in
    public employment. HRS § 89–9 (Supp. 2007) sets "the scope of
    topics subject to mandatory bargaining." Univ. of Haw. Pro.
    Assembly v. Tomasu, 79 Hawai#i 154, 160, 
    900 P.2d 161
    , 167
    (1995). The statute provided,3 in relevant part:
    (a)   The employer and the exclusive representative
    shall . . . negotiate in good faith with respect to wages,
    hours, . . . and other terms and conditions of employment
    that are subject to collective bargaining and that 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
    1
    BOE formulates policy for the state's public school system.    Haw.
    Const. art. X, section 3.
    2
    The Honorable Rhonda A. Nishimura presided.
    3
    HRS § 89–9 has been amended several times since the HSTA filed the
    prohibited practice complaint that is the subject of this appeal; we analyze
    the version of the statute in effect when the HLRB proceeding was initiated.
    2
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    input, along with the input of other affected parties, prior
    to effecting changes in any major policy affecting employee
    relations.
    (d)    . . . The employer and the exclusive
    representative shall not agree to any proposal that would
    . . . interfere with the rights and obligations of a public
    employer to:
    (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;
    (4)   Suspend, demote, discharge, or take other
    disciplinary action against employees for proper
    cause;
    (5)   Relieve an employee from duties because of lack of
    work or other legitimate reason;
    (6)   Maintain efficiency and productivity, including
    maximizing the use of advanced technology, in
    government operations;
    (7)   Determine methods, means, and personnel by which
    the employer's operations are to be conducted;
    and
    (8)   Take such actions as may be necessary to carry
    out the missions of the employer in cases of
    emergencies.
    This subsection shall not . . . preclude negotiations over
    the procedures and criteria on promotions, transfers,
    assignments, demotions, layoffs, suspensions, terminations,
    discharges, or other disciplinary actions as a permissive
    subject of bargaining during collective bargaining
    negotiations[.]
    (Bold italics added.)
    HSTA is the collective bargaining representative for
    persons employed by DOE in bargaining unit 5.4 Under HRS § 89-
    9(a), DOE was required to "negotiate" with HSTA about "terms and
    conditions of employment" of teachers "to be embodied in a
    written agreement[.]" Under HRS § 89-9(c), DOE was required to
    "consult" with HSTA and "consider" HSTA's "input" before adopting
    a "rule" "affecting employee relations." Under HRS § 89-9(d),
    4
    Bargaining unit 5 consists of "[t]eachers and other personnel of
    the department of education under the same pay schedule[.]" HRS § 89-6(a)(5).
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    "promotions, transfers, assignments, demotions, layoffs,
    suspensions, terminations, discharges, or other disciplinary
    actions" were DOE's management rights, the "procedures and
    criteria" for which could be subjects for collective bargaining
    negotiations.
    On November 5, 2007, the BOE's Committee on Special
    Programs recommended adoption of a policy prohibiting the
    harassment and bullying of, and discrimination against, students
    by DOE employees. The committee explained:
    Federal law requires that any educational entity that
    receives federal assistance establish and adopt grievance
    procedures for complaints of discrimination. [Proposed]
    Board Policy 4211 would keep the Department of Education
    (Department) in compliance with federal law as the
    Department receives federal financial assistance.
    Additionally, there were recommendations from the
    Superintendent's Safe Schools Community Advisory Committee
    that recommended a strong policy against bullying and
    harassment.
    By letter dated November 7, 2007, DOE sent the proposed
    policy to HSTA "for consult and confer."5 DOE explained:
    This policy was developed pursuant to recommendation from
    the Safe Schools Community Advisory Committee. This
    Committee was comprised of community leaders and government
    stakeholders who made recommendations on how to improve
    safety in Hawaii schools. One of the key recommendations
    was to adopt and implement a policy against harassment,
    bullying and discrimination by staff against students.
    The policy includes   federal law requirements under Title VI
    of the Civil Rights   Act of 1964, and as amended by the Civil
    Rights Act of 1991,   and Title IX of the Education Amendments
    of 1972, also known   as the Patsy T. Mink Equal Opportunity
    in Education Act.
    The rationale for the proposed policy is to ensure that the
    DOE formalizes its position on anti-harassment, anti-
    bullying, and anti-discrimination against students. This
    policy will apply to all DOE employees.
