HomeMy WebLinkAboutCOM 0921.000 1996-1998
4
GARY W. RODRIGUES
State Director, UPW
Judicial Panel, AFSCME
APSCM
LOCAL 640 AFL-
nullA PON@ "ca~wmNU.••
HAWAII
July 13, 1998
Mayor Stephen Yamashiro
County of Hawaii
25 Aupuni Street
Hilo, Hawaii 96720
RE: UNIT 1 COST ITEMS
Dear Mayor Yamashiro:
We request compliance with the stipulations and orders issued
by the Hawaii Labor Relations Board (HLRB) relating to the Unit 1
Agreement.
The HLRB Stipulations and orders in Case No. CE-01-390 & CE-
01-396 require all mayors in the four counties to submit the
appropriate resolution to the County Councils for approval of the
cost items in accordance with Section 89-10(b), Hawaii Revised
Statutes, within thirty (30) days of July 8, 1998.
As you know, the Unit 2 (i.e. HGEA represented blue collar
supervisors) cost items have previously been approved by all County
Councils. A copy of the resolution approved by the City & County
of Honolulu is enclosed. Cost items for the Unit 1 Agreement were
tailored to the Unit 2 Agreement.
We further request that you provide a copy of the resolution
which is submitted and notify us of the date of the Council
hearing.
Sincerely,
Gary W. Rodrigues
State Director
Enclosure
c: James Arakaki, Chairman of the Council ern. Na, -011A
File
J(JL l 6 1999
1426 N. School Street • Honolulu, Hawaii 96817 • (808)847-2631 ~'°M°
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,
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1l15.1‘
CITY CL , , CIL
3. CITY AND COUNTY OF HONOLULU 97— 87
HONOLULU, HAWAII NO. J a7�
RESOLUTION
APPROVING COLLECTIVE BARGAINING COST ITEMS FOR THE INCLUDED
EMPLOYEES OF THE CITY AND COUNTY OF HONOLULU IN BARGAINING UNIT
02 (HAWAII GOVERNMENT EMPLOYEES ASSOCIATION) .
WHEREAS, Chapter 89, Hawaii Revised Statutes ( "HRS" ) ,
establishes a statewide collective bargaining process for public
employees; and
WHEREAS, pursuant to Chapter 89, HRS, the employers and
representatives of bargaining unit 02 (Hawaii Government
Employees Association) met in early November, 1996 , to negotiate
a collective bargaining agreement for the employees in the
bargaining unit ; and
WHEREAS, on July 1, 1997, an impasse was declared by the
Hawaii Labor Relations Board, and mediation proceedings followed
from July 16 to 21, 1997 ; and
WHEREAS, on September 9, 1997, the employers and bargaining
unit 02 reached a tentative agreement, and a new contract was
subsequently ratified by the bargaining unit 02 membership; and
WHEREAS, the adjustments to wages and other non-wage cost
items are part of a collective bargaining agreement that is
effective from July 1, 1997 through June 30 , 1999 ; and
WHEREAS, pursuant to Section 89-10 (b) , HRS , the wage and
non-wage cost items are subject to appropriations by the
respective legislative bodies ; now, therefore,
BE IT RESOLVED by the Council of the City and County of
Honolulu that it approve the collective bargaining and related
cost items for the included employees of the City and County of
Honolulu in bargaining unit 02 , a summary of which is attached as
Exhibit A; and
02S01045.R97
B
t , •
a
RESOLUTION
BE IT FINALLY RESOLVED that copies of this Resolution be
transmitted to the Mayor and Director of Personnel of the City.
INTRO] ED BY: 4(
(Be
moi...L `_ —�
" '
igio
Councilmembers
DATE OF INTRODUCTION:
DEC 3 0 1997
Honolulu, Hawaii
(OCS/123097/mg) -2-
CITY
2-CITY COUNCIL ADOPTED
CITY AND COUNTY OF HONOLULU MEETING HELD
HONOLULU, HAWAII 1/2R/9R Reference:
AYE NO A/E Report No. 8-53
I hereby certify that the foregoing RESOLUTION was BAINUM
adopted by the COUNCIL OF THE CITY • • OUNTY OF FELIX X
HONOLULU on the date and by the v• e indicated to the HANNEMANN X
right. HOLMES x
►�,���_ KIM F Resolution No.
