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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000077
                                                              29-JUN-2015
                                                              08:03 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


       In the Matter of the Grievance Arbitration Between

    STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS (SHOPO),
    exclusive representative for Bargaining Unit 12, Police,
      on behalf of SHELLY L. RODRIGUES, JAMES A. RODRIGUEZ,
                       and SHANE Y. SOKEI,
                Respondents/Grievants-Appellants,

                                    and

          COUNTY OF KAUAʻI and KAUAʻI POLICE DEPARTMENT,
                 Petitioners/Employers-Appellees.


                            SCWC-10-0000077

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-10-0000077; S.P. NO. 09-1-0031)

                              June 29, 2015

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.

                OPINION OF THE COURT BY POLLACK, J.

          The County of Kauaʻi and Kauaʻi Police Department (the

Employer) filled five police sergeant positions in 2007 through

internal promotions.     The State of Hawaii Organization of Police

Officers (SHOPO) challenged the non-promotions of three police
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officers through the grievance procedures of the collective

bargaining agreement governing the parties.           When the parties

were unable to resolve the grievances, the matter was submitted

to arbitration for final determination.          After finding that the

promotions were subjective, arbitrary, and capricious in

violation of the collective bargaining agreement, the arbitrator

awarded the three officers promotions and back pay.            The Circuit

Court of the Fifth Circuit (circuit court) found that it was

beyond the scope of the arbitrator’s authority to award

promotions and vacated the arbitrator’s remedy. 1          The principal

issue before this court is whether it was proper for the circuit

court to vacate the arbitrator’s remedy.

                              I.    BACKGROUND

             In May 2007, the Employer notified SHOPO that it would

fill five police sergeant positions from the existing

promotional eligible list, which was based on the results of

written examinations.      The acting chief of police decided to add

an oral interview to the promotional process.           An examination

panel was assembled, and the interviews were conducted in August

2007.     Five candidates were selected to the police sergeant

positions, and following the appointments, three of the




      1
            SHOPO appealed the decision of the circuit court to the
Intermediate Court of Appeals (ICA), and the ICA vacated the circuit court’s
decision.


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unsuccessful candidates filed grievances alleging violations of

the collective bargaining agreement.

             The grievances were brought under the collective

bargaining agreement that pertains to the employment of state

and county police officers (agreement). 2         The agreement is

between SHOPO--the exclusive representative for public employees

in the police officers unit--and the State of Hawaiʻi, City and

County of Honolulu, County of Hawaiʻi, County of Maui, and County

of Kauaʻi.    The agreement includes a four-step grievance

procedure that provides for the final settlement of unresolved

grievances through “final and binding” arbitration. 3

             The four-step grievance procedure is set out in

Article 32, which provides for arbitration as the final step and

restricts review of the decision on appeal: “The award of the

Arbitrator shall be accepted as final and binding.            There shall

be no appeal from the Arbitrator’s decision by either party, if

such decision is within the scope of the Arbitrator’s authority

as described below . . . .”       Article 32 includes a limitation on

the arbitrator’s authority: “The Arbitrator shall not have the
      2
            The parties agreed that Articles 1, 14, 32, 35, and 47 were
substantially the same between the contract that was in effect July 2003
through June 2007 and the contract in effect from July 2007 through June
2011. All quotations from the agreement in this opinion are from the
agreement effective July 2007.
      3
            Article 32 provides for the grievance procedure to govern the
parties under the agreement; it includes provisions regarding the selection
of an arbitrator, the arbitrator’s jurisdiction, a pre-hearing, discovery,
and the arbitration award.



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power to add to, subtract from, disregard, alter, or modify any

of the terms of this Agreement.”          Article 32 also sets forth the

arbitrator’s authority:

           The Arbitrator’s authority shall be to decide whether the
           Employer has violated, misinterpreted or misapplied any of
           the terms of this Agreement and in the case of any action
           which the Arbitrator finds unfair, unjust, improper or
           excessive on the part of the Employer, such action may be
           set aside, reduced or otherwise changed by the Arbitrator.
           The Arbitrator may, in the Arbitrator’s discretion, award
           back pay to recompense in whole or in part, the employee
           for any salary or financial benefits lost, and return to
           the employee such other rights, benefits, and privileges or
           portions thereof as may have been lost or suffered.

           Article 47 of the agreement specifically addresses

promotions: “Promotions shall be based upon fair standards of

merit and ability, consistent with applicable civil service

statutes, rules and regulations and procedures.”            The “Rights of

the Employer” are provided for in Article 11; it includes a

single section titled “Management Rights” that provides, “The

Employer reserves and retains, solely and exclusively, all

management rights and authority, including the rights set forth

in Section 89-9(d)(1)-(8), Hawaii Revised Statutes, except as

specifically abridged or modified by this Agreement.” 4


     4
            HRS § 89-9(d) (Supp. 2007) prohibits agreement to a provision
that “would interfere with the rights and obligations of a public employer
to” do certain listed functions including the right to “[h]ire, promote,
transfer, assign, and retain employees in positions.” Notwithstanding HRS §
89-9(d)’s prohibition of agreements that interfere with certain management
rights, it also provides the following:

           This subsection shall not be used to invalidate provisions
           of collective bargaining agreements in effect on and after
           June 30, 2007, and shall not preclude negotiations over the
           procedures and criteria on promotions . . . .

