Petition Mandamus 9-28-12

59
S.C. NO. __________ IN THE SUPREME COURT OF THE STATE OF HAWAII Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Petitioner Hawaii State Teachers Association’s Petition for Writ of Mandamus (1:139) PETITIONER HAWAII STATE TEACHERS ASSOCIATION'S PETITION FOR WRIT OF MANDAMUS AFFIDAVIT OF REBECCA L. COVERT APPENDICES 1 THROUGH 21 CERTIFICATE OF SERVICE

Transcript of Petition Mandamus 9-28-12

Page 1: Petition Mandamus 9-28-12

S.C. NO. __________

IN THE SUPREME COURT OF THE STATE OF HAWAII

Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Petitioner Hawaii State Teachers Association’s Petition for Writ of Mandamus

(1:139)

PETITIONER HAWAII STATE TEACHERS ASSOCIATION'S PETITION FOR WRIT OF MANDAMUS

AFFIDAVIT OF REBECCA L. COVERT

APPENDICES 1 THROUGH 21

CERTIFICATE OF SERVICE

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Of Counsel: TAKAHASHI and COVERT Attorneys at Law

HERBERT R. TAKAHASHI #1011-0 REBECCA L. COVERT #6031-0 DAVINA W. LAM #9115-0 345 Queen Street, Room 506 Honolulu, Hawaii 96813 Telephone Number: 526-3003 Attorneys for Petitioner HSTA

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TABLE OF CONTENTS Page #

I. INTRODUCTION ................................................................................................... 1 II. STATEMENT OF FACTS ...................................................................................... 2

A. The Relevant Collective Bargaining History and Background.................... 2

B. The Role, Authority, and Responsibilities of the Hawaii Labor Relations Board.................................................................................. 6

C. The Prohibited Practice Proceeding in Case No. CE-05-781....................... 9

1. The Motions for Interlocutory Relief, to Shorten Time, and to Expedite .................................................................................... 11

2. The Board Hears Evidence on The Merits and Concludes the Hearing.................................................................. 14

D. HSTA Earlier Pursuit Of A Writ of Mandamus For Immediate Interlocutory Ruling...................................................................................... 18

E. The Absence of Other Available Lawful Relief and Prejudice to Employee Rights ..................................................................................... 19

III. STANDARD OF DISPOSITION .......................................................................... 21 IV. STATEMENT OF ISSUES PRESENTED AND THE RELIEF SOUGHT ......... 25

1. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the merits of the prohibited practice complaint filed by HSTA on July 8, 2011 in Case No. CE-05-781 particularly where the complaint alleges constitutional challenges that cannot be heard by

a circuit court until after HLRB’s review? .......................................... 25

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2. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the prayer for injunctive relief and the motions for interlocutory orders raised by HSTA in the prohibited practice proceeding?...................... 26

V. STATEMENT OF REASONS FOR THE WRIT.................................................. 27

A. HLRB HAS A DUTY TO DETERMINE THE ISSUES PRESENTED BY HSTA'S PROHIBITED PRACTICE COMPLAINT PROMPTLY ...................................................................... 27

B. HLRB HAS A DUTY TO RENDER A JUST AND SPEEDY DECISION ON HSTA’S PRAYER AND MOTION FOR INJUNCTIVE RELIEF .................................................... 34

C. HSTA MEETS THE STANDARD FOR MANDAMUS RELIEF

WHERE HLRB HAS NOT MET ITS DUTY TO RENDER A PROMPT DECISION OR ORDER............................................................. 40

VI. RELEVANT STATUTORY PROVISIONS AND RULES.................................. 46 VII. CONCLUSIONS.................................................................................................... 46

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TABLE OF AUTHORITIES

CASES

Air Line Pilots Association, International v. Civil Aeronautics Board, 750

F.2d 81 (D.C. Cir. 1984) ............................................................................. 24, 42

Alaska Public Employees Association v. Department of Admin., 776 P.2d 1030 (Alaska 1989)............................................................................................. 5

Allen v. State of West Virginia, Human Rights Commission, 324 S.E.2d 99

(W.Va. 1984) .................................................................................................... 23

Allstate Insurance Co. v. Schmidt, 104 Hawaii 261, 88 P.3d 196 (2004) ............. 35

American Federation of Government Employees, AFL-CIO, 790 F.2d 116 (D.C. Cir. 1986) ................................................................................................ 24

In re American Rivers and Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) .......................................................................................... 24, 41

American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965)...................... 20, 43

Appeal of City of Nashua Board of Education, 695 A.2d 647 (N.H. 1997) ............ 5

Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972) .............................. 30

Barnett v. Broderick, 84 Hawai`i 109, 929 P.2d 1359 (1996) ......................... 21, 22

Board of Education v. Haw. Public Emp. Rel. Board, 56 Haw. 85, 528 P.2d 809 (1974) ................................................. 3, 4, 32, 36, 39

In re Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000) .................................. 23

Brown v. Thompson, 91 Hawai`i 1, 979 P.2d 586 (1999) ..................................... 30

Burlington Fire Fighters Association v. City of Burlington,

457 A.2d 642 (1983) ........................................................................................... 5

Cabatbat v. County of Hawaii, Department of Water Supply, 103 Hawai`i 1, 78 P.3d 756 (2003)........................................................................................ 30

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Calif. State Employees' Association, CSU v. PERB, 59 Cal. Rptr. 2d 488 (Ca. App. 1996)................................................................................................... 5

Castle v. Kepana, 5 Haw. 27 (1884)....................................................................... 22

Casumpang v. ILWU Local 142, 108 Hawai`i 411, 121 P.3d 391 (2005)............. 35

Cave v. Elliot, 988 A.2d 1 (Md. App. 2007)......................................................... 42

City of Ocala v. Marion County Police Benevolent Association, 392 So. 2d

26 (Fl. App. 1980)............................................................................................... 5

Commonwealth ex. rel. Duff v. Keenan, 33 A.2d 244 (Pa. 1943) ................... 22, 40

In re Disciplinary Board of Hawaii Supreme Court, 91 Hawai`i 363, 984 P.2d 688 (1999)................................................................................................. 19

Exotics Hawai`i-Kona, Inc. v. E.I. Dupont De Nemours & Co., 104

Hawai`i 358, 90 P.3d 250 (2004)...................................................................... 32

Matter of Fasi, 63 Haw. 624, 634 P.2d 98 (1981).................................................. 31

Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964)..................... 36

First National Maint. Corp. v. NLRB, 452 U.S. 666 (1981).................................... 5

Foley Education Association v. Independent School District, 353 N.W.2d 917 (Minn. 1984) ................................................................................................ 5

Ex parte Fowler, 863 So. 2d 1136 (La. 2001) ........................................................ 24

Galloway Township Board of Education v. Galloway Township Education

Association, 393 A.2d 218 (N.J. 1978)............................................................... 5

Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979)............................................. 19

Georgetown-Ridge School District 4 v. IELRB, 606 N.E.2d 667 (Ill. App. 1992) ................................................................................................................... 5

Gibraltar School District v. Gibraltar Mespa Transport, 505 N.W.2d 214

(Mich. 1993) ....................................................................................................... 5

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Gresham Grade Teachers Association v. Gresham Grade School District No. 4, 630 P.2d 1304 (Ore. App. 1981).............................................................. 5

Hanabusa v. Lingle, 119 Hawai`i 341, 198 P.3d 604 (2008) ............................................................................21, 22, 23, 44, 40, 41, 45

Hanabusa v. Lingle, 119 Hawai`i 341, 198 P.3d 604 (2008) ............................................................................21, 22, 23, 44, 40, 41, 45

Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawai`i 197, 239 P.3d 1 (2010)................................................7, 10, 21, 23, 28, 34, 43, 44, 46

Hawaii Pub. Emp. Rel. Bd. v. Hawaii State Teachers Ass’n, 54 Haw. 531,

544, 511 P.2d 1080, 1087 (1973)................................................................ 21, 44

Hawaii State Teachers Association v. Abercrombie, 126 Hawai`i 318, 271 P.3d 613 (2012).................................................................. 7, 26, 34, 46

Hawaii State Teachers Association v. Hawaii Labor Relations Board, No. SCPW-11-0000640, 2011 WL 4469826 (Sept. 27, 2011) ............................................... 18, 19, 45, 46

Indiana Education Employment Rels. Board v. Mill Creek Classroom

Teachers Association, 456 N.E.2d 709 (Ind. 1983)............................................ 5

Inouye v. Board of Trustees of Employees' Ret. System, 4 Haw. App. 526, 669 P.2d 638 (App. 1983)................................................................................. 19

International Brotherhood of Electrical Workers, Local 1357 v. Hawaiian

Telegraph Co., 68 Hawai`i 316, 713 P.2d 943 (1986)...................................... 30

International Federal of Professional and Technology Engineers v. State Personnel Board, 736 P.2d 280 (Wash. App. 1987)........................................... 5

Jack Endo Electrical, Inc. v. Siegler, Inc., 59 Haw. 612, 585 P.2d 1265

(1978) ................................................................................................................ 31

James W. Glover, Ltd. v. Fong, 39 Haw. 308 (1952) ............................................ 23

Jefferson County v. Wisconsin Employment Rel. Commission, 523 N.W.2d 172 (Wisc. App. 1994) .......................................................................... 5

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Keen v. Mirabile, 264 N.Y.S.2d 995 (N.Y. Sup. 1965) ................................... 22, 41

Kema v. Gaddis, 91 Hawai`i 200, 982 P.2d 334 (1999) ........................................ 21

Kissam v. Williamson, 545 S.W.2d 265 (Tex. App. 1976) ............................. 22, 41

Kumalae v. Kalauokalani, 25 Haw. 1 (1919) ......................................................... 22

Lansing Fire Fighters Union Local 421 v. City of Lansing, 349 N.W.2d 253 (Mich. App. 1984)................................................................. 36

Liberty County Officers Ass'n v. Liberty County Texas, 1999 WL 817527

(Tex. App. 1999)................................................................................................. 5

MCI Telecommunications Corp. v. F.C.C., 627 F.2d 322 (D.C. Cir. 1980).......... 42

Mahiai v. Suwa, 69 Hawai`i 349, 742 P.2d 359 (1987)......................................... 30

Maine v. Maine Labor Rel. Board, 413 A.2d 510 (Maine 1980)............................. 5

Marshall Const. Co. v. Bigelow, 29 Haw. 48 (1929) ....................................... 23, 40

Marsland v. Town, 66 Haw. 516, 668 P.2d 25 (1983), overruled on..................... 22

Midwest Gas Users Association v. FERC, 833 F.2d 341 (D.C. Cir. 1987) ................................................................................................ 41

NLRB v. Katz, 369 U.S. 736 (1962) .................................................................. 5, 33

N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938) ................ 20, 44

Naipo v. Border, 125 Hawai`i 31, 251 P.3d 594 (2011) .................................. 21, 22

Natural Resources Defense Council, Inc. v. New York City, Department of

Sanitation, 630 N.E.2d 653 (N.Y. 1994) .......................................................... 31

New Castle County Vocational Technology Education Association v. Board of Education, 451 A.2d 1156 (Del. App. 1982)....................................... 5

Palea v. Rice, 34 Haw. 150 (1937)................................................................... 23, 40

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Perry v. Planning Commission of the County of Hawaii, 62 Haw. 666, 619 P.2d 95 (1980)................................................................................................... 31

Petition of Public Service Coordinated Transport, 247 A.2d 888 (N.J. Sup.

Ad. D. 1968) ..................................................................................................... 28

Philadelphia Housing Authority v. Pennsylvania Labor Rel. Board, 620 A.2d 594 (Pa. Commw. 1993) ............................................................................ 5

Professional Staff Congress/Cuny v. Board of Higher Education of City of

New York, 373 N.Y.S.2d 453 (N.Y. App. 1975) ............................................... 5

Raysay Travel, Inc. v. Kondo, 53 Haw. 671, 995 P.2d 1172 (1972) ..................... 23

Salam v. Board of Professional Engineers, 946 So. 2d 48 (Fla. 2007) .................. 24

Salling v. Moon, 76 Hawai`i 273, 874 P.2d 1098 (1994) ...................................... 19

Ex parte Sanders, 659 So. 2d 1036 (La. 1995)....................................................... 24

School Committee of Newton v. Labor Relations Commission, 447 N.E.2d 1201 (Mass. 1983) .............................................................................................. 5

Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn.

1984) ................................................................................................................... 5

Sobiloff Brothers v. Hebert, 120 A. 60 (R.I. 1923)................................................ 22

State ex rel. Cosmos Broadcasting Corp. v. Brown, 471 N.E.2d 874 (Ohio App. 1984) ........................................................................................................ 24

State Ex Rel. Kaneshiro v. Huddy, 82 Hawai`i 188, 921 P.2d 108 (1996)............ 22

State ex rel. Stewart v. Reid, 45 So. 103 (La. 1907) ........................................ 22, 40

State v. Haugen, 104 Hawai`i 71, 85 P.3d 178 (2004)........................................... 29

State v. Higa, 79 Hawaii 1, 897 P.2d 928 (1995)................................................... 32

State v. Himuro, 70 Haw. 103, 761 P.2d 1148 (1988) ........................................... 31

State v. Lotis, 91 Hawai`i 319, 984 P.2d 78 (1999) ............................................... 30

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State v. Sanders, 102 Hawai`i 326, 76 P.3d 569 (2003) ........................................ 22

Sussel v. City and County of Honolulu Civil Service Commission, 71 Haw.

