In re: Asato v. Hawaii Government Employees Association

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-FEB-2025
08:03 AM
Dkt. 84 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

In the Matter of VALERIE ASATO,
Complainant-Appellant/Appellant,
v.
HAWAII GOVERNMENT EMPLOYEES ASSOCIATION and
DEPARTMENT OF EDUCATION, STATE OF HAWAI#I,
Respondents-Appellees/Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Nakasone, and McCullen, JJ.)

Complainant-Appellant-Appellant Valerie Asato (Asato)

appeals from the May 13, 2022 Final Judgment (Judgment), entered

by the Circuit Court of the First Circuit (Circuit Court).1

Asato also challenges the April 18, 2022 Findings of Fact,

Conclusions of Law, and Order Denying [Asato's] Agency Appeal,

Filed on June 4, 2021 (Order Denying Agency Appeal).

I. BACKGROUND

Asato was a member of Hawaii Government Employees

1
The Honorable James H. Ashford presided.
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Association (HGEA), Bargaining Unit (BU) 03. The initial

grievance underlying this appeal concerned Asato's termination

from her employment by the State of Hawai#i, Department of

Education (DOE), as an Office Assistant III at Farrington High

School. On August 16, 2012, Asato's coworkers discovered emails

on Asato's work computer containing discriminatory remarks about

her coworkers based on race and sexual orientation, as well as

comments wishing death on other employees and a student. On

August 20, 2012, an administrative investigation was initiated.

On December 17, 2012, upon the conclusion of the investigation,

Asato was notified that she would be discharged from her

position.

On January 14, 2013, HGEA filed with the Hawai#i Labor

Relations Board (the Board or HLRB) a Step 1 Grievance pursuant

to the grievance procedure set forth in Article 11 of the BU 03

Collective Bargaining Agreement (CBA).2 HGEA

2
Article 11(G) of the CBA provides:

G. Step 3. Arbitration. If the grievance is not
resolved at Step 2 and the Union desires to proceed with
arbitration, it shall serve written notice on the Employer
or the Employer’s representative of its desire to arbitrate
within ten (10) working days after receipt of the Employer's
decision at Step 2. Representatives of the parties shall
attempt to select an Arbitrator immediately thereafter. If
agreement on an Arbitrator is not reached within ten (10)
working days after the notice for arbitration is submitted,
either party may request the [HLRB] to submit a list of five
(5) Arbitrators. Selection of an Arbitrator shall be made
by each party alternately deleting one (1) name at a time
from the list. The first party to delete a name shall be
determined by lot. The person whose name remains on the
list shall be designated the Arbitrator. No grievance may
be arbitrated unless it involves an alleged violation of a
specific term or provision of the Agreement.

If the Employer disputes the arbitrability of any
grievance, the Arbitrator shall first determine whether the
Arbitrator has jurisdiction to act; and if the Arbitrator
finds that the Arbitrator has no such power, the grievance
(continued...)

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challenged Asato's termination as a violation of Articles 3

(Maintenance of Rights and Benefits), 4 (Personnel Policy

Changes), 8 (Discipline), and 17 (Personal Rights and

Representation) of the Unit 03 CBA. On February 12, 2013, HGEA

presented a Step 2 Grievance challenging Asato's termination. On

June 30, 2015, a Step 2 meeting was conducted, and on September

24, 2015, the DOE denied the Step 2 Grievance. On October 14,

2015, the union filed a Notice to Arbitrate.

