Makino v. County of Hawai'i

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-APR-2023
07:46 AM
Dkt. 105 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NATHAN MAKINO, Complainant-Appellant-Appellant,
v.
COUNTY OF HAWAI#I; UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-
CIO, Respondents-Appellees-Appellees,
and
HAWAI#I LABOR RELATIONS BOARD, STATE OF HAWAI#I (2015-009),
Agency-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC171000368)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
In this secondary appeal, Complainant-Appellant-
Appellant Nathan Makino appeals from the Judgment entered by the
Circuit Court of the Third Circuit on September 12, 2018.1 The
circuit court affirmed a Decision and Order of Agency-Appellee
Hawai#i Labor Relations Board (HLRB or the Board) in favor of
Respondents-Appellees-Appellees County of Hawai#i and United
Public Workers, AFSMCE, Local 646, AFL-CIO (UPW). For the
reasons explained below, we affirm the circuit court's Judgment
affirming the HLRB's Decision and Order.
1
The Honorable Greg K. Nakamura presided.
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BACKGROUND
Makino worked for the County. He was a UPW member. On
January 24, 2014, Makino and a co-worker were involved in a
physical altercation while working. The County placed both
workers on administrative leave. Makino contacted UPW; he was
represented by business agent Alton Nosaka. The County
investigated the incident and prepared a written report.
By letter dated March 11, 2014, the County informed
Makino that his employment was being terminated effective
March 14, 2014. UPW filed a grievance on Makino's behalf. The
County denied the grievance. UPW filed a Step-2 grievance. The
County denied the Step-2 grievance. Before commencing Step-3
(arbitration), UPW initiated settlement discussions with the
County.
The HLRB ultimately made findings of fact concerning
the settlement discussions, all of which were supported by
substantial evidence in the record and were not clearly
erroneous:
Nosaka documented the communications and actions taken
during his representation of Makino for the January 24, 2014
incident by written notes introduced into evidence, which
with the oral testimony established the following facts:
. . . .
Nosaka spoke with the Mayor to find out if the process
could be stopped, and Makino could get his job back. On
March 6, 2014, Nosaka informed Makino of the discussion.
. . .
On March 10, 2014, Nosaka noted after speaking with
the Mayor, who had consulted with his department heads:
Spoke to BK [Billy Kenoi]. Told me that Dept.
was upset Makino lied & spoke about
investigation when was told not to. He just
making it harder for me. Maybe give them some
time to cool off. I'll try again later. BK
asked why I like them guys come back? They have
family and it's a hardship while they're out
now.
By a March 11, 2014 letter . . . Makino was notified
by the County of his dismissal from his employment as a
Laborer II, effective March 14, 2014, and of his right to
appeal the dismissal under the [UPW collective bargaining
agreement]. . . .
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. . . .
On April 6, 2014, Nosaka called the Mayor, but there
was no answer.
On April 22, 2014, after a follow up call to the
Mayor, Nosaka noted, "No news yet. Still trying[.]"
On May 5, 2014, Nosaka made several notations
regarding Makino's case. His first entry indicated that the
status of the case had not changed. His second entry
pertained to his communication of that status to Makino, who
indicated his concern regarding his back pay:
Talked to Makino. Told him BK said it's going
to be tough bringing him back, but BK still
trying. Still grumbling he was the victim and
would take some back pay from the time he lost
his job. Some suspension. Told him I can try
ask for back pay, next time I talk to BK[.]
In his third entry, the Mayor responded to Nosaka in a
conversation regarding back pay:
Talked to BK about the back pay. He said this
guy crazy. He admitted he choked the other guy.
He lied from the beginning. BK was "pissed" if
I convince the Dept. to bring him back we gotta
really think about the back pay. . . .
. . . .
On August 22, 2014, Nosaka spoke with the Mayor, who
proposed and inquired whether the Union might be interested
in an LCA (last chance agreement). Nosaka's response was
that he would check because he didn't know what his bosses
would say. The Mayor further inquired regarding the case
status, and Nosaka responded that the case was being
processed for arbitration. After inquiring whether the case
could be "pulled back," and receiving Nosaka's assurance
that, "[Y]es, anytime, he can pull it back," the Mayor told
Nosaka to process the arbitration.
On August 25, 2014, Nosaka told Makino that he spoke
to Kenoi, who asked if an LCA would work. Nosaka asked
Makino whether the Mayor's question regarding an LCA was
worth exploring, and Makino's response was "anything but
term." Nosaka said that he would need approval from his
bosses and get back to Makino.