101, 784 P.2d 867 (1989).................................................................................. 24

Swanton Local School Dist. Bd. of Educ. v. State Employment Rel. Bd., 1989 WL 515890 at 5 (Ohio App. 1989)............................................................ 5

Telecommunications Research and Action Center v. Federal

Communications Commission, 750 F.2d 70 (1984) ................................... 24, 42

United Public Workers, AFSCME, Local 646, AFL-CIO v. Jeffrey Harris et al., Case No. CE-01-390, Order No. 1643 (Dec. July 8, 1998) .................... 38

United Public Workers, AFSCME, Local 646, AFL-CIO v. Linda Lingle,

Case No. CE-01-716a ....................................................................................... 39

United Public Workers, AFSCME, Local 646, AFL-CIO v. Yamashiro, Case Nos. CE-01-260.................................................................................. 37, 38

United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai`i 46, 62 P.3d 189 (2002)................................................. 2, 10, 17, 37

University of Hawaii Professional Assembly v. Tomasu, 79 Hawai`i 154,

900 P.2d 161 (1995)...................................................................................... 5, 33

Van Buren Public School District v. Wayne County Circuit Judge, 232 N.W.2d 278 (Mich. App. 1975)........................................................................ 37

In Re Wai`ola O Moloka`i Inc., 103 Hawai`i 401, 83 P.3d 664 (2004)................. 30

Wallace v. Wallace, 352 So. 2d 1376 (Ala. 1977) ................................................. 24

West Hartford Education Association v. DeCourcy, 295 A.2d 526 (Conn.

1972) ................................................................................................................... 5

Williams v. Hawaii Medical Service Association, 71 Hawai`i 545, 798 P.2d 442 (1990)......................................................................................................... 30

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Wiredata, Inc. v. Village of Sussex, 729 N.W.2d 757 (Wisc. App. 2007), affirmed in part, revered in part on other grounds, 751 N.W.2d 736 (2008) ................................................................................................................ 40

Withrow v. Larkin, 421 U.S. 35, 46 (1975) ........................................................... 24

Young Properties Corp. v. United Equity Corp., 534 F.2d 847 (9th Cir.

1976), cert denied, 429 U.S. 830 (1976)........................................................... 35

BOOKS

Random House College Dictionary, (Rev. ed. 1980)............................................. 29

HAWAII SESSION LAWS

2000 Haw. Sess. L. Act 253 ..................................................................... 8, 9, 29, 36

1999 Hawaii Session Laws..................................................................................... 10

1982 Haw. Sess. L. Act 27 ....................................................................................... 7

HAWAII ADMINISTRATIVE RULES

Hawaii Administrative Rule § 12-42-2 .................................................................... 7

Hawaii Administrative Rule § 12-42-46 .................................................................. 8

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S.C. NO. _______

IN THE SUPREME COURT OF THE STATE OF HAWAII

Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Petitioner Hawaii State Teachers Association’s Petition for Writ of Mandamus

(1:139)

PETITIONER HAWAII STATE TEACHERS ASSOCIATION'S PETITION FOR WRIT OF MANDAMUS

I. INTRODUCTION

The Hawaii State Teachers Association (HSTA, Association, or Petitioner)

in behalf of 12,486 teachers and other personnel (App. 7-410) of the Department of

Education, State of Hawaii (Employer), and as the exclusive bargaining representative of

bargaining unit 5 employees (App. 7-235 to 7-236), hereby files this petition for writ of

mandamus pursuant to Rule 21 of the Hawaii Rules of Appellate Procedure and Section

602-5 (a) (4), Hawaii Revised Statutes (HRS), directed to the Hawaii Labor Relations

Board, James B. Nicholson, chairperson of the Board and Rock Ley, a member of the

Board (HLRB, Board, or Respondents).1 The Board’s three-month delay in deciding case

CE-05-781 after the final hearing deprives HSTA of having its constitutional challenges

1 The third Board member, Sesnita Moepono recused herself from the case. (App.

17-4 to 17-9). The recusal of the member Moepono leaves chairperson James Nicholson and member Rock Ley in the case. Under Section 89-5 (e), HRS, states “[a]ny action taken by the board shall be by a simple majority of the members of the board. All decisions of the board shall be reduced to writing and shall state separately its findings of fact and conclusions.”

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heard by the circuit court. HSTA filed its prohibited practice complaint with the Board

alleging in part constitutional violations by the legislature and/or public employer’s

conduct in negotiations under Article XIII Section 2. Respondents' refusal to make and

file an order or decision promptly after the final hearing in prohibited practice complaint

number CE-05-781 also denies HSTA and its members the right to strike over the

negotiations that remain unresolved. The final hearing to receive testimony of witnesses

was held on May 10, 2012. (App. 14-141-42, 14-144, 14-152). The final hearing to

receive evidence was May 17, 2012. (App. 14-144, 149-50). The parties and intervenor

memorandums of law and any proposed findings of fact and conclusions of law and order

were filed on June 15, 2012. (App. 14-154). With no decision or order by the Board to

date, HSTA lacks other lawful means to adequately redress the wrongs caused by the

undue delay before the Board.

II. STATEMENT OF FACTS

A. The Relevant Collective Bargaining History and Background

The constitutional “right to organize for the purpose of collective

bargaining” was granted in Hawaii to persons in private employment in 1950. (App. 7-

157). In 1968 the framers extended that right “as prescribed by law” to “persons in public

employment.” (App. 7-166). The intent and object of the 1968 constitutional convention

was “to extend to public employees similar rights to collective bargaining previously

adopted for private persons.” United Public Workers, AFSCME, Local 646, AFL-CIO v.

Yogi, 101 Hawai`i 46, 54, 62 P.3d 189, 197 (2002). (App. 7-177). In 1970 the legislature

enacted the public sector collective bargaining statute in chapter 89. (App. 7-218 to 7-

234). Hawaii is one of five states in the nation, including New York, Florida, Missouri,

and New Jersey, which affords constitutional protection for collective bargaining. Yogi,

101 Hawai`i at 51, 62 P.3d at 194. (App. 7-174).

Chapter 89, HRS, grants to public employees the “right” to organize and

join employee organizations (App. 7-222), to share in the decision making process

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affecting wages, hours, and working conditions (App. 7-219 to 7-220), through duly

elected and certified exclusive bargaining representatives (App. 7-227 to 7-228), in

thirteen separate and independent bargaining units. (App. 7-225). On May 19, 1971

teachers and other personnel of the department of education, formed, joined and chose

HSTA as their exclusive representative (App. 7-237), and the Association was duly

certified as the exclusive bargaining representative on May 21, 1971. (App. 7-237 to 7-

238). From February 9, 1972 to the present HSTA has negotiated approximately sixteen

(16) successive bargaining agreements with representatives of the State of Hawaii, setting

forth the wages, hours, and other conditions of employment for bargaining unit

employees. (App. 7-237 to 7-249, App. 7-296 to 7-382).

This Court has long recognized the underlying “public policy” adopted in chapter 89, and the importance of the duty to bargain in good faith in fulfilling the fundamental aim of collective bargaining in Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P.2d 809 (1974).

In our opinion the law on collective bargaining in public employment, without ambiguity, clearly requires both the public employer and the exclusive representative of the public employees to bargain (negotiate) collectively in good faith. The need for good faith bargaining or negotiation is fundamental in bringing to fruition the legislatively declared policy ‘to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government.’ Thus, the proper construction of HRS § 89-2(12) is that ‘impasse’ means failure of a public employer and an exclusive representative to achieve agreement in the course of good-faith negotiations (bargaining). (Emphasis added).

56 Haw. at 87, 528 P.2d at 811.

In a case involving HSTA and the State of Hawaii (the same parties

involved herein), the Court upheld a circuit court decision reversing a labor board

decision finding the existence of an impasse in negotiations (App. 7-271 to 7-272),

because the agency had failed to determine whether the parties in negotiations had

exhausted the duty to bargain in good faith before declaring impasse and resorting to self

help. (App. 7-268 to 7-270). 56 Haw. at 87, 528 P.2d at 811. The Supreme Court rejected

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the view that an impasse could be declared without good faith bargaining, and imposed

the burden of establishing compliance with the duty on the party contending that impasse

exists.

We cannot subscribe to appellant's construction of HRS § 89-2(12) that “impasse” ‘could be the failure of a public employer and an exclusive representative to achieve agreement without good-faith bargaining or negotiation.’ Such a construction would totally destroy the efficacy of the law on ‘collective bargaining in public employment’ and give to public employees the power to strike arbitrarily and capriciously.

We are of the further opinion that the Hawaii Public Employment Relations Board (HPERB), on its own motion, under the provisions of HRS § 89-11(b), can declare that an impasse exists only after it initially reaches a determination that, at the very least, the party contending that an impasse exists (be it the public employer or the exclusive representative of the public employees) has been bargaining in good faith. (Emphasis added).

56 Haw. at 87-88, 528 P.2d at 811. In the aforementioned dispute, it was HSTA who

sought to engage in self-help prematurely without bargaining in good faith before

declaring an impasse in negotiations. (App. 7-259).

In the present case now pending before the Board in Case No. CE-05-781 it

is the employer who declared impasse and engaged in self help measures by unilaterally

implementing changes in wages, hours, and working conditions, allegedly without first

bargaining in good faith. (App. 7-35). The dispute stems from a decision by the public

employer to declare an impasse in negotiations with HSTA on June 3, 2011, twenty seven

days prior to the expiration of the July 1, 2009 to June 30, 2011 unit 5 collective

bargaining agreement (App. 7-121; App. 7-696), a decision to unilaterally implement a

five percent cut in wages and benefits on June 21, 2011, nine days prior the expiration of

the agreement (App. 7-815 to 7-816), and a decision to notify employees of the specific

unilateral changes on June 23, 2011, and to implement those changes without good faith

bargaining (App. 7-818 to 7-819), seven days prior to the expiration of the agreement.

(App. 7-372).

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As our Supreme Court held in Univ. of Hawaii Prof’l Assembly v. Tomasu,

79 Hawai`i 154, 159, 900 P.2d 161, 166 (1995), unilateral changes of this nature without

bargaining in good faith is prohibited under chapter 89.

The duty to bargain arises in two circumstances potentially applicable to this decision: First, the obligation to bargain collectively forbids unilateral action by the employer with respect to pay rates, wages, hours of employment, or other conditions of employment during the term of a labor contract, even if the action is taken in good faith. It is well established that an employer's unilateral action in altering the terms and conditions of employment, without first giving notice to and conferring in good faith with the union constitutes an unlawful refusal to bargain. See, e.g., NLRB v. Katz, 369 U.S. 736, 737, 82 S.Ct. 1107, 1108, 8 L.Ed.2d 230 (1962) (unilateral implementation of automatic wages increases, changes in sick-leave benefits and numerous merit increases violated the statutorily imposed duty to bargain collectively); Burlington Fire Fighters Ass'n v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983) (principle that unilateral imposition of terms of employment is a violation of duty to bargain is equally applicable to public sector bargaining); First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981). Therefore, when the employer attempts to promulgate a policy that will affect bargainable topics, the employer cannot do so without first initiating bargaining on such topics. (Emphasis added).

79 Hawai`i at 159, 900 P.2d at 166. The Katz doctrine adopted in Tomasu, 79 Hawai`i at

159, 900 P.2d at 1166, is now well established in approximately twenty two (22) other

states where public sector collective bargaining exists.2

2 See Alaska Public Employees Ass'n v. Dep’t of Admin., 776 P.2d 1030, 1033

(Alaska 1989); Calif. State Employees' Ass'n, CSU v. PERB, 59 Cal. Rptr. 2d 488, 497 (Ca. App. 1996); West Hartford Educ. Ass'n v. DeCourcy, 295 A.2d 526, 541 (Conn. 1972); New Castle County Vocational Tech. Educ. Ass'n v. Bd. of Educ., 451 A.2d 1156, 1162 (Del. App. 1982); City of Ocala v. Marion County Police Benevolent Ass'n, 392 So. 2d 26, 29, 31 (Fl. App. 1980); Georgetown-Ridge School Dist. 4 v. IELRB, 606 N.E.2d 667, 687 (Ill. App. 1992); Indiana Educ. Employment Rels. Bd. v. Mill Creek Classroom Teachers Ass’n, 456 N.E.2d 709, 712-13 (Ind. 1983); Maine v. Maine Labor Rel. Bd., 413 A.2d 510, 515 (Maine 1980); School Committee of Newton v. Labor Relations Comm'n, 447 N.E.2d 1201, 1211 (Mass. 1983); Gibraltar School Dist. v. Gibraltar Mespa_Transp., 505 N.W.2d 214, (Mich. 1993); Foley Educ. Ass'n v. Independent School Dist., 353 N.W.2d 917, 920 (Minn. 1984); Appeal of City of Nashua Bd. of Educ., 695 A.2d 647, 650, 651 (N.H. 1997); Prof’l Staff Congress/Cuny v. Bd. of Higher Educ. of City of New York, 373 N.Y.S.2d 453, 455 (N.Y. App. 1975); Galloway

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B. The Role, Authority, and Responsibilities of the Hawaii Labor Relations Board

The 1970 collective bargaining statutes required the creation of a labor

board to administer the provisions of chapter 89 (App. 7-220; see Section 89-1 (b) (3),

HRS), consisting of representatives of “management,” “labor,” and the “public.” (App. 7-

223; see Section 89-5 (b), HRS). The Board was charged with the resolution of

“controversies under this chapter,” “conducting proceedings on complaints of prohibited

practices,” and to “take such actions with respect thereto as it deems necessary and

proper.” (App. 7-224; see Section 89-5 (i), (3), (4), HRS). Chapter 89 states that all

actions taken by the board “shall be by a simple majority of the members of the board”

and “all decisions of the board shall be reduced to writing and shall state separately its

findings of fact and conclusions.” (App. 7-223; Section 89-5 (e), HRS). Prohibited

practices by employers were enumerated in Section 89-13 (a) (1) through (8), HRS (App.

7-232; see Section 89-13 (a) (1) through (10), HRS), and prohibited practices by

employees or employee organizations were set forth in Section 89-13 (b) (1) through (5),

HRS. (App. 7-232). The Board was authorized “to adopt rules relative to the exercise of

its powers and authority and to govern the proceedings before it in accordance with

chapter 91.” (App. 7-225, Section 89-5 (i) (9), HRS).