On July 6, 2017, Asato filed a Prohibited Practice

2
(...continued)
shall be referred back to the parties without decision or
recommendation on its merits.
The Arbitrator shall render an award in writing no
later than thirty (30) calendar days after the conclusion of
the hearings or if oral hearings are waived then thirty (30)
calendar days from the date statements and proofs were
submitted to the Arbitrator. The decision of the Arbitrator
shall be final and binding upon the Union, its members, the
Employees involved in the grievance and the Employer. There
shall be no appeal from the Arbitrator's decision by either
party, if such decision is within the scope of the
Arbitrator's authority as described below:
1. The Arbitrator shall not have the power to add to,
subtract from, disregard, alter, or modify any of the terms
of this Agreement.
2. The Arbitrator's power shall be limited to
deciding whether the Employer has violated any of the terms
of this Agreement.
3. The Arbitrator shall not consider any alleged
violations or charges other than those presented in Step 2.
4. In any case of suspension or discharge where the
Arbitrator finds such suspension or discharge was improper,
the Arbitrator may set aside, reduce or modify the action
taken by the Employer. If the penalty is set aside, reduced
or otherwise changed, the Arbitrator may award back pay to
compensate the Employee, wholly or partially, for any wages
lost because of the penalty.

The fees of the Arbitrator, the cost of transcription,
and other necessary general costs, shall be shared equally
by the Employer and the Union. Each party will pay the cost
of presenting its own case and the cost of any transcript
that it requests.

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Complaint (2017 PPC) against HGEA alleging "dereliction of duty"

because four-and-a-half-years had passed since her termination,

and her grievance had not yet gone to arbitration. On July 19,

2017, HGEA notified Asato that it was withdrawing the Notice of

Intent to Arbitrate. Asato then amended the 2017 PPC. On May 2,

2018, the parties reached a settlement wherein HGEA agreed to

arbitrate Asato's grievance and Asato agreed to a stipulated

dismissal of the 2017 PPC.

HGEA took Asato's grievance to arbitration and selected
Peter Trask, Esq. (Trask) to serve as its attorney for

arbitration. On December 10, 2018, Trask met with Asato and

Sanford Chun (Chun), the HGEA executive assistant for field

services, to prepare for the arbitration.

The disciplinary grievance went to arbitration in

December of 2018. Trask drove Asato to and from the arbitration

proceedings. During these car rides, Trask made comments to

Asato, inter alia: (1) that her previous HGEA agent was "lazy"

and did things "half-assed;" (2) that sometimes the union "does

stupid things," and Trask has to clean up the union's mess; (3)

questioning Asato on whether she was continuing to pay union dues

during the arbitration; (4) that if the case had been brought to

Trask six years ago, he would have rejected the case and

recommended no arbitration based on the merits; (5) that the

chances of winning were low; (6) that Trask was not Asato's

private attorney; (7) that he would not answer Asato's legal

questions on what can she do in actions unrelated to the

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arbitration; and (8) that she should not give him scenarios or

ask general questions unrelated to the arbitration. Asato later

asserted that she found these comments to be "demeaning" and

"belittling."

The DOE called eleven witnesses, including Asato. Four

of DOE's exhibits and twenty-five of HGEA's exhibits were

received into evidence for consideration by the arbitrator.

Trask did not make an argument brought to his attention by Asato

regarding a possible violation of Fourth Amendment protections

against unreasonable searches and seizures.

At the conclusion of the arbitration proceedings, the

arbitrator stated:
I want to thank counsel for the parties at this time,
Miriam on behalf of the Employer, and [Trask] on behalf of
the Union and [Asato], and my gratitude is based upon the
civility that you both exercised throughout the hearing, and
the hard work that you've done in preparing exhibits, all of
which benefit the Arbitrator in understanding the positions
and presentations of each party.

The arbitrator issued the June 21, 2019 Arbitrator

Decision and Award (Arbitrator Decision). The Arbitrator

Decision stated:
The parties were afforded a full and fair opportunity
to present evidence and examine witnesses at the hearing,
and to submit written arguments after the hearing. The
Arbitrator commends Mr. Trask and Ms. Loui for their
superior representation of their respective clients.

The arbitrator found and concluded that (1) DOE did not

violate the terms of the CBA when it terminated Asato and (2)

Asato was terminated for proper cause. Accordingly, the

arbitrator dismissed the grievance and sustained Asato's

termination.