ATTEST: i�.'� •_ MANSHO
�' 61,4
MIRIKITANI x (,►y
GENEVIEVE G. WONO JOHN DeSOTO YOSHIMURA X �7 ` —387
City Clerk CHAIR AND PRESIDING OFFICER DeSOTO 7t
8 0 1
Dated 1/28/98
HAWAII LASOR RELATIONS BOARD
STATE or HAWAII
:n the Matter of i Case No. CZ-01-396
United Public workers. 1 '98 ,JUN 17 A9 :44
ZFSCME, Local 646 . AFL-C20, )
STIPULATION AND ORDER
Complainant. ) HAWAII
and ) LABOR RELA i iUNS . A0
)
Linda Lingle, Mayor, County
of Maui: Raymond Kokubun, )
Director, Department of )
Personnel. County of Maui: )
Stephen Yamashiro, Mayor, )
County of Hawaii.; Michael )
Ben, Director. Department of )
Perseenel, County of Hawaii; )
Maryanne Kusaka. Mayor. )
County of Kauai: Allan )
Tanigawe, Director, )
Department of Personnel. )
County of Xauai (98-019) , )
)
Respondents. )
)
(157:100)
STIPQLiTXOO AND ORtilR
Come now, the United Public Workers, AFSCME, Local 616,
AFL-CIO, hereafter "UPW" or "Union, " and Stephen Yamashiro and
Michael Ben, hereafter collectively referred to as "Employer' or
"Respondents, " by and through their undersigned counsel, and hereby
stipulate to the following in the above-referenced case:
1. The UPW is ac all relevant times herein an employee
organization within the meaning of ISS S 89-2.
2 . Respondent Stephen Yamashiro is Mayor of the County
of Hawaii and is an employer within the meaning of Hawaii Revised
Statutes (HRS) S 89-2.
3 . Respondent Michael. Bea is the Director of Personnel,
Department of Personnel, County of Hawaii and is an employer within
the waw of HAS 7 89-2-
4 . At all relevant times herein, the UPW is the
exclusive bargaining agent of blue collar non-supervisory employees
in the bargaining unit 1.
5. The IIPW and the Employer have been parties to
successive multi-employer collective bargaining agreements since on
or about July 1. 1972 to the present covering blue collar non-
supervisory employees in bargaining unit 1-
6 . Upon the expiration of the latest agreement covering
the period July 1, 1993 to June 30 . 1995 certain parties to the
unit 1. agreement executed contract extensions on June 29, 1995,
January 31. 1996, June 28, 1996, January 31, 1991, June 27, 1997
and January 28, 1998.
7. On or about March 10, 1998 chief negotiators Maaabu
Kimura and Gary Rodrigues signed off on "tentative agreements' in
connection with a new unit 1 agreement covering the period July 1,
1995 through and including June 30, 1999 _
8 . A majority of unit 1 employees ratified the
aforementioned "tentative agreements. "
9. On or about May 11, 1998 the Hawaii Labor Relations
Board issued an oral ruling in Case No. CE-01-390 granting DP 's
:notion for interlocutory relief against the City and Conary of
Honolulu in which the Board determined, inter alia, that thele is
currently in effect a unit 1 collective bargaLning agreement with
2
UPW. and that cost items must be submitted co the Legislative
bodies in accordance with HRS 5 89-10 (b) . A written order has not
been issued by the Board to date.
10 . :n accordance with the foregoing stipulations and
agreements Respondents agreed to:
a. Comply with the ruling of the Hairai i Labor Relations
Board (NLRB) in Case No. CE-01.-390, unless modified or reversed by
the Board or Court upon motion or appeal by the City and County of
Honolulu: and
b. Prospectively cease and desist from repudiating the
existence of a new unit 1 agreement in accordance with the NLRB
ruling in Case No. CZ-01-390, subject to paragraph 10 (a) .
C. Submit to the County Council of the County of Hawaii
for its approval or rejection the cost items of the new unit 1
agreement, not later than 30 days from the issuance of an NLRB
written order in Case No. CE-01-390 granting the UPW's motion for
interlocutory relief, or soon thereafter as the Council' s agenda
permits. A copy of the proposed Ordinance or Resolution shall be
provided to the UPW at least 10 days prior to the action by the
Council: and
d. Inform the Hawaii Cour_ty Council when cost items are
submitted to the Council that Respondents Yamashiro and Bea told
the chief negotiator Manabu Kimura during negotiations with the CCM
that Hawaii County did not oppose the cost items to the "tentative
agreement" executed by Kimura and Rodrigues on or about March 10,
1998.