Initially Section 89-14, HRS, provided that “any controversy concerning

prohibited practices may be submitted to the board in the same manner and with the same

effect as provided in section 377-9” (App. 7-232). The statute was amended in 1982 to

expressly state that “the board shall have exclusive original jurisdiction” over any

Township Bd. of Educ. v. Galloway Township Educ. Ass'n, 393 A.2d 218, 230 (N.J. 1978); Swanton Local School Dist. Bd. of Educ. v. State Employment Rel. Bd., 1989 WL 515890 at 5 (Ohio App. 1989); Gresham Grade Teachers Ass'n v. Gresham Grade School Dist. No. 4, 630 P.2d 1304, 1308 (Ore. App. 1981); Philadelphia Housing Auth. v. Pennsylvania Labor Rel. Bd., 620 A.2d 594, 599, 600 (Pa. Commw. 1993); Smith County Educ. Ass'n v. Anderson, 676 S.W.2d 328, 339 (Tenn. 1984); Liberty County Officers Ass’n v. Liberty County Texas, 1999 WL 817527 *3 (Tex. App. 1999); Burlington Fire Fighters Ass'n v. City of Burlington, 457 A.2d 642, 643 (Vt. 1983); Int'l Fed. of Prof’l and Tech. Engineers v. State Personnel Bd., 736 P.2d 280, 287 (Wash. App. 1987); Jefferson County v. Wisconsin Employment Rel. Comm'n, 523 N.W.2d 172, 176 (Wisc. App. 1994).

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controversy concerning prohibited practices. 1982 Haw. Sess. L. Act 27, at 38. In Hawaii

Government Employees Ass'n, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawai`i

197, 239 P.3d 1 (2010), the Court clarified that the Board has the exclusive original

jurisdiction to address statutory issues first before the circuit court may address any

constitutional issues presented by the interpretation and application of chapter 89.3 Id. at

210, 239 P.3d at 14; See also Hawaii State Teachers Ass’n v. Abercrombie, 126 Hawai`i

318, 271 P.3d 613 (2012).

The procedures and practices before the Board are set forth in Section 377-

9, HRS, Section 89-5 (i), HRS, and Board rules and regulations which were promulgated

on February 6, 1981 “to effectuate the purpose of chapter 89, HRS, and to secure the just

and speedy determination of every proceeding.” See Hawaii Administrative Rule (HAR)

§ 12-42-2 (Emphasis added). Section 377-9 (d), HRS, states in relevant portions as

follows regarding the Board’s duty at the conclusion of a hearing on a prohibited practice

complaint:

§ 377-9 Prevention of unfair labor practices (d) After the final hearing, the board shall promptly make and file

an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added).

HRS § 377-9 (d).

3 The Court's ruling in the HGEA case limited and restricted access which was previously available to the circuit court on constitutional violations of Article XIII, Section 2 of the State Constitution. In Yogi petitioner (together with other unions) sought and obtained a temporary restraining order (App. 7-188 to 7-192) and permanent injunction in the circuit court (App. 7-193 to 7-217) when the legislature imposed a two year wage freeze. (App. 7-171). In the present case the legislature enacted in a state budge a provision “for labor savings attributable to collective bargaining agreements for all bargaining units” of $88.2 million per year for fiscal years 2011-2012 and 2012-2013 (App. 7-586), which the employer has implemented. (App. 7-815, see references to budget reductions).

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In prohibited practice proceedings the Hawaii Labor Relations Board is

required to conduct hearings on the merits of the controversy no later than forty (40) days

from the date a complaint or amended complaint has been filed. Section 377-9 (b), HRS,

states in relevant portions as follows:

§ 377-9. Prevention of unfair labor practices . . . (b) . . .

The board shall fix a time for the hearing on the complaint, which shall be not less than ten nor more than forty days after the filing of the complaint or amendment thereof, and notice shall be given to each party by service on the party personally or by mailing a copy thereof to the party at the party's last known post office address at least ten days before the hearing. . . . (Emphasis added).

The time deadlines are also set forth in Hawaii Administrative Rule (HAR) § 12-42-46 as

follows:

§ 12-42-46 Notice of hearing. (a) The board shall issue written notice of hearing upon the

parties. The initial notice of hearing shall be served personally or by registered or certified mail with return receipt requested. The notice shall include a statement of the date, time, place and nature of hearing, and such other information in accordance with section 91-9, HRS.

(b) The hearing shall be held not less than ten nor more than forty days after the filing of the complaint or amendment thereof. (Emphasis added).

HAR § 12-42-46.

During the 2000 legislative session the collective bargaining (and civil

service) statutes were reviewed as part of the effort to reform employment laws in Hawaii

to better implement “two constitutional mandates - that there be a civil service based on

merit and that public employees have the right to bargain collectively.” 2000 Haw. Sess.

L. Act 253, § 1, at 853. Lawmakers adopted a significant and material change in Section

89-5 (i), HRS, by requiring the Hawaii Labor Relations Board to execute and perform all

of its responsibilities in a timely and expeditious manner. 2000 Haw. Sess. L. Act 253, §

95, at 890-92. Section 89-5 (i), HRS, was amended to add subsection 10 which states as

follows:

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§ 89-5. Hawaii labor relations board. . . .

(i) In addition to the powers and functions provided in other sections of this chapter, the board shall:

. . . . (10) Execute all of its responsibilities in a timely manner so as to

facilitate and expedite the resolution of issues before it. (Emphasis added).

2000 Haw. Sess. L. Act 253, § 95, at 892.

C. The Prohibited Practice Proceeding in Case No. CE-05-781

On July 8, 2011 HSTA filed a verified complaint for prohibited practices

against Neil Abercrombie, Kalbert Young, Neil Dietz, Kathryn Matayoshi, Donald

Horner, and James Williams (Employer) in Case No. CE-05-781. (App. 1-1 to 1-37, see

1-3 on verification). HSTA alleged that the claims presented “arise under Hawaii Revised

Statutes (HRS) chapter 89 in connection with collective bargaining over wages, hours,

and other terms and conditions for the July 1, 2011 to June 30, 2013 agreement

applicable to teachers and other personnel of the department of education, and a

challenge to the constitutionality of a statewide governmental policy to unilaterally

implement a five percent (5%) salary reduction, to decrease employer contributions for

health care benefits from sixty to fifty percent of premium rates, and to withdraw from

the bargaining process core subjects of collective bargaining which impinge upon the

constitutional rights of employees.” (App. 1-5).

The complaint sets forth five separate counts, including count I that the

employer improperly established and implemented a “statewide governmental policy”

(App. 1-22 to 1-28), count II that employer adopted a “take it or leave it” approach to

bargaining and used unlawful and improper threats (App. 1-28 to 1-30), count III that

employer repudiated an agreement entered on April 27, 2011 on how to proceed in

negotiations and engaged in unlawful discrimination (App. 1-30 to 1-32), count IV that

employer directly dealt with employees to undermine the role of HSTA as the exclusive

bargaining representative (App. 1-32 to App. 1-34), and count V that the employer

committed multiple breaches of the duty to bargain in good faith including implementing

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unilateral changes in wages, hours, and terms and conditions of employment without

bargaining in good faith before declaring impasse. (App. 1-34 to 1-35). In its prayer for

relief complainant sought, inter alia, interlocutory and injunctive relief against employer

to restore the status quo prior to impasse. (App. 1-36 to 1-37). The complaint was served

by the Board on July 11, 2011 on the employer in the case. (App. 2-1 to App. 2-2). The

employer filed an answer to the complaint on July 21, 2011. (App. 5).

Of particular emphasis to this petition, the complaint challenged the

constitutionality of a statewide governmental policy to unilaterally implement a five

percent (5%) salary reduction and noted the circuit court’s original jurisdiction over that

issue. (App. 1-5, 1-22, 1-23, 1-27). The complaint alleged that the conduct of the

legislature and administration withdrew from the bargaining process core subjects of

collective bargaining which impinge upon the constitutional rights of public employees.

(App. 1-5, 1-27). Under Hawaii Government Employees Ass’n v. Abercrombie, 124

Hawai`i 197, 239 P.3d 1 (2010), these constitutional claims cannot even be considered

until an agency appeal can be taken to the circuit court from a final decision of the Board.

Id. at 208, 239 P.3d at 208. The complaint revisits the issue decided in United Public

Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai`i 46, 62 P.3d 189 (2002),

where the Supreme Court invalidated a legislatively established wage freeze from 1999 to

2001 established in Act 100, § 2, at 368-69, 1999 Hawaii Session Laws. (App. 1-22 to 1-

23). HSTA’s complaint pointed out that the Court held that the legislative action was

contrary to the purpose and intent of Article XIII, Section 2 of the State Constitution. 101

Hawai`i at 54, 62 P.3d at 197. (App. 1-22 to 1-23). The complaint alleges that

Respondents Abercrombie and Young proposed to the legislature and obtained support

for and acceptance of a statewide governmental policy (by the legislature) to reduce

salaries of all public employees from July 1, 2011 to June 30, 2013 by not less than five

percent, and to decrease employer contributions to health care benefits to all public

employees from 60% to 50% of premium rates established by the Hawaii Employer-

Union Health Benefits Fund, and Respondents Abercrombie, Young, Dietz, Horner,

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Williams, and Matayoshi unlawfully and unilaterally implemented said policy in

violation of the rights of public employees under Article XIII, Section 2 of the State

Constitution and HRS chapter 89. (App. 1-19 ¶ 59; See also App. 1-27- to 1-28 ¶¶ 65-

66).

1. The Motions for Interlocutory Relief, to Shorten Time, and to Expedite On July 18, 2011 HSTA filed a motion for interlocutory relief which was

supported by the verified complaint, a declaration of Wilfred Okabe, the Association's

president, and exhibits 1 through 71. (App. 3). The motion requested the board for a

status quo order as follows:

“[E]njoining Neil Abercrombie, Kalbert Young, Neil Dietz, Kathryn Matayoshi, Donald Horner, and James Williams (Respondents or Employer), their agents, representatives, employees, assigns, and other persons acting in their interest in dealing with public employees, individually and collectively (1) from refusing to meet at reasonable times to negotiate in good faith with respect to wages, hours, and other terms and conditions of employment for the July 1, 2011 to June 30, 2013 collective bargaining agreement for unit 5 employees, (2) from implementing unilateral changes without good faith bargaining to Article XVI (work year) on teacher initiated activities prior to the start of the 2011-2012 school year on July 28, 2011 and July 29, 2011, and teacher institute day for October 10, 2011 to October 14, 2011, (3) from implementing unilateral changes without good faith bargaining to a December 23, 2010 memorandum of agreement regarding employer and employee contributions for health benefit plans through monthly payroll deductions effective August 5 and 20, 2011, and thereafter, and (4) from implementing unilateral changes without good faith bargaining to Article XVII (salaries) through monthly payroll reductions for ten (10) month employees effective August 20, 2011, and for twelve (12) month employees effective August 5 and 20, 2011, and thereafter.” (Emphasis added).

(App. 3-1 to 3-2).

On July 25, 2011 HSTA filed an amended motion for interlocutory relief

(App. 7-1 to 7-2), supported by affidavits from Wilfred Okabe, Joan Lee Husted, Wilbert

Holck, Jr., Paul A. Tom, Wylyn B.K. Auna, and Rebecca Covert, and a declaration of

Lawrence Dennis III (App. 7-109 to 7-154), exhibits 1 through 77 (App. 7-155 to 7-979),

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and a memorandum in support of the motion.4 (App. 7-5 to 7-108). The memorandum

stated the scope of the requested relief (App. 7-5 to 7-6), provided a detailed statement of

the case (App. 7-6 to 7-38), cited relevant constitutional and statutory provisions (App. 7-

38 to 7-43), described the applicable standard of review (App. 7-43 to 7-45), presented

argument on the facts and law to establish the likelihood of prevailing on the merits of

count I regarding the statewide governmental policy (App. 7-45 to 7-55), of count II on

the “take-it-or-leave it” approach and threats by the employer (App. 7-55 to 7-66), of

count III on repudiation and unlawful discrimination (App. 7-66 to 7-76), on count IV

regarding direct dealing with employees (App. 7-76 to 7-82), on count V regarding the

duty to bargain (App. 7-82 to 7-98), explained how the rights of employees would be

irreparably harmed by the absence of interlocutory relief (App. 7-98 to 7-104), and why

the public interest would be furthered by the issuance of interlocutory relief. (App. 7-104

to 7-108).

On July 26, 2011 at 7:52 a.m. HSTA filed a motion to shorten time to hear

the motion for interlocutory relief and to expedite resolution of issues before the board.

(App. 8). The motion was supported by an affidavit of counsel (App. 8-3 to 8-7) which

indicated, inter alia, that the absence of a timely hearing and ruling on the amended

motion for interlocutory relief would deprive teachers and other personnel of due process

and a right to be heard before employer unilaterally implemented changes in wages,

hours, and working conditions on July 28, 2011 and July 29, 2011 (App. 8-5, see

paragraph 7), that Section 377-9 (b), HRS, entitled the parties to a hearing on the merits

no later than August 17, 2011 (App. 8-6, see paragraph 8b), and that unless the Board

“executed all of its responsibilities in a timely manner so as to facilitate and expedite the

resolution of the issues before it” public employees represented by HSTA would be

severely prejudiced. (App. 8-6 to 8-7, at paragraphs 9 and 10). Employer did not oppose

4 On July 20, 2011 the employer filed a motion to extend the time to respond to

HSTA's motion. (App. 4). The Board granted the employer's motion on July 22, 2011 in Order No. 2808. (App. 6; App. 8-4).

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the July 26, 2011 motion, but the Board declined to hear the motion for interlocutory

relief before July 28, 2011 and July 29, 2011. (App. 9-3).

On August 1, 2011 the employer filed its opposition to the amended motion

for interlocutory relief (App. 10), supported by the declarations of Annette Anderson,

Kalbert Young, Neil Dietz, Kathryn Matayoshi, Lea Albert and James Halvorson. (App.

10-84 to 10-133), exhibits A through 00 (App. 10-134 to 10-420), and a memorandum in

opposition. (App. 10-14 to 10-83). The memorandum provided a “factual background”

(App. 10-15 to 10-24), and presented argument on the absence of irreparable harm

because of monetary relief being involved (App. 10-24 to 10-28), on how the public

interest requires the injunction be denied (App. 10-28 to 10-29), and on how HSTA

cannot demonstrate likelihood of success on the merits as to count I (App. 10-30 to 10-

36; 10-40 to 10-44; App. 10-65 to 10-67; App. 10-7l to 10-74; App. 10-74 to 10-82),

count II on take it or leave it bargaining and threats (App. 10-36 to 10-39), count IV

regarding direct dealing (App. 10-67 to 10-7l)), and count V (App. 10-39 to 10-40; App.