On October 10, 2014, Nosaka informed Makino that there
was "[n]o word yet from BK. Will let him know as soon as
[I] hear anything."
Nosaka did talk to his "bosses" about an LCA, and
obtained approval to draft and submit the LCA to the Mayor.
UPW Division Director Loyna Kamakeeaina and [UPW State
Director Dayton] Nakanelua reviewed and approved the LCA.
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By letter dated November 7, 2014, UPW submitted
Makino's grievance to arbitration. HLRB made these findings
about what happened next:
On or about December 15, 2014, Nosaka spoke with
Makino to get approval to submit the LCA to the Mayor
requiring Makino to concede the back pay. Nosaka said that
Makino had to consult with his wife, and his wife agreed.
Nosaka noted:
[D]raft done. Waiting for a meeting with Billy.
Without pay okay? he spoke to wife; she agree.
No guarantee I told him. Not going to win in
arb.
. . . .
On December 15, 2014, Nosaka met with and presented a
proposed draft of the LCA for Makino to the Mayor and
[County Department of Public Works Deputy Director Brandon]
Gonzales. The Mayor did not indicate agreement to the
proposal but stated that he would have HR and the
corporation counsel review the LCA and get back to Nosaka.
Nosaka noted:
Met with Billy Kenoi & B. Gonzales about . . .
LCA. Billy said this is a very hard case to
reconsider. B. Gonzales was silent.
After reviewing the LCA BK said he has to have
HR look at it & corp counsel. But no promises.
I told BK would be a great XMAS gift if he
brought them back. They get families and they
would really appreciate the reconsideration &
second chance.
He said he'll get back to me.
Nosaka notified Makino of his meeting with the Mayor.
. . .
. . . .
On March 6, 2015, Nosaka again met with the Mayor to
discuss Makino's case. Nosaka noted that the Mayor
preferred that Makino . . . resign rather than be terminated
or "like a pardon" when the Mayor left office[.] . . .
Nosaka believed that the Mayor would pardon Makino
before leaving office, which would also require agreement by
his "bosses", so Makino could be reemployed by the County.
On March 10, 2015, Makino called Nosaka, who
documented the conversation as follows:
Nathan Makino called.
Still trying to resolve case.
Billy looking at other options. He still has
LCA.
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These findings were also supported by substantial evidence in the
record and were not clearly erroneous.
Makino wrote to UPW on March 10, 2015: "The only
settlement that I will consider is that I be reinstated
immediately and given full back pay with interest, from
January 24, 2014 to the present. You can tell the County that I
am taking this position because of the way I've been treated by
the County."
By letter dated March 19, 2015, UPW informed Makino
that it had decided not to pursue the arbitration because there
was insufficient proof that the County violated the UPW
collective bargaining agreement (CBA).
Makino filed a prohibited practice complaint with the
HLRB, against the County and UPW, on April 20, 2015. An amended
prohibited practice complaint was filed on May 9, 2016. On
October 19, 2017, HLRB issued its Decision and Order dismissing
the amended complaint.
Makino appealed to the circuit court on November 17,
2017. Makino's counsel moved to withdraw from the case on
March 13, 2018. The motion was granted. Makino appeared self-
represented at the circuit court hearing on June 19, 2018. The
court affirmed the HLRB. Judgment was entered on September 12,
2018. This appeal followed.2
STANDARD OF REVIEW
Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary appeal.
Hawai#i Revised Statutes (HRS) § 91–14(g) (1993) provides:
Upon review of the record the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory
provisions; or
2
The lawyer who withdrew from representing Makino before the
circuit court now represents Makino in this appeal.
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(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion.
An agency's findings are not clearly erroneous and
will be upheld if supported by reliable, probative and
substantial evidence unless the reviewing court is left with
a firm and definite conviction that a mistake has been made.
Conclusions of law are freely reviewable under a
right/wrong standard.
Poe v. Haw. Lab. Rels. Bd., 105 Hawai#i 97, 100, 94 P.3d 652, 655
(2004) (Poe II) (cleaned up). In addition, a mixed finding of
fact and conclusion of law is reviewed under the "clearly
erroneous" standard because the determination is dependent on the
facts and circumstances of each individual case. Est. of Klink
ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007). 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. Id.DISCUSSION
Makino contends that UPW breached its duty of fair
representation, and that the County violated the UPW CBA when it
terminated his employment. Thus, this appeal is a hybrid action.