3
11. A violation of the terms and conditions of this
Stipulation. and Order shall constitute a prohibited practice by
Respondents. 2t is agreed that the enforcement of the terms and
provisions of the Stipulation and Order maybe summarily determined
by motion of the DPW and in the event of a violation Respondents
shall pay attorneys fees and costs which may be incurred by the
UFT. •
Dated: Honolulu, Hawaii, June 17, 1998.
r
,eZ-
x4 /4 -
.s. x
Assistant Corpora ion Conned
County of Hawaii
Attorney for Respondents
Stephen Yamashiro and Michael
Ben
GZ a �—`
. 1
HERBERT l: TAKA ASHI
STANFORD A. MASur
DAC J. vASCOHCELLOS
REBECCA L. COVERT
Attorneys for Complainant AP
OVED AND SO ORDERED:
B rt M. Tomasu, Chairperson
Russe T. H j! Board Member
Chester C. Kunitake, Board Member
4 .
HAWAII LABOR RELA:ZONS BOARD
STATE OF HAWAII
Case tio . CE-?.1-396
Ir. the Matter of
) '98 ",• 17 ^9 :44
United Public Workers, )
AFSCME, Local 646 , AFL-CIO' ) st:P-J1..ArzopTAAte ORDER
Complainant, )
and )
Linda Lingle. Mayor, County )
of Maui: Raymond Kokubun. )
Director. Department of )
Personnel. County of Maui; )
Stephen Yataashiro, Mayor, )
County of Hawaii; Michael )
Ben, Director, Department of
Personnel, County of Hawaii; )
Maryanne Kusaka. Mayor. )
County of Kauai: Allan )
Tanigawa, Director, )
Department of Personnel. )
County of Kauai (98-019) , )
Respondents. )
)
)
(156 :100)
STIPULAT=ON AND ORDER
Come now, the United Public Workers, AFSCME. Local 646 ,
AFL-CIO, hereafter 1UPW" or "Union, " and Linda Lingle and Raymond
�� or
Kokubun. hereafter collectively referred to as "Employer
"Respondents." by and througn their undersigned counsel. and hereby
stipulate to the following in the above-referenced case:
1 . The UPW is at all relevant times herein an employee
organization within the meaning of FIRS 3 89-2 .
2 . Respondent Linda Lingle is Mayor of the County of
Maui and is an employer within =he meaning of -��41 Revised
Itat_ u_ (HRS) S 89-2 .
3 . Respondent Raymond okubun is the Director of
Personnel. Department of Personnel. County cf Maui and is an
employer within the meaning of HRS g 89-2 .
4 . At all relevant times herein, the ::PW is the
exclusive bargaining agent of blue collar non-supervisory employees
in the bargaining unit 1.
5 . The UPW and the Employer have been parties to
successive multi-employer collective bargaining agreements since on
or about July 1, 1972 to the present covering blue collar non-
supervisory employees in bargaining unit 1.
6. Upon the expiration of the Latest agreement covering
the period July 1, 1993 co .tune 30, 1995 the parties to the unit 1
agreement executed contract extensions on June 29, 1995, January
31, 1996, .tune 28. 1996, January 31, 1997, June 27, 1997 and
January 28, 1998 .
7 . On or about March 10, 1998 chief negotiators Manabu
Kimura and Gary Rodrigues signed off on "tentative agreements" in
connection with a new unit 1 agreement covering the period July 1,
1995 through and including .tune 30 , 1999 .
8 . A majority of unit 1 employees ratified the
aforementioned "tentative aareements . "
9 . On or about May 11, 1998 the Hawaii Labor Relations
Board issued an oral ruling in Case No. CE-01-390 granting UPW' s
motion for interlocutory relief against the City and County of
Honolulu in which the Board determined, '. alit, that there is
currently :n effect a unit 1 collective bargaining agreement with
2
UAW, and that cost items must be submitted to the Legislative
bodies is accordance with HRS § 05-:0 (b) . A written order has not
been issued by the Board to date.