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On July 9, 2019, HGEA sent the Arbitrator Decision to

Asato. HGEA did not move to vacate the Arbitrator Decision.

On October 4, 2019, Asato filed a second Prohibited

Practices Complaint (2019 PPC) against the HGEA and the DOE.

Asato asserted that HGEA violated Hawaii Revised Statutes (HRS)

§ 89-13(b)(1), (4), and (5) (2012) by treating Asato with

contempt and retaliating against her for bringing her prior 2017

PPC against HGEA. Asato alleged that HGEA subverted the

arbitration process, i.e., "threw the fight," in bad faith.

Asato pointed to her treatment during the arbitration

preparation, the arbitration result, HGEA's failure to move to

set aside the arbitration, and Trask's comments made to her

during the car rides and from the arbitration proceedings. Asato

alleged an HRS § 89-13(a)(8) claim against the DOE for willful

and wrongful discharge without good cause. Asato sought

reinstatement, backpay, and interest from the DOE and

consequential damages from HGEA.

The Board held an evidentiary hearing on the 2019 PPC

on November 13, 2019, and November 20, 2019. Asato called five

witnesses, including herself, Trask, Chun, and Calvin Nomiyama

(Nomiyama), who was the superintendent who terminated Asato and

one of DOE's witnesses in the arbitration. During the 2019 PPC

hearing, Nomiyama did not remember Trask's name or recall the

questions asked of him during the arbitration. Nomiyama

explained that he did not know Trask's name because Trask did not

introduce himself before cross-examining Nomiyama. Asato's

counsel attempted to have Nomiyama identify Trask's photograph,

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but HGEA's counsel objected. Nomiyama was later excused without

identifying Trask's photo.

Chun testified in direct examination that he "didn't

see anything out of the ordinary" in the interactions between

Trask and Asato during the December 10, 2018 arbitration

preparation meeting. On cross-examination, Chun further

testified he had sat in numerous arbitrations in his 30-plus

years and that there was nothing unusual about Asato's

representation.

Asato testified regarding her interactions with Trask,

notably including his statements during their car rides to and

from arbitration.

Regarding HGEA's failure to move to vacate the

arbitration award, Trask testified that there was no grounds for

vacating an arbitration award. Trask further testified that if

he had filed a frivolous motion to vacate the arbitration award,

he could have "exposed [his] client to fees, along with going to

the ODC [himself]."

Regarding the decision to not call witnesses at the

arbitration, Trask explained:
We always consider witnesses. The problem is, at the
arbitration stage just about everything has been decided by
the Union already. An action is taken, a grievant has
filed, then go through Step 1, Step 2, wherever it is, a lot
of information has exchanged and disclosed and it is almost
in concrete by the time I get the case. So while I may have
considered if there was no tangential reason or relationship
to the file and HGEA didn't notice anybody, I might be hard
pressed to call a new witness, but I consider it.

Regarding Trask's comments to Asato, Trask explained

that he was attempting to use the car rides to prepare Asato for

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cross-examination:
Okay. These rides became imperative for my
preparation in that Ms. Asato was in denial. When I asked
her, there are 14 months of DOE e-mails that are racist, in
my opinion, too, how is she going to answer all of those in
cross-examination, because I was very worried about
cross-examination.

Arbitrators love to hear from the grievant, and the
exposure is, is once I put them on, they're now subject to
cross-examination, and that part I'm not in control of. So
I was constantly worried how she would answer if someone
went through the 14, 16 months of e-mails one by one, what
would be her answer.
And her answers to me, and the many times I tried
that, was to talk about something else, a distraction. Can
I file suit against them, can I sue them for this, can I sue
them -- constant denial, deviation from what I -- so I
probably told her you ought to get a law degree, go learn
it, go learn this stuff, I'm not your private attorney for
that.