See Poe II, 105 Hawai#i at 102, 94 P.3d at 657 (noting that
employee prevented from exhausting remedies provided by
collective bargaining agreement may sue employer for breach of
collective bargaining agreement and union for breach of duty of
fair representation); Lee v. United Public Workers, AFSCME, Local
646, 125 Hawai#i 317, 319, 260 P.3d 1135, 1137 (App. 2011)
(referring to such a case as a "hybrid action"). In a hybrid
action, to have standing to pursue a claim against an employer
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for breach of a collective bargaining agreement, the employee
must first prove that the labor union breached its duty of fair
representation. Poe II, 105 Hawai#i at 103-04, 94 P.3d at 658-
59. Accordingly, we first address HLRB's resolution of Makino's
claim against UPW.
The HLRB found and concluded that Makino failed to
carry his burden of proving that UPW breached its duty of fair
representation. "A union breaches its duty of fair
representation only when the union's conduct toward a member of
the collective bargaining unit is arbitrary, discriminatory, or
in bad faith." Lee, 125 Hawai#i at 321, 260 P.3d at 1139
(cleaned up) (first citing Vaca v. Sipes, 386 U.S. 171, 190
(1967); and then citing Poe II, 105 Hawai#i at 104, 94 P.3d at
659 ("A union breaches its duty of good faith when its conduct
towards a member of a collective bargaining unit is arbitrary,
discriminatory, or in bad faith.")).
(A) On appeal, Makino argues that UPW's decision to
withdraw from the Step-3 arbitration "was arbitrary because there
was no 'rational basis' for its decision" and that "the Circuit
Court and HLRB failed to hold . . . UPW accountable by producing
or requiring proof of any 'rational basis' for its decision to
abandon [Makino]'s arbitration." Makino's argument lacks merit.
After the County denied Makino's Step-2 grievance, the
deadline for him to proceed to a Step-3 arbitration was
August 30, 2014. On August 22, 2014, Mayor Kenoi asked Nosaka
whether UPW would be interested in a last chance agreement.
Nosaka needed approval from his bosses to submit a proposed last
chance agreement. UPW and the County agreed to extend the Step-3
deadline to November 14, 2014.
UPW sent its arbitration notice to the County on
November 7, 2014, a week before the extended deadline. At that
time, UPW had approved a last chance agreement proposal that
required that Makino forego his claim for back pay, but Makino
had not yet agreed so the proposal had not been submitted to the
County. The HLRB made the following findings, which were
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supported by substantial evidence in the record and were not
clearly erroneous:
Makino admits in his Post-Hearing Brief that on July 25,
2014, [Nosaka] told him that the decision to go to
arbitration was his "bosses" decision and not his and that
"he didn't think his 'bosses' would take his case to
arbitration"; that on or about August 14, 2014, [Nosaka]
conveyed his doubts about going to arbitration; and that on
August 27, 2014, [Nosaka] told [Makino] that if the County
doesn't agree to settle his case, "we not going Arb
(arbitration)".
Further, the record shows that as early as January 29,
2014, Nosaka told Makino that "it did not look good. But we
can go through the process. Step 1 & Step 2. Don't know if
we going to arb[]" because "We lost a lot of UPW cases for
less violence." On May 5, 2014, Nosaka told Makino that "BK
said it's going to be tough bringing him back[.]" Nosaka
participated and assisted Makino at the Step 1 and 2
grievance meetings, held on June 4, 2014 and July 25, 2014
respectively. Immediately after the Step 2 grievance on
July 25, 2014, Nosaka communicated his concerns regarding
whether the grievance would proceed to arbitration and told
him that "maybe should try settling before Arb. Case"
because of Nosaka's belief that "no think my bosses going to
take this case to Arb. I can recommend but it's up to
them." Mr. Makino obviously understood Nosaka's position
that settlement should be pursued rather than arbitration
based on his response to "try and talk to BK [Billy Kenoi]."
Nosaka then replied that he was going to try and work it out
with Kenoi because "We lost too much case[s] regarding WPV
[work place violence][]" and further emphasized that "He's
[Kenoi] is the only one can bring you back[.]" [Makino]
again demonstrated his understanding by his response "to
try." The August 14, 2014 conversation between Nosaka and
Makino is, however, the most persuasive evidence for the
UPW's position because Nosaka "told him [Makino] that the
way it looks, and the history of losses we was [sic] not
going Arb. The best chance is before Arb. I talk to Billy.
He said 'ok.'" On August 27, 2014, Nosaka explicitly told
Makino that, "if BK no agree [to the LCA] we not going to
[arbitration]. BK is our last hope."