                                                             (continued . . .)

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            The grievances of the three police officers asserted

violations of the collective bargaining agreement.            The

grievants contended that the promotional process used by the

Employer was subjective, arbitrary, and capricious.            Each

grievance statement stated the following under the heading

“remedy sought”: “That the employer promote the Grievant to

Police Sergeant on the effective date of promotion and be made

whole.”

            The parties were not able to settle the grievances

through the first three steps of the grievance procedures before

the Employer, and in May 2008, SHOPO sent the Employer a Notice

of Intent to Arbitrate on behalf of each grievant.            Larry L.

Cundiff, Sr. was selected as the sole arbitrator for

determination of the three grievances (arbitrator).            A

consolidated arbitration hearing on the grievances was held

before the arbitrator for three days in January 2009.

            At the beginning of the hearing, the arbitrator

stated, “Both parties have agreed that this matter is properly

before the arbitrator.”       After a brief discussion with both

attorneys off the record, the arbitrator stated that the parties

previously agreed that SHOPO had the right to challenge “the way

(continued . . .)
            Violations of the procedures and criteria so negotiated may
            be subject to the grievance procedure in the collective
            bargaining agreement.

HRS § 89-9(d).


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that the promotions were done; however, they do not challenge

the [Employer’s] right to make the promotions.”           During the

hearing, a total of seventy-five exhibits were admitted into

evidence, and eight witnesses testified.          Testimony indicated

that there were three to five vacant sergeant positions at that

time.

            In the arbitrator’s June 2, 2009 decision, the

arbitrator found that the matter was properly before the

arbitrator and that the arbitrator had jurisdiction over the

grievances. 5    The arbitrator’s decision provided an overview of

the testimony presented regarding the three officers’ work

history and qualifications.       The arbitrator found that the

grievants were denied promotions “due to subjective, arbitrary

and capricious promotional practices.”          The arbitrator awarded

the grievants promotions to sergeant positions, back pay, and

“any additional rights, benefits and privileges they would have

been entitled to had they been promoted.”

            SHOPO filed a motion to confirm the arbitrator’s award

in the circuit court on June 23, 2009, arguing that the award

was valid, binding, and issued within the arbitrator’s

authority. 6    The Employer opposed SHOPO’s motion and moved for

      5
            The arbitrator determined he had authority based on the section
titled “Arbitrators Authority” in Article 32.
      6
            The Honorable Kathleen N.A. Watanabe presided in all circuit
court proceedings in this case.



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the circuit court to vacate the award on the basis that the

arbitrator “exceeded his authority” under the agreement.             The

Employer also maintained that the arbitrator’s actions “were

beyond the jurisdiction of negotiation and arbitration, as well

as a violation of public policy.”        SHOPO opposed the Employer’s

motion to vacate and contended that the arbitrator had the

jurisdiction and authority to decide the matter and noted that

the Employer conceded in pre-arbitration proceedings that SHOPO

had the right to grieve the subject promotions.

          The circuit court heard argument on the motions in a

July 29, 2009 hearing.     The court stated during the hearing that

the grievances were properly before the arbitrator and that the

Employer had taken “inconsistent positions” regarding whether

the promotions were a proper subject of arbitration.           The

circuit court stated, “I believe the employer is estopped from

arguing otherwise, because they agreed to final and binding

arbitration.”   The circuit court continued, “They agreed that

this was a proper subject.”

          However, the circuit court also found that it was

beyond the scope of the arbitrator’s authority under the

agreement and HRS § 658A-23 to award promotions and back pay.

The circuit court found that the agreement in this case was

distinguishable from the collective bargaining agreement in

University of Hawaiʻi Professional Assembly v. University of


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Hawaiʻi, 66 Haw. 214, 659 P.2d 720 (1983) (per curium)

[hereinafter UHPA II], 7 which the circuit court found granted the

arbitrator greater authority.

            On August 6, 2009, the circuit court granted in part

and denied in part the Employer’s motion to vacate.            The court

confirmed the arbitrator’s findings of facts and conclusions

with the exception of the arbitrator’s remedy, which the court

vacated.    The court reasoned that the grievances were properly

before the arbitrator and within his jurisdiction, but the court

also found that the arbitrator’s remedy exceeded his authority

and powers granted under Article 32 of the agreement in

violation of HRS § 658A-23.       In accordance with its rulings, the

court denied SHOPO’s motion to confirm the arbitrator’s award

and remanded the case for a rehearing on the issue of remedy.

SHOPO filed a notice of appeal, which was dismissed by the ICA

for lack of appellate jurisdiction.