10-44 to 10-46; App. 10-47 to 10-65) of the complaint.5

On August 9, 2011 HSTA filed a reply brief in support of the amended

motion for interlocutory relief. (App. 12). The reply added an affidavit of Alvin

Nagasako, Georgiana Alvaro and Rebecca L. Covert (App. 12-35 to 12-63), exhibits 83

to 88 (App. 12-64 to 12-191), and a memorandum of fact and law responding to

employer's contentions regarding the merits of the claims in count I (App. 12-4 to 12-13),

in count II (App. 12-13 to 12-15), in count III (App. 12-15 to 12-16), in count IV (App.

12-17 to 12-2), in count V (App. 12-20 to 12-24), the balance of irreparable harm (App.

12-24 to 12-30), and the public interest factor on injunctive relief. (App. 12-30 to 12-34).

Upon filing the amended motion for interlocutory relief on July 25, 2010

HSTA filed a motion to shorten time to hear the amended motion for interlocutory relief

5 A review of the employer’s opposition to the amended motion for interlocutory

relief indicates that no argument was made as to Count III on repudiation and unlawful discrimination.

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and to expedite resolution of issues before the Board. (App. 8). At the pre-hearing

conference held on August 5, 2011 the Board scheduled oral argument for August 10,

2011 on inter alia the amended motion for interlocutory relief and the motion to shorten

time and expedite proceedings. (App. 11-5). On August 10, 2011 oral argument in

support and in opposition of the motion for interlocutory relief was heard by the Board.

(App. 13-22 to 13-112). On the motion to shorten time, the employer claimed the motion

was moot, and the Board stated “[w]e'll deal with that and issue an order in due course.”

(App. 9-3). No ruling or order has yet to be issued on HSTA’s amended motion for

interlocutory relief.6 (See App. 19).

2. The Board Hears Evidence on The Merits and Concludes the Hearing In evidentiary hearings on the merits of the complaint commenced on

August 30, 2011 in CE-05-781. (App. 14-1, 14-5). Testimony was received over

approximately thirty five days of hearings. (App. 14). Those testifying were James

Williams (App. 14-3, 14-8, 14-12, 14-16), Donald Horner (App. 14-20, 14-24), Bruce

Coppa (App. 14-28), Neil Dietz (App. 14-28, 14-32, 14-36, 14-40), Kathryn Matayoshi

(App. 14-44, 14-48, 14-52), Kalbert Young (App. 14-56, 14-60), Neal Miyahira (App.

14-64), Ralph Schultz (App. 14-64, 14-68, 14-72), Susan Keliikuloa (App. 14-72),

Annette Anderson (App. 14-76, 14-80, 14-84, 14-88, 14-92, 14-96, 14-100), Erin

Nakamura (App. 14-100), Amy Asselbaye (App. 14-104), Andrew Aoki (App. 14-104),

Paul Tom (App. 14-104), Elynne Chung (App. 14-108), Laurie Sogawa (App. 14-108),

Joan Husted (App. 14-108), Georgiana Alvaro (App. 14-113, 14-133), Wylyn Auna

(App. 14-117), Roberta Yamamoto (App. 14-117), Paul Daugherty (App. 14-121),

Wilbert Holck (App. 14-121), Alvin Nagasako (App. 14-125), Dennis Tynan (App. 14-

129), Wil Okabe (App. 14-138), and Raymond Camacho. (App. 14-142). In the midst of

6 On August 31, 2011 the Board filed its Order Denying Complainant’s Motion To

Shorten Time To Hear Motion For Interlocutory Relief And To Expedite Issue Before The Board, filed on July 26, 2011. (App. 19-13). HSTA filed an appeal from the August 31, 2011 order which is now on appeal to the Intermediate Court of Appeals in ICA No. CAAP-11-1107, fully briefed.

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the hearings the employer filed a motion to expedite the proceedings. (Compare App. 14

with App. 19-17). The Board has not ruled on that motion. (See App. 19).

The last witness testified on May 10, 2012. (App. 14-141-42, 14-144, 14-

152). On May 17, 2012 questions of the exhibits were resolved. (App. 14-144, 149-50).

The Board set June 15, 2012 as the deadline for the parties to submit post-hearing briefs.

(App. 14-154). HSTA requested to file a proposed findings of fact, conclusions of law

and order. (See App. 14-153). On June 15, 2012 the respective post-hearing

memorandum were filed by HSTA (App. 15), the employer (App. 17), and intervenor

(App. 18), and HSTA filed its proposed findings of fact, conclusions of law and order.

(App. 16).

HSTA argued that the testimony of the witnesses and the documentary

evidence established five (5) critical stages of the bargaining process where the employer

willfully interfered, restrained and coerced teachers and other personnel of the

Department of Education (DOE) in the exercise of their statutory and constitutional

rights, retaliated and discriminated against them for engaging in protected activity,

breached their obligation to negotiate in good faith, and violated the terms of provisions

of prior agreements entered with HSTA. (See App. 15-3). The five stages of the

bargaining process were:

1. From October 29, 2010 when the employer opened all articles and appendices of the bargaining unit 5 agreement to afford the new state administration the opportunity to amend the agreement consistent with its policies and goals, and culminated in the setting of uniform terms on cost items for all bargaining units in the closing days of the 2011 legislative session, imposing a government-wide policy. (App. 15-3 to 15-17).

2. On the morning of April 27, 2011, continuing into the afternoon, and ending in the early evening hours of the same day during which time the HSTA negotiating team was told it was “crunch time” or “make or break time,” and was presented a “final settlement offer” consisting of a 5% labor cost savings and 50-50 on health benefit contributions, was told that the final offer would be taken off the table at the expiration of 24 hours (from a meeting with the legislator

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on April 26, 2011) unless accepted, and was informed that those bargaining units not accepting the offer by the end of day would be confronting a 10% across-the-board cut in the budget and “nasty things in the work environment,” including loss of jobs in the DOE, imposing a “take it or leave it” position in bargaining. (App. 15-17 to 15-23).

3. On the late evening of April 27, 2011 and continuing over six bargaining sessions thereafter, a June 17, 2011 meeting, and after June 21, 2011 when the HSTA board voted not to approve the labor cost savings provisions offered by the employer, at which point the respondents refused to negotiate further and repudiated paragraphs 5 and 6 of an April 27, 2011 agreement between the parties by unilaterally implementing a five percent wage reduction to accomplish budget reductions and an increase in employee health benefit contributions from 40% to 50% and engaging in retaliation and discrimination towards Unit 5 employees, compared to employees in other units who also did not reach an agreement before June 30, 2011 when their contracts expired. (App. 15-24 to 15-37).

4. On or about June 23, 2011 when respondent Matayoshi sent a letter addressed to each and every teacher and other employees in bargaining unit 5 setting forth changes in their wages, hours, and other terms and conditions of employment to become effective July 1, 2011, engaging in direct dealing with the employees. (App. 15-37 to App. 15-41).

5. On or about June 21, 2011 when Employer respondents issued a “notice of unilateral implementation” which stated: “the Board of Education and Superintendent of Education, with the concurrence of the Governor will be implementing the June 9, 2011 Last, Best, and Final Settlement Offer, and the June 17, 2011, Tentative Agreements Executed by the Employer,” and by other acts resulting in the respondents breach of the duty to bargain. (App. 15-41 to App. 15-52).

(See also App. 16).

Specific to the constitutional claims related to the first stage of the

Employer respondents’ conduct, HSTA pointed out the following fact scenario:

1. On February 4, 2011 the Governor raised the issue and indicated that his administration's position was to achieve a 5% labor cost savings with all public sector unions. The position included reduction in employees’ wages and increases in health benefit contributions by

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employees. It was a “uniform” and “unaltered position” which had been formulated before Neil Dietz became chief negotiator. It was a “consistent position” to be adhered to by the chief negotiator with all unions. (App. 15-5).

2. On or about April 28, 2011 what emerged was a measure intended to mandate the State to obtain labor cost savings from all bargaining units amounting to $88.2 Million per year in Section 96 of the Budget and to implement further reductions in employer contributions for health benefits in Section 97 of the Budget. (App. 15-6).

3. Section 96 of the Budget stated: “Notwithstanding any provision to the contrary, the director of finance, with the approval of the governor, shall transfer into retirement benefit - state (BUF 741) $88,200,000 for fiscal year 2011-2012 and $88,200,000 for fiscal year 2012-2013 for labor savings attributable to collective bargaining agreements for all bargaining units[.] (App. 15-6) (emphasis added).

4. The Governor signed the foregoing provision into law on June 23, 2011. The budget was also based on an across the board reduction of employer contributions to 50% of premium rates. The law has been construed by State officials to be a “mandate” for labor cost savings which the employer is duty bound to achieve for each bargaining unit. (App. 15-7).

5. The requirement that “collective bargaining agreements for all bargaining units” contain a provision “for labor cost savings” equivalent to a one day furlough a month valued at $88.2 million per year and a “uniform” and “unaltered position” that all bargaining unit employees be subject to a 5% wage cut and a 50-50 split in health premium rates is an unconstitutional infringement of the rights of public employees in violation of Article XIII, Section 2 of the State Constitution. (See App. 15-11). See Yogi, 101 Hawai`i at 56, 62 P.3d at 199.

Despite HSTA’s motion to expedite filed at the outset of the proceedings (which was

denied) (App. 7, App. 19-13), and the employer’s motion to expedite the proceedings

filed in December 2011 (App. 19-17), the Board has not issued its decision. Three

months have passed since the briefs were filed and HSTA remains without relief and

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remedy from these constitutional violations and without the right to leverage any strike

action as an economic tool in negotiations. (App. 1).

D. HSTA Earlier Pursuit Of A Writ of Mandamus For Immediate Interlocutory Ruling

On August 29, 2011 HSTA filed a petition for a writ of mandamus from the

Board proceedings specific to its request for preliminary interlocutory relief in the case.7

(See App. 20). On September 27, 2011 the Supreme Court entered its order finding

HSTA was not entitled to mandamus relief under the standard for granting mandamus

relief. Id.

Upon consideration of the petition for a writ of mandamus filed by petitioner Hawaii State Teachers Association and the papers in support, it appears that: (1) no statute or rule prescribes a time in which respondent Hawaii Labor Relations Board (HLRB) must resolve a motion for interlocutory relief and absent such prescribed time, the “timely” resolution under HRS § 89–5(i)(10) (Supp. 2010) of petitioner's motion for interlocutory relief is within the discretion and judgment of respondent HLRB and is not a ministerial duty subject to mandamus; (2) HRS § 377–9(d) (Supp. 2010) requires “prompt” filing of a final order, not an interlocutory order; and (3) there is no evidence that respondent HLRB's ruling on petitioner's motion for interlocutory relief, when issued, will not be supported by “findings of fact and conclusions” pursuant to HRS § 89–5(e) (Supp. 2010). (Emphasis added).

Id. The Supreme Court also found that as to other prohibited practice complaints of

HSTA against the employer pending with the Board, “HRS § 89–12(b)(2) (Supp. 2010)

requires resolution only of Case No. CE–05–781 before petitioner may exercise its right

to strike.” Id.

7 HSTA also requested mandamus relief (1) to facilitate and expedite the

determination of the rights of the parties in a written decision with separate findings of fact and conclusions of law in a motion submitted on August 10, 2011, (2) to make full, prompt, and complete disclosure of private communications with the employer, and (3) to expedite and exhaust twelve other pending proceedings to prevent prohibited practices between HSTA and the employer in multiple cases. See Hawaii State Teachers Ass’n v. Hawaii Labor Relations Board, No. SCPW-11-0000640, 2011 WL 4469826 (Sept. 27, 2011) (App. 20). These issues are not raised in this mandamus petition.

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On the discretionary standard in a petition for mandamus, the Court cited

two recent case. See id.; See also In re Disciplinary Bd. of Hawaii Supreme Court, 91

Hawai`i 363, 368, 984 P.2d 688, 693 (1999) (noting that mandamus relief is available to

compel an official to perform a duty allegedly owed to an individual only if the

individual's claim is clear and certain, the official's duty is ministerial and so plainly

prescribed as to be free from doubt, and no other remedy is available) and Salling v.

Moon, 76 Hawai`i 273, 274 n. 3, 874 P.2d 1098, 1099 n. 3 (1994) (quoting from the case:

“A duty is ministerial where the law prescribes and defines the duty to be performed with

such precision and certainty as to leave nothing to the exercise of discretion and

judgment.”). (App. 20).

E. The Absence of Other Available Lawful Relief and Prejudice to Employee Rights

As noted above, until the Board issues its order or decision in CE-05-781,

HSTA’s counts of constitutional violations cannot even start to be heard by the Circuit

Court. Absent a decision by they Board, public employees also lack the right of self-help,

i.e., to strike (under Section 89-12 (b) (2), HRS), in response to the employer's unilateral

course of conduct under challenge due to the board’s failure to act promptly in Case No.

CE-05-781. (See App. 20-2). Under the existing statutory scheme a party in a prohibited

practice proceeding who is aggrieved has no right to obtain judicial review in the circuit

court until “a final decision and order in a contested case” has been rendered or until the

Board enters “a preliminary ruling of the nature that deferral of review pending entry of

the subsequent final decision would deprive appellant of adequate relief.” See Sections

377-9 (f), and 91-14 (a), HRS. A decision and order is “final” when it ends the

proceedings “leaving nothing further to be accomplished.” Gealon v. Keala, 60 Haw.

513, 520, 591 P.2d 621, 626 (1979). Judicial reviews of preliminary rulings by an agency

are a rare exception to the general rule that court intervention await a “final order.” See

Inouye v. Bd. of Trustees of Employees' Ret. Sys., 4 Haw. App. 526, 530, 669 P.2d 638,

641 (App. 1983). Absent a “final order” the circuit court lacks jurisdiction to review an

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agency decision and action by HLRB. In re Hawaii Gov't Employees' Ass'n, Local 152,

AFSCME, AFL-CIO, 63 Haw. 85, 87, 621 P.2d 361, 363 (1980).8

Under established law in the private sector the parties to the collective

bargaining process have various economic weapons available to resolve labor disputes,

including the lock out, see American Ship Building Co. v. N.L.R.B., 380 U.S. 300

(1965), and the right to strike in response to unfair labor practices committed by an

employer. See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). But

HSTA's lawful rights and remedies to address the employer's decision to engage in self-

help measures announced on June 21, 2011 (App. 7-815 to 816), and implemented on

June 23, 2011 (App. 7-818 to 7-819), are statutorily restricted by Section 89-12 (b), HRS.