The record supports the inference that UPW demanded arbitration
only to keep the grievance process alive while the parties were
negotiating a possible settlement, which was Makino's "last
hope." Thus, UPW's ultimate withdrawal from the arbitration
after Makino revoked UPW's settlement authority (described below)
was not arbitrary, discriminatory, or in bad faith.
On December 15, 2014, Makino told Nosaka he and his
wife agreed to forego back pay, and Nosaka again told Makino he
was not going to win the arbitration "because of the history of
cases that the Union had lost in arbitration with less violence
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than what occurred" in Makino's case. Nosaka presented the
proposed last chance agreement to Mayor Kenoi that same day.
By letter dated March 10, 2015, while settlement
negotiations were ongoing, Makino recanted and informed UPW that
he would not settle without being "reinstated immediately and
given full back pay with interest[.]" Nine days later, UPW State
Director Dayton Nakanelua withdrew the arbitration demand
"because there is insufficient proof that there is a violation
of" the CBA. The HLRB made the following findings, which were
supported by substantial evidence in the record and were not
clearly erroneous:
[Makino] implies, but did not plead improper motive,
based on his assertion of retaliation for pushing the
resolution of his case and that no rational basis or
explanation was given for the withdrawal of the arbitration
demand. The Board concurs with the UPW in this case that
there was no proof of an improper motive by the Union in
this case. As fully discussed above, there was no evidence
that Nosaka and the Union lied to Makino regarding the
status of the LCA. Further, as also fully discussed above,
there was more than sufficient evidence that Nosaka informed
[Makino] from the beginning of the grievance process that it
was doubtful that the Union would proceed to the arbitration
step; and accordingly, an LCA was the preferable approach.
The Board also finds adequate proof in the record that the
reasons for the Union's decision not to proceed to
arbitration, which were communicated to Makino, were because
of the UPW's history of losing work place violence cases and
concerns regarding Makino's inconsistent statements made
during the investigation and grievance process. In short,
[Makino] has failed to demonstrate that this alleged conduct
by the UPW constituted "fraud, deceitful action, or
dishonest conduct." Hence, the Board holds that there is no
merit to [Makino]'s position there was a breach of duty of
fair representation based on the "bad faith" conduct of the
UPW.
For the reasons set forth above, [Makino] has failed
to prove that the UPW breached its duty of fair
representation, thereby wilfully violating HRS § 89-13(b)(l)
and (4).
(Footnote omitted.)
Under the circumstances of this case, we conclude that
the HLRB's combined findings and conclusions that Makino "failed
to carry his burden of arbitrary conduct constituting a breach of
the duty of fair representation" and "failed to prove that the
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UPW breached its duty of fair representation" were not clearly
erroneous.
(B) Makino also argues that UPW breached its duty of
fair representation because "[p]ursuing a grievance is
fundamentally different from the legal duty the UPW voluntarily
took on by deciding to take [Makino]'s case to arbitration."
Citing Del Casal v. E. Air Lines, Inc., 465 F. Supp. 1254, 1258
(S.D. Fla. 1979), aff'd, 634 F.2d 295 (5th Cir. 1981), he asserts
that the "general rule of law" is "while a union has a wide
discretion in deciding whether to take a grievance to
arbitration, once the claim is taken to arbitration, the union
must advocate the employee's position."
Del Casal does not stand for the proposition that a
union's duty of fair representation differs between grievance
steps when arbitration is a grievance step under a collective
bargaining agreement. Del Casal was a pilot for Eastern
Airlines. The Airline Pilots Association, International (ALPA)
was the exclusive bargaining agent for Eastern's pilots. Del
Casal twice applied for ALPA membership, but was rejected both
times for incompetency as a pilot. Eastern terminated Del
Casal's employment on the ground that he was an incompetent and
unsafe pilot. Del Casal filed a grievance under the collective
bargaining agreement between Eastern and ALPA. Del Casal was
assisted by an ALPA staff attorney. His grievance was rejected
at the initial stages. He asked ALPA to submit his grievance to
arbitration by the System Board. ALPA's staff attorney initiated
the arbitration. But before the arbitration hearing, ALPA
withdrew its staff attorney because Del Casal was not an ALPA
member. Del Casal retained private counsel for the hearing. The
System Board ruled that Eastern was justified in terminating Del
Casal.
