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                                                                   Electronically Filed
                                                                   Supreme Court
                                                                   SCAP-XX-XXXXXXX
                                                                   09-JUN-2020
                                                                   11:40 AM
                                 SCAP-XX-XXXXXXX

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

                                 In the Matter of

            UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
                      Complainant-Appellee-Appellant,

                                         vs.

CHRISTINA M. KISHIMOTO,1 Superintendent, Department of Education,
 State of Hawaiʻi; and CONNECTIONS, A New Century Public Charter
                  School, Appellants-Appellees,

                                         and

  HAWAIʻI LABOR RELATIONS BOARD; SESNITA A.D. MOEPONO and J.N.
          MUSTO (2003-027), Agency-Appellees-Appellees.
________________________________________________________________

            APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
                   (CAAP-XX-XXXXXXX; CIV. NO. 07-1-0314)

                           MEMORANDUM OPINION
      (By: McKenna, Pollack, and Wilson, JJ., with Nakayama, J.,
            dissenting, with whom Recktenwald, C.J., joins)

                                 I. Introduction

          This is a secondary appeal brought by the United Public

Workers, AFSCME, Local 646, AFL-CIO (hereinafter, “UPW”) from
1
      Christina Kishimoto has succeeded Patricia Hamamoto (“Hamamoto”) as
Superintendent of the Department of Education, State of Hawaiʻi and, thus, has
been automatically substituted for Hamamoto in this case pursuant to Hawaiʻi
Rules of Appellate Procedure Rule 43(c) (2010).
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rulings of the Circuit Court of the Third Circuit (“circuit

court”) in appeals from decisions of the Hawaiʻi Labor Relations

Board (“HLRB”).         UPW first appeals the circuit court’s2 December

3, 2008 interlocutory decision and order vacating the June 8,

2007 HLRB order granting UPW’s motion for summary judgment.

          The HLRB’s June 8, 2007 order had concluded James Ah Sing

(“Ah Sing”), who had been a custodian at Connections Public

Charter School (“Connections”) from 2000 to 2003, was covered by

the terms of a March 15, 2004 stipulation signed by parties that

included UPW and the Department of Education of the State of

Hawaiʻi (“DOE”) in another HLRB case concerning civil service

employees at public charter schools.              The HLRB had ordered Ah

Sing be reinstated to his position.

          The circuit court’s December 3, 2008 order vacated the

HLRB’s June 8, 2007 interlocutory summary judgment order on the

bases that there were genuine issues of material fact as to (1)

whether Ah Sing was a member of bargaining Unit 1 at the time of

his termination; and (2) whether Ah Sing was intended to be in

the class of workers covered by the stipulation in the other

HLRB matter.

          On remand, the HLRB ruled in favor of the DOE, and on

appeal, the circuit court affirmed.               UPW therefore also appeals


2
          The Honorable Glenn S. Hara presided.


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the circuit court’s affirmance of the HLRB’s rulings on remand.

          UPW raises four points of error on appeal.          UPW’s first

point of error maintains that, in the first appeal, the circuit

court erred in failing to recognize the violation of merit

principles and the public policy favoring civil service when it

vacated the HLRB’s interlocutory ruling that Ah Sing was a civil

service member of UPW bargaining Unit 1, who was included in the

stipulation in the other HLRB matter.

          We agree with UPW on its first point of error on appeal

that the circuit court erred in vacating the HLRB’s June 8, 2007

interlocutory summary judgment order.             We therefore need not and

do not address UPW’s remaining issues on appeal, and we remand

this matter to the HLRB for further proceedings consistent with

this memorandum opinion.3

                                 II.   Background

A.        Ah Sing’s employment at Connections

          Ah Sing was initially appointed on September 5, 2000, to a

nineteen-hours-per-week part-time custodial position at

Connections at its Mountain View campus.              All Connections


3
      In summary, UPW’s second through fourth points of error arising out of
the second appeal to the circuit court allege the circuit court erred in:
failing to address UPW’s argument that if Ah Sing was in fact not a civil
service employee, Connections and the DOE were required to bargain with UPW
prior to contracting out his position; affirming HLRB’s application of the
exhaustion doctrine to Ah Sing’s claim; and affirming the denial of UPW’s
motion to amend its complaint to include a violation of the stipulation
between UPW and the DOE.


