In re: Hawaii State Teachers Association and Board of Education

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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-
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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).
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"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.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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:
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
. . . 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,
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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).
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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[.]"
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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).
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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[.]"
15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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,
16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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