10 . =n accordance with the foregoing stipulations and
agreements Respondents agreed to:
a. Comply with the riling of the Hawaii Labor Relations
Board (HLRB) in Case No. CE-01-390, unless modified or reversed by
the B-:and or Court upon motion or appeal by the City and County of
Honolulu: and
b. Prospectively cease and desist from repudiating the
existence of a new unit 1 agreement in accordance with the NLRB
ruling in Case No. CE-01-390, subject to paragraph 14 (a) .
c. Submit to the County Council of the County of Maui
for its approval or rejection the cost items of the new unit 1
agreement, not later than 30 days from the issuance of an HLRB
written order in Case No. CE-01-390 granting the UPW' s motion for
interlocutory relief, cr soon thereafter as the Council' s agenda
permits. A copy of the proposed Ordinance or Resolution shall be
provided to the UPW at least IC days prior to the action by the
Council.
d. Not oppose the adoption of the cost items to the
unit 1 agreement by the legislative bodies .
11. A violation of the terms and conditions of this
Stipulation and Order shall constitute a prohibited practice by
Respondents. It is agreed that the enforcement of the terms and
provisions of the Stipulation and Order may be summarily determined
2
by motion of the UPW and in the event of a violation Respondents
shail pay attorneys fees and costs which may be incurred by the
UPw..
Dated: Honolulu, Hawaii.
AMY TROMPSON
Deputy Corpvratio ounsel
County of Maui
Attorney for Respondents Linda
Lingle and Raymond Kokubua
Icz
Ks.RSERT R. Ir�Ki�FiASHZ
STANFORD H. MASUI
DANNY J. vASCONCELLOS
• REBECCA L. COVERT
Attorneys for Complainant
APP- •V'ED AND SO ORDERED:
Air/
A./
Bart M. Tomasu, Chairperson
11/
Russell T. Hi 7 Board Member
Chester C. Kun.take, 3oard Member
4
HAWAII LABOR RELATIONS BOARD
STATE CF WAWA/I
:a the Matter of ) Case No . CE-01-396
United Public workers, )
AFSC€, Local 646 . AFL-CIO. ) '98p��! 11 g :43
S77.YULAT N AND ORDER
Complainant. )
) HAWAII
and
.ABOR RELATIOH3 v ,;:,t Air
Linda Lingle, Mayor. County )
of Maui; Raymond Kokubun,
Director. Department of )
Personnel. County of Maui; )
Stephen Yamashiro. Mayor. )
County of Hawaii; Michael )
Ben. Director. Department of )
Personnel, County of Hawaii; :
Maryanne Kusaka. Mayor. )
County of Kauai; Allan )
Tanigawa. Director.
Department of Personnel. )
County of Kauai (98-019) . )
Respondents. )
)
)
(158:100)
STIPULATION AND ORDER
Come now, the United Public Workers, AFSCME. Local 646 .
AFL-CIO, hereafter "UPW" or "Union. " and Maryanne Kusaka and Allan
Tanigawa. hereafter collectively referred to as "Employer" or
"Respondents, " by and through their undersigned counsel. and hereby
stipulate to the following in the above-referenced case:
1 . The UPW is at all relevant times herein an employee
organization within the meaning of HRS § 89-2 .
2. Respondent Maryanne Kusaka is Mayor of the County of
Kauai and is an employer within the meaning of Hawaii Revised
Stavtes (HRS) 5 89-2 .
3 . Respondent Allan Taria_awa is the Director of
Personnel, Department of Personnel, County of Kauai and is an
employer within the meaning of FRS g
89-2 •
4 . At all relevant times herein. the UPW is the
exclusive bargaining agent of blue collar non-supervisory employees
in the bargaining unit 1.
5 . The UPW and the Employer have been parties to
successive multi-employer collective bargaining agreements since on
or about July 1, 1972 to the present covering blue collar non-
supervisory employees in bargaining unit 1 .
6 . Upon the expiration of the latest agreement covering
the period July 1. 1993 to June 30. 1995 certain parties to the
unit 1 agreement executed contract extensions on June 29. 1995,
January 31. 1996. June 28, 1996, January 31, 1997, June 27. 1997
and January 28, 1998 .