    DOE requested a response by December 10, 2007.
    5
    DOE sent similar letters to the United Public Workers and the
    Hawaii Government Employees Association, which were the collective bargaining
    representatives for DOE employees in other bargaining units. Neither union
    demanded negotiation.
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    HSTA did not respond to DOE's letter. DOE scheduled
    meetings with HSTA during February 2008. HSTA canceled the
    meetings. On February 15, 2008, HSTA informed DOE by email that
    "HSTA has reservations on this policy."   HSTA described its
    reservations in a letter to DOE dated February 20, 2008. HSTA's
    letter concluded:
    We welcome a policy that covers all administrators,
    teachers, staff and students within school communities in
    the workplace and their interactions with each other.
    As is the case for all policy and regulation proposals, the
    Association reserves its right to continue to comment as it
    evolves through implementation.
    During a regular meeting on February 21, 2008, BOE
    approved Board Policy 4211, titled "Anti-Harassment, Anti-
    Bullying, and Anti-Discrimination Against Student(s) by Employees
    Policy" (BP 4211). BP 4211 stated (among other things):
    The Department of Education strictly prohibits
    discrimination, including harassment, by any employee
    against a student based on the following protected classes:
    race, color, national origin, sex, physical or mental
    disability, and/or religion. In addition to the above
    protected basis, the Department of Education strictly
    prohibits any form of harassment and/or bullying based on
    the following: gender identity and expression, socio-
    economic status, physical appearance and characteristic
    [sic], and sexual orientation.
    By letter dated February 22, 2008, DOE informed HSTA:
    DOE will follow its normal course in developing regulations
    and procedures as it always does immediately after a policy
    is adopted. Normal disciplinary procedures will be followed
    as outlined in the collective bargaining agreement and other
    DOE rules, policies, and/or procedures.
    (Bold italics added.)
    On March 28, 2008, Respondent-Appellee-Appellee
    Patricia Hamamoto, then-Superintendent of the DOE, approved
    Standard Practice 0211 (SP 0211).       The purpose of SP 0211 was
    "[t]o describe the regulations and procedures of [BP 4211]."
    Regarding discipline for violations, SP 0211 stated:
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    Employee(s) who are found to have violated this policy,
    after an internal administrative investigation has been
    completed, may receive disciplinary action as deemed
    appropriate by an appropriate administrator. Such action
    will be taken in accordance with DOE policies, regulations,
    rules, collective bargaining agreements, and other laws,
    rules, and regulations.
    (Bold italics added.)
    Also on March 28, 2008, Hamamoto approved the
    "Implementation Plan" for BP 4211 (BP 4211 IP). BP 4211 IP had
    been submitted by Respondent-Appellee-Appellee Susan H. Kitsu,
    then-Director of DOE's Civil Rights Compliance Office. The
    purpose of BP 4211 IP was "to ensure that there is no harassment,
    discrimination, and/or bullying of students by employees."
    Regarding discipline for violations, BP 4211 IP stated:
    Any complaints will be immediately investigated, and if any
    evidence corroborates an allegation, prompt action will be
    taken by the proper officials, up to termination and in line
    with provisions under collective bargaining agreements,
    laws, rules, DOE policies and procedures, and other relevant
    authorities.
    (Bold italics added.)
    By letter dated May 12, 2008, HSTA demanded that DOE
    negotiate the contents of BP 4211, SP 0211, and BP 4211 IP. The
    letter stated (among other things):
    The aforementioned policy, standard practice documents, the
    proposed repeal of title 8, subtitle 2, chapter 41 of the
    DOE,[6] and implementation forms result in significant and
    material impacts on wages, hours, terms and conditions of
    employment of bargaining unit [5] employees and changes
    existing terms and conditions of employment.
    By letter dated May 21, 2008, the DOE responded:
    By letter dated November 7, 2007, the [DOE] sent a letter to
    [HSTA] submitting then Proposed Policy #4211 . . . for
    consult and confer. . . .
    . . . .
    6
    We take judicial notice, pursuant to Rule 201 of the Hawaii Rules
    of Evidence, that Hawai#i Administrative Rules (HAR) Title 8 ("Department of
    Education"), Subtitle 2 ("Education"), Part 1 ("Public School"), Chapter 41
    ("Civil Rights Policy and Complaint Procedure") was not repealed until
    August 15, 2019. The repeal of Chapter 41 is not at issue in this appeal.