Regarding the decision to forego making a Fourth

Amendment constitutional argument, Trask stated, "I considered

it, but this is not the place to raise -- a grievance arbitration

before an arbitrator's not the place to raise an issue of

constitutionality." Trask further explained that he did not

brief the Fourth Amendment issue because "the grievance defines

my issues, the grievance. I cannot modify the grievance six

years after it's been filed."

On November 20, 2019, Asato rested her case-in-chief.
HGEA moved for a directed verdict; Asato filed an opposition. On

May 5, 2021, the Board filed its Decision No. 504 Findings of

Fact, Conclusions of Law, Decision and Order (Decision No. 504),

which granted HGEA's motion based on "Asato's failure to meet her

burden of proof after the conclusion of her case-in-chief."

On June 4, 2021, Asato appealed Decision No. 504 to the

Circuit Court. After briefing, the Circuit Court held oral

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arguments on December 17, 2021. On April 18, 2022, the Circuit

Court entered the Order Denying Agency Appeal. The Circuit Court

made Findings of Fact (FOFs), including now challenged FOFs:
24. Ms. Asato raised a Fourth Amendment issue. The
Board has no jurisdiction to render a decision on
constitutional issues. Further, constitutional analyses are
unnecessary for the Board to decide the statutory issues
presented by prohibited practice complaints.
25. The Board properly dismissed Ms. Asato's HRS
§ 13(a)(8) claim against DOE prior to a hearing on the merits,
because the Board lacked jurisdiction.

The Circuit Court's challenged Conclusions of Law

(COLs) are as follows:
8. Ms. Asato was terminated for proper cause in
accordance with the Unit 3 CBA.

9. Following a hearing on the merits, the Board
properly dismissed Ms. Asato's HRS § 13(a)(8) claim against
DOE for lack of standing.

10. The Board was not required to address Ms. Asato's
constitutional claims because the Board lacked jurisdiction.
11. The Board properly dismissed Ms. Asato's HRS
§ 89-13(b)(5) claim because HGEA did not breach its duty of fair
representation.

12. The Board properly dismissed Ms. Asato's HRS
§ 89-13(b)(1) claim because HGEA did not breach its duty of fair
representation.

13. The Board properly dismissed Ms. Asato's HRS
§ 89-13(b)(1) claim because HGEA’s conduct toward her was not
arbitrary, discriminatory, or in bad faith.

14. The Board correctly granted HGEA's motion for a
directed verdict because Ms. Asato failed to meet her
burden.
15. Ms. Asato failed to meet her burden of proving a
willful violation of HRS § 89-13(a)(8) as to DOE.

16. Ms. Asato failed to meet her burden of proving a
willful violation of HRS §§ 89-13(b)(1) and (5) as to HGEA.

On May 13, 2022, the Circuit Court entered the

Judgment. On May 17, 2022, Asato filed a Notice of Appeal.

II. POINTS OF ERROR

Asato asserts three points of error in this appeal,

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contending that the Circuit Court erred in: (1) affirming

Decision No. 504 because the Board incorrectly granted HGEA's

Motion for Directed Verdict; (2) entering FOFs 24 and 25;3 and

(3) entering COLs 8 to 16, inclusive.

III. APPLICABLE STANDARD OF REVIEW

"Review of a decision made by [a] circuit court upon

its review of an agency's decision is a secondary appeal. The

standard of review is one in which this court must determine

whether the circuit court was right or wrong in its decision,

applying the standards set forth in HRS § 91-14(g) [1993] to the

agency's decision." Flores v. Bd. of Land & Nat. Res., 143

Hawai#i 114, 120, 424 P.3d 469, 475 (2018) (citing Paul's Elec.