7. On or about March 10. 1998 chief negotiators Mani=
Kimura and Gary Rodrigues signed off on "tentative agreements' in
connection with a new unit 1 agreement covering the period July 1.
1995 through and including June 30 , 1999 .
8 . A majority of unit 1 employees ratified the
aforementioned "tentative agreements. "
9 . On or about May 11. 1998 the Hawaii Labor Relations
Board issued an oral ruling in Case No. CE-O1-39° granting UPW' s
motion for interlocutory relief against the City and County of
Honolulu in which the Board determined. lariat
that there is
currently in effect a unit 1 collective bargaining agreement with
2
Upw, and that cost items must be submitted to the Legislative
bodies in accordance with }with HRS S 69-10 (b) . A written order has not
been issued by the Board to date.
10 . in accordance with the foreooing stipulations and
agreements Respondents agreed to:
a. Comply with the ruling of the Rawaii Labor Relations
Board (HLRB) in Case No. CE-01-390. unless modified or reversed by
the Board or Court upon motion or appeal by the City and County of
Honolulu; and
b. Prospectively cease and desist from repudiating the
existence of a new unit I agreement in accordance with the NLRB
ruling in Case No. CE-01-390. subject to paragraph 10 (a) .
c. Submit to the County Council of the County of Kauai
for its approval or rejection the cost items of the new unit 1
agreement, not later than 30 days from the issuance of an ALM
written order in case No. CE-01-390 granting the UPW' s motion for
interlocutory relief, or soon thereafter as the Council' s agenda
permits. A copy of the proposed Ordinance or Resolution shall be
provided to the UPW at least 10 days prior to the action by the
Council.
d. Not oppose the adoption of the cost items to the
unit 1 agreement by the legislative bodies.
11. A substantive violation of the terms and conditions
of this Stipulation and Order shall constitute a prohibited
practice by Respondents. It is agreed that the enforcement of the
terms and provisions of the Stipulation and Order may be summarily
3
,
determined by motion of :be UPW and in the event of a violation
Respondents shall pay attorneys fees and costs which may be
incurred by the DPW. ff/
Dated: Honolulu. Hawaii. - ( lO S .
•
• -
•
lit . F4t // �r.-
►- - - S.N
Assi-' - County Attorney
Count of Kauai
Attorn for Respondents
Maryanne Kusaka and Allan
Tanigawa
HERBERT R. ';AKAHASHI
STANFORD H. MASt7I
DANNY S. VASCONCELLOS
REBECCA L. COVERT
Attorneys for Complainant
APP VED AND SO ORDERED:
johtm4711.4611,---
B rt M. Tomassi. Chairperson
Russell T. Hig, -oard Member
1
Chester C. Kunitake, Board Member
4
TOTAL. P.
J U L 0 81998
HAWAII LABOR RELATIONS BOARD
STATE OF HAWAII
In the Matter of ) CASE NO. CE-01-390
UNITED PUBLIC WORKERS, AFSCME, ) ORDER NO. 1643
LOCAL 646, AFL-CIO, )
ORDER GRANTING COMPLAINANT'S
Complainant, ) MOTION FOR INTERLOCUTORY
) RELIEF
and )
JEREMY HARRIS, Mayor, City and )
County of Honolulu and ROBERT J. )
FISHMAN, Managing Director, City )
and County of Honolulu, )
Respondents. )
)
ORDER GRANTING COMPLAINANT'S MOTION FOR INTERLOCUTORY RELIEF
On April 3 , 1998, Complainant UNITED PUBLIC WORKERS,
AFSCME, LOCAL 646, AFL-CIO (UPW or Union) filed a prohibited
practice complaint against JEREMY HARRIS, Mayor, City and County of
Honolulu and ROBERT J. FISHMAN, Managing Director, City and County
of Honolulu (collectively HARRIS or City) with the Hawaii Labor
Relations Board (Board) . The UPW contends that Respondents entered
into and then subsequently repudiated agreements reached over the
amended Unit 01 collective bargaining agreement (contract) and
amendments to the Automated Refuse Collection Operation (ARCO) .
Thus, Complainant contends that Respondents wilfully violated
SS 89-13 (a) (1) , (5) , and (7) , Hawaii Revised Statutes (HRS) .
