In re: Elaban v. Department of Transportation

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-AUG-2023
08:10 AM
Dkt. 80 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

IN THE MATTER OF CATHERINE ELABAN,
Complainant-Appellant/Appellant v.
DEPARTMENT OF TRANSPORTATION, STATE OF HAWAI‘I; AND
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFLCIO,
Respondents-Appellees/Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC17-1-001420)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)

Complainant-Appellant/Appellant Catherine Elaban

(Elaban) appeals from the Circuit Court of the First Circuit's

February 28, 2018 "Decision and Order Affirming [State of

Hawai‘i] Labor Relations Board [(Labor Board)] Order No. 3280"

and judgment. 1 The Labor Board's Order No. 3280 granted

1 The Honorable Keith K. Hiraoka presided.
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Respondents-Appellees/Appellees United Public Workers, AFSCME,

Local 646, AFL-CIO's (UPW) and the State of Hawai‘i, Department

of Transportation's (DOT) motions to dismiss Elaban's prohibited

practice complaint for failure to exhaust the available

contractual remedies.

On appeal, Elaban raises a single point of error

challenging the Labor Board's determination that she failed to

exhaust the remedies provided in the collective bargaining

agreement. We review appeals from administrative decisions

under Hawaii Revised Statutes (HRS) § 91-14(g) (Supp. 2016). 2

2 HRS § 91-14(g) provides:

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

(1) In violation of constitutional or statutory
provisions;

(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; or

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.

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Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve

Elaban's point of error as discussed below, and affirm.

(1) Elaban first argues that making her "exhaust the

grievance procedure a second [time] for the same offense

resulting in termination approximately three years after the

initial proposed discharge [is] unconscionable."

"In labor relations law, the general rule is that an

employee is required to exhaust contractual remedies before

bringing suit." Poe v. Hawai‘i Lab. Rels. Bd. (Poe I), 97 Hawai‘i

528, 536, 40 P.3d 930, 938 (2002). Section 15.11 of the

collective bargaining agreement provided in relevant part as

follows:

15.11 STEP 1 GRIEVANCE
The grievance shall be filed with the
department head or the department head's
designee in writing as follows:

15.11 a. Within eighteen (18) calendar days after the
occurrence of the alleged violation. The term
"after the occurrence of the alleged violation"
as provided in Section 15.11 a. shall mean:

15.11 a.1. Discharge: Eighteen (18) calendar days after
the effective date of the discharge.

. . . .

15.11 a.4. Other Alleged Violation(s): Eighteen (18)
calendar days after the alleged violation(s)
occurred . . . .

In January 2015, DOT sent Elaban a letter discharging

her, effective February 20, 2015 (February 20, 2015 Discharge),

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for failure to comply with the recommended rehabilitation

treatment after testing positive for a controlled substance. In

the same letter, DOT offered Elaban an opportunity to

participate in a pre-discharge hearing, but Elaban failed to

timely respond.

In March 2015, UPW filed a Step 1 grievance on

Elaban's behalf challenging the February 20, 2015 Discharge,

claiming she was denied "her due process by arbitrarily imposing

a deadline to confirm her attendance at a pre-discharge meeting,

by denying [her] the opportunity to respond to the allegations

against her, and by discharging her without just and proper

cause." DOT denied the Step 1 grievance, determining that

(1) it did not arbitrarily impose a deadline, (2) Elaban called

two days after the deadline, and (3) it did not violate the

terms of the collective bargaining agreement.

In August 2016, UPW filed a Step 2 grievance.

Although DOT again denied violating the collective bargaining

agreement, it informed UPW that it would rescind Elaban's

February 20, 2015 Discharge and conduct a pre-discharge hearing.

In February 2017, DOT sent Elaban a letter informing

her that she was being discharged, effective March 10, 2017

(March 10, 2017 Discharge), and offering her an opportunity to

participate in a pre-discharge hearing. On March 3, 2017, DOT

held a pre-discharge hearing, which Elaban and a UPW agent

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attended. DOT then notified Elaban that after hearing her

testimony and the arguments made by her UPW agent, the March 10,

2017 Discharge would stand.

Again, Sections 15.11 and 15.11 a.1 of the collective

bargaining agreement provided "[t]he grievance shall be filed

with the department head or the department head's designee in

writing as follows: . . . Discharge: Eighteen (18) calendar

days after the effective date of the discharge." Elaban,

through UPW, filed a timely grievance from the February 20, 2015

Discharge, and succeeded in having that discharge rescinded so a

pre-discharge hearing could be conducted. Elaban, however, did

not file a grievance challenging the March 10, 2017 Discharge.