Serv., Inc. v. Befitel, 104 Hawai#i 412, 416, 91 P.3d 494, 498

(2004) (brackets in original)). Pursuant to HRS § 91-14(g)

(Supp. 2023),4 an agency's conclusions of law are reviewed de

3
A circuit court reviewing an agency's final decision and order
"does not make findings of fact; it determines whether the agency's findings
of fact were clearly erroneous in view of the reliable, probative, and
substantial evidence in the record." Sierra Club v. Bd. of Land & Nat. Res.,
154 Hawai#i 264, 284, 550 P.3d 230, 250 (App. 2024), cert. granted,
SCWC-XX-XXXXXXX, 2024 WL 3378462 (Haw. July 11, 2024) (citing HRS §
91–14(g)(5); Diamond v. Dobbin, 132 Hawai#i 9, 24, 319 P.3d 1017, 1032
(2014)). However, the Circuit Court's FOFs here are limited to describing the
procedural facts of the Board proceedings. Accordingly, any such error is
harmless. Hawai#i Rules of Civil Procedure Rule 61.
4
HRS § 91-14(g) provides:

§ 91-14 Judicial review of contested cases.
. . . .

(g) Upon review of the record the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may reverse or
modify the decision and order if the substantial rights of
the petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
(continued...)

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novo, while under HRS § 91-14(g)(5), an agency's factual findings

are reviewed for clear error. Paul's Elec. Serv., 104 Hawai#i at

420, 91 P.3d at 502 (internal citation omitted).

IV. DISCUSSION5

A. Asato's HRS § 89-13(b)(5) Claim

HRS § 89-13(b)(5) provides: "It shall be a prohibited

practice for . . . an employee organization or its designated

agent wilfully to . . . [v]iolate the terms of a collective

bargaining agreement." Asato's claims against HGEA centered

around the preparation and conduct of the grievance arbitration.

Article 11(G) of the CBA provides for Step 3 Arbitration of the

HGEA grievance procedure. The Board dismissed Asato's HRS § 89-

13(b)(5) claim because (1) Article 11(G) procedures "are not

procedures that involve employees, as arbitration is a matter

between the union and the employer," and (2) "there is nothing in

Article 11 that speaks to discrimination or retaliation." Asato

does not challenge either of the Board's reasons for dismissal,

4
(...continued)
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;

(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record;

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.
5
The Argument section of Asato's opening brief only loosely follows
her points of error.

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but rather asserts that the Board should not have dismissed her

HRS § 89-13(b)(5) because the Board acknowledged HGEA's duty of

fair representation.

Article 11 of the CBA itself does not address or

provide HGEA's duty of fair representation. Accordingly, Asato's

arguments regarding HGEA's alleged breach of the duty of fair

representation fall under her HRS § 89-13(b)(1) claim, not her

HRS § 89-13(b)(5) claim, and are addressed below.

B. Asato's HRS § 89-13(b)(1) Claim

HRS § 89-13(b)(1) provides: "It shall be a prohibited

practice for a public employee or for an employee organization or

its designated agent wilfully to . . . [i]nterfere, restrain, or

coerce any employee in the exercise of any right guaranteed under

this chapter[.]" Asato framed her HRS § 89-13(b)(1) claim

primarily as a breach of the duty of fair representation claim,

and the Board conducted its analysis accordingly.

The Hawai#i Supreme Court has held:
[A]n employee who is prevented from exhausting his or
her contractual remedies may bring an action against an
employer for breach of a collective bargaining agreement
"provided the employee can prove that the union as
bargaining agent breached its duty of fair representation in
its handling of the employee's grievance." Vaca v. Sipes,
386 U.S. at 186 (1967).
A union breaches its duty of good faith when its
conduct towards a member of a collective bargaining unit is
arbitrary, discriminatory, or in bad faith. Marquez v.
Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292,
142 L.Ed.2d 242 (1998); DelCostello v.Int'l Bhd. Of
Teamsters, 462 U.S. at 164; Vaca, 386 U.S. at 190.

Poe v. Hawai#i Lab. Rel. Bd., 105 Hawai#i 97, 103-04, 94 P.3d 652,

658-59 (2004) (cleaned up).