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    . . . A consult and confer meeting was scheduled for
    Tuesday, February 12, 2008[,] but was cancelled by HSTA.
    . . . .
    HSTA's request for negotiation was raised for the first time
    by letter dated May 12, 2008. DOE maintains that the
    adoption and implementation of the policy is not a subject
    of negotiation.
    PROCEDURAL HISTORY
    On May 27, 2008, HSTA filed a Prohibited Practice
    Complaint against DOE, BOE, Hamamoto, and Kitsu with HLRB under
    HRS Chapter 89. HSTA alleged that DOE and BOE "unilaterally
    formulated, adopted, and/or implemented mid-term changes to the
    unit 5 collective bargaining agreement without negotiations or
    mutual consent of HSTA[.]" HSTA claimed that BOE's refusal to
    negotiate was a prohibited practice that violated certain
    subsections of HRS § 89-13. The statute provided, in relevant
    part:
    (a)   It shall be a prohibited practice for a public
    employer or its designated representative wilfully to:
    . . . .
    (5)   Refuse to bargain collectively in good faith
    with the exclusive representative as required in
    section 89-9; [or]
    . . . .
    (7)   Refuse or fail to comply with any provision of
    this chapter[.]
    HRS § 89-13 (Supp. 2007).
    HLRB issued Decision No. 484 on September 7, 2016. The
    HLRB dismissed all of HSTA's charges against BOE, DOE, Hamamoto,
    and Kitsu.
    On October 7, 2016, HSTA filed a notice of appeal from
    Decision No. 484 with the circuit court. The circuit court heard
    oral arguments on June 30, 2017. On July 14, 2017, the circuit
    court entered its "Order Affirming the Decision of the Hawaii
    Labor Relations Board, Case No. CE-05-667, Decision No. 484,
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    Dated September 7, 2016[.]" The Judgment was also entered on
    July 14, 2017.
    This secondary appeal followed.
    POINTS OF ERROR
    HSTA raises four points of error:
    "1.   The Circuit Court Wrongly Affirmed Board
    Decision No. 484 That Failed To Recognize
    That Policies Affecting Discipline And
    Discharge and Employees' Job Security Are
    Mandatory Subjects of Bargaining";
    "2.   The Circuit Court Wrongly Affirmed Board
    Decision No. 484 Where The Board's
    Application of Management Rights Under
    Section 89-9(d), HRS, Was Contrary To The
    Collective Bargaining Rights Granted To
    Public Employees";
    "3.   The Circuit Court Wrongly Affirmed Board
    Decision No. 484 That Failed To Recognize The
    DOE's Unilateral Changes and Failure to
    Provide Information Needed for Bargaining
    Were Prohibited Practices"; and
    "4.   The Circuit Court Wrongly Affirmed Board
    Decision No. 484 As the Decision Failed To
    Recognize The Complaint Was Filed Within
    90-Days of the DOE's Unilateral Changes and
    Refusal To Bargain."
    STANDARD OF REVIEW
    Our review of a circuit court decision on 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)
    to the agency's decision. Tomasu, 79 Hawai#i at 157, 900 P.2d at
    164. "[T]he agency's decision carries a presumption of validity
    and [the] appellant has the heavy burden of making a convincing
    showing that the decision is invalid because it is unjust and
    unreasonable in its consequences." Id. (brackets omitted).
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    HRS § 91–14 (2012 & Supp. 2016), entitled "Judicial
    review of contested cases," 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;
    (2)   In excess of the 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 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 its
    discretion under subsection (6)." Tomasu, 79 Hawai#i at 157, 900
    P.2d at 164. An agency's findings of fact are reviewed for clear
    error. Id. An agency's conclusions of law are freely
    reviewable. Id.
    DISCUSSION
    HSTA contends that BOE and DOE were required to
    negotiate the terms of BP 4211, SP 0211, and BP 4211 IP before
    they were adopted and approved, because "teachers are subject to
    discipline, discharge, and other adverse actions affecting their
    job security for violations of the 'bullying' work rules and
    standards[.]"
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    1.   HLRB did not rule that policies
    affecting discipline, discharge, or job
    security could never be subjects for
    negotiation under HRS § 89-9(a).