Findings of Fact (FOF) e and i; Poe I, 97 Hawai‘i at 536, 40 P.3d

at 938 (explaining that "[u]nchallenged findings are binding on

appeal").

Thus, as to the March 10, 2017 Discharge, the Labor

Board's decision that Elaban failed to exhaust her contractual

remedies does not require reversal under HRS § 91-14(g).

(2) Next, Elaban explains that "when the union

wrongfully refuses to pursue an individual grievance, the

employee is not left without recourse. Exceptions to the

exhaustion requirement exist, such as when pursuing the

contractual remedy would be futile." Elaban then argues an

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exception is UPW['s] wrongful refusal to process a
grievance when [she] asked [Business Agent Amie Miranda-
Pesquira] of UPW to file a grievance on her behalf and
[Miranda-Pesquira] (or anyone else on behalf of UPW) failed
to communicate (1) that UPW was not going to file a
grievance [on her] behalf, and/or (2) that [she] should
file a grievance on her own behalf.

Although exhaustion of administrative remedies is the

general rule, "exceptions to this doctrine exist, such as when

pursuing the contractual remedy would be futile." Poe I, 97

Hawai‘i at 536, 40 P.3d at 938. A "wrongfully discharged

employee may bring an action against his employer in the face of

a defense based upon the failure to exhaust contractual

remedies, provided the employee can prove that the union as

bargaining agent breached its duty of fair representation[.]"

Vaca v. Sipes, 386 U.S. 171, 186 (1967). "A union breaches its

duty of [fair representation] when its conduct towards a member

of a collective bargaining unit is arbitrary, discriminatory, or

in bad faith." Poe v. Hawai‘i Lab. Rels. Bd. (Poe II), 105

Hawai‘i 97, 104, 94 P.3d 652, 659 (2004).

The Labor Board found that "Miranda-Pesquira testified

under oath that . . . [Elaban] never responded to her question

concerning whether [Elaban] wanted UPW to file a grievance on

her behalf, nor did [Elaban] request that the union UPW file a

grievance on her behalf." FOF f. And "at no time after her

conversation with [Miranda-Pesquira] on March 21, 2017 did

[Elaban] ever contact the Respondent UPW to inquire as to

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whether a grievance was filed on her behalf." FOF k. Elaban

does not challenge these findings in her point of error, and

"[u]nchallenged findings are binding on appeal." Poe I, 97

Hawai‘i at 536, 40 P.3d at 938.

Moreover, while Elaban argues on appeal that it was

illogical for the board to conclude she "never asked for a

grievance to be initiated despite faxing a copy of the March 9,

2017 discharge" letter, this argument goes to witness

credibility and weight of the evidence. See Sierra Club v. D.R.

Horton-Schuler Homes, LLC, 136 Hawai‘i 505, 522, 364 P.3d 213,

230 (2015) ("A court reviewing an agency's decision cannot

consider the weight of the evidence to ascertain whether it

weighs in favor of the administrative findings, or review the

agency's findings of fact by passing upon the credibility of

witnesses or conflicts in testimony, especially the finding of

an expert agency in dealing with a specialized field.") (cleaned

up).

Finally, section 15.03 a. of the collective bargaining

agreement provided that "[a]n [e]mployee may process a grievance

and have the grievance heard without representation by the

Union[.]" The Labor Board found that Elaban testified under

oath that "she was aware that the [collective bargaining

agreement] . . . required that a grievance be filed within

eighteen (18) days from the date of an alleged violation of the

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[collective bargaining agreement,]" "she received the Notice of

Discharge on March 10, 2017[,]" and "she did not file a

grievance after receiving the Notice of Discharge[.]" FOF g, i,

and j. Elaban does not challenge these findings.

Given these unchallenged findings, the Labor Board's

conclusion that "[t]here has been no showing of an exception to

the doctrine of exhaustion of contractual remedies, such as when

exhaustion would be futile[,]" does not require reversal under

HRS § 91-14(g). In sum, the circuit court did not err in

affirming the Labor Board's Decision Order No. 3280.

Based on the foregoing, we affirm the circuit court's

February 28, 2018 decision and order and judgment.

DATED: Honolulu, Hawai‘i, August 16, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Shawn A. Luiz,
for Complainant- /s/ Karen T. Nakasone
Appellant/Appellant. Associate Judge

Herbert R. Takahashi, /s/ Sonja M.P. McCullen
Rebecca L. Covert, Associate Judge
for Respondent-
Appellee/Appellee,
United Public Workers,
AFSCME, Local 646, AFL-CIO.

James E. Halvorson,
William M. Levins,
Deputy Attorneys General,
for Respondent-
Appellee/Appellee,
Department of Transportation,
State of Hawai‘i.

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