            On July 8, 2010, the arbitrator issued a decision

regarding the circuit court’s order denying the Employer’s

request to vacate the arbitrator’s remedy.          The arbitrator’s


      7
            In a series of four cases decided on the same day in 1983, this
court clarified judicial review of arbitration decisions in the context of
public sector collective bargaining agreements providing for final and
binding arbitration. See Univ. of Haw. Prof’l Assembly v. Univ. of Haw., 66
Haw. 207, 659 P.2d 717 (1983) (per curium) [hereinafter UHPA I]; UHPA II, 66
Haw. 214, 659 P.2d 720; Univ. of Haw. v. Univ. of Haw. Prof’l Assembly, 66
Haw. 228, 659 P.2d 729 (1983) (per curium) [hereinafter UHPA III]; Univ. of
Haw. v. Univ. of Haw. Prof’l Assembly, 66 Haw. 232, 659 P.2d 732 (1983) (per
curium) [hereinafter UHPA IV].



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decision stated that the parties agreed to a rehearing on the

remedy issue before the arbitrator by submitting their arguments

and positions via memoranda.      The arbitrator concluded that the

remedy from his previous decision would “remain unchanged” based

on the arbitrator’s “reading and interpretation of the plain

language and meaning of the ‘Arbitrator’s Authority’ as set

forth in Article 32” of the agreement.

          The arbitrator also made several findings with regard

to his authority under Article 32 including that “the words

‘otherwise change’ are clear and unambiguous” and grant the

arbitrator the authority to grant promotions as part of the

remedy to resolve grievances.       The arbitrator found that the

remedy was consistent with past practices of parties under the

agreement.   The arbitrator also found that the Employer “never

contended during the arbitration hearings that the language in

Article 32 was not sufficiently worded to permit the Arbitrator

to grant a promotion to remedy the grievances.”          Additionally,

the arbitrator noted that he had “previously found” that the

grievants were “well qualified based on merit and ability for

promotion,” as shown by evidence presented during the

arbitration hearings.

          SHOPO filed a motion to confirm the arbitrator’s July

8, 2010 award arguing that the arbitrator’s remedy “should be

confirmed as a ‘final and binding’ decision that was issued


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within the arbitrator’s authority.”        The Employer opposed

SHOPO’s motion and filed a motion to vacate.          On September 20,

2010, the circuit court issued orders resolving the parties’

motions.   The court granted in part and denied in part SHOPO’s

motion to confirm the award; as it had done previously, the

court confirmed the arbitrator’s “findings and decisions in all

respects” but vacated based on the arbitrator’s remedy.            SHOPO

timely filed a notice of appeal.

           In a published opinion, the ICA first considered

SHOPO’s contention that the Employer was estopped from asserting

that the arbitrator exceeded his authority in awarding

promotions because the Employer failed to raise this argument

during arbitration.     The ICA rejected SHOPO’s estoppel argument,

distinguishing the UHPA II case from this case based primarily

on the wording of the respective agreements.          The ICA also found

that the Employer contested the arbitrator’s authority to

promote the grievants during the arbitration hearings.

           With regard to the remedy awarded by the arbitrator,

the ICA concluded that pursuant to the agreement and HRS § 89-

9(d), the arbitrator did not exceed his authority in awarding

promotions and the circuit court erred in finding otherwise.               In

its analysis, the ICA considered the public policies set forth

in HRS §§ 76-1 and 89-9 but did not expressly resolve whether

the agreement was contrary to public policy.          Accordingly, the


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ICA affirmed in part and vacated in part the circuit court’s

August 6, 2009 and September 20, 2010 orders and remanded the

case to the circuit court for confirmation of the arbitrator’s

decision in its entirety.

          The Honorable Lisa M. Ginoza concurred and dissented

in the decision, arguing that the arbitrator exceeded his

authority in granting the remedy (ICA dissent).          The Employer

requests this court to adopt the analysis of the ICA dissent,

which interpreted the agreement as reserving the right to

promote solely to the Employer and to the exclusion of the

arbitrator.

                      II.    STANDARDS OF REVIEW

          “[J]udicial review of an arbitration award is confined

to ‘the strictest possible limits,’” and a court may only vacate

an award on the grounds specified in HRS § 658A-23 and modify or

correct on the grounds specified in HRS § 658A-24.           See Daiichi

Haw. Real Estate Corp. v. Lichter, 103 Hawaiʻi 325, 336, 82 P.3d

411, 422 (2003).    This standard applies to both the circuit

court and the appellate courts.       See id. (noting that HRS §§

658–9 and –10 “also restrict the authority of [appellate courts]

to review judgments entered by circuit courts confirming [or

vacating] the arbitration awards” (quoting         Mars Constructors,

Inc. v. Tropical Enters., Ltd., 51 Haw. 332, 336, 460 P.2d 317,

319 (1969)).


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            The circuit court’s “findings of fact will not be set

aside unless they are clearly erroneous.”          Beneficial Haw., Inc.

v. Casey, 98 Hawaiʻi 159, 167, 45 P.3d 359, 367 (2002).

            A finding of fact is clearly erroneous when, despite
            evidence to support the finding, the appellate court is
            left with the definite and firm conviction in reviewing the
            entire evidence that a mistake has been committed. A
            finding of fact is also clearly erroneous when the record
            lacks substantial evidence to support the finding. We have
            defined ‘substantial evidence’ as credible evidence which
            is of sufficient quality and probative value to enable a
            person of reasonable caution to support a conclusion.