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employees were appointed by the local school board on a year-to-

year basis with a not to exceed (“NTE”) date of June 30th of

each school year.         Ah Sing’s initial appointment was classified

“exempt,” with a NTE date of June 30, 2001.

          Effective February 8, 2001, after Connections moved from

the Mountain View campus to downtown Hilo, Ah Sing’s employment

was increased to full-time (40 hours per week).               At that time,

Ah Sing became a member of UPW bargaining Unit 1.                An employee

personnel action report dated July 23, 2001, stated that, as of

that date, Ah Sing was in a temporary, exempt, at-will position

(“Position No. 111418”), and that the employment could “be

terminated at any time within 24 hours notice.”

          On January 2, 2001, however, the then-DOE Personnel

Director had memorialized a directive that, beginning with the

2001-02 school year, all charter schools’ employees would be in

“temporary civil service positions” that would be filled

applying normal civil service rules.             On July 23, 2001, Ah Sing

therefore submitted an application for a “Custodian II” civil

service position, and on the next day, Connections recommended

Ah Sing to a limited term appointment (“LTA”) as a temporary

“School Custodian II,” with a NTE date of June 30, 2002.4                 Ah

4
      This is consistent with the January 2, 2001 DOE memorialized directive
that, beginning with the 2001-02 school year, all public charter school
positions would be “temporary civil service positions” and filled in
accordance with normal civil service procedures.



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Sing completed the civil service application paperwork, and on

August 1, 2001, Ah Sing submitted a separation notice for his

custodian Position No. 111418 to accept DOE civil service

Position No. 56376.       Ah Sing was informed that his job had

changed to a civil service position, and an August 22, 2001

employee personnel action report indicates: (1) Ah Sing was

rehired as a School Custodian II in Position No. 56376 effective

August 2, 2001; (2) his appointment was for a limited term, with

a NTE date of June 30, 2002; and (3) he was a member of

bargaining Unit 1.

       An employee personnel action report for Ah Sing dated

October 17, 2002, for the 2002-03 school year reflected that Ah

Sing was appointed to the School Custodian II Position No. 56376

with a NTE date of June 30, 2003, and that effective July 2,

2002, his position was “[c]onver[ted]” to a civil service member

from a probationary appointment.           This report also states that

“[t]he personnel actions shown above have been taken in

compliance with the provisions of Chapter[] 76 [], HRS, as

amended.”     Hawaiʻi Revised Statutes (“HRS”) Chapter 76 is the

“Civil Service Law.”

       As noted, from the 2001-02 school year, the DOE had

officially been treating public charter school employees as

civil service employees.        On June 9, 2003, however, the then-

Director of the State of Hawaiʻi Department of Human Resources

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Development (“DHRD”) wrote to the then-Superintendent of the DOE

stating the DHRD’s position was that employees of public charter

schools did not have civil service status and that the DHRD had

been unaware until a few days before that its lists of eligible

employees were being used to fill public charter school

positions.

       In the meantime, a May 6, 2003 Connections letter addressed

to Ah Sing indicated the school board had taken action the day

before “to decline to renew your 89 day contract as of June 30,

2003.”    No reason was stated in the letter.          A DOE “Separation

Notice” for “Classified Personnel” was signed by Ah Sing on June

27, 2003, and it indicated a separation date effective June 30,

2003, from the School Custodian II Position No. 56376.              The

notice was signed by a Connections representative on June 30,

2003, and by the DOE Assistant or Complex Area Superintendent on

July 8, 2003.

       A July 17, 2003 letter from the Connections “CEO” to Ah

Sing stated the school board had decided to eliminate Ah Sing’s

position “given the limited funds we will be receiving for the

coming school year.”       After Ah Sing’s position was eliminated,

custodial work was performed at Connections by non-bargaining

unit employees, an independent contractor paid for by the

school’s landlord, and non-profit entities.



