No. SCWC-10-0000077, Thursday, April 23, 2015, 10:00 a.m.

In the Matter of the Grievance Arbitration Between STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS (SHOPO), exclusive representative for Bargaining Unit 12, Police, on behalf of SHELLY L. RODRIGUES, JAMES A. RODRIGUEZ, and SHANE Y. SOKEI, Respondents/Grievants-Appellants, and COUNTY OF KAUAI, and KAUAI POLICE DEPARTMENT, Petitioners/Employers-Appellees.

The above-captioned case has been set for argument on the merits at:

Kauai Community College
Performing Arts Center
3-1901 Kaumualii Hwy
Lihue, HI 96766

Attorneys for Petitioner:

Alfred B. Castillo, Jr. and Mauna Kea Trask, Deputy County Attorneys

Attorney for Respondent:

Vladimir Devens

NOTE: Order accepting Application for Writ of Certiorari, filed 01/26/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

This case involves the authority of an arbitrator in resolving grievances under a collective bargaining agreement. The parties negotiated a collective bargaining agreement that included a grievance procedure providing for “final and binding” arbitration. SHOPO filed grievances under the collective bargaining agreement on behalf of three police officers with the Kauai Police Department who were passed over for promotions. The arbitrator sustained the grievances and ordered that the grievants be promoted and awarded back pay and benefits (remedy).

SHOPO filed a motion with the Circuit Court of the Fifth Circuit (circuit court) to confirm the arbitrator’s award, and the County of Kauai and Kauai Police Department (employers) opposed the motion to confirm and filed a counter motion to vacate the award. On August 6, 2009, the circuit court issued orders, vacating the arbitrator’s award and remanding for rehearing on the issue of remedy. On remand, the arbitrator issued a ruling that his remedy would remain unchanged based on the arbitrator’s authority under the collective bargaining agreement. SHOPO again filed a motion in the circuit court to confirm the arbitrator’s award, and the employers opposed the motion and filed a counter-motion to vacate. On September 20, 2010, the circuit court issued orders, finding that the remedy of the arbitrator’s award was in excess of the arbitrator’s authority.

On appeal, the ICA found that the arbitrator’s remedy did not exceed his authority and that the circuit court erred in finding otherwise. Accordingly, the ICA affirmed in part and vacated in part the August 6, 2009 and September 20, 2010 orders and remanded the case to the circuit court for affirmation of the arbitrator’s decision and the remedy awarded. Judge Ginoza concurred and dissented in the decision, arguing that the arbitrator exceeded his authority in granting the remedy.

The employers filed an Application for Writ of Certiorari on December 30, 2014, which was granted on January 26, 2015. The question presented is whether the ICA gravely erred in holding that the arbitrator did not exceed his powers under the collective bargaining agreement in ordering that the grievants be promoted and awarding back pay and benefits. The employers argue that the granting of the remedy was an abuse of the arbitrator’s authority because only the employer has the authority to grant promotions under the collective bargaining agreement. The employers also maintain that the ICA’s holding that the arbitration award did not violate public policy should be set aside. SHOPO argues that the arbitrator’s remedy was in line with his authority under the collective bargaining agreement. SHOPO maintains that the grievance procedures that were negotiated in the contract were intended by the parties to abridge and modify the employers’ management promotional rights.