    HSTA argues that HLRB "erred when it determined that
    department policies and work rules affecting discipline,
    discharge, and the job security of teachers did not constitute a
    'mandatory subject' of collective bargaining, and that [DOE]'s
    refusal to negotiate as requested by       HSTA did not constitute a
    breach of the duty to bargain." The        argument is incorrect. HLRB
    in fact acknowledged: "To the extent       that the adoption and
    implementation of a BP pursuant to a       SP and IP may materially
    affect the discipline provisions of the CBA, bargainable topics
    may arise, and consequently, a BP, SP or IP may be the subject of
    mandatory bargaining." (Bold italics added.)
    HSTA contends that "[t]he facts were undisputed that
    the bullying policy were [sic] enforced through discipline,
    discharge, and other adverse personnel actions affecting the job
    security of teachers." HLRB found, however, that HSTA failed to
    "specifically point[] out any provisions of BP 4211, SP[ ]0211 or
    BP 4211 IP which specifically conflicted with or changed any
    provisions of applicable DOE policies, rules, regulations,
    collective bargaining agreements, and other laws, rules, and
    regulations concerning the discipline of its members then in
    effect (Existing Rules)" (bold italics added).
    HSTA argues that BP 4211, SP 0211, and BP 4211 IP
    allowed teachers to be disciplined based on anonymous complaints,
    which was contrary to the CBA. CBA Article X. provided, in
    relevant part:
    D.   Any serious complaint or any repeated minor complaint,
    including anonymous complaints concerning a teacher,
    shall be reported immediately to the teacher by the
    supervisor receiving the complaint. The use of
    complaints and the filing of said complaints shall be
    covered by Article IX - Personnel Information.
    Any teacher against   whom a serious complaint has been
    filed will have the   opportunity to meet with the
    complainant(s). At    the teacher's request, the
    supervisor shall be   present at such a meeting. The
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    supervisor shall call the complainant(s) for a meeting
    at a mutually acceptable time by the teacher, the
    complainant(s) and the supervisor.
    HSTA cites no provision of BP 4211, SP 0211, or BP 4211 IP
    allowing DOE to discipline a teacher based on an anonymous
    complaint of discrimination, harassment, or bullying. We find
    none. The CBA requires that a teacher be allowed to meet with
    the complainants — which could include parents of a student —
    before discipline can be imposed. HLRB noted:
    In defending BP 4211, SP 0211 and BP 4211 IP, DOE
    repeatedly stated . . . that nothing in BP 421l, SP 021l or
    BP 421l IP conflicted with or changed the Existing Rules or
    employee rights in the context of disciplinary actions which
    may be taken by DOE. When HSTA first raised its general
    concerns regarding the effect of BP 4211 on disciplinary
    matters, [DOE] stated that "(n]ormal disciplinary procedures
    will be followed as outlined in the collective bargaining
    agreement and other [DOE] rules, policies and/or procedures.
    . . . .
    In effect, [DOE] stated to both [HLRB] and HSTA that
    BP 4211, SP 0211 and BP 4211 IP were not intended to, and in
    fact, did not amend or change the CBA or any of DOE's
    existing rules and regulations affecting teachers'
    discipline, except as the same may be subject to federal
    laws or regulations preempting state laws or regulations
    (which were not discussed in depth by the parties).
    Based on the foregoing and in holding [DOE] to [its]
    position and understanding of the nature and reach of each
    document, the [HLRB] finds that each of BP 4211, SP 0211 and
    BP 4211 IP is subject to all Existing Rules regarding
    teacher's discipline, except as the Existing Rules (1) may
    be revised or amended or otherwise changed in accordance
    with Hawaii law or (2) as the Existing Rules may have been
    or may be affected by federal law. Any disputes over the
    foregoing shall be resolved in accordance with the
    applicable grievance provisions of the CBA then in effect.
    [HLRB] takes this position simply because both parties
    failed to provide [HLRB] with sufficient evidence to
    determine whether specific provisions of BP 4211, SP 0211 or
    BP 4211 IP did or did not violate either the CBA, any other
    Existing Rules or any provision of HRS Chapter 89.
    (Underscoring in original, bold italics added.)