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The Board adopted the Ninth Circuit's two-step analysis

for its breach of the duty of fair representation analysis.6 In
Moore v. Bechtel Power Corp., the Ninth Circuit held:
Unions have broad discretion to act in what they
perceive to be their members' best interests. This court
has construed the unfair representation doctrine in a manner
designed to protect that discretion. In our application of
this doctrine, we ask first whether the act in question
involved the union's judgment, or whether it was "procedural
or ministerial." If it is a union's judgment that is in
question, as it is in this case, the plaintiff may prevail
only if the union's conduct was discriminatory or in bad
faith. Arbitrariness alone would not be enough. Only when
the challenged conduct was procedural or ministerial does
arbitrariness become controlling.

840 F.2d 634, 636 (9th Cir. 1988) (citations omitted).
"Whether a union acted arbitrarily, discriminatorily or

in bad faith requires a separate analysis, because each of these

requirements represents a distinct and separate obligation."

Simo v. Union of Needletrades, Indus. & Textile Emps., 322 F.3d

602, 617 (9th Cir. 2003) (citation omitted).

Asato argues that HGEA's conduct was arbitrary because

HGEA lacked a rational basis to treat her with contempt as it

proceeded through the arbitration process; and that HGEA

subverted the arbitration process, acting in bad faith by

"throwing the fight."

The Ninth Circuit has discussed examples of when a

union acts arbitrarily, including when a union fails to:
(1) disclose to an employee its decision not to submit her
grievance to arbitration when the employee was attempting to
determine whether to accept or reject a settlement offer
from her employer; (2) file a timely grievance after it had
decided that the grievance was meritorious and should be
filed; (3) consider individually the grievances of
particular employees where the factual and legal differences
among them were significant; or (4) permit employees to

6
The supreme court has stated, "[t]his court has used federal
precedent to guide its interpretation of state public employment law." Poe,
105 Hawai#i at 101, 94 P.3d at 656.

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explain the events which led to their discharge before
deciding not to submit their grievances to arbitration.

Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985) (cleaned

up). A union does not act in an arbitrary manner when the

union's challenged conduct involves the union's judgment as to

how best to handle a grievance. Id. A union's conduct is not

arbitrary simply because it erred "in evaluating the merits of a

grievance, in interpreting particular provisions of a collective

bargaining agreement, or in presenting the grievance at an

arbitration hearing." Id.
Here, the Board determined that HGEA's challenged

conduct did not "fall under the umbrella of procedural or

ministerial actions" because "[t]he way that a union chooses to

approach an arbitration is a matter of judgment." On appeal,

Asato does not dispute the Board's conclusion that the challenged

conduct was not procedural or ministerial but rather involved the

union's judgment. Asato merely reasserts that HGEA's conduct was

arbitrary because it lacked a rational basis for treating Asato

with contempt, it subverted the arbitration process, and it

retaliated against Asato. However, if a union's judgment is in
question, "[a]rbitrariness alone would not be enough" for a

plaintiff to prevail in their breach of duty of fair

representation claim. See Moore, 840 F.2d at 636. Rather, "the

plaintiff may prevail only if the union's conduct was

discriminatory or in bad faith." Id. Accordingly, the Board did

not render a separate determination as to whether HGEA's conduct

was arbitrary. Instead, the Board stated that it would address

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the substance of Asato's claim in its discussion of HGEA's

alleged bad faith.

Asato also argues that she was entitled to non-

discriminatory/non-retaliatory union representation.

Discriminatory conduct can be established by "substantial

evidence of discrimination that is intentional, severe, and

unrelated to legitimate union objectives." Amalgamated Ass'n of

St., Elec. Ry. & Motor Coach Emp. of Am. v. Lockridge, 403 U.S.