In our public sector the legislature restricted the right to strike in Section 89-12 (b) (7),

HRS, by conditioning the right of an employee to participate in a strike upon the

exhaustion of proceedings for the prevention of prohibited practices.

§ 89-12. Strikes, rights and prohibitions. (a) It shall be unlawful for any employee to participate in a strike if

the employee: (1) Is not included in the appropriate bargaining unit involved in an

impasse; or (2) Is included in the appropriate bargaining unit involved in an

impasse that has been referred to arbitration for a decision; (b) It shall be lawful for an employee, who is not prohibited from

striking under subsection (a) and who is in the appropriate bargaining unit involved in an impasse, to participate in a strike under the following conditions:

(1) The requirements of section 89-11 relating to the resolution of disputes have been complied with in good faith;

(2) The proceedings for the prevention of any prohibited practices have been exhausted;

(3) The collective bargaining agreement and any extension of the agreement has expired; and

8 However, once the circuit court's jurisdiction is invoked Section 377-9 (i), HRS,

states: “[p]etitions filed under this section shall have preference over any civil cause of a different nature pending in the circuit court, shall be heard expeditiously, and the circuit courts shall always be deemed open for the trial thereof.”

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21

(4) The exclusive representative has given a ten-day notice of intent to strike, together with a statement of its position on all remaining issues in dispute, to the employer and the board.

Within three days of receipt of the notice of intent to strike, the employer shall submit its position on the remaining issues in dispute that are included in the statement transmitted by the exclusive representative with its notice of intent to strike. The board shall immediately release the information on the positions of the parties to the public. (Emphasis added).

See Hawaii Pub. Emp. Rel. Bd. v. Hawaii State Teachers Ass’n, 54 Haw. 531, 544, 511

P.2d 1080, 1087 (1973) (where the court held that Section 89-12 (a), HRS, prohibited

HSTA from striking over a dispute over which the parties had voluntarily agreed to

submit to interest arbitration under Section 89-11 (a), HRS).

III. STANDARD OF DISPOSITION

A writ of mandamus is an extraordinary remedy that will not issue unless

the petitioner first demonstrates a clear and indisputable right to relief and a lack of other

means adequately to redress the alleged wrong or obtain the requested action. Barnett v.

Broderick, 84 Hawai`i 109, 111, 929 P.2d 1359, 1361 (1996); Hanabusa v. Lingle, 119

Hawai`i 341, 346, 198 P.3d 604, 609 (2008); Naipo v. Border, 125 Hawai`i 31, 34, 251

P.3d 594, 597 (2011). Hawaii courts have recognized that mandamus relief is available

under several distinct circumstances. See HRS § 602-5(a)(4) (“To exercise original

jurisdiction in all questions arising under writs directed to courts of inferior jurisdiction . .

. or if the supreme court consents to receive the cases arising under writs of mandamus

directed to public officers to compel them to fulfill the duties of their offices[.]”).

Writs directed to lower courts are permissible where a judge has exceeded

his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has

refused to act on a subject properly before the court under circumstances in which it has a

legal duty to act. Kema v. Gaddis, 91 Hawai`i 200, 204, 982 P.2d 334, 338 (1999) (noting

that such writs are not meant to supersede the legal discretionary authority of the lower

court, nor are they meant to serve as legal remedies in lieu of normal appellate

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22

procedures). Mandamus is also an appropriate remedy where the court below has failed

“to follow statutory rules,” Marsland v. Town, 66 Haw. 516, 523, 668 P.2d 25, 30 (1983),

overruled on other grounds, State v. Sanders, 102 Hawai`i 326, 76 P.3d 569 (2003), has

disregarded court rules and orders, Barnett, 84 Hawai`i at 111, 929 P.2d at 1361, or

misapplied the law, State Ex Rel. Kaneshiro v. Huddy, 82 Hawai`i 188, 194, 921 P.2d

108, 114 (1996). In addition, mandamus is available in extraordinary situations where no

right of immediate appeal exists to restore rights or privileges which have been illegally

deprived. Naipo, 125 Hawai`i at 35, 251 P.3d at 598, citing Abrams v. Cades, Schutte,

Fleming & Wright, 88 Hawai`i 319, 323, 323, 966 P.2d 631, 635 (1998).

Historically, where there are unreasonable delays in the adjudication of

cases writs of mandamus have issued “to fix a case for trial, for a day certain, and to try

it,” State ex rel. Stewart v. Reid, 45 So. 103, 109 (La. 1907), to “command an inferior

judicial tribunal to act in a matter pending before it, wherein the parties appear to have

been unreasonably delayed,” Sobiloff Bros. v. Hebert, 120 A. 60, 61 (R.I. 1923), to

“decide and adjudicate all of the aforementioned cases and submit decisions in these

cases . . . within sixty days,” Commonwealth ex. rel. Duff v. Keenan, 33 A.2d 244, 251

(Pa. 1943), to “set the case down for trial for a specific day certain and then to decide the

action upon the facts and evidence presented before it,” Keen v. Mirabile, 264 N.Y.S.2d

995, 998 (N.Y. Sup. 1965), and “perform his duty to rule” whether “his power to

determine the matter be called judicial, administrative or political,” Kissam v.

Williamson, 545 S.W.2d 265, 266 (Tex. App. 1976).

Writs of mandamus may also be directed to compel a public official to

perform a duty owed to an individual if the individual's claim is clear and certain, the

official's duty is ministerial, and no other remedy is available. Hanabusa v. Lingle, 119

Hawai`i 341, 347, 198 P.3d 604, 610 (2008). Thus, writs of mandamus have been issued

to a minister of finance to prevent sales of bonds for less than par, in Castle v. Kepana, 5

Haw. 27, 30 (1884), to a county canvassing officer to issue certificates of election, in

Kumalae v. Kalauokalani, 25 Haw. 1, 9 (1919), to a board of harbor commissioners to

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23

award a bid on a contract to the lowest responsible bidder in Marshall Const. Co. v.

Bigelow, 29 Haw. 48, 60 (1929), to a board of trustees of a pension fund for neglecting to

enlarge the amount of pension payments consistent with legislation, in Palea v. Rice, 34

Haw. 150, 156 (1937), to an auditor to draw warrants in payment of claims for balance

due on a completed contract, in James W. Glover, Ltd. v. Fong, 39 Haw. 308 (1952), to

the director of taxation to collect general excise taxes from airlines, in Raysay Travel,

Inc. v. Kondo, 53 Haw. 671, 995 P.2d 1172 (1972), and to the governor for unreasonable

delay in the nomination and appointments of member of the board of regent to the

University of Hawai`i, in Hanabusa, 119 Hawai`i at 351, 198 P 3d at 614.

“One of the principal offices of mandamus is to remedy official inaction.”

Palea v. Rice, 34 Haw. 150, 156 (1937). Where an official’s duty encompasses a mandate

to act, mandamus relief is appropriate to compel action if the official fails to act within a

reasonable time or refuses to act as the purpose behind mandamus relief “is to prevent a

denial of justice, and it therefore issues in all cases where the law has assigned no

specific relief by the ordinary means, or even where a party has other means of relief, if

the slowness of ordinary legal forms is likely to produce such a delay, that the public

good and the administration of justice will suffer from it, and where justice and reason

require that some mode should exist of redressing a wrong, or an abuse of any nature

whatever.” Marshall Const. Co. v. Bigelow, 29 Haw. 48, 59-60 (1926). A public officer's

duty to act “is enforceable by mandamus when the duty is ‘postponed unreasonably’ and

not performed after the passage of an ‘unreasonable period of time.’” Hanabusa, 119

Hawai`i at 351, 198 P.3d at 614.

In granting writs of mandamus for unreasonable delays before

administrative agencies courts have recognized that “due process of law implies not

merely an opportunity to be heard, but also opportunity to be heard with reasonable

promptness.” Allen v. State of West Virginia, Human Rights Comm’n, 324 S.E.2d 99,

116 (W.Va. 1984). Courts have interfered with the normal progression of agency

proceedings to correct “transparent violations of a clear duty to act” In re Bluewater

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24

Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000), because “[i]t is obvious that the benefits

of agency expertise and the creation of a record will not be realized if an agency never

takes action.” Telecommunications Research and Action Center v. Federal

Communications Comm’n, 750 F.2d 70, 79 (1984). “There is ‘no per se rule as to how

long is too long’ to wait for agency action, but a reasonable time for agency action is

typically counted in weeks or months, not years.” In re American Rivers and Idaho

Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (citing In re Int’l Chem Workers

Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)).

“By definition, a claim of unreasonable delay cannot await final agency

action before judicial review, since it is the very lack of agency action which gives rise to

the complaint.” Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81, 85

(D.C. Cir. 1984). Delays in formal hearings where statute set a specific time frame, i.e.,

15 days, are enforceable by writ of mandamus. Salam v. Bd. of Prof’l Engineers, 946 So.

2d 48 (Fla. 2007). “Long delays in the adjudication of labor-management cases may

indeed render decisions eventually issued, or relief ultimately awarded, ‘beside the

point.’” In American Fed’n of Gov’t Employees, AFL-CIO, 790 F.2d 116 (D.C. Cir.

1986), citing Weiler, Promises to Keep: Securing Workers Rights to Self-Organization

Under the NLRA, 96 Harv. L. Rev. 1769, at 1794 (1983).

A writ of mandamus is a proper method of challenging non-compliance with judicial canons where impartiality could reasonably be questioned. Ex parte Fowler, 863 So. 2d 1136, 1141 (La. 2001); Ex parte Sanders, 659 So. 2d 1036 (La. 1995); Wallace v. Wallace, 352 So. 2d 1376 (Ala. 1977). Mandamus may issue to direct compliance with the judicial canons. State ex rel. Cosmos Broadcasting Corp. v. Brown, 471 N.E.2d 874 (Ohio App. 1984). In Hawaii, the Code of Judicial Conduct has been found to be applicable to administrative agencies are required to hold contested case hearings. See Sussel v. City and County of Honolulu Civil Service Comm'n, 71 Haw. 101, 107-09, 784 P.2d 867, 870-71 (1989) (Since the fundamentals of just procedure impose a requirement of impartiality on “administrative agencies which adjudicate as well as [on] courts[,]” Withrow v. Larkin, 421 U.S. 35, 46 (1975), we see no reason why an administrative adjudicator should be allowed to sit with impunity in a case

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where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on his impartiality.

IV.

STATEMENT OF ISSUES PRESENTED AND THE RELIEF SOUGHT

The following is a statement of the issues presented by the petition for

mandamus and a discussion of the relief sought by petitioner:

1. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the merits of the prohibited practice complaint filed by HSTA on July 8, 2011 in Case No. CE-05-781 particularly where the complaint alleges constitutional challenges that cannot be heard by a circuit court until after HLRB’s review?

The first issue is presented by reason of Respondents’ purposeful refusal to

consider and determine the merits of the allegations in the prohibited practice complaint

filed by HSTA on July 8, 2011 (App. 1), following the conclusion of the evidentiary hearing

on May 17, 2012 and the post-hearing briefs filed on June 15, 2012. (App. 14-154 to 14-

155, App. 15 through 18). The statute is very clear in requiring the Board to expeditiously

decide the merits once the hearings on the proceeding are done.

§ 377-9 Prevention of unfair labor practices . . . . (d) After the final hearing, the board shall promptly make and file

an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added).

Since no final ruling has been rendered by Respondents in the three plus months that

have elapsed, HSTA requests a writ ordering Respondents to render a just and prompt

decision and order on the prohibited practice complaint in CE-05-781.

The necessity for a prompt decision by the HLRB is further supported by

the constitutional claims contained in the HSTA complaint. (App. 1-5, 1-22, 1-23, 1-27).

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The complaint alleged that the conduct of the legislature and administration withdrew

from the bargaining process core subjects of collective bargaining which impinge upon

the constitutional rights of public employees. (App. 1-5, 1-27). The complaint alleges that

Respondents Abercrombie and Young proposed to the legislature and obtained support

for and acceptance of a statewide governmental policy (by the legislature) to reduce

salaries of all public employees from July 1, 2011 to June 30, 2013 by not less than five

percent, and to decrease employer contributions to health care benefits to all public

employees from 60% to 50% of premium rates established by the Hawaii Employer-

Union Health Benefits Fund, and Respondents Abercrombie, Young, Dietz, Horner,

Williams, and Matayoshi unlawfully and unilaterally implemented said policy in

violation of the rights of public employees under Article XIII, Section 2 of the State

Constitution and HRS chapter 89. (App. 1-19 ¶ 59; See also App. 1-27- to 1-28 ¶¶ 65-

66). Until HLRB has reviewed and decided the statutory allegations, the claims and relief

sought from constitutional violations goes unheard. See Hawaii Government Employees

Ass'n, AFSCME Local 152, AFL-CIO, 124 Hawai`i at 210, 239 P.3d at 14; Hawaii State

Teachers Ass’n v. Abercrombie, 126 Hawai`i 318, 271 P.3d 613 (2012).

2. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the prayer for injunctive relief and the motions for interlocutory orders raised by HSTA in the prohibited practice proceeding?

The second issue is presented by reason of Respondents’ continue refusal to

consider and determine HSTA’s request for injunctive relief, (App. 1-36, App. 3-1 to 3-2,

App. 7). In HSTA’s motion for interlocutory relief filed on July 18, 2011 HSTA sought to

maintain the status quo in bargaining. HSTA informed the Board of the scope of the

allegations arising from unlawful conduct by respondents including the respondents’

unilateral changes as announced on June 21, 2011 (App. 7-815 to 7-817), and on June 23,

2011 (App. 7-818 to 7-819) in wages, hours, and working conditions that altered the

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bargaining relationship and deprived HSTA members of their rights and benefits under the

law. (App. 7-2).