Daiichi, 103 Hawaiʻi at 337, 82 P.3d at 423 (citations

omitted) (quoting Beneficial Haw., Inc. v. Kida, 96 Hawaiʻi

289, 305, 30 P.3d 895, 911 (2001)) (internal quotation

marks omitted).     We review the circuit court’s conclusions

of law under the right/wrong standard.          Id.

                            III.    DISCUSSION

            The Employer raises one issue in its Application for

Writ of Certiorari, whether “the ICA gravely erred in holding

that the Arbitrator did not exceed his powers under the

applicable collective bargaining agreement . . . by ordering

that the Grievants be promoted to the position of Sergeant and

awarding the attendant back pay and benefits.”           The Employer

argues that the Arbitrator exceeded his authority under the

agreement in promoting the grievants and maintains that the

agreement expressly reserves the right to promote to the

Employer.    The Employer also submits that the arbitrator’s




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awarding of back pay and promotions are in violation of public

policy.

           In response, SHOPO maintains that the ICA majority

reached the correct decision and that the circuit court

“contravened well established case law” in “second guessing” the

arbitrator’s interpretation of the collective bargaining

agreement, ignoring the unambiguous language of the agreement,

and disregarding the parties’ long standing practice “that

permitted the Arbitrator to resolve the grievances as he did.”

A.    The Arbitrator’s Decision and Award Could Have Rested on an
                 Interpretation of the Agreement.

           In this case, the parties agreed to “final and

binding” arbitration for the settlement of grievances.             “It is

well settled that the legislature overwhelmingly favors

arbitration as a means of dispute resolution.”           Tatibouet, 99

Hawaiʻi at 234, 54 P.3d at 405 (quoting Leeward Bus Co. v.

Honolulu, 58 Haw. 64, 71, 564 P.2d 445, 449 (1977)).

Accordingly, the legislature narrowly constrained judicial

review of arbitration awards in the HRS, Chapter 658A.             Under

HRS § 658A-22 (Supp. 2001), 8 a party to an arbitration proceeding

     8
           HRS § 658A-22 provides the following:

           After a party to an arbitration proceeding receives notice
           of an award, the party may make a motion to the court for
           an order confirming the award at which time the court shall
           issue a confirming order unless the award is modified or
           corrected pursuant to section 658A-20 or 658A-24 or is
           vacated pursuant to section 658A-23.



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may make a motion to a court for confirmation of an award.                HRS

§ 658A-22 requires the court to confirm the order unless the

award is modified or corrected under certain limited

circumstances 9 or is vacated pursuant to HRS § 658A-23 (Supp.

2001). 10   The circumstances under which a circuit court may

vacate an arbitration award are set forth in HRS § 658A-23,

      9
            The award may be modified or corrected by the arbitrator pursuant
to HRS § 658A-20 or by the court pursuant to HRS § 658A-24.
      10
            HRS § 658A-23(a) provides the following:

            Upon motion to the court by a party to an arbitration
            proceeding, the court shall vacate an award made in the
            arbitration proceeding if:

            (1) The award was procured by corruption, fraud, or other
            undue means;

            (2) There was:

             (A) Evident partiality by an arbitrator appointed as a
             neutral arbitrator;

             (B) Corruption by an arbitrator; or

             (C) Misconduct by an arbitrator prejudicing the rights of
             a party to the arbitration proceeding;

            (3) An arbitrator refused to postpone the hearing upon
            showing of sufficient cause for postponement, refused to
            consider evidence material to the controversy, or otherwise
            conducted the hearing contrary to section 658A-15, so as to
            prejudice substantially the rights of a party to the
            arbitration proceeding;

            (4) An arbitrator exceeded the arbitrator’s powers;

            (5) There was no agreement to arbitrate, unless the person
            participated in the arbitration proceeding without raising
            the objection under section 658A-15(c) not later than the
            beginning of the arbitration hearing; or

            (6) The arbitration was conducted without proper notice of
            the initiation of an arbitration as required in section
            658A-9 so as to prejudice substantially the rights of a
            party to the arbitration proceeding.



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which includes vacation of an arbitration award if an

“arbitrator exceeded the arbitrator’s powers.”           Cf. Tatibouet,

99 Hawaiʻi at 234, 54 P.3d at 405 (discussing the limitations on

judicial review of arbitration awards under HRS § 658-9 (1993)

(repealed 2001)).

            In determining whether an arbitrator has exceeded his

or her authority under the agreement, “there should be no

‘second guessing’ by the court” of the arbitrator’s

interpretation of his or her authority so long as the

arbitrator’s interpretation “could have rested on an

interpretation and application of the agreement.” 11           Local Union

1260 Int’l Bhd. of Elec. Workers v. Hawaiian Tel. Co., 49 Haw.

53, 56, 411 P.2d 134, 136 (1966); UHPA I, 66 Haw. at 210, 659

P.2d at 719 (explaining that the issue of arbitrability should

be decided by the arbitrator, rather than the court, because

“the parties agreed to submit to the arbitrator” disputes of

arbitrability); see also Haw. State Teachers Ass’n v. Univ. Lab.