Del Casal then filed suit in federal district court,
claiming (among other things) that ALPA breached its duty of fair
representation. The district court agreed, stating:
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It is also true that ALPA has no duty to press claims
before the System Board on behalf of grievants which it
finds in good faith to be without merit. . . .
ALPA, however, did process [Del Casal]'s claim and
presented it to the System Board. In N.L.R.B. v. P.P.G.
Industries, Inc., 579 F.2d 1057, 1059 (7th Cir. 1978), it
was recognized that "while a union has a wide discretion in
deciding whether to take a grievance to arbitration, once
the claim is taken to arbitration, the union must advocate
the employee's position."
Furthermore, ALPA does provide attorneys to grievants
at their hearings before the System Board. Indeed, it is
clear . . . that [the ALPA staff attorney] would have
represented [Del Casal] but for the fact that he was not a
union member.
Del Casal, 465 F. Supp. at 1257-58 (some citations omitted).
ALPA appealed. The Seventh Circuit clarified:
The issue in this case is whether a union may refuse to
represent a member of the bargaining unit on the ground that
he is not a member of the union without violating its duty
of fair representation. Thirty-five years ago this court
established the principle that a union may not discriminate
against members of its bargaining unit on the basis of that
person's status as a nonmember of the union. Hughes Tool
Co. v. NLRB, 147 F.2d 69 (5th Cir. 1945).
. . . .
In the instant case the appellee Del Casal argues that
ALPA's discriminatory refusal to allow a staff attorney to
represent him at the System Board hearing based upon his
nonmember status constituted a breach of ALPA's duty to
fairly represent him. We agree. The record shows that ALPA
does provide attorneys to grievants at their hearings before
the System Board. It is also clear from the record that
. . . the ALPA staff attorney[] would have represented Del
Casal but for the fact that he was not a union member.
While ALPA has the authority to decide under what conditions
an attorney will be supplied to a grievant, the fact that
the grievant is not a member of the union can play no part
in that decision.
Del Casal v. E. Airlines, Inc., 634 F.2d 295, 300-01 (5th Cir.
1981). Contrary to Makino's argument, both Del Casal opinions
stand for the proposition that a union owes the same duty of fair
representation at all steps of the grievance process, including
arbitration.
The Fifth Circuit's Del Casal opinion did not cite
P.P.G. Indus., which was quoted by the district court in the
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portion of its opinion relied on by Makino.3 The district
court's citation to P.P.G. Indus. was inapt for two reasons.
P.P.G. Indus. did not involve an arbitration, because the union's
executive board unanimously agreed not to take the grievance to
arbitration. Thus, the P.P.G. Indus. court's statement that
"once the claim is taken to arbitration, the union must advocate
the employee's position" was dicta.
Second, the P.P.G. Indus. court cited Kesner v. Nat'l
Lab. Rel. Bd., 532 F.2d 1169, 1174-75 (7th Cir. 1976), cert.
denied, 429 U.S. 983 (1976), for the proposition that "once the
claim is taken to arbitration, the union must advocate the
employee's position." P.P.G. Indus., 579 F.2d at 1059. The
facts of Kesner are contained in Truck Drivers, Oil Drivers and
Filling Station and Platform Workers Local No. 705, 209 N.L.R.B.
292 (1974).4 Aaron Kesner was a truck driver for F&K. He was a
member of Local 705. He was laid off. One day he saw another
driver, who had also been laid off, driving an F&K truck. He
complained to Local 705 that F&K violated the call-back seniority
provisions of the union contract. The union refused to file a
grievance. Kesner filed his own grievance.
Step 1 was a meeting with the employer. Kesner and a
Local 705 business representative named Heim met with an F&K
manager. Heim explained that Kesner did not have seniority over
the called-back driver. Heim declared the step-1 meeting a
deadlock, triggering step 2 — a hearing before a Joint Grievance
Board composed of both union and employer representatives.
During the hearing Heim stated that ruling that Kesner was
entitled to a seniority call-back "would be contrary to the
agreement and the practice in the industry and would generally
upset labor relations in the area." Truck Drivers, 209 N.L.R.B.
at 299. The board denied Kesner's grievance. The union
3
Makino's briefs do not discuss the Fifth Circuit Del Casal
opinion.
4
The case presented a multitude of facts that, while interesting,
are not all relevant to Makino's appeal. We recite only the relevant facts.
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agreement did not provide for arbitration as a next step. Id. at
304.
Kesner filed a complaint against Local 705 and F&K with
the National Labor Relations Board (NLRB). An administrative law
judge found that Local 705 did not breach its duty of fair
representation, and that F&K did not breach the union agreement.