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B.        UPW=s HLRB complaints

          1.    UPW’s complaint on behalf of Ah Sing

          On August 18, 2003, UPW filed a prohibited practices

complaint with the HLRB, challenging the non-renewal of Ah

Sing’s custodian position at Connections.5              In the complaint, UPW

alleged that DOE and Connections (collectively, “Employer”)

violated the collective bargaining agreement (“CBA”) with UPW,

and HRS Chapter 89, by terminating Ah Sing.               Specifically, the

complaint alleged the non-renewal of Ah Sing’s position (1)

willfully violated various terms of the bargaining Unit 1 CBA in

violation of HRS § 89-13(a)(8) (1993); and (2) constituted a

willful refusal and failure to comply with the duty to bargain

in good faith over mid-term changes in wages, hours of work,

other terms and conditions of employment under HRS §§ 89-3

(Supp. 2000) and 89-9(a) (Supp. 2000),6 and the duty to recognize


5
          HLRB Case No. CE-01-539.
6
          HRS § 89-3 provides in relevant part:

                Rights of employees. [Section effective June 1, 2002. For
                present provision, see main volume.] Employees shall have
                the right of self-organization and the right to form, join,
                or assist any employee organization for the purpose of
                bargaining collectively through representatives of their
                own choosing on questions of wages, hours, and other terms
                and conditions of employment, and to engage in lawful,
                concerted activities for the purpose of collective
                bargaining of other mutual aid or protection, free from
                interference, restraint, or coercion.

(Bracketed material in original.)

          HRS § 89-9 provides in relevant part:
                                                                  (continued. . .)

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UPW as the exclusive bargaining agent under § 89-8(a) (1993).7

UPW’s complaint also alleged Employer’s “willful refusal and

failure to comply with the provisions of [HRS] chapter 89”

constituted prohibited practices under HRS §§ 89-13(a)(1), (5),

and (7).8       Ah Sing’s September 23, 2003 amended complaint added a


(continued. . .)

                Scope of negotiations; consultation. [Section effective
                July 1, 2002. For section effective June 30, 2002, see
                aboe.] (a) The employer and the exclusive representative
                shall meet at reasonable times[] . . . and shall negotiate
                in good faith with respect to wages, hours . . . and other
                terms and conditions of employment which are subject to
                collective bargaining and which are to be embodied in a
                written agreement as specified in section 89-10, but such
                obligation does not compel either party to agree to a
                proposal or make a concession[.]

(Bracketed material in original.)
7
          HRS § 89-8 provides in relevant part:

                Recognition and representation; employee participation.
                (a) The employee organization which has been certified by
                the board as representing the majority of employees in an
                appropriate bargaining unit shall be the exclusive
                representatives of all employees in the unit. As exclusive
                representative, it shall have the right to act for and
                negotiate agreements covering all employees in the unit and
                shall be responsible for representing the interests of all
                such employees[.]
8
          HRS § 89-13 provides in relevant part:

                Prohibited practices; evidence of bad faith. (a) It shall
                be a prohibited practice for a public employer or its
                designated representative wilfully to:

                      (1)   Interfere, restrain, or coerce any employee in
                            the exercise of any right guaranteed in this
                            chapter;

                            . . . .

                      (5)   Refuse to bargain collectively in good faith
                            with the exclusive representative as required
                            in section 89-9;
                                                                  (continued. . .)

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claim alleging violation of layoff rights under section 12 of

the CBA.

          2.   The UPW complaint against the DOE and the UPW/DOE
               stipulation

          At the time Ah Sing’s HLRB complaint was filed, the status

and rights of employees at public charter schools were the

subject of various additional UPW filings before the HLRB.9

Before filing Ah Sing’s complaint, on July 3, 2003, UPW and the

Hawaiʻi Government Employees Association (“HGEA”) filed a

prohibited practice complaint with the HLRB on behalf of all

employees in bargaining Units 1, 2, 3, 4, and 6, against the

then-Director of the DHRD and then-Governor of the State of

Hawaiʻi, regarding the civil service status of public employees

at charter schools (“UPW complaint”).             The UPW complaint, which

was later amended to add the DOE and the Board of Education

(“BOE”), alleged that the DHRD’s position that charter school

employees were not civil service employees and the DOE’s

subsequent implementation of the DHRD directive violated the

collective bargaining rights of affected charter school

(continued. . .)

                            . . . .

                      (7)   Refuse or fail to comply with any provision of
                            this chapter; [or]
                      (8)   Violate the terms of a collective bargaining
                            agreement[.]
9
          HLRB Case Nos. CE-01-537a, CE-02-537b, CE-03-537c, and CE-04-537d.




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employees.

       On July 3, 2003, UPW had obtained from the DOE’s Hawaiʻi

Regional Office’s Personnel Regional Officer in Hilo a list of

Big Island public charter school employees who might be impacted

by the DHRD’s June 9, 2003 directive that public charter school

employees were not civil service employees.            The list provided

to UPW by the DOE included Ah Sing.