274, 301 (1971). A union's discrimination on the basis of union

membership can serve as the basis for a breach of the duty of

fair representation claim. Simo, 322 F.3d at 619. A union's

discriminatory conduct may be established with evidence that the

union sought to grant benefits to some members of the bargaining

unit that it denied to others, treated similarly situated

individuals differently, or sought to punish workers who brought

a lawsuit against the union. Id.

Here, the Board determined that Asato had not presented

any evidence demonstrating discrimination on the part of HGEA,

noting that Asato did not specifically allege any discrimination

on the part of HGEA beyond asserting that she was entitled to
"non-discriminatory/non-retaliatory union representation."

Similarly, on appeal, Asato restates her entitlement to non-

discriminatory/non-retaliatory union representation and provides

the legal standard for discriminatory conduct, but Asato points

to no evidence and makes no specific arguments supporting her

assertion of discriminatory conduct. We cannot conclude that the

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Board clearly erred in determining that Asato failed to

demonstrate discrimination.

In addition, Asato argues that the Board erred in not

finding that HGEA acted in bad faith by retaliating against her

for exercising her collective bargaining rights.

"To establish that the union's exercise of judgment was

in bad faith, the plaintiff must show 'substantial evidence of

fraud, deceitful action or dishonest conduct.'" Beck v. United

Food & Com. Workers Union, Loc. 99, 506 F.3d 874, 880 (9th Cir.

2007) (quoting Lockridge, 403 U.S. at 299). "[M]ere negligence

and erroneous judgment calls cannot, by themselves, support an

inference of bad faith." Demetris v. Transp. Workers Union of

Am., AFL-CIO, 862 F.3d 799, 808 (9th Cir. 2017) (citation

omitted). Courts should afford substantial deference to the

union's decisions regarding whether and to what extent to pursue

a particular grievance. Dutrisac v. Caterpillar Tractor Co., 749

F.2d 1270, 1273 (9th Cir. 1983). A disagreement between a union

and an employee over a grievance does not alone constitute

evidence of bad faith, even when the union is ultimately shown to

be mistaken. Moore, 840 P.2d at 637.
Here, the Board found that Asato had not proven that

HGEA's judgment calls show substantial evidence of fraud, deceit,

or dishonest conduct. On appeal, Asato argues that the Board

erred in this finding because she had presented sufficient facts

to prove that HGEA acted in bad faith in the exercise of its

judgment. Asato points to the result of the arbitration and

HGEA's failure to move or set aside the arbitration award as

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evidence that HGEA retaliated against her in bad faith. Asato

cites to no authority supporting the proposition that the loss of

a grievance arbitration constitutes bad faith and she fails to

identify any grounds on which HGEA should have moved to vacate

the arbitration award. We conclude this argument is without

merit.

Asato also argues that Trask's decision not to call

witnesses at the arbitration hearing is evidence of bad faith.

However, in light of Trask's testimony concerning his rationale,

and other actions in preparation for and conduct of the

arbitration hearing, we cannot conclude that the Board clearly

erred in rejecting this argument.

In addition, Asato argues that the Board should have

found that she received a sham hearing because Nomiyama, one of

the DOE's witnesses in the arbitration, did not recognize Trask,

remember Trask's name, or recall questions asked during

arbitration. This argument is without merit.

Finally, Asato argues that Trask's comments to her

during arbitration preparation was evidence of bad faith because

Trask treated her with contempt. However, the Board expressly
addressed this issue, stating, "[s]ometimes, parties may fall

short of the level the Board would expect or hope for; however,

falling short of that level of decorum and civility is not enough

to sustain a breach of the duty of fair representation." The

Board further reasoned:
Trask's conduct during the preparation for the
arbitration while, perhaps, not the most civil, was not
dishonest and did not show evidence of fraud or deceit.
Some of Trask's answers to Asato and positions that Trask

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took may have been disappointing or frustrating to Asato.
However, that does not mean that his conduct rose to the
level of a breach of the duty of fair representation.