Kesner appealed. The NLRB concluded that Local 705 breached its
duty of fair representation:
It is clear from the record that Heim, who attended the
[Joint Grievance Board] meeting as spokesman for [Local 705]
(and hence for Aaron Kesner), openly stated at that meeting
that he believed that Kesner did not have a valid grievance.
By making this statement, Heim in effect abdicated his duty
to present the grievance in the light most favorable to
Kesner.
In our view, once [Local 705] undertook to present
Aaron Kesner's grievance to the Joint Grievance Board, it
became obligated to represent him fully and fairly. This
obligation included the duty to act as advocate for the
grievant, which here Heim clearly did not do. To the
contrary, by saying that he did not believe Aaron Kesner's
claim was valid, Heim undermined Kesner's case before the
Joint Grievance Board. In these circumstances, we are
constrained to conclude and find, contrary to the
Administrative Law Judge, that by this conduct [Local 705]
breached its duty of fair representation and restrained and
coerced Kesner in the exercise of his Section 7 rights,
thereby violating Section 8(b)(1)(A) of the [National Labor
Relations] Act.
Truck Drivers, 209 N.L.R.B. at 292-93. The NLRB ordered that
Local 705 cease and desist from failing or refusing to advocate
members' positions in grievances heard by the Joint Grievance
Board. The NLRB agreed that F&K did not breach the union
agreement.
Local 705 appealed. The Seventh Circuit affirmed,
stating:
It is one thing for a grievant to attempt to pursue his
remedy without assistance and opposed only by one adversary.
When that situation is compounded by two opponents, one of
whom is supposedly his "own people," the bearing on the
likelihood of his success assumes substantial significance.
When one's own representative who has been willing to assume
that status proclaims a lack of merit, it is indeed likely
to be a coup de grace to the claim. The Board held that it
was upon the facts of the case before us even though
ultimately it was also determined that it was an unnecessary
dagger.
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On the basis of the record in this case, it is our
holding that the Board's conclusion that Local 705, through
Business Agent Heim, breached its duty of fair
representation by failing to meet the obligation it
undertook of fully and fairly advocating Kesner's grievance
must be sustained on the union's petition to review.
Kesner, 532 F.2d at 1175.
In this case, unlike in Kesner, Nosaka never took a
position adverse to Makino before the County — even though UPW
evaluated Makino's grievance as questionable because it had lost
a number of arbitrations involving less serious allegations of
workplace violence. To the contrary, the record indicates that
Nosaka vigorously pursued a settlement on Makino's behalf,
keeping his grievance alive by serving a Step-3 arbitration
notice, until Makino rescinded settlement authority. At that
point, UPW withdrew the arbitration notice because – as it had
consistently maintained — there was insufficient proof that the
County violated the CBA. See Vaca v. Sipes, 386 U.S. 171, 191
(1967) ("Though we accept the proposition that a union may not
arbitrarily ignore a meritorious grievance or process it in
perfunctory fashion, we do not agree that the individual employee
has an absolute right to have his grievance taken to arbitration
regardless of the provisions of the applicable collective
bargaining agreement."). HLRB's combined findings and
conclusions that Makino "failed to carry his burden of arbitrary
conduct constituting a breach of the duty of fair representation"
and "failed to prove that the UPW breached its duty of fair
representation" were not clearly erroneous.
Having failed to prove that UPW breached its duty of
fair representation, Makino lacks standing to pursue a claim that
the County breached the CBA. Poe II, 105 Hawai#i at 103-04, 94
P.3d at 658-59. Accordingly, we need not address Makino's other
contentions on appeal.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
CONCLUSION
For the foregoing reasons, the circuit court's Judgment
entered on September 12, 2018, affirming the HLRB's Decision and
Order of October 19, 2017, is affirmed.
DATED: Honolulu, Hawai#i, April 5, 2023.
On the briefs:
/s/ Katherine G. Leonard
Ted H. S. Hong, Presiding Judge
for Complainant-Appellant-
Appellant Nathan Makino. /s/ Keith K. Hiraoka
Associate Judge
D. Kaena Horowitz,
Deputy Corporation Counsel, /s/ Karen T. Nakasone
County of Hawai#i, Associate Judge
for Respondent-Appellee-
Appellee County of Hawai#i.
Herbert R. Takahashi,
Rebecca L. Covert,
for Respondent-Appellee-
Appellee United Public
Workers, AFSCME, Local 646,
AFL-CIO.
15