Sch., 132 Hawaiʻi 426, 432, 322 P.3d 966, 972 (2014) (upholding

the principle that questions of arbitrability are reserved for

      11
            Federal courts apply a similar standard: an arbitrator’s award
“is legitimate only so long as it draws its essence from the collective
bargaining agreement.” United Steelworkers of Am. v. Enter. Wheel & Car
Corp., 363 U.S. 593, 597 (1960); see also W.R. Grace & Co. v. Local Union
759, Int’l Union of United Rubber Workers, 461 U.S. 757, 765 (1983) (“Because
the authority of arbitrators is a subject of collective bargaining, just as
is any other contractual provision, the scope of the arbitrator’s authority
is itself a question of contract interpretation that the parties have
delegated to the arbitrator.”).



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the arbitrator); UHPA III, 66 Haw. at 230, 659 P.2d at 731 (“It

is the arbitrator’s construction of the contract which was

bargained for.” (alterations omitted) (quoting United

Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593,

597 (1960)).

          Consistent with our case law discussing the proper

review of arbitration awards, the agreement in this case

provided, “The award of the Arbitrator shall be accepted as

final and binding.    There shall be no appeal from the

Arbitrator’s decision by either party, if such decision is

within the scope of the Arbitrator’s authority . . . .”

Accordingly, the outcome of this case depends on whether the

arbitrator’s interpretation of the scope of his authority “could

have rested on an interpretation and application of the

agreement.”    Hawaiian Tel. Co., 49 Haw. at 56, 411 P.2d at 136.

          In this case, Article 32 of the agreement expressly

grants the arbitrator the authority to “decide whether the

Employer has violated, misinterpreted or misapplied any of the

terms of this Agreement.” 12     Article 32 further provides that


     12
          Article 32 provides:

          The Arbitrator’s authority shall be to decide whether the
          Employer has violated, misinterpreted or misapplied any of
          the terms of this Agreement and in the case of any action
          which the Arbitrator finds unfair, unjust, improper or
          excessive on the part of the Employer, such action may be
          set aside, reduced or otherwise changed by the Arbitrator.
          The Arbitrator may, in the Arbitrator’s discretion, award
          back pay to recompense in whole or in part, the employee
                                                           (continued . . .)

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“any action which the Arbitrator finds unfair, unjust, improper

or excessive on the part of the employer, such action may be set

aside, reduced or otherwise changed by the Arbitrator.”

(Emphasis added).     Further, Article 32 gives the arbitrator the

authority to “award back pay” and “return to the employee such

other rights, benefits, and privileges or portions thereof as

may have been lost or suffered.”

            Article 32 supports an interpretation that the

arbitrator had the authority to award promotions and back pay in

this case.    Article 32 grants the arbitrator the authority to

determine violations of the agreement and to remedy such

violations.    By granting promotions to the grievants, the

arbitrator returned to the grievants “such other rights,

benefits, and privileges” that were “lost or suffered” as a

result of the nonpromotions, thus, “chang[ing]” the action of

the Employer it found to violate the agreement.           Because the

arbitrator’s authority to grant promotions and back pay “could

have rested on an interpretation and application of the

agreement,” the circuit court should not have “second guessed”

the arbitrator’s award in this case.         See Hawaiian Tel. Co., 49

Haw. at 56, 411 P.2d at 136.        “Indeed, by giving the arbitrator


(continued . . .)
            for any salary or financial benefits lost, and return to
            the employee such other rights, benefits, and privileges or
            portions thereof as may have been lost or suffered.



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the power to actually grant tenure or promotion, the collective

bargaining agreement is made that much more meaningful, since

‘the confidence of the workers in the equity of the agreement is

strengthened when they know that any dispute over the meaning of

the contract may be submitted to an impartial third party for

decision.’”   UHPA II, 66 Haw. at 223, 659 P.2d at 727 (quoting

James M. Ringer, Note, Legality and Propriety of Agreements to

Arbitrate Major and Minor Disputes in Public Employment, 54

Cornell L. Rev. 129, 135 (1968)).

          The Employer urges this court to adopt the analysis of

the ICA dissent, which found that the award of promotions

exceeded the arbitrator’s authority under Article 11 of the

agreement.    Article 11 reserves exclusively to the Employer “all

management rights and authority, including the rights set forth

in Section 89-9(d)(1)-(8), Hawaii Revised Statutes, except as

specifically abridged or modified by this agreement.”            The ICA

dissent seems to suggest that because Article 11 reserved the

Employer’s right to make promotions--“except as specifically

abridged or modified”--the agreement must expressly state that

the arbitrator has the authority to grant promotions.            However,

this interpretation of the agreement does not give appropriate

judicial deference to the arbitrator’s interpretation of the

agreement and is contrary to the terms of the agreement itself.




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            Additionally, the ICA dissent references a court’s

authority to review whether the arbitrator exceeded its

authority under the agreement and under HRS § 658A-23(a)(4) in

responding to SHOPO’s argument that the circuit court erred by

substituting its interpretation of the agreement for that of the

arbitrator.    The ICA dissent states that the agreement in this

case is “even beyond the authority provided by HRS § 658A-

23(a)(4)” because the agreement in this case “expressly

contemplates that a party may seek judicial review when there is

a question whether the Arbitrator exceeded his authority.” 13

While it is true that HRS § 658A-23(a)(4) and the agreement

authorize judicial review for a determination of whether or not

the arbitrator exceeded its authority under the agreement, it

does not follow that the court may substitute its own

interpretation of the agreement for that of the arbitrator when

making such a determination.