       On March 15, 2004, UPW, the HGEA, the DOE, and the BOE

entered into a stipulation and order in the UPW complaint

(“UPW/DOE stipulation”).        The UPW/DOE stipulation provided in

relevant part as follows:

            1.    The UPW is an employee organization and the exclusive
                  representative, as provided under HRS § 89-2, of
                  employees in bargain unit 01, non-supervisory
                  employees in blue collar positions.

                  . . . .

            4.    The UPW [] and the State of Hawaii are at all times
                  relevant herein part[y] to the collective bargaining
                  agreement[] covering employees in bargaining unit 01
                  . . . .

            5.    Classified employees of the [DOE] covered by these
                  collective bargaining agreements have historically
                  and customarily been part of the “merit” or “civil
                  service” system of the State of Hawaii. There are
                  approximately 150 classified positions of DOE which
                  are in public charter schools and covered by such
                  civil service system.

            6.    The collective bargaining agreements contain
                  provisions for the maintenance of prior rights of
                  employees pursuant to civil service statutes and
                  rules, and require negotiations before changes in
                  conditions of work may be implemented.

            7.    On or about June 9, 2003 the Department of Human
                  Resources Development (DHRD) informed Employer of its
                  position (and policy) that employees of public
                  charter schools in the DOE “do not have civil service

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                  status” and are no longer part of the merit system.

            8.    On or about June 12, 2003 DHRD requested Employer to
                  “convert all public charter school positions to
                  reflect the fact that these positions do not have
                  civil service status” by June 30, 2003, and
                  thereafter informed Employer that DHRD would not
                  provide “certified lists of eligible applicants” and
                  “civil service appointments may not be made to fill
                  public charter school positions.”

            9.    On and after July 8, 2003 the aforementioned DHRD
                  position, policy, and actions were communicated to
                  public charter school administrators and employees.

            10.   As a direct consequence various public charter school
                  employees (in order to preserve and maintain their
                  civil service status, rights and benefits), initiated
                  transfers and other changes in their terms and
                  conditions of work.

            11.   As a further consequence on or about July 1, 2003 and
                  thereafter, DOE failed to process for hiring
                  approximately fifteen (15) or more public charter
                  school employees in classified positions through the
                  statewide merit system for compliance with civil
                  service requirements, and as a result these employees
                  are currently exempt from civil service coverage.

                  . . . .

            14.   Employer hereby stipulates and agrees to cease and
                  desist from implementing the aforementioned DHRD
                  position or policy regarding loss of civil service
                  status for public charter school positions and
                  employees, and to make whole all adversely [affected]
                  employees (including but not limited to the
                  restoration or return of said employees to their
                  former public charter school positions without loss
                  of rights, privileges, and benefits).

            15.   Within 30 days from the date of this Stipulation and
                  Order Employer shall process all currently exempt
                  public charter school employees in classified
                  positions through the statewide merit system and
                  restore them to civil service status. All classified
                  positions in public charter schools shall be restored
                  to the merit system within thirty days.

       3.   HLRB order granting UPW’s motion for summary judgment
            in Ah Sing’s case

       On March 16, 2004, UPW filed a motion for summary

judgment in Ah Sing’s case before the HLRB, contending it was

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entitled to judgment as a matter of law based on the UPW/DOE

stipulation because Ah Sing fell within the affected class of

the UPW/DOE stipulation.        In support of its motion, UPW

attached: (1) a copy of the UPW/DOE stipulation; (2) Ah Sing’s

declaration stating he was notified on June 27, 2003, that his

civil service position was not being renewed; (3) a copy of Ah

Sing’s separation notice from the DOE; and (4) the July 17, 2003

letter from Connections to Ah Sing stating Ah Sing’s position

was being eliminated due to limited funding.

       In their memorandum in opposition, Employer argued that UPW

failed to meet its burden of demonstrating that Ah Sing was

adversely affected by the DHRD’s position that public charter

school employees were not entitled to civil service status and

were thus covered by the UPW/DOE stipulation.            Employer

contended UPW could not meet this burden because the school

board decided on May 5, 2003, to not renew Ah Sing’s temporary

appointment, which was before the DHRD announced its policy.                In

support of its memorandum, Employer attached a declaration from

a DOE personnel specialist stating that “it is [her]

understanding that the decision not to renew Mr. Ah Sing=s

temporary appointment was based upon cost or funding concerns -

not civil service status[] . . . [and] that the decision . . .

was made on or about May 5, 2003.”