Section 377-9 provides with respect to motions for interlocutory relief,

§ 377-9 Prevention of unfair labor practices (d) After the final hearing, the board shall promptly make and file

an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added).

One issue raised by the complaint is whether HSTA is entitled to injunctive relief. App.

1-36.

The Board never ruled on that motion (App. 19), but concluded the

evidentiary hearing in May 2012. (App. 14-154 to 14-155). Since no final ruling on HSTA’s

request for injunctive relief has been rendered by Respondents up to the present despite

conclusion of the hearings and submissions of the briefs, HSTA requests a writ ordering

Respondents to render a just and prompt decision and order on the prayer for injunctive

relief and the motions for injunctive relief filed in CE-05-781.

V. STATEMENT OF REASONS FOR THE WRIT

A. HLRB HAS A DUTY TO DETERMINE THE ISSUES PRESENTED BY HSTA'S PROHIBITED PRACTICE COMPLAINT PROMPTLY

As a review and analysis of the statutes, rules and regulations, and case law

governing proceedings to prevent prohibited practices indicate petitioner has a clear and

indisputable right to a just and speedy determination once the prohibited practice

complaint in CE-05-781 was submitted to the Board in May 2012. (App. 14-154 to 14-

155). Petitioner lacks other means adequately to redress the wrong caused by

Respondents' refusal to render a prompt decision and order. (See App. 20). Chapter 89

sets forth a public policy “to promote harmonious and cooperative relations between

government and its employees to protect the public by assuring effective and orderly

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operations of government.” See HRS § 89-1. In construing chapters 89 and 377, HRS,

this Court has adopted the following interpretive guidelines:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. And fifth, in construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. (Emphasis added).

Hawaii Gov't Employees Ass'n, AFSCME, Local 152, AFL-CIO v. Lingle, 124 Hawai`i

197, 202, 239 P.3d 1, 6 (2010). The Board respondents delay in issuing its decision and

order violates the duty spelled out for it by the legislature.

First, the statutory framework requires prompt action by the Board in a

proceeding after the final hearing. The legislature, inter alia, created the Hawaii Labor

Relations Board “to administer the provisions of chapters 89 and 377.” Section 89-1 (b)

(3), HRS. Among its powers and functions the Board has “exclusive original jurisdiction”

to determine controversies over prohibited practices in the same manner and with the

same effect as provided in Section 377-9, HRS, under Section 89-14, HRS. Section 89-5

(i) (3) and (4), HRS, expressly grants to the Board the authority to “resolve controversies

under chapter 89” and “to conduct proceedings on complaints of prohibited practices by

employers . . . and take such action with respect thereto as necessary and proper.”9

Section 89-1 (a), HRS.

9 The words “necessary and proper” mean appropriate and adapted to carrying into

effect a given object. Petition of Public Service Coordinated Transport, 247 A.2d 888, 891 (N.J. Sup. Ad. D. 1968).

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29

In 2000 the legislature, as part of a reform of employment laws to

implement the constitutional right of public employees to collective bargaining (Haw.

Sess. L. Act 253, § 1 at 853), amended Section 89-5, HRS, as follows:

§ 89-5. Hawaii labor relations board. . . . (i) In addition to the powers and functions provided in other sections

of this chapter, the board shall: . . . . (10) Execute all of its responsibilities in a timely manner so as to

facilitate and expedite the resolution of issues before it. (Emphasis added).

2000 Haw. Sess. L. Act 253, § 95, at 892.

In Chapter 377, HRS, the legislature further directed the Board’s duty to

quickly decide proceedings. Section 377-9 (d), HRS, in the first sentence contains the

word “promptly” where it refers to the making and filing of final orders and decisions

rendered by the Board. These terms “expedite,” HRS § 89-5 (i) (10), and “prompt,” HRS

§ 377-9 (d), have a well recognized meaning, which are plain, unambiguous, and explicit:

Expedite. v.t. 1. to speed up the progress of; hasten. 2. to accomplish promptly, as a piece of business, dispatch. 3. to issue or dispatch, as an official document, letter, etc. – adj. 4. Obs. ready for action; alert.

* * * Prompt. adj. 1. done, delivered, etc. without delay: a prompt reply. 2.

quick to act or respond. – v.t. 3. to induce (someone) to action. 4. to occasion or inspire (an act). 5. to supply (an actor or reciter) with his forgotten lines, lyrics, or the like. – v.i. 6. to supply forgotten lines, lyrics, or the like to an actor, singer, etc. – n. 7. Com. a time limit given for the payment of a debt. 8. the act of prompting. 9. something serving to suggest or remind. – promptly. adv.

Random House College Dictionary, 465, 1059, 1376 (Rev. ed. 1980).

It is a cardinal rule of statutory interpretation that “where the terms of a

statute are plain, unambiguous, and explicit, we are not at liberty to look beyond the

language for a different meaning.” State v. Haugen, 104 Hawai`i 71, 75, 85 P.3d 178, 182

(2004). Here, based on the clear language of the statute, Respondents have a duty to act

in a “timely manner” so as to “facilitate and expedite” the resolution of the issues before

it as submitted by the prohibited practice complaint filed July 8, 2011.

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Second, it is axiomatic that administrative rules have the force and effect of

law. State v. Lotis, 91 Hawai`i 319, 984 P.2d 78 (1999); Baldeviso v. Thompson, 54

Haw. 125, 504 P.2d 1217 (1972). The Hawaii Administrative Rules (HAR) provide in

relevant portions as follows:

§ 12-42-2 Construction of rules. This chapter shall be liberally construed to effectuate the purpose of chapter 89, HRS, and to secure the just and speedy determination of every proceedings.

. . . . § 12-42-48 Interlocutory order. Pending the final determination of

the controversy the board may after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added).

In this case three months have lapsed since the filing of post-hearing briefs after the

conclusion of the final hearing a month prior and the Board has not issued its

“determination” of the proceeding in CE-05-781.

The general principles of construction which apply to statutes also apply to

administrative rules. Cabatbat v. County of Hawaii, Dept. of Water Supply, 103 Hawai`i

1, 78 P.3d 756 (2003); In Re Wai`ola O Moloka`i Inc., 103 Hawai`i 401, 425, 83 P.3d

664 (2004); Mahiai v. Suwa, 69 Hawai`i 349, 742 P.2d 359 (1987). As in statutory

construction, courts look first at an administrative rule's language. Int'l Bhd. of Elec.

Workers, Local 1357 v. Hawaiian Tel. Co., 68 Hawai`i 316, 323, 713 P.2d 943, 950

(1986) (citing 1A Sutherland Statutory Construction §§ 31.06 at 532 (4th ed. 1985 Rev.).

In the absence of “a clearly expressed legislative intention to the contrary, that language

must ordinarily be regarded as conclusive.” Kaiama v. Aguilar, 67 Hawai`i 549, 553, 696

P.2d 839, 842 (1985)); see also Brown v. Thompson, 91 Hawai`i 1, 9, 979 P.2d 586, 594

(1999). Furthermore, courts strive to give meaning to all parts of an administrative rule

and to avoid construing any part as superfluous. Williams v. Hawaii Medical Service

Ass'n, 71 Hawai`i 545, 550, 798 P.2d 442, 445 (1990) (citing Int’l Bhd. of Elec. Workers,

Local 1357 v. Hawaiian Telephone Co., 68 Hawai`i at 316, 713 P.2d at 947).

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31

By the use of the word “shall” HAR § 12-4-2 indicates a mandatory

purpose and object. State v. Himuro, 70 Haw. 103, 105, 761 P.2d 1148, 1149 (1988);

Matter of Fasi, 63 Haw. 624, 626, 634 P.2d 98, 100-01 (1981); Jack Endo Elec., Inc. v.

Siegler, Inc., 59 Haw. 612, 616, 585 P.2d 1265, 1269 (1978); Perry v. Planning Comm'n

of the County of Hawaii, 62 Haw. 666, 676, 619 P.2d 95, 103 (1980); Natural Resources

Defense Council, Inc. v. New York City, Dept of Sanitation, 630 N.E.2d 653 (N.Y.

1994). The Board, therefore, is bound by the mandate under HAR § 12-4-2 which states

that “[t]his chapter shall be liberally construed to effectuate the purpose of chapter 89,

HRS, and to secure the just and speedy determination of every proceeding.” (Emphasis

added). Although HAR § 12-42-48 does not specify a time frame within which prohibited

practice complaints and pleas and motions for interlocutory orders should be rendered,

the rule must be construed liberally to effectuate the purpose of chapter 89, HRS, and to

secure the just and speedy determination of every proceeding.

In this case the delay is made evident not only by the lapse of time since the

final hearing but also by the fact the Board has in effect had even more then the three plus

months to become familiar with the legal issues and facts. As a result of HSTA’s motion

for interlocutory relief the Board received extensive briefing on the appropriateness of

injunctive relief, at the outset of the case, including oral argument on August 10, 2011 in

support and in opposition of the motion for interlocutory relief that argued inter alia the

legal merits of the complaint. (App. 13-22 to 13-82; App. 13). HSTA counsel addressed

the applicable standard (App. 13-22 to 13-23), the threshold question of who has the

burden of establishing good faith bargaining where one party declares impasse and

implements a last, best, and final offer (App. 13-23 to 13-26), discussed the merits of

count I (App. 13-27 to 13-39), count II (App. 13-39 to 13-46), count III (App. 13-46 to

13-55), count IV (App. 13-55 to 13-63), count V (App. 13-64 to 13-72), and addressed

the factor of irreparable harm to the parties (App. 13-74 to 13-78), and the public interest

factor. (App. 13-78 to 13-82). HSTA noted in its oral argument that it lacks the right to

strike at present. (App. 13-81). Counsel for employer emphasized the significance of the

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budget shortfall (App. 13-96 to 13-97), made a point about the burden of proof (App. 13-

97 and 13-98), referred to the irreparable harm (App. 13-98 to 13-99), and the public

interest (App. 13-99 to 13-100), and contended that before unilateral action was taken all

items had been rejected by HSTA, leaving nothing. (App. 13-101). On this point counsel

for HSTA submitted a rebuttal. (App. 13-110 to 13-112).

Furthermore, the law in the areas raised by the HSTA’s complaint were

settled in Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P. 809 (l974). In a

case involving HSTA and the State of Hawaii (the same parties involved herein), the

Court upheld a circuit court decision reversing a labor board decision finding the

existence of an impasse in negotiations (App. 7-271 to 7-272), because the agency had

failed to determine whether the parties in negotiations had exhausted the duty to bargain

in good faith before declaring impasse and resorting to self help. (App. 7-268 to 7-270).

56 Haw. at 87, 528 P.2d at 811. The Supreme Court rejected the view that an impasse

could be declared without good faith bargaining, and imposed the burden of establishing

compliance with the duty on the party contending that impasse exists.

We cannot subscribe to appellant's construction of HRS § 89-2(12) that “impasse” ‘could be the failure of a public employer and an exclusive representative to achieve agreement without good-faith bargaining or negotiation.’ Such a construction would totally destroy the efficacy of the law on ‘collective bargaining in public employment’ and give to public employees the power to strike arbitrarily and capriciously.

We are of the further opinion that the Hawaii Public Employment Relations Board (HPERB), on its own motion, under the provisions of HRS § 89-11(b), can declare that an impasse exists only after it initially reaches a determination that, at the very least, the party contending that an impasse exists (be it the public employer or the exclusive representative of the public employees) has been bargaining in good faith. (Emphasis added).

56 Haw. at 87-88, 528 P.2d at 811.10

10 The employer is precluded by the doctrine of collateral estoppel to re-litigate the

issues decided by the Supreme Court in 1974. Exotics Hawai`i-Kona, Inc. v. E.I. Dupont De Nemours & Co., 104 Hawai`i 358, 369, 90 P.3d 250, 261 (2004). The issues decided in 1974 are (a) identical to the one presented in CE-05-781, (b) there is a final judgment on the merits, (c) the

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Moreover, two prior opinions of the Attorney General clearly state that

upon the expiration of an agreement an employer may not implement changes in wages,

hours, and working conditions. (App. 7-130 to 7-131; App. 7-411 to 7-415, June 15, 1983

opinion of Jean Chiogioji; App. 7-416 to 7-418, June 1, 1999 opinion of James

Halvorson). Upon expiration of a collective bargaining agreement public employers have

been advised since June 15, 1983 by the Office of the Attorney General that the terms of

the most recently negotiated agreement “continues in force” (App. 7-411), and “it is the

public employer's duty to maintain the ‘status quo,’ even if such responsibility is not

statutorily specified.” (App. 7-411 to 7-412). The opinion further states that “to make any

unilateral change at the expiration of a collective bargaining agreement constitutes a

refusal to bargain in good faith.” (App. 7-413). On June 1, 1999 the Office of Attorney

General reaffirmed the validity of the June 15, 1983 opinion. (App. 7-416). The opinion

referred to the decision in N.L.R.B. v. Katz, 369 U.S. 736 (1962), which was followed in

Tomasu, 79 Hawai`i at 159, 900 P.2d at 166 (App. 7-417).

The injury to HSTA from the Board’s failure to comply with its duty to

issue a prompt decision is magnified because HSTA has raised and presented a factual

scenario that supports the allegations of constitutional violations but those allegations of

wrongful conduct cannot be heard until there is a final ruling by the Board. See App. 1-5,

1-22, 1-23, 1-27. The complaint alleged that the conduct of the legislature and

administration withdrew from the bargaining process core subjects of collective

bargaining which impinge upon the constitutional rights of public employees. See App.

1-5, 1-27. The complaint alleges that Respondents Abercrombie and Young proposed to

the legislature and obtained support for and acceptance of a statewide governmental

issues of burden of proof and good faith bargaining being complied with prior to impasse and self help being allowed were essential to the final judgment, and (d) the parties against whom issue preclusion is asserted are the same. (App. 7-250 to 7-278). “The doctrines of res judicata and collateral estoppel also apply to matters litigated before an administrative agency.” State v. Higa, 79 Hawaii 1, 8, 897 P.2d 928, 935 (1995) (quoting Santos v. State, 64 Haw. 648, 653, 646 P.2d 962, 966 (1982)).