We conclude that the evidence supported the Board's

finding that Trask's comments did not establish fraud or deceit,

rising to the level of a breach of the duty of fair

representation. Therefore, we further conclude the Board did not

clearly err in rejecting Asato's claim that HGEA acted in bad

faith.

C. Asato's Constitutional Claims

Asato argues, variously, that her contention that her

Fourth Amendments rights were violated should have been

determined by the Board. These arguments are without merit. The

supreme court has expressly held that the Board lacks

jurisdiction to consider constitutional issues. See Hawaii Gov't

Emps. Ass'n v. Lingle, 124 Hawai#i 197, 207, 239 P.3d 1, 11

(2010).

D. Asato's Other Arguments

Asato challenges the Circuit Court's FOFs 24 and 25,

and COLs 8 to 16. Most of Asato's arguments are addressed above

and will not be repeated here.

Asato further argues that she met her burden of proving

that she was not terminated for proper cause in accordance with

the BU 03 CBA. However, the determination that Asato was

terminated for proper cause was made in the Arbitrator Decision,

which is not properly before us in this appeal.

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Asato also argues that she met her burden of proving

that the Board improperly dismissed her HRS § 89-13(a)(8)7 claim

against the DOE because she did not lack standing and the Board

did not lack jurisdiction. The supreme court has explained that

when a union has breached its duty of fair representation, an

employee may bring an action against their employer:
[S]uch an action consists of two separate claims: (1) a
claim against the employer alleging a breach of the
collective bargaining agreement and (2) a claim against the
union for breach of the duty of fair representation.
DelCostello, 462 U.S. at 164.

[T]he two claims are inextricably interdependent. To
prevail against either the company or the Union,
employee-plaintiffs must not only show that their
discharge was contrary to the contract but must also
carry the burden of demonstrating breach of duty by
the Union. The employee may, if he chooses, sue one
defendant and not the other; but the case he must
prove is the same whether he sues one, the other, or
both.
Id. at 164–65; see also DiGuilio v. Rhode Island Bhd. of
Corr. Officers, 819 A.2d 1271, 1273 (R.I. 2003) ( without a
showing that the union breached its duty of fair
representation, the employee does not have any standing to
contest the merits of his contract claim against the
employer in court).

Poe, 105 Hawai#i at 102, 94 P.3d at 657 (emphasis added) (cleaned

up).

Here, the Board concluded that because it determined

that Asato did not prove HGEA's breach of its duty of fair

representation, she lacked standing to pursue her claim against

the DOE. As discussed above, the Board did not err in its

determination that Asato failed to establish that HGEA breached

its duty of fair representation. Accordingly, the Board did not

err in concluding that Asato could not further prosecute her HRS

7
HRS § 89-13(a)(8) provides, "It shall be a prohibited practice for
a public employer or its designated representative wilfully to . . . [v]iolate
the terms of a collective bargaining agreement[.]"

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§ 89-13(a)(8) claim against the DOE. See Poe, 105 Hawai#i at

102, 94 P.3d at 657. Therefore, the Circuit Court did not err in

affirming the Board's dismissal of Asato's claim against the DOE.

V. CONCLUSION

For these reasons, the Circuit Court's May 13, 2022

Judgment is affirmed.

DATED: Honolulu, Hawai#i, February 14, 2025.

On the briefs:

Shawn A. Luiz, /s/ Katherine G. Leonard
for Complainant-Appellant/ Acting Chief Judge
Appellant.
/s/ Karen T. Nakasone
James E. Halvorson, Associate Judge
Miriam P. Loui,
Deputy Attorneys General, /s/ Sonja M.P. McCullen
Department of the Attorney Associate Judge
General,
for Respondent-Appellee/Appellee
Department of Education,
State of Hawai#i.

Vladimir Devens,
Keani Alapa,
(Law Offices of Vladimir P.
Devens, LLC),
for Respondent-Appellee/Appellee
Hawaii Government Employees
Association.

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