       The HLRB held a hearing on UPW’s motion on March 29, 2004,

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where the parties presented their arguments.            On June 8, 2007,

the HLRB entered an order granting UPW’s motion for summary

judgment.     In its order, the HLRB stated Ah Sing’s employment

status and treatment by the DOE and Connections were “hopelessly

muddled[]” and that “[t]he record reflects at least six

alternative representations[,]” but that it was unnecessary to

sort through the “minutia of [Ah Sing’s] particular

circumstance” because “Ah Sing was in all probability the victim

of the confusion surrounding the employment rights and status of

public charter school workers[.]”          The HLRB concluded Ah Sing

fell within the terms of the UPW/DOE stipulation and ordered his

reinstatement.

C.     First appeal to the circuit court

       1.   Parties’ briefs

       Employer filed a notice of appeal to the circuit court on

July 27, 2007.      In its opening brief, Employer claimed the

HLRB’s grant of summary judgment was improper because there were

genuine issues of material fact.           Employer argued the HLRB’s

order itself acknowledged factual disputes.            Employer also

asserted Connections could not be found to have willfully

engaged in a prohibited practice based on the entry of the

UPW/DOE stipulation because Connections was not a party to the

stipulation.     Employer also claimed the HLRB exceeded its

authority and jurisdiction by ordering Ah Sing’s reinstatement

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to a position that no longer existed.

       The HLRB’s answering brief noted that, after hearing

arguments, it had concluded there were no issues of material

fact and that UPW was entitled to judgment as a matter of law.

Based on the circumstances surrounding Ah Sing’s termination,

the HLRB maintained that “Ah Sing should have been reinstated to

his position or a similar position as were other classified

charter school employees by the [UPW/DOE stipulation]” and

viewed Employer’s failure to do so as both violating the UPW/DOE

stipulation and breaching the CBA.          With respect to Respondent’s

argument that the HLRB had exceeded its jurisdiction by ordering

Ah Sing’s reinstatement, the HLRB noted its broad authority to

fashion remedies for unfair or prohibited practices.             The HLRB

cited this court’s opinion in Del Monte Fresh Produce (Hawaii),

Inc. v. International Longshore and Warehouse Union, Local 142,

AFL-CIO, 112 Hawaiʻi 489, 508-10, 146 P.3d 1066, 1085-87 (2006),

which held that the HLRB had not abused its discretion in

fashioning a substantive remedy for laid-off employees.              In Del

Monte, this court noted that because the “legislature empowered

the HLRB with discretion in ordering affirmative remedies” and

because discretion is a flexible concept, only an arbitrary or

capricious decision by the HLRB would be an abuse of discretion.

112 Hawaiʻi at 508-09, 146 P.3d at 1085-86.           The HLRB requested

that, absent a showing it had abused its discretion, the circuit

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court affirm its remedial order.

       2.   Circuit court order vacating the HLRB’s order granting
            UPW’s motion for summary judgment

       After oral arguments, on December 3, 2008, the circuit

court entered its decision and order vacating the HLRB's order

granting UPW's motion for summary judgment in Civil No. 07-1-

314.    The circuit court found the HLRB erroneously granted UPW’s

motion for summary judgment because there were genuine issues of

material fact as to: (1) whether Ah Sing was a member of

bargaining Unit 1 at the time of his termination; and

(2) whether Ah Sing was intended to be in the class of workers

covered by the UPW/DOE stipulation.          The circuit court thus

vacated the HLRB’s order granting UPW’s motion for summary

judgment.

D.     HLRB proceedings on remand

       On remand, in summary, in its July 9, 2014 Order No. 3005,

the HLRB denied Employer’s motion to dismiss for lack of subject

matter jurisdiction, denied Employer’s alternative motion for

summary judgment because the circuit court had overturned the

HLRB’s grant of summary judgment in favor of UPW based on

alleged genuine issues of material fact, and denied UPW’s motion

to amend the Ah Sing complaint to add a claim for breach of the




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UPW/DOE stipulation.10      The HLRB reasoned that, if Ah Sing was