On April 6, 1998, the UPW filed a motion for
interlocutory relief pending the issuance of a final decision with
the Board. The UPW seeks an order from the Board to (1) enjoin and
restrain Respondents from repudiating the new Unit 01 contract
I do hereby certify that this is a full, true anc
correct copy of the original on file in,this orfice.
1.6c4-4
Executive Officer
N.aui�ii I.hnr Rohtinne Rwa.a
entered into on March 10, 1998 and (2) refusing to sign and execute
the Unit 01 agreement between the UPW and the various public
employers. The UPW contends that on March 10, 1998, a new Unit 01
contract was negotiated and entered into by and between the public
employers and the UPW. The UPW further contends that the employees
began ratifying the agreement on March 16, 1998 and on or about
March 20, 1998, it was reported that HARRIS repudiated any
contract. Thereafter on March 27, 1998, HARRIS notified the
Union's chief negotiator that the City did not concur with the
Unit 01 settlement package. The UPW contends that the City
committed a prohibited practice by refusing to honor an agreement
reached in labor negotiations.
On April 24, 1998, Respondents filed a memorandum in
opposition to Petitioner's motion for interlocutory relief with the
Board. Respondents contend that the UPW is attempting to enforce
a purported agreement which was not entered into by Respondent
HARRIS and/or his authorized representative Sandra Ebesu, Director
of Personnel, Department of Personnel, City and County of Honolulu
(Ebesu) . The City also contends that the ARCO negotiations are not
interrelated with the Unit 01 negotiations. The City also contends
that there is significant credible evidence that no agreement was
ever reached and the City argues that the public will be injured if
an injunction issues since it cannot support the pay raises for
Unit 01 workers. The City also contends that the UPW committed a
prohibited practice by repudiating the ARCO and inducing its
members to participate in a work stoppage by refusing to perform
under the terms of the. ARCO.
2
The Board conducted hearings in this matter on April 29
and 30, May 7, 8, 11, and 29, 1998. On May 11, 1998, the Board
heard arguments on the instant motion for interlocutory relief.
Having reviewed the record and the written submissions of the
parties and considered the arguments presented, the Board hereby
makes the following findings and grants Complainant's motion for
interlocutory relief.
Complainant UPW is the exclusive representative of the
employees included in Unit 01, as defined in S 89-6, HRS.
Respondent JEREMY HARRIS is the Mayor of the City and
County of Honolulu and the public employer as defined in S 89-2 ,
HRS, of employees of the City and County of Honolulu included in
Unit 01.
Respondent ROBERT FISHMAN was for all times relevant, the
Managing Director of the City and County of Honolulu.
The UPW and the public employers have been parties to ten
(10) successive collective bargaining agreements covering blue
collar non-supervisory employees in bargaining unit 01 since
July 1, 1972 . The last agreement was entered into on June 21, 1994
and extended for the period from July 1, 1993 to June 30, 1995.
Prior to the expiration of the contract, both the Union and the
public employers gave notice of their desire to amend the
agreement. Negotiations commenced in 1994 , and the parties
extended the agreement on June 29, 1995, January 31, 1996, June 28,
1996, January 31, 1997, June 27, 1997, and January 28, 1998 . The
latest extension expired on June 30, 1998. Former Personnel
Director Cynthia Bond and later, Ebesu, signed the extensions on
behalf of the City.
3
On October 15, 1996, the parties exchanged proposals to
amend the prior Unit 01 contract. On October 16, 1996, the UPW
transmitted the ground rules for the Unit 01 negotiations to Manabu
Kimura (Kimura) , Chief Negotiator, State Office of Collective
Bargaining (OCB) who served as the chief spokesperson for the
public employer group. These ground rules had not changed from
prior negotiations and no changes were made by any party during the
sessions of 1998. The grounds rules provide, inter alia, that each
party can determine the size of their negotiating team. Further,
the ground rules do not refer to any subcommittees with limited
authority to negotiate. The ground rules also provide that all
items agreed to are agreed to tentatively pending final disposition
of all items.