            Further, we disagree with the ICA dissent’s

interpretation of the arbitrator’s authority under the

agreement.    The ICA dissent looked at Article 32 and Article 42

separately for express grants of such authority, while not


      13
            The agreement’s provision that the arbitrator’s decision be
“final and binding” and that there shall be “no appeal” of an arbitrator’s
decision within the scope of the arbitrator’s authority is consistent with
HRS § 658A-23 and Hawaiʻi case law limiting judicial review of arbitration
decisions. Accordingly, the provision for judicial review under the
agreement appears to be coextensive with HRS § 658A-23(a)(4).



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considering the importance of reading the two provisions

together.    See Leeward Bus Co., 58 Haw. at 68, 564 P.2d at 448

(“[A]n agreement should be construed as a whole and its meaning

determined from the entire context and not from any particular

word, phrase or clause.” (quoting Ching v. Hawaiian Restaurants,

Ltd., 50 Haw. 563, 565, 445 P.2d 370, 372 (1968))).           When read

together, Article 47 and Article 32 make promotions subject to

the grievance procedures of the agreement and, thus, grant the

arbitrator the authority to “otherwise change” any action with

relation to a promotion that the Arbitrator finds “unfair,

unjust, improper or excessive.”       Article 32 also specifically

gives the arbitrator the authority to “award back pay” and

“return to the employee such other rights, benefits, and

privileges or portions thereof as may have been lost or

suffered.”

            The arbitrator determined that the grievants were

denied promotions “due to subjective, arbitrary and capricious

promotional practices.”     Under Article 32, the arbitrator was

authorized to “return to” the grievants the right, benefit, or

privilege of their promotions that they lost due to the improper

interview procedure.     It would be illogical for the arbitrator

to have authority over the promotion grievances yet have no

authority to “otherwise change” the grieved action and “return




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to” the grievants the privileges and benefits lost as a result

of the nonpromotions.

              An interpretation of the agreement that recognizes the

arbitrator’s authority to remedy the promotion grievances is

further bolstered by the fact that the arbitrator’s authority

over the grievances was agreed to by the parties, affirmed by

the circuit court, and not raised on appeal.           Further, the

arbitrator found that the remedy granted in this case was

consistent with past practices of the parties under the

agreement, and the record indicates that there were three to

five positions that were open at the time of the arbitration

hearing. 14

              For the reasons discussed above, the ICA majority

correctly concluded that “the arbitrator’s award did not exceed

his authority and the circuit court erred in failing to so

conclude.”

              B.   The Arbitrator’s Decision and Award Does
                          Not Violate Public Policy.

              In its Application, the Employer asks this court to

“set aside the ICA’s holding pertaining to whether the

Arbitration Decision violated public policy.”




      14
            This case therefore does not raise, and we do not address, a
situation where an arbitrator’s remedy would require an employer to establish
a new position for a grievant.



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          Hawaiʻi case law recognizes “that there is a limited

public policy exception to the general deference given

arbitration awards.”     Inlandboatmen’s Union of the Pac. v. Sause

Bros., Inc., 77 Hawaiʻi 187, 194, 881 P.2d 1255, 1262 (App.

1994); see also Gepaya v. State Farm Mut. Auto. Ins. Co., 94

Hawaiʻi 362, 366, 14 P.3d 1043, 1047 (2000).         This public policy

exception is based on the exception recognized by the United

States Supreme Court in United Paperworkers International Union

v. Misco, Inc., 484 U.S. 29 (1987); see Sause Bros., 77 Hawaiʻi

at 194, 881 P.2d at 1262 (adopting the public policy exception

of Misco and directing that the exception should be applied

under the guidelines set forth in Misco).

          The Court in Misco established a framework for courts

reviewing public policy claims.       First, the court must determine

whether there is an “explicit, well defined, and dominant”

public policy that is “ascertained ‘by reference to the laws and

legal precedents and not from general considerations of supposed

public interests.’”     See E. Associated Coal Corp. v. United Mine

Workers of Am., Dist. 17, 531 U.S. 57, 62 (2000) (quoting W.R.

Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983)) (citing

Misco, 484 U.S. at 43)); accord Sause Bros., 77 Hawaiʻi 187, 193,

881 P.2d 1255, 1261 (App. 1994).         Second, the court must

determine whether the arbitration award itself is clearly shown

to be “contrary” to the “explicit, well-defined, and dominant


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public policy.”    See E. Associated Coal Corp., 531 U.S. at 62-

63; Sause Bros., 77 Hawaiʻi 187, 194, 881 P.2d 1255, 1262 (App.

1994) (stating that the court must determine that “the violation

of the public policy is clearly shown” in order for the public

policy exception to apply (alterations omitted) (quoting W.R.

Grace & Co., 461 U.S. at 766)).

          We consider whether the arbitrator’s award violates

public policies with regard to the merit principles as set forth

in HRS § 76-1 and the authorized scope of negotiations of

collective bargaining agreements as expressed in HRS § 89-9(d).