    HLRB thus found that although DOE policies affecting
    teacher discipline, discharge, or job security may be mandatory
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    subjects of bargaining, BP 4211, SP 0211, and BP 4211 IP did not
    change the unit 5 CBA or any existing DOE rules or regulations
    affecting teachers:
    After reviewing the testimony of the witnesses,
    especially Kitsu, and the language of the CBA, BP 4211, SP
    0211 and BP 4211 IP, [HLRB] finds that HSTA failed to meet
    its burden of showing specifically (1) why any of the
    provisions of BP 421l, SP 0211 or BP 4211 IP are vague or
    ambiguous or (2) how they amend or modify the provisions of
    the CBA. . . .
    Thus, since SP 0211 specifically provides that all
    investigations and any disciplinary actions regarding a
    violation of BP 4211 are subject to the Existing Rules
    (i.e., "DOE policies, regulations, rules, collective
    bargaining agreements, and other laws, rules, and
    regulations"), there is no evidentiary support for HSTA's
    claims that BP 4211, SP 0211 or BP 4211 [IP] are in conflict
    with the requirements of the CBA.
    (Bold italics added.) The HLRB's finding — that BP 4211,
    SP 0211, and BP 4211 IP did not effect mid-term changes to the
    unit 5 CBA — was supported by substantial evidence in the record
    and was not clearly erroneous. The HLRB's conclusion — that
    negotiation over the terms of BP 4211, SP 0211, and BP 4211 IP
    was not mandated by HRS § 89-9(a) — was supported by its finding
    and applied the correct rule of law. See Est. of Klink ex rel.
    Klink v. State, 113 Hawai#i 332, 351, 
    152 P.3d 504
    , 523 (2007)
    (noting that a conclusion of law that is supported by the trial
    court's findings of fact and reflects an application of the
    correct rule of law will not be overturned).
    2.    HLRB did not apply DOE's HRS § 89-9(d)
    management rights contrary to the
    collective bargaining rights granted to
    HSTA members.
    HSTA next contends that HLRB applied DOE's HRS § 89-
    9(d) management rights contrary to teachers' HRS § 89-9(a)
    "collective bargaining rights."
    In Tomasu the Hawai#i Supreme Court recognized that HRS
    § 89-9(a) and (d), "if read disjunctively, would either grant
    unlimited discretion to the managerial functions of the employer,
    see HRS § 89–9(d), or would allow management and employees to
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    submit all aspects of work to the          bargaining table. See HRS
    § 89-9(a)." Tomasu, 79 Hawai#i at          160-61, 900 P.2d at 167-68
    (footnotes omitted). The supreme           court then quoted from a Hawaii
    Public Employment Relations Board          decision:7
    Section 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. Surely, neither
    interpretation was intended by the Legislature.
    Bearing in mind that the Legislature intended Chapter 89 to
    be a positive piece of legislation establishing guidelines
    for joint-decision making over matters of wages, hours and
    working conditions, 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).
    Id. at 161, 900 P.2d at 168 (quoting In re Haw. State Tchrs.
    Ass'n and the Dep't of Educ., Decision No. 22, 1 HPERB 251
    (1972)) (italics in original).
    In Tomasu, the University of Hawai#i Board of Regents
    (BOR) issued a policy statement in accordance with the federal
    Drug-Free Workplace Act (DFWA).         The University of Hawai#i
    8
    Professional Assembly (UHPA) filed a prohibited practice charge
    against BOR with HLRB, claiming that the policy statement
    "affected topics subject to mandatory bargaining and that the
    BOR's refusal to bargain constituted an unfair labor practice."
    Id. at 156, 900 P.2d at 163. HLRB ruled that the policy
    statement was not bargainable. UHPA appealed. The circuit court
    affirmed. UHPA appealed to the supreme court.
    7
    Hawaii Public Employment Relations Board was the former name for
    HLRB. See What Does the HLRB Do?, State of Hawai#i Labor Relations Board,
    https://labor.hawaii.gov/hlrb/about-us/ (last visited August 11, 2022).
    8
    UHPA was the collective bargaining agent for all faculty members
    of the University of Hawai#i (UH) system. See About UHPA, University of
    Hawai#i Professional Assembly, https://www.uhpa.org/about-uhpa (last visited
    August 12, 2022).