covered by the UPW/DOE stipulation, there was already an amended

UPW/HGEA complaint against the DOE in Case No. CE-01-537a

alleging a violation of the UPW/DOE stipulation and that,

therefore, amending the Ah Sing complaint to add a claim against

the DOE would result in two complaints for the same controversy,

in violation of Hawaiʻi Administrative Rules (“HAR”) § 12-42-

42(f) (1981).11

       The HLRB then conducted a hearing on the prohibited

practices complaint on October 22, and 23, 2014, December 11,

2014, and May 21, 2015.       On August 16, 2017, the HLRB entered

Decision No. 491 with its findings of fact, conclusions of law,

and an order dismissing Ah Sing’s complaint.            The HLRB made

numerous findings of facts and concluded: (1) Ah Sing was a

bargaining Unit 1 member at the time that he was terminated and

was required to exhaust his contractual remedies before filing

the complaint;12 (2) Ah Sing was not covered by the UPW/DOE


10
      The HLRB also denied UPW’s motion to amend to add claims for: (1)
breach of the ninety-day layoff notice provision in the CBA; (2) breach of
the HLRB’s oral ruling in Ah Sing’s case; and (3) attorney’s fees and costs;
these denials were not appealed.
11
       HAR § 12-42-42(f) states: “Only one complaint shall issue against a
party with respect to a single controversy.”
12
      The HLRB noted in Decision No. 491 that it had declined to dismiss the
complaint based on Ah Sing=s alleged failure to exhaust remedies twice before:

                  Notwithstanding these two prior rulings, following
            the hearing on the merits on remand, the Board exercises
                                                              (continued. . .)

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stipulation because (a) he was not employed by the DOE in March

2004 when the stipulation became effective; (b) Ah Sing’s

limited term position was eliminated due to lack of funding and

not the DHRD’s directive; and (c) the law of the case did not

constrain the HLRB’s conclusion because its initial decision was

vacated by the circuit court; (3) UPW failed to carry its burden

of showing that the DOE contravened the duty to bargain in good

faith in violation of HRS §§ 89-13(a)(1), (5), and (7); and

(4) Connections willfully retaliated against Ah Sing by

cancelling his rubbish hauling contract in violation of HRS

§ 89-13(a)(4), but that UPW failed to show that the retaliatory

conduct violated HRS § 89-13(a)(1) by interfering with Ah Sing’s

right to bargain collectively.13


(continued. . .)
            its discretion to reconsider this issue based on Hawaii
            federal precedent. . . .

                   The Board concludes that the evidence on remand was
             “substantially different” on this issue because unlike the
             record at the time of the first and second motions to
             dismiss, the record on remand is undisputed that Ah Sing
             was a Unit 1 member. For this reason, the Board, in its
             discretion, reconsiders the exhaustion issue and agrees
             with [Employer] based on the record that because Ah Sing
             was a Unit 1 member at the time of his termination, he was
             required to file a grievance and exhaust[] his contractual
             remedies[.]”
13
       HRS § 89-13 states in relevant part:

             (a) It shall be a prohibited practice for a public employer
             or its designated representative wilfully to:

                   (1)   Interfere, restrain, or coerce any employee in
                         the exercise of any right guaranteed in this
                         chapter[.]
                                                               (continued. . .)

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E.     Second appeal to the circuit court

       UPW appealed the HLRB’s decisions on remand to the circuit

court.14    On August 28, 2018, the circuit court entered a written

decision and order15 affirming the HLRB’s rulings on remand

entered its judgment on September 19, 2018.

F.     Appeal to the ICA and transfer to this court

       On September 26, 2018, UPW appealed the circuit court’s

decision to the ICA.         This court granted UPW’s application for

transfer of the appeal on July 2, 2019.

                      III.     Standards of review

A.     Secondary appeals

                   Review of a decision made by the circuit court upon
             its review of an agency’s decision is a secondary appeal.
             The standard of review is one in which [the appellate]
             court must determine whether the circuit court was right or
             wrong in its decision, applying the standards set forth in
             HRS § 91-14(g) [(1993)] to the agency’s decision.

                   HRS § 91-14, 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; or
                         (2)    In excess of the statutory authority or
                                jurisdiction of the agency; or
                         (3)    Made upon unlawful procedure; or

(continued. . .)
14
       Employer initially filed a cross-appeal, which it later withdrew.
15
       The Honorable Henry T. Nakamoto presided.


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                         (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.

                   [U]nder HRS § 91-14(g), conclusions of law are
             reviewable under subsections (1), (2), and (4); questions
             regarding procedural defects under subsection (3); findings
             of fact under subsection (5); and an agency’s exercise of
             discretion under subsection (6).