          First, “[t]he merit principle is the selection of

persons based on their fitness and ability for public employment

and the retention of employees based on their demonstrated

appropriate conduct and productive performance.”           HRS § 76-1

(Supp. 2000).   There is nothing in the record to suggest that

the arbitrator’s authority to grant promotions and back pay in

this case violates the merit principle.         To the contrary, the

agreement is in accordance with the merit principle as it

requires promotions to be based on “fair standards of merit and

ability, consistent with applicable civil service statutes,

rules and regulations and procedures.”         The arbitrator heard

testimony with regard to the grievants’ professional background

and work performance, and the arbitrator found that “the

grievant officers were well qualified based on merit and ability


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for promotion to the rank of sergeant based on the evidence

presented during the arbitration hearings.”          Thus, the

arbitrator’s award in this case was not contrary to the merit

principle.   Accordingly, there is no basis to support a finding

that the arbitrator’s authority to grant promotions and back pay

was contrary to the public policy of promotions in accordance

with the merit principle.

          Second, HRS § 89-9, which pertains to the scope of

negotiations for public sector collective bargaining, provides

that an employer and union may not agree in collective

bargaining to any provision “which would interfere with the

rights and obligations of a public employer to” perform several

listed functions including to “[h]ire, promote, transfer assign,

and retain employees in positions.”        While HRS § 89-9(d)

expresses a policy that a collective bargaining agreement should

not interfere with an employer’s prerogative to make promotions,

the provision expressly provides that this subsection “shall not

preclude negotiations over the procedures and criteria on

promotions . . . as a permissive subject of bargaining during

collective bargaining negotiations.”        Further, HRS § 89-9(d)

states, “Violations of the procedures and criteria so negotiated

may be subject to the grievance procedure in the collective

bargaining agreement.”




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            Thus, HRS § 89-9(d) expresses a policy to avoid

interference through collective bargaining with an employer’s

function to make promotions, but the statute specifically states

that this policy is to be balanced against a policy to encourage

negotiations over the procedures and criteria on promotions that

may be subject to grievance procedures.          Accordingly, HRS § 89-9

does not include an “explicit, well defined, and dominant”

public policy discouraging the arbitrator’s award of promotions

and back pay in this case.

            The public policy to encourage negotiation over the

procedures and criteria for promotions that is clearly expressed

on the face of HRS § 89-9(d) is further bolstered by the history

behind the 2007 amendment to the provision. 15         The legislature’s

2007 amendments to HRS § 89-9(d) were made in light of United

Public Workers v. Hanneman, 106 Hawaiʻi 359, 105 P.3d 236 (2005),


      15
            The 2007 amendments added the following language:

            This subsection shall not be used to invalidate provisions
            of collective bargaining agreements in effect on and after
            June 30, 2007, and 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 or negotiations over a memorandum of
            agreement, memorandum of understanding, or other
            supplemental agreement.

            Violations of the procedures and criteria so negotiated may
            be subject to the grievance procedure in the collective
            bargaining agreement.

2007 Haw. Sess. Laws Act 58, § 1 at 101 (emphasis added).



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wherein the court held that management rights under HRS § 89-

9(d) precluded collective bargaining over the City and County of

Honolulu’s unilateral decision to transfer refuse workers to a

different employment location.       Under Hanneman, the scope of

topics subject to negotiation cannot “infringe upon an

employer’s management rights under [HRS § 89-9(d)].”           Hanneman,

106 Hawaiʻi at 365, 105 P.3d at 242.        The purpose of the 2007

amendments was to clarify that management rights enumerated in

HRS § 89-9(d) do not invalidate or preclude negotiations

concerning agreements on procedures and criteria on promotions

and other management functions.       See S. Stand. Comm. Rep. No.

889, in 2007 Senate Journal, at 1438.        The House Committee on

Labor & Public Employment stated that “negotiations over

procedures and criteria of promotions . . . are consistent with

the underlying purpose of chapter 89, HRS.”          H. Stand. Comm.

Rep. No. 1465, in 2007 House Journal, at 1595.

          Further, as the parties agreed before the arbitrator,

SHOPO challenged the way in which the promotions were done and

did not challenge the Employer’s right to make promotions.

Thus, the arbitrator’s decision and award did not infringe on

the Employer’s authority to make promotions in accordance with

the bargained for criteria and procedures and relevant law.                See

UHPA II, 66 Haw. at 220-21, 659 P.2d at 725 (holding that HRS

89-9(d), which granted the employer the “exclusive jurisdiction


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over matters such as setting the criteria for determining

tenure, promotion, and other areas of faculty employment,” did

not prohibit the arbitrator “from actually granting tenure or

promotion upon a finding of arbitrary or capricious conduct”).

Thus, the arbitrator’s award has not been clearly shown to be

“contrary” to an “explicit, well-defined, and dominant public

policy.”

           We thus conclude that the arbitration award in this

case did not violate public policy.

      C.    Clarification of the Doctrine of Quasi-Estoppel.

           The ICA majority held that the Employer was not

estopped from contesting the arbitrator’s authority.           The ICA

majority’s ruling was based primarily on a distinction that it

drew between this case and the UHPA II case, which is discussed

below.