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    The supreme court noted that the DFWA "mandates that,
    when an employee violates the drug enforcement policy, the
    employee must be duly sanctioned or must participate in a drug
    abuse assistance or rehabilitation program.           The [DFWA] does not
    describe the exact procedure for these actions, leaving these
    details to the individual employers to fashion and implement."9
    Id. at 162, 900 P.2d at 169 (bold italics added). Because
    implementation of the policy statement would require unspecified
    discretionary action by UH upon violation by an employee:
    the employee [is] in an awkward position. The employee
    knows that certain actions will result in discipline because
    the federal statute mandates discipline, but the employee
    does not know what form the discipline will take because the
    policy statement has yet to be implemented by the employer.
    Thus, the employee clearly is subject to some form of
    disciplinary action, which definitely affects terms of
    employment and working conditions subject to mandatory
    bargaining under HRS § 89–9(a).
    Id. at 163, 900 P.2d at 170 (bold italics added). Under those
    facts, the supreme court held that BOR was obligated to negotiate
    with UHPA over the policy statement.
    By contrast, in this case HLRB found and concluded that
    HSTA failed to show that BP 4211, SP 0211, or BP 4211 IP
    conflicted with, or changed any provisions of, the teachers' CBA.
    BP 4211, SP 0211 and BP 4211 IP specified that any teacher
    discipline would be subject to the CBA, and HLRB held that any
    disputes over teacher discipline "shall be resolved in accordance
    with the applicable grievance provisions of the CBA then in
    effect." Thus, this case is more like United Public Workers v.
    Hanneman, 106 Hawai#i 359, 
    105 P.3d 236
     (2005).
    In Hanneman, the City and County of Honolulu
    unilaterally transferred several refuse collection employees
    (members of a bargaining unit represented by the United Public
    Workers (UPW)) from an overstaffed baseyard to an understaffed
    9
    The Tomasu opinion does not specify whether the UHPA collective
    bargaining agreement in effect when UH adopted the policy statement contained
    provisions for faculty participation in drug abuse assistance or
    rehabilitation programs, but the decision implies it did not.
    14
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    baseyard. The transferred employees were those with the least
    seniority, as required by the UPW collective bargaining
    agreement. 
    Id. at 361
    , 
    105 P.3d at 238
    . The City offered to
    consult with UPW about the transfers under HRS § 89-9(c). UPW
    demanded negotiation under HRS § 89-9(a). The City maintained
    that the transfers were a management right and not subject to
    negotiation, citing HRS § 89-9(d).
    UPW filed a complaint with HLRB. HLRB applied a
    balancing test and ruled that the City's management right to
    transfer did not supersede UPW's bargaining right because "the
    consequent disruption of seniority at both baseyards is likely to
    have a deleterious effect upon the exercise of bargained-for
    rights which are seniority-based." Hanneman, 106 Hawai#i at 362,
    
    105 P.3d at 239
    . The City appealed. The circuit court affirmed.
    The City filed a secondary appeal. The supreme court held that
    HLRB erred by applying a balancing test:
    The plain language of HRS § 89–9(d)[(3)] is clear and
    unambiguous that "[t]he employer and the exclusive
    representative shall not agree to any proposal . . . which
    would interfere with the rights and obligations of a public
    employer to . . . [h]ire, promote, transfer, assign, and
    retain employees in positions." (Emphasis added). . . .
    Moreover, with respect to the balancing test employed by the
    HLRB, HRS § 89–9 does not expressly state or imply that an
    employer's right to transfer employees is subject to a
    balancing of interests. Contrary to the HLRB's
    interpretation, our holding in Tomasu does not approve of
    the HLRB's balancing test. Rather, we believe Tomasu stands
    for the proposition that, in reading HRS §§ 89–9(a), (c) and
    (d) together, parties are permitted and encouraged to
    negotiate all matters affecting wages, hours and conditions
    of employment as long as the negotiations do not infringe
    upon an employer's management rights under section 89–9(d).
    In other words, the right to negotiate wages, hours and
    conditions of employment is subject to, not balanced
    against, management rights.
    Id. at 365, 
    105 P.3d at 242
     (underscoring in original, bold
    italics added).
    Similarly, in this case the plain language of HRS §89-
    9(d)(4) makes HSTA's right to negotiate conditions of employment
    subject to DOE's right to "[s]uspend, demote, discharge, or take
    other disciplinary action against employees for proper cause[.]"