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policy (by the legislature) to reduce salaries of all public employees from July 1, 2011 to

June 30, 2013 by not less than five percent, and to decrease employer contributions to

health care benefits to all public employees from 60% to 50% of premium rates

established by the Hawaii Employer-Union Health Benefits Fund, and Respondents

Abercrombie, Young, Dietz, Horner, Williams, and Matayoshi unlawfully and

unilaterally implemented said policy in violation of the rights of public employees under

Article XIII, Section 2 of the State Constitution and HRS chapter 89. See App. 1-19 ¶ 59;

See also App. 1-27- to 1-28 ¶¶ 65-66. Until HLRB has reviewed and decided the

statutory allegations, the claims and relief sought from constitutional violations goes

unheard. See Hawaii Government Employees Ass'n, AFSCME Local 152, AFL-CIO, 124

Hawai`i at 210, 239 P.3d at 14; Hawaii State Teachers Ass’n v. Abercrombie, 126

Hawai`i 318, 322, 271 P.3d 613, 617 (2012) (finding that even constitutional claims, if

they arise from a “controversy concerning prohibited practices,” must first be submitted

to the HLRB).

B. HLRB HAS A DUTY TO RENDER A JUST AND SPEEDY DECISION ON HSTA’S PRAYER AND MOTION FOR INJUNCTIVE RELIEF

In the present case respondents have unreasonably delayed the

consideration, review, and ruling on the motions for injunctive relief sought by HSTA.

On July 8, 2011 HSTA filed a verified complaint, setting forth in considerable detail

about the factual basis for its five claims for relief. (App. 1). In the prayer for relief

petitioner indicated that it would seek injunctive relief against the employer to restore the

status quo prior to impasse. (App. 1-36 to 1-37). On July 18, 2011 a motion for

interlocutory relief was filed to enjoin employer from implementing unilateral changes

slated to occur at the commencement of the school year on or about July 28, 2011. (App.

3-1 to 3-2). Although the second sentence in Section 377-9 (d) discussed above that

relates to “interlocutory orders” does not contain the word “promptly” the first sentence

of the statute clearly requires the Board to promptly resolve all issues raised by the

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prohibited practice complaint, which includes here not only findings of any unlawful

conduct but injunctive and make whole relief as well. See HRS § 337-9 (d).

Each of the terms “expedite,” HRS § 89-5 (i) (10), and “prompt,” HRS §

377-9 (d), must be given full force and effect for “if possible, a statute should be

construed in such a way that no word is void, superfluous or insignificant.” Casumpang

v. ILWU Local 142, 108 Hawai`i 411, 421, 121 P.3d 391, 401 (2005); see also Allstate

Ins. Co. v. Schmidt, 104 Hawaii 261, 265, 88 P.3d 196, 200 (2004). Thus, the use of the

word “promptly” in the first sentence of Section 377-9 (d), HRS, applies with equal force

to the “findings of fact upon all the issues involved in the controversy and the

determination of the rights of the parties” as related to a request for injunctive and

interlocutory relief once the final hearing is held. See HRS § 377-9 (d); HAR § 12-42-2

(This chapter shall be liberally construed to effectuate the purpose of chapter 89, HRS,

and to secure the just and speedy determination of every proceedings) (emphasis added).

Furthermore, read in the proper context, the second sentence of Section 377-9 (d), HRS,

makes clear that interlocutory orders “may be enforced in the same manner as final

orders.”11

As all parties presented and submitted evidence and argument on HSTA’s

motion for injunctive relief, first through the motion for interlocutory relief and then in

their post-hearing memorandums of law, the Board should promptly issue its decision on

the injunctive relief sought by HSTA. The Board has been provided a record by which to

determine all the issues presented by HSTA’s prayer and motion for injunctive relief. As

noted above, in 2000 the legislature, as part of a reform of employment laws to

implement the constitutional right of public employees to bargain collectively (Haw.

Sess. L. Act 253, § l, at 853), amended chapter 89 to add Section 89-5 (i) (10), HRS,

11 An “interlocutory order” is “one which does not finally determine cause of action

but decides some intervening matter pertaining to a cause and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.” Young Properties Corp. v. United Equity Corp., 534 F.2d 847, 851 (9th Cir. 1976), cert denied, 429 U.S. 830 (1976).

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mandating the Board to “execute all of its responsibilities in a timely manner so as to

facilitate and expedite the resolution of issues before it.” 2000 Haw. Sess. L. Act 253, §

95, at 892.

A decision and order on the injunctive relief as sought by HSTA in its

prayer for relief and motions for interlocutory relief is needed in light of the continuing

bargaining between the parties who have yet to reach an agreement for the 2011-2013

contract period. As this Court determined nearly thirty seven years ago in Bd. of Educ. v.

Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P.2d 809 (1974), the purpose of chapter 89

cannot be achieved without good faith bargaining or negotiations.

In our opinion the law on collective bargaining in public employment, without ambiguity, clearly requires both the public employer and the exclusive representative of the public employees to bargain (negotiate) collectively in good faith. The need for good faith bargaining or negotiation is fundamental in bringing to fruition the legislatively declared policy ‘to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government.’ Thus, the proper construction of HRS § 89-2(12) is that ‘impasse’ means failure of a public employer and an exclusive representative to achieve agreement in the course of good-faith negotiations (bargaining). (Emphasis added).

56 Haw. at 87, 528 P.2d at 811. In the present case, petitioner seeks interlocutory relief to

protect the integrity of the bargaining process (App. 3-1 to 3-2) in the face of unilateral

changes to wages, hours, and other terms and conditions of employment by employer.

(App. 7-815 to 7-816; App. 7-818 to 7-819).

Courts have long upheld the policy of implementing the status quo ante

remedy to ensure the continuation of meaningful bargaining. Fibreboard Paper Products

Corp. v. N.L.R.B., 379 U.S. 203, 216 (1964) (the Board’s normal remedy in unlawful

unilateral change cases is to order restoration of the status quo ante as a means to ensure

meaningful bargaining); Lansing Fire Fighters Union Local 421 v. City of Lansing, 349

N.W.2d 253, 260 (Mich. App. 1984) (finding that the state board’s order restoring the

status quo ante to insure meaningful bargaining was designed to promote the policies of

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37

the statute); Van Buren Public School Dist. v. Wayne County Circuit Judge, 232 N.W.2d

278, 291 (Mich. App. 1975) (finding lesser remedy would allow the employer to enjoy

the fruits of its unlawful conduct, and the union would have no meaningful opportunity to

have any input or leverage especially in the public sector where employees are limited as

to the economic sanctions that can be utilized to resolve disputes).

Hawaii courts have similarly recognized that injunctive relief is appropriate

where there is a likelihood of irreparable damage to the integrity of the bargaining

process, and where doing so furthers the public policy of the State “to promote

harmonious and cooperative relations between government and its employees.” United

Public Workers, AFSCME, Local 646, AFL-CIO et al. v. Yogi, et al., Civil No. 99-3793-

10 (Oct. 28, 1999) (citing Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 87, 528

P.2d 809, 811 (1974)). In United Public Workers, AFSCME, Local 646, AFL-CIO v.

Yogi (Yogi), 101 Hawai`i 46, 62 P.3d 189 (2002), the trial court carefully reviewed each

aspect of the five-count complaint and issued a permanent injunction against the

employers from enforcing Section 2 of Act 100 which prohibited public employers and

public employees' unions from collectively bargaining over cost items for the biennium

1999 to 2001. Id. at 48, 62 P.3d at 191. (App. 7-188 to 7-192). The Hawaii Supreme

Court reviewed the language and history of this constitutional provision and held that the

State could not unilaterally impose by statute a two-year wage freeze on public

employees. The employers’ unilateral implementation of “core subjects” of employment

violated the constitutional right of public employees “to organize for purposes of

collective bargaining.” Id. at 53, 62 P.3d at 196.

The Hawaii Labor Relations Board has also consistently recognized that

when presented with an employer who unilaterally implemented changes in wages,

benefits, and other conditions of employment without bargaining with the exclusive

representative of the employees the status quo ante must be promptly restored in order to

uphold the integrity of the collective bargaining process. See United Public Workers,

AFSCME, Local 646, AFL-CIO v. Yamashiro, Case Nos. CE-01-260; CE-10-273; CE-

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01-274, Order No. 1277 (Jan. 12, 1996) (“[T]he Board agrees with the Union that there is

irreparable harm to the integrity of the negotiating process where one party unilaterally

implements its policies while the subject matters are being negotiated.”) (App. 7-906 to

7-919); Lingle v. United Public Workers, AFSCME, Local 464, AFL-CIO; Case Nos.

CU-01-121; CE-01-297, Order No. 1333 (May 17, 1996) (finding unilateral actions that

alter the status quo ante undermine the integrity of the collective bargaining process where

maintaining the status quo ante is essential to good faith negotiations) (App. 7-920 to 7-

948); United Public Workers, AFSCME, Local 646, AFL-CIO v. Jeffrey Harris et al., Case

No. CE-01-390, Order No. 1643 (Dec. July 8, 1998) (restoring the status quo ante after

finding the unilateral changes resulted in “considerable disruption to the bargaining

relationship between the union and the public employers as well as uncertainty with

regard to the employees’ rights.”) (App. 7-949 to 7-979).

The Board’s review of whether injunctive relief is appropriate is settled

law. In United Public Workers, AFSCME, Local 646, AFL-CIO v. Yamashiro, Case Nos.

CE-01-260; CE-10-273; CE-01-274, Order No. 1277 (Jan. 12, 1996) the Board held that

“there is irreparable harm to the integrity of the negotiating process where one party

unilaterally implements its policies while the subject matters are being negotiated.” (App.

7-906 to 7-919). Repeatedly after Yamashiro, the Board has recognized the need to

restore the status quo to protect the integrity of the bargaining process. See; Lingle v.

United Public Workers, AFSCME, Local 464, AFL-CIO; Case Nos. CU-01-121; CE-01-

297, Order No. 1333 (May 17, 1996) (finding unilateral actions that alter the status quo

ante undermine the integrity of the collective bargaining process where maintaining the

status quo ante is essential to good faith negotiations) (App. 7-920 to 7-948); United

Public Workers, AFSCME, Local 646, AFL-CIO v. Jeffrey Harris et al., Case No. CE-01-

390, Order No. 1643 (Dec. July 8, 1998) (restoring the status quo ante after finding the

unilateral changes resulted in “considerable disruption to the bargaining relationship

between the union and the public employers as well as uncertainty with regard to the

employees’ rights.”) (App. 7-949 to 7-979).

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39

The injunctive relief HSTA seeks is supported by a public interest to

promote a shared decision-making process affecting wages and working conditions. The

public interest is placed in jeopardy when employers engage in direct dealing, fail to meet

and bargain in good faith, and engage in acts of threats, repudiation, and unlawful

discrimination – all which harm the process of collective bargaining and employees. See

HRS § 89-1; See also United Public Workers, AFSCME, Local 646, AFL-CIO and

Jeremy Harris, Case No. CE 01-390 (Order No. 1643, July 8, 1998) (App. 7-979 to 7-

979) (finding “public policy in promoting the parties to negotiate in good faith supports a

finding here that the public employer be bound by actions of its agent who had apparent

authority to negotiate the contract”) (App. 7-977 to 7-978); Bd. of Educ. v. Hawaii Public

Emp. Relations Bd., 56 Haw. 85, 87, 528 P.2d 809 (1974).

A speedy determination of the prayer and motions for injunctive type relief

(App. 1, 3 & 7) is also consistent with the public interest defined by the legislature under

Chapter 89, HRS. The Board has consistently followed the reasoning of the Hawaii

Supreme Court in Bd. Of Education, supra, to find public interest favoring interlocutory

relief where the employer has imposed unilateral changes to wages, hours, and other

working conditions of public employees in the midst of or in the absence of collective

bargaining. See United Public Workers, AFSCME, Local 646, AFL-CIO v. Linda Lingle,

Case No. CE-01-716a and CE-10-716b (Order No. 2653, October 21, 2009) (App. 474)

(holding public interest favored interlocutory relief (and so ordered) where the State,

upon expiration of the collective bargaining agreement, unilaterally implemented changes

to the agreement by eliminating paid leave time to attend educational and informational

meeting conducted by the union) (citing Bd. of Educ. v. Hawaii Public Employment

Relations Bd., 56 Haw. 85, 87, 528 P.2d 809, 811 (1974)); Lingle v. United Public

Workers, AFSCME, Local 464, AFL-CIO; Case Nos. CU-01-121; CE-01-297 (Order No.

1333; May 17, 1996) (App. 7-947) (granting interlocutory relief by returning the parties

to the “status quo ante” and ordering the employer to negotiate with the union in good

faith over the decision to privatize refuse collection work); See also App. 7-871 to 7-873,

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40

App. 7-906 to 7-919, App. 7-949 to 7-979). Clearly, under the applicable statutory

provisions respondents was required to act “without delay” in rendering a decision

inclusive of the injunctive and interlocutory relief sought by HSTA in the proceeding.

(App. 1, 3 & 7).

C. HSTA MEETS THE STANDARD FOR MANDAMUS RELIEF WHERE HLRB HAS NOT MET ITS DUTY TO RENDER A PROMPT DECISION OR ORDER

A mandamus in this petition is supported by the Board’s inaction since the

final hearing. “One of the principal offices of mandamus is to remedy official inaction.”

Palea v. Rice, 34 Haw. 150, 156 (1937). Where an official’s duty encompasses a mandate

to act, mandamus relief is appropriate to compel action if the official fails to act within a

reasonable time or refuses to act as the purpose behind mandamus relief “is to prevent a

denial of justice, and it therefore issues in all cases where the law has assigned no

specific relief by the ordinary means, or even where a party has other means of relief, if

the slowness of ordinary legal forms is likely to produce such a delay, that the public

good and the administration of justice will suffer from it, and where justice and reason

require that some mode should exist of redressing a wrong, or an abuse of any nature

whatever.” Marshall Const. Co. v. Bigelow, 29 Haw. 48, 59-60 (1926). A public officer's

duty to act “is enforceable by mandamus when the duty is ‘postponed unreasonably’ and

not performed after the passage of an ‘unreasonable period of time.’” Hanabusa v. Lingle,

119 Hawai`i 341, 351, 198 P.3d 604, 614 (2008); See also Wiredata, Inc. v. Village of

Sussex, 729 N.W.2d 757, 772-73 (Wisc. App. 2007) (finding failure of authority to

promptly respond to records request constituted a denial subject to mandamus action to

compel), affirmed in part, revered in part on other grounds, 751 N.W.2d 736 (2008).

