Public Employees have to go to the Hawai'i Labor Relations Board Before Attacking Their Union in Circuit Court

Lee v. United Public Workers (ICA June 29, 2011)

Background. Amy Lee was an adult corrections officer for the Department of Public Safety and a member of the United Public Workers union. While working, she hurt her back and shoulder. The injuries left her unable to perform the usual and customary duties of an ACO. She returned to light duties and opted to participate in a State-run program in which she would be terminated if she could not find an alternative job. She was unable to find a suitable job and was terminated by the State. The UPW, at Lee's request, filed a grievance with the director of the Department of Public Safety. The collective bargaining agreement (CBA) provided that only the union could pursue the grievance once it was denied by the director of the department. The Department of Public Safety denied the grievance and the UPW notified Lee that it would not pursue the matter any further.

Lee filed a complaint in the circuit court against her union and employer. She alleged a "hybrid action" against UPW for breaching its duties of fair representation, good faith and fair dealing. Her claims against the State were based on its breach of the CBA. The defendants failed to answer the complaint and were defaulted. Lee sought a default judgment. She stipulated with the State to set aside the default judgment. UPW, however, filed a motion to set aside the default. The circuit court granted the motion on the condition that it pay half of the costs and fees incurred by Lee to get the default judgment: $6.14 in costs and $740.00 in fees. The circuit court reasoned that the other half was against the State. Both defendants filed motions to dismiss the complaint on the grounds that the Hawai'i Labor Relations Board had exclusive original jurisdiction. The motions were granted. Lee appealed.

The "Hybrid" Cause of Action. Employees must "exhaust any grievance procedures provided under a collective bargaining agreement before bringing a court action pursuant to the agreement." Poe v. Hawai'i Labor Relations Board, 105 Hawai'i 97, 101, 94 P.3d 652, 656 (2004). But "when the union wrongfully refuses to pursue an individual grievance, the employee is not left without recourse." Id. at 102, 94 P.3d at 657. The employee can bring a hybrid action "consist[ing] of two separate claims: (1) a claim against the employer alleging a breach of the collective bargaining agreement and (2) a claim against the union for breach of a duty of fair representation." Id. The union breaches its duty of fair representation "only when [the] union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190 (1967). This was the kind of action Lee brought against the State and UPW. The issue was not the legitimacy of the claim, but whether Lee should have brought it before the Hawai'i Labor Relations Board instead of the circuit court.

HRS § 89-14 Confers Exclusive Original Jurisdiction over Public-Sector Prohibited Practices. HRS chapter 89 regulates public-sector unions and employees. HRS § CITE. It also defines and identifies prohibited practices by public-sector employees, employers, and unions. HRS § 89-13. "Any controversy concerning prohibited practices may be submitted to the [Hawai'i Labor Relations Board] . . .; provided that the board shall have exclusive original jurisdiction over such a controversy[.]" HRS § 89-14. The board's decision may be appealed to the circuit court and ultimately the courts of appeal. Id.; Hawai'i Government Employees Ass'n v. Lingle, 124 Hawai'i 197, 203, 206-07, 239 P.3d 1, 7 (2010). The ICA noted that the statute conferring exclusive jurisdiction to the board was a legislative reaction to Winslow v. State, 2 Haw. App. 50, 56-57, 625 P.2d 1046, 1051-52 (1981), in which the ICA held that there was concurrent jurisdiction with the circuit court. The Legislature changed the language of the statute in order to confine jurisdiction to the board. That, according to the ICA, was made abundantly clear in the legislative history and in HGEA v. Lingle. Decisions by the board can be appealed to the circuit court for judicial review. HRS § 89-14; HRS § 91-14(a).

. . . And this is a Public-Sector Prohibited Practice. "Prohibited practices" include Lee's claims. The ICA pointed to two: the employer's willful violation of the CBA. HRS § 89-13(a)(8) and the union's refusal or failure to comply with HRS chapter 89. HRS § 89-13(b)(4).

In support of this holding, the ICA turned to Lepere v. UPW, 77 Hawai'i 471, 887 P.2d 1029 (1995). In that case, Lepere, like Lee, filed a complaint against his union in the circuit court. The ICA, in an unpublished memorandum opinion, affirmed the circuit court's dismissal based on a lack of subject matter jurisdiction. The HSC noted in passing that the "ICA properly concluded that the circuit court lacked subject matter jurisdiction[.]" Id. at 472, 887 P.2d at 1030.

Reliance on an Unpublished Disposition in Violation of HRAP Rule 35? The ICA expressly rejected Lee's argument that it could not rely on its own unpublished memorandum opinion pursuant to HRAP Rule 35, which only allows appellate courts to cite unpublished dispositions issued after July 1, 2008. The ICA explained that it did not rely on the unpublished Lepere "as precedent or persuasive value." Instead, the reliance was "to clarify what the supreme court meant in its published decision when it affirmed the ICA's jurisdictional holding."

Clarification v. Persuasion. Unpublished decisions "filed before July 1, 2008 shall not be cited in any other action or proceeding[.]" HRAP Rule 35(c)(1). Here, the ICA acknowledged that it did indeed "cite" to the unpublished memorandum opinion. However, it expressly stated that it did so only to clarify the HSC's published approval of its ruling. This raises two interesting questions about HRAP Rule 35. First, what does it mean to "cite"? Does the prohibition against "citing" a case permit clarifications like this one? Or does it simply ban all references for any purpose? The language of HRAP Rule 35 suggests the latter. Dispositions filed after July 1, 2008 may be "cited for persuasive value[.]" HRAP Rule 35(c)(2). Does this mean that those published before July 1, 2008 cannot be "cited" at all--even if it's just to clarify something?

Second, are the appellate courts themselves bound by HRAP 35(c)(1) at all? Clearly, appellate litigators are bound by it and cannot "cite" it. But that does not necessarily mean that the courts cannot point to its earlier unpublished opinions on its own.

Other Issues. The ICA rejected Lee's other contentions relating to her constitutional right to access courts, equal protection and due process claims. Finally, the ICA held that the circuit court did not abuse its discretion in cutting Lee's award for attorney's fees and costs in half. See Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 105, 176 P.3d 91, 104 (2008) (award of attorneys' fees reviewed for abuse of discretion.).