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    Thus, BOE's adoption of BP 4211, and DOE's implementation of
    SP 0211 and BP 4211 IP, all of which were subject to the existing
    unit 5 CBA, were an appropriate exercise of management rights
    under HRS § 89-9(d). BOE's and DOE's actions were not contrary
    to teachers' collective bargaining rights under HRS § 89-9(a).
    BP 4211, SP 0211, and BP 4211 IP were not "written agreement[s]"
    required to be negotiated under HRS § 89-9(a); rather, they were
    "rule[s]" "affecting employee relations," which were subject to
    "consultation" under HRS § 89-9(c). DOE complied with HRS § 89-
    9(c) by sending then-proposed BP 4211 to HSTA "for consult and
    confer."
    3.    HLRB correctly concluded that DOE's
    failure to provide information did not
    constitute a prohibited practice.
    HSTA requested information from BOE and DOE in
    connection with its demand for negotiation. HSTA contends that
    HLRB erroneously failed to recognize that DOE's failure to
    provide the information was a prohibited practice.
    HLRB found and concluded:
    . . . HSTA's request for information was based on its
    contention that BP 4211, SP 0211 and BP 4211 IP raised
    mandatory subjects of bargaining. There was no grievance
    pending and there were no ongoing collective bargaining
    negotiations extant at the time the demand for information
    was made. . . .
    . . . .
    Here, [HLRB] held that HSTA could not force [BOE and
    DOE] to bargain over BP 4211, SP 0211 or BP 4211 IP because
    they were the subject of the consult and confer requirement
    [of HRS § 89-9(c)] and not the negotiations requirement [of
    HRS § 89-9(a)]. There is no evidence to show that [BOE]
    agreed to enter into permissive negotiation regarding BP
    4211, SP 0211 or BP 4211 IP. HSTA did not allege and did
    not pursue a breach of duty to consult claim. In the
    absence of a duty to bargain, breach of duty to consult or
    any other argument regarding the relevancy of the requested
    information other than in the context of mandatory
    bargaining, [BOE] had no obligation to produce the requested
    information.
    . . . .
    Based on the foregoing, the [HLRB] concludes that
    because the information request made in the [HSTA's] May 12,
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    2008 letter related to BP 4211, which is deemed to be
    non-mandatory subjects of bargaining [under HRS § 89-9(d)],
    [BOE] had no obligation to provide the requested information
    because the [HLRB]'s determination that BP 4211, SP 0211,
    and BP 4211 IP "are not a mandatory subject of bargaining
    dooms the whole of [HSTA's] claim."
    (cleaned up) (quoting N. Bay Dev. Disabilities Servs., Inc. v.
    NLRB, 
    905 F.2d 476
    , 479 (D.C. Cir. 1990)). HLRB's findings were
    supported by substantial evidence, and its conclusions were
    supported by its findings and applied the correct rule of law.
    See Klink, 113 Hawai#i at 351, 
    152 P.3d at 523
    .
    4.     HLRB's ruling that HSTA's claims based
    on BP 4211 were untimely, even if
    erroneous, was harmless.
    Finally, HSTA contends that HLRB erred by ruling that
    HSTA's claims relating to BP 4211 were untimely. We need not
    decide that issue because despite ruling that HSTA's claims
    relating to BP 4211 were untimely, HLRB decided HSTA's claims
    relating to BP 4211 on the merits. As explained above, HLRB's
    conclusion that BP 4211 was not subject to negotiation or
    mandatory bargaining was correct. Accordingly, the circuit court
    was not wrong to affirm HLRB Decision No. 484 on the merits.
    CONCLUSION
    For the foregoing reasons, the Judgment entered by the
    circuit court on July 14, 2017, is affirmed.
    DATED: Honolulu, Hawai#i, August 18, 2022.
    On the briefs:
    /s/ Katherine G. Leonard
    Herbert R. Takahashi,                    Presiding Judge
    Rebecca L. Covert,
    for Complainant-Appellant-               /s/ Keith K. Hiraoka
    Appellant Hawaii State                   Associate Judge
    Teachers Association.
    /s/ Peter K. Kubota
    James E. Halvorson,                      Circuit Court Judge
    Jeffrey A. Keating,
    Deputy Attorneys General,
    State of Hawai#i,
    for Respondents-Appellees-
    Appellees.
    17
    

Document Info

Docket Number: CAAP-17-0000605

Filed Date: 8/18/2022

Precedential Status: Precedential

Modified Date: 8/24/2022