Courts have not hesitated to provide mandamus relief where there are

unreasonable delays in official action or in the adjudication of a case. State ex rel.

Stewart v. Reid, 45 So. 103, 109 (La. 1907) (mandamus issued “to fix a case for trial, for

a day certain, and to try it”); Commonwealth ex. rel. Duff v. Keenan, 33 A.2d 244, 251

(Pa. 1943) (ordering a judge to consider, decide and adjudicate all of the cases in question

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41

within sixty days); Keen v. Mirabile, 264 N.Y.S.2d 995, 998 (N.Y. Sup. 1965) (requiring

the judge to set the case down for trial for a specific day then to decide the action to a

final determination upon the facts and evidence presented before it); Kissam v.

Williamson, 545 S.W.2d 265, 266 (Tex. App. 1976) (requiring the judge to perform his

duty to rule after a hearing on the petition had been held and taken under advisement).

In Hanabusa v. Lingle, 119 Hawai`i 341, 346, 198 P.3d 604, 609 (2008),

this Court held that the governor had a nondiscretionary duty to nominate and appoint six

candidates to replace “holdover” members of University of Hawai‘i Board of Regents

whose terms had expired. There, the governor contended that the duty was not so plainly

prescribed as to be free from doubt because Article X, Section 6 and HRS §§ 304A-

104(a) and 304A-104.5(e) do not provide a timeline in which nominations and

appointments are to be made. Id. at 350, 198 P.3d at 613. The Court however was

persuaded by the reasoning in other jurisdictions finding that the governor’s duty was

subject to a reasonable time standard and that a public officer's duty to act “is enforceable

by mandamus when the duty is ‘postponed unreasonably’ and not performed after the

passage of an ‘unreasonable period of time.’” Id. at 351, 198 P.3d at 614.

While the Court in Hanabusa did not establish a bright line rule regarding

how much time constituted unreasonable delay, there the governor’s ten-month delay was

adjudged to be unreasonable. Id. at 352, 198 P.3d at 615. This is in accord with similar

rulings in the federal circuit that have also not established a per se rule regarding how

much time is too much time to constitute unreasonable delay, however, find that a

reasonable time for agency action is typically counted in weeks or months, not years. In

re American Rivers and Idaho Rivers United, 372 F.3d 413, 419 (C.A. D.C. 2004)

(finding a six-year delay by the Federal Energy Regulatory Commission to answer

petition seeking its formal consultation with environmental agency under Endangered

Species Act regarding effect of hydropower operations on certain fish species to be

egregious); Midwest Gas Users Ass'n v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987)

(“[T]his court has stated generally that a reasonable time for an agency decision could

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42

encompass ‘months, occasionally a year or two, but not several years or a decade.’”

(quoting MCI Telecomms. Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980)).

In guiding review of agency delay under the Administrative Procedure Act,

federal circuits have adopted the D.C. Circuit’s six-factor guiding test in assessing claims

of agency delay as established in Telecommunications Research and Action Center v.

F.C.C., 750 F.2d 70, 80 (D.C. Cir. App. 1984) (“TRAC”). The “TRAC” factors weighed

by courts include: (1) the time agencies take to make decisions must be governed by a

“rule of reason,” (2) where Congress has provided a timetable or other indication of the

speed with which it expects the agency to proceed in the enabling statute, that statutory

scheme may supply content for this rule of reason; (3) delays that might be reasonable in

the sphere of economic regulation are less tolerable when human health and welfare are

at stake; (4) the court should consider the effect of expediting delayed action on agency

activities of a higher or competing priority; (5) the court should also take into account the

nature and extent of the interests prejudiced by delay; and (6) the court need not “find any

impropriety lurking behind agency lassitude in order to hold that agency action is

‘unreasonably delayed. Id. at 80. Courts have interfered with the normal progression of

agency proceedings to correct “transparent violations of a clear duty to act” where, for

example, the TRAC factors warrant such relief. See In re Bluewater Network, 234 F.3d

1305, 1315 (D.C. Cir. 2000) (“[i]t is obvious that the benefits of agency expertise and the

creation of a record will not be realized if an agency never takes action”); Air Line Pilots

Ass'n, Intern. v. C.A.B., 750 F.2d 81 (D.C. Cir. 1984) (finding that judicial review of

claims of unreasonable delay do not prematurely inject the courts into the agency's

consideration of the merits of the issue before it and that the Board’s five year delay in

adjudicating claims for unemployment assistance payments was patently unreasonable);

MCI Telecommunications Corp. v. F.C.C., 627 F.2d 322, 341 (D.C. Cir. 1980) (“Many of

the same considerations that impel judicial protection of the right to a “speedy trial” in

criminal cases or implementation of civil decrees with all deliberate speed are not

inapposite in agency deliberations.”) (footnotes omitted); see also Cave v. Elliot, 988

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43

A.2d 1 (Md. App. 2007) (finding, without assessing the TRAC factors, that where the

agency’s own rules required a prompt hearing and the evidence showed that for some 15

months, despite constant demands, the agency steadfastly flouted that requirement by

postponing the trial board hearing on the charges, the court had the power to enforce the

law there by terminating the investigation and prosecution of charges). Similarly, here,

although Chapter 89 does not specify any timelines in which Respondents must render a

final decision, but the statute and rules applied to the Board impose the duty to promptly

decide the proceeding upon the final hearing.

In cases of this nature prompt, expeditious, and timely action is critical “to

effectuate the purpose of chapter 89.” As this Court is aware petitioner lacks other means

to adequately redress the wrong caused by Respondents' refusal to render a prompt

decision and order. See App. 20; See also Hawaii Gov’t Employee's Ass'n, AFSCME,

Local 152, AFL-CIO v. Lingle, 124 Hawai`i 197, 239 P.3d 1 (2010) (where the Court

clarified that the Board has the exclusive original jurisdiction to address statutory issues

first before the circuit court may address any constitutional issues presented by the

interpretation and application of chapter 89). Under the existing statutory scheme a party

in a prohibited practice proceeding who is aggrieved has no right to obtain judicial review

in the circuit court until “a final decision and order in a contested case” has been rendered

(or until the Board enters “a preliminary ruling of the nature that deferral of review

pending entry of the subsequent final decision would deprive appellant of adequate

relief.”). See Sections 377-9 (f), and 91-14 (a), HRS.

HSTA's lawful rights and remedies to address the employer's decision to

engage in self-help measures announced on June 21, 2011 (App. 7-815 to 816), and

implemented on June 23, 2011 (App. 7-818 to 7-819), are statutorily restricted by Section

89-12 (b) (1), HRS. Under established law in the private sector the parties to the

collective bargaining process have various economic weapons available to resolve labor

disputes, including the lock out, see American Ship Building Co. v. N.L.R.B., 380 U.S.

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44

300 (1965), and the right to strike in response to unfair labor practices committed by an

employer. See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).

However, in the public sector the legislature restricted the right to strike in

Section 89-12 (b) (7), HRS, by conditioning the right of an employee to participate in a

strike upon the exhaustion of proceedings for the prevention of prohibited practices. See

HRS § 89-12 (making if unlawful for any employee to participate in a strike if the

proceedings for the prevention of any prohibited practices have not been exhausted). See

Hawaii Pub. Emp. Rel. Bd. v. Hawaii State Teachers Ass’n, 54 Haw. 531, 544, 511 P.2d

1080, 1087 (1973) (where the court held that Section 89-12 (a), HRS, prohibited HSTA

from striking over a dispute over which the parties had voluntarily agreed to submit to

interest arbitration under Section 89-11 (a), HRS); App. 20.

The plain reading of HRS Section 89-12(b) provides that public employees

who are not prohibited by law from striking must satisfy four requirements before they

may strike, one being that “proceedings for the prevention of any prohibited practices

have been exhausted.” HRS §89-12(b)(2) (emphasis added). Petitioners, therefore, may

strike only when the conditions of Section 89-12(b) are met. Here, as long as there

remains the prohibited practice proceeding 05-CE-781 pending before the Board,

Petitioner is not in a position to lawfully exercise their right to strike. Until this prohibited

practice proceeding is exhausted, Section 89-12 (b) (2), HRS, prohibits employees in

bargaining unit 5 from exercising the option to strike over the employers’ alleged

prohibited practices as alleged in the July 8, 2011 verified complaint. Accordingly,

HSTA requests a writ ordering Respondents to issue its decision and order including the

prayer for injunctive relief. Given the state of the law, HSTA has shown it has a clear and

indisputable right to relief to support its petition for mandamus. Here where petitioner

lacks other means adequately to redress the wrong caused by Respondents' refusal to

render a prompt decision and order including the injunctive relief sought by HSTA. (App.

18-95).

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45

Mandamus is also appropriate where HSTA’s constitutional claims go

unheard. In Hanabusa v. Lingle, 119 Hawai`i 341, 198 P.3d 604 (2008), two state

senators filed a petition for writ of mandamus directing then Governor Linda Lingle to

nominate six candidates to replace “holdover” members of University of Hawai‘i Board

of Regents (BOR) whose terms had expired. Id. at 342-43, 346, 198 P.3d at 605-06, 609.

The standing of the senators to bring the mandamus action was challenged by the

governor. Id. at 346, 198 P.3d at 609. The Supreme Court agreed that the senators

through their role of advice and consent had a constitutional duty that was usurped by the

governor’s action that allowed them to bring the mandamus action. Id.

HSTA has brought to the Board's attention its request that the Board render

a decision in the case in an expedited manner. See App. 8. On December 30, 2011 the

Employer respondents urged the Board to expedite the case. App. 19-17. The evidentiary

hearing concluded by May 17, 2012 and the parties filed their respective post-hearings

briefs on June 15, 2012. Despite these requests and the final hearing, the Board has failed

to issue a prompt final decision or order in the proceedings. (App. 14-144 to 14-155).

Based on the recent Supreme Court rulings in the HGEA (124 Hawai`i 197, 239 P.3d 1

(2010)), and the HSTA (126 Hawai`i 318, 271 P.3d 613 (2012)) cases and the prior

mandamus petition (App. 20), until the prohibited practice proceeding is exhausted in

CE-05-781, Section 89-12 (b) (2), HRS, employees in bargaining unit 5 are proscribed

from having their constitutional claims heard and from exercising the option to strike

over the employers’ alleged prohibited practices as alleged in the July 8, 2011 verified

complaint. App. 20-2. Accordingly, the elements supporting a mandamus are present to

compel the Board respondents to expedite and promptly issue a decision or order in CE-

05-781.

The order by this Court in Hawaii State Teachers Ass’n v. Hawaii Labor

Relations Board, SCPW-11-0000640, 2011 WL 4469826 (Sept. 27, 2011) (App. 20), is of

guidance here to support granting HSTA’s second petition for mandamus. In the first

mandamus action the Court was constrained to grant the petition because HSTA sought a

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mandamus to compel the Board to rule on HSTA’s motions for interlocutory relief prior

to a final hearing.

Upon consideration of the petition for a writ of mandamus filed by petitioner Hawaii State Teachers Association and the papers in support, it appears that: (1) no statute or rule prescribes a time in which respondent Hawaii Labor Relations Board (HLRB) must resolve a motion for interlocutory relief and absent such prescribed time, the “timely” resolution under HRS § 89–5(i)(10) (Supp. 2010) of petitioner's motion for interlocutory relief is within the discretion and judgment of respondent HLRB and is not a ministerial duty subject to mandamus; (2) HRS § 377–9(d) (Supp. 2010) requires “prompt” filing of a final order, not an interlocutory order[.] (Emphasis added).

Id. at *1, App. 20-2. HSTA brings this petition after the final hearing in the case, and

therefore the “timely” and “prompt” mandates of the legislature apply to warrant an order

to direct the Board to comply and render its decision or order in CE-05-781.

VI. RELEVANT STATUTORY PROVISIONS AND RULES

Relevant statutory provisions, court and agency rules are attached here as

Appendix 21.

VII. CONCLUSIONS

For the foregoing reasons petitioner requests a writ of mandamus ordering

respondents to render a just and speedy decision and order on the merits of CE-05-781

and the remedy sought in the prohibited practice complaint (App. 1), including the

injunctive relief sought to maintain the status quo as existed prior to the employer

respondents’ declaration of impasse, pending bargaining.

Dated: Honolulu, Hawaii, September 28, 2012.

/s/ Rebecca L. Covert Rebecca L. Covert Herbert Takahashi Davina W. Lam Attorneys for Petitioner

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S.C. NO. _______

IN THE SUPREME COURT OF THE STATE OF HAWAII

Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Petitioner Hawaii State Teachers Association’s Petition for Writ of Mandamus

(01:139)

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was duly served

upon the following person(s) by electronic transmission through the Court’s Judiciary

Electronic Filing and Service Systems (JEFS):

Valri Lei Kunimoto, Esq. Hawaii Labor Relations Board 830 Punchbowl Street, Room 434 Honolulu, Hawaii 96813 Attorney for all Respondents Hawaii Labor Relations Board, James B. Nicholson and Rock B. Ley David M. Louie, Esq. The Attorney General served through Russell Suzuki, Esq. First Deputy Attorney General Robyn Chun, Esq.

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Deputy Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Attorneys for The Office of the Attorney General James E. Halvorson, Esq. Richard H. Thomason, Esq. Deputy Attorneys General Department of the Attorney General Employment Law Division 235 So. Beretania Street, 15th Floor Honolulu, Hawaii 96813

Attorneys for Employer in HLRB Case No. CE-05-781 Thomas Anthony Gill, Esq. Linda M. Aragaon, Esq. David A. Sgan, Esq. Gill, Zukeran & Sgan 707 Richards Street, Suite 100 Honolulu, Hawaii 96813 Attorneys for Intervenor UHPA in HLRB Case No. CE-05-781 DATED: Honolulu, Hawaii, September 28, 2012.

/s/ Rebecca L. Covert Rebecca L. Covert Herbert Takahashi Davina W. Lam Attorneys for Petitioner