United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 106

Hawaiʻi 359, 363, 105 P.3d 236, 240 (2005) (second and third

alterations in original).         “Pursuant to HRS § 91-14(g), an

agency’s conclusions of law are reviewed de novo.”              106 Hawaiʻi

at 363, 105 P.3d at 240.         “A circuit court’s conclusions of law

are subject to de novo review.”          Paul’s Elec. Serv., Inc. v.

Befitel, 104 Hawaiʻi 412, 420, 91 P.3d 494, 502 (2004).

B.     Summary judgment

       An appellate court reviews a grant of summary judgment de

novo:

             Summary judgment is appropriate if the pleadings,
             depositions, answers to interrogatories, and admissions on
             file, together with the affidavits, if any, show that there
             is no genuine issue as to any material fact and that the
             moving party is entitled to judgment as a matter of law. A
             fact is material if proof of that fact would have the
             effect of establishing or refuting one of the essential
             elements of a cause of action or defense asserted by the
             parties. The evidence must be viewed in the light most
             favorable to the non-moving party. In other words, we must
             view all of the evidence and inferences drawn therefrom in
             the light most favorable to the party opposing the motion.

Uyeda v. Schermer, 144 Hawaiʻi 163, 170, 439 P.3d 115, 122

(2019).

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                              IV.   Discussion

       In its opening brief, UPW raises the following points of

error:

       1.   The circuit court erroneously failed to recognize the clear
            violation of the merit principles and public policy
            favoring civil service when it vacated the [HLRB’s] prior
            grant of summary judgment and then affirmed the [HLRB’s]
            later conclusion that the [UPW/DOE stipulation] and order
            did not extend to Ah Sing and his civil service position at
            Connections.

       2.   The circuit court erroneously failed to recognize
            [Employer’s] duty to negotiate over the elimination of
            Connections’ only unit 1 employee and their duty to bargain
            over the decision of privatizing the work if Ah Sing was in
            fact not a civil service employee.

       3.   The circuit court erred in affirming the [HLRB’s]
            abrogation of its exclusive original jurisdiction as
            delegated by the legislature when HLRB misapplied the
            exhaustion doctrine to refuse to decide [UPW’s] claims for
            violations of the [CBA] under [HRS § 89-13(a)(8)].

       4.   The circuit court erroneously determined that the [HLRB]
            did not err in denying [UPW’s] motion to amend the original
            complaint to include the violation of the [UPW/DOE
            stipulation].

       As noted earlier, we agree with UPW’s first point of error

on appeal.     For the reasons explained below, the circuit court

erred in vacating the HLRB’s June 8, 2007 order granting summary

judgment in favor of UPW on the grounds that there were genuine

issues of material fact as to: (1) whether Ah Sing was a member

of bargaining Unit 1 at the time of his termination; and

(2) whether Ah Sing was intended to be in the class of workers

covered by the UPW/DOE stipulation.           Based upon our de novo

review, the circuit court erred because there were no such

genuine issues of material fact.           We therefore need not and do


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not address UPW’s remaining issues on appeal, and we remand this

matter to the HLRB for further proceedings consistent with this

memorandum opinion.

       First, there is no genuine issue of material fact regarding

whether Ah Sing was a member of bargaining Unit 1 at the time of

his termination.       When Ah Sing accepted DOE civil service

Position No. 56376 in August 2001, the August 22, 2001 employee

personnel action report clearly indicated he was a member of

bargaining Unit 1.       His employee personnel action report of

October 17, 2002, for the school year ending June 30, 2003, also

clearly indicated he was a member of bargaining Unit 1.               Thus,

the circuit court erred by ruling in its December 3, 2008

decision and order that the HLRB erred in granting UPW’s motion

for summary judgment on the grounds that there was a genuine

issue of material fact as to whether Ah Sing was a member of

bargaining Unit 1 at the time of his termination on June 30,

2003.

       The circuit court also based its vacatur of the HLRB’s June

8, 2007 summary judgment order, however, based on its conclusion

that there was also a genuine issue of material fact as to

whether Ah Sing was intended to be covered by the UPW/DOE

stipulation.      The HLRB’s June 8, 2007 decision did state that

“[t]he record reflects at least six alternative representations

of [Ah Sing’s] employment status and consequent reasons for

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termination[,]” and that “Ah Sing was in all probability the

victim of the confusion surrounding the employment rights and

status of public charter school workers[.]”            These observations,

however, do not raise genuine issues of material fact as to

whether or not Ah Sing was covered by the UPW/DOE stipulation.