           Under the doctrine of quasi-estoppel, a party is

estopped from taking “a position inconsistent with a previous

position if the result is to harm another.”          UHPA II, 66 Haw. at

221, 659 P.2d at 725; see also, e.g., Godoy v. Haw. Cnty., 44

Haw. 312, 320, 354 P.2d 78, 82 (1960) (“But there is a species

of equitable estoppel, sometimes called quasi-estoppel, which

has its basis in election, waiver, acquiescence, or even

acceptance of benefits and which precludes a party from

asserting to another’s disadvantage, a right inconsistent with a


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position previously taken by him.         No concealment or

misrepresentation of existing facts on the one side, no

ignorance on the other, are necessary ingredients.” (quoting

Hartmann v. Bertelmann, 39 Haw. 619, 627-28 (Haw. Terr. 1952)).

          In UHPA II, this court found that the doctrine of

quasi-estoppel provided a basis for affirmation of an

arbitrator’s award of tenure and back pay to a grievant.            66

Haw. at 216-17, 659 P.2d at 723.         The UHPA II court found it

significant that the parties contractually agreed that the

arbitrator’s decision would be “final and binding” and that the

Employer agreed to arbitrate the tenure and promotions dispute.

Id. at 221, 659 Haw. P.2d at 726.         The court explained that the

Employer “could have either excluded subjects such as tenure and

promotion from the agreement’s arbitration provision altogether,

or it could have made clear, at the outset of the arbitration

proceedings, that it was not submitting to the arbitrator the

power to actually grant tenure or promotion.”          Id. at 221-22,

659 Haw. P.2d at 726.     UHPA II found that the grievant would

have been “substantially disadvantaged in terms of time and

money spent in the arbitration process and in litigation” if the

employer were permitted to argue that the arbitrator never had




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the power to resolve the grievances only after the arbitration

award was not decided in its favor. 16        Id.

            The agreement in this case, like the agreement in UHPA

II, provides for “final and binding” arbitration.            Also like the

agreement in UHPA II, the agreement here does not exclude

promotions from the arbitrator’s powers.            Further, Article 47 of

the agreement expressly provides requirements for promotions,

and Article 32 gives the arbitrator the authority to “award back

pay” and “return to the employee such other rights, benefits,

and privileges or portions thereof as may have been lost or

suffered.”    Thus, the scope of the arbitrator’s authority in

this case is not significantly different from that of the

arbitrator in UHPA II.

            The ICA majority distinguished this case from UHPA II

on the basis that the agreement in UHPA II “expressly gave the


      16
            The court in UHPA II stated,

            After having contractually agreed that arbitration would be
            the last step in the grievance process and that the
            arbitrator’s decisions would be “final and binding,” and
            after agreeing to arbitrate these tenure and promotion
            disputes only to see the arbitration award go against it in
            each and every instance, the University now complains that
            the arbitrator never had the power to resolve these
            grievances in the first place. We find this complaint
            untenable. The University could have either excluded
            subjects such as tenure and promotion from the agreement’s
            arbitration provisions altogether, or it could have made
            clear, at the outset of the arbitration proceedings, that
            it was not submitting to the arbitrator the power to
            actually grant tenure or promotion.

66 Haw. at 221, 659 P.2d at 726.



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arbitrator the right and power to ‘substitute his judgment for

that of the official’ if the arbitrator found the official’s

decision to be arbitrary and capricious,” while in this case the

Employer retains the management rights under the agreement

“except as specifically abridged or modified.”           However, this is

not a meaningful distinction because the UHPA II court’s focus

was on the parties’ agreement to “final and binding” arbitration

and the Employer’s consent to arbitrate tenure and promotions.

See UHPA II, 66 Haw. at 221-22, 659 P.2d at 726.            Further, the

ICA majority’s comparison of the arbitrator’s authority in UHPA

II with the Employer’s authority in this case does not support

the ICA majority’s distinction, particularly since the employer

in UHPA II and the employer in this case retained similar

authority over promotions. 17

            We note that the arbitrator in this case made an

express finding that the Employer “never contended during the

arbitration hearings that the language in Article 32 was not

sufficiently worded to permit the Arbitrator to grant a

promotion to remedy the grievances.”         Nonetheless, the ICA

majority made a contrary finding that the “Employer did contest

the arbitrator’s authority to actually promote the grievants.”


      17
            The employer in UHPA II had “exclusive jurisdiction over matters
such as setting the criteria for determining tenure, promotion, and other
areas of faculty employment.” UHPA II, 66 Haw. 214, 220, 659 P.2d 720, 725
(1983).



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Because we find that the arbitrator acted within the scope of

his authority under the agreement, we need not decide whether

the doctrine of quasi-estoppel applies in this case and,

therefore, do not address this conflict between the findings of

the ICA majority and the arbitrator.

                            IV.   CONCLUSION

          Accordingly, the ICA’s December 5, 2014 Judgment on

Appeal is affirmed, but for the reasons set forth herein.

Mauna Kea Trask                          /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Vladimir Devens
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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