       Ah Sing’s employee personnel action report of October 17,

2002, for the school year ending June 30, 2003, indicates he was

hired effective July 2, 2002, in DOE civil service Position No.

56376 for a one-year period with a NTE date of June 30, 2003,

and that he was a member of bargaining Unit 1.            Also, the DOE

itself included Ah Sing in the July 3, 2003 list of Big Island

public charter school employees impacted by the DHRD’s June 9,

2003 directive that public charter school employees were not

civil service employees.

       The plain language of the UPW/DOE stipulation states it

applied to “approximately 150 classified positions of DOE [] in

public charter schools [] covered by [the] civil service system”

(paragraph 5), which included bargaining Unit 1 employees

(paragraphs 1 and 4), for whom DOE was informed that “[o]n or

about June 9, 2003 . . . that employees of public charter

schools in the DOE ‘do not have civil service status’”

(paragraph 7).

       In paragraph 14 of the stipulation, Employer agreed to

“cease and desist from implementing the aforementioned DHRD

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position or policy regarding loss of civil service status for

public charter school positions and employees[.]”             The

“aforementioned” DHRD position or policy included the DHRD’s

statement that “[o]n or about June 9, 2003 . . . that employees

of public charter schools in the DOE ‘do not have civil service

status’” (paragraph 7), which included Ah Sing, who was still a

civil service public charter school employee as of that date.

Then, as stated in paragraph 6 of the UPW/DOE stipulation,

“[t]he collective bargaining agreements contain provisions for

the maintenance of prior rights of employees pursuant to civil

service statutes and rules, and require negotiations before

changes in conditions of work may be implemented.”             Ah Sing had

such civil service rights as a bargaining Unit 1 civil service

employee.

       Employer argues that despite including Ah Sing’s name in

the list of employees affected by the DHRD’s June 9, 2003

directive in its July 3, 2003 letter to UPW, Ah Sing was not

included in the stipulation because he had been notified in May

6, 2003, that Connections would not be renewing his contract due

to budget limitations.       This, however, is not a genuine issue of

material fact as to whether Ah Sing was covered by the UPW/DOE




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stipulation.16     The stipulation included civil service bargaining

Unit 1 public charter school employees as of June 9, 2003, when

the DHRD stated he did not enjoy civil service rights.              Ah Sing

was denied rights as a civil service employee, which existed

whether or not Connections had reduced funding.            Therefore, he

is included in the UPW/DOE stipulation, and the circuit court

also erred in vacating the HLRB’s June 8, 2007 summary judgment

order based on its conclusion that there was a genuine issue of

material fact as to whether Ah Sing was intended to be covered

by the UPW/DOE stipulation.

       Accordingly, we need not address UPW’s additional points of

error arising out of the HLRB’s decisions after remand.

                               V.   Conclusion

       Based on the reasons explained above, we remand this matter

to the HLRB for further proceedings consistent with this

memorandum opinion.       If the remedy ordered by the HLRB in its

June 8, 2007 order is no longer available or appropriate, as

stated in Del Monte, the “legislature empowered the HLRB with




16
      Accordingly, we disagree with the dissent. Also, Connections’
purported May 6, 2003 non-renewal of Ah Sing and the DOE employee’s
attestation that Ah Sing’s non-renewal was not related to DHRD’s position
regarding civil service status of the various employees does not create a
genuine issue of material fact because Ah Sing was still a civil service
employee as of June 9, 2003; the DOE itself included Ah Sing in the July 3,
2003 list of Big Island public charter school employees impacted by the
DHRD’s June 9, 2003 directive that public charter school employees were not
civil service employees.


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discretion in ordering affirmative remedies[.]”            112 Hawaiʻi at

508, 146 P.3d at 1085.

            DATED:    Honolulu, Hawaiʻi, June 9, 2020.

Rebecca L. Covert,                  /s/ Sabrina S. McKenna
(Herbert R. Takahashi
with her on the briefs)             /s/ Richard W. Pollack
for claimant
                                    /s/ Michael D. Wilson
James E. Halvorson and
Richard H. Thomason,
for appellants-appellees




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