The parties did not aggressively negotiate in 1996
because of fiscal concerns. In early 1997, the Hawaii Government
Employees Association (HGEA) and the public employers began to
reach settlements for various bargaining units and the negotiators
in Unit 01 bargaining began discussing a cost package tailored to
the Unit 02 wage increases. Since the Unit 01 workers are
supervised by Unit 02 employees, the consensus within the employer
group was that a cost package similar to the Unit 02 wage
percentage increases would be acceptable. On November 20, 1997,
the HGEA and the multi-employer group entered into a tentative
agreement for Unit 02 employees for the period July 1, 1997 to
June 30, 1999 . According to Manabu Kimura, all jurisdictions
agreed that Unit 01 cost items would be tailored to the Unit 02
settlement with the HGEA.
4
Historically, personnel directors of the City have been
directly involved in negotiating and signing the Unit 01 contracts.
Cynthia Bond, former Director of Personnel, signed extensions to
the Unit 01 agreement on June 29, 1995, January 31, 1996 and
June 29, 1996 without a concurrent signature by HARRIS.
Thereafter, Ebesu signed Unit 01 extension agreements on
January 31, 1997, June 27, 1997, and January 28, 1998. In
addition, Ebesu executed modifications and changes to prior Unit 01
agreements affecting automated refuse collection and patterns of
absence due to sickness. Ebesu has also signed approximately
twenty-four settlement agreements for grievances affecting Unit 01
employees in five major departments of the City.
In the Unit 01 negotiations, Ebesu had actual authority
to bind the City as the designee of the mayor at the bargaining
table. HARRIS was not directly involved in the negotiations and
did not restrict or limit Ebesu's authority at any time during the
bargaining process except that on March 16, 1998, HARRIS instructed
Ebesu to vote "no" on the Unit 01 package. Other personnel
directors from the respective counties were authorized to act on
behalf of their mayors. Under S 89-6 (b) , Hawaii Revised Statutes
(HRS) , each mayor is entitled to one vote in negotiations and the
Governor is entitled to four votes. The employer group was aware
that Kimura represented the four votes from the Governor.
In early January 1998, the parties began more intensely
negotiating the Unit 01 agreement. On January 12 , 1998, the UPW
submitted an overall settlement package to OCB. The UPW's proposal
included language changes to approximately 62 sections of the
existing contract. On January 15, 1998, the settlement proposal
5
was transmitted to all public employers. Michael Ben (Ben) ,
Personnel Director, County of Hawaii, indicated that the employer
group was informed that a settlement was desired by the end of
January 1998.
The employer negotiators reviewed the proposals in
caucuses held on January 15, 16, and 20, 1998. At the meeting held
on January 15, 1998, James Takushi (Takushi) , Director, Human
Resources Development, State of Hawaii, voiced his opposition to
considering the UPW's proposals.
On January 21, 1998, Gary Rodrigues (Rodrigues) , UPW
State Director and Union spokesperson, explained the entire Union
proposal to the employer group on a section-by-section basis and
answered questions from the employers. Initially, the County
employers, except for the City, were opposed to considering the
UPW's settlement proposal.
After the January 21, 1998 meeting with the employer
group, Rodrigues heard rumors that the City would not support the
wage increases for Unit 01 employees. On January 27 , 1998,
Rodrigues contacted ROBERT FISHMAN and advised him of the rumor.
Rodrigues told FISHMAN that if the City was not going to agree to
the Unit 02 pay raises for the Unit 01 employees, he would not
agree to the new automated refuse routes which the City wanted.
Rodrigues also told FISHMAN that if the City did not support the
wage increases, there would not be sufficient votes and he would
start to prepare impasse papers. According to Rodrigues, FISHMAN
denied the truth of the rumor and indicated that the City wanted
the automated refuse expansion. FISHMAN promised to get back to
Rodrigues after checking it out.
6
According to FISHMAN, he told Rodrigues that he wanted to
see everything worked out, that he would pass the message to the
mayor, and would get back to him. FISHMAN told HARRIS about the
telephone call from Rodrigues. HARRIS left FISHMAN with the
impression that the matter would be handled through the normal
bargaining process. FISHMAN did not call Rodrigues back. FISHMAN,
however, informed Ebesu about the call from Rodrigues.
Ebesu recalls that FISHMAN advised her that Rodrigues had
talked to him about automated refuse collection and said he would
touch bases with HARRIS. Ebesu had previously contacted Rodrigues
earlier in January to ask if the Mayor could refer to the ARCO in
his State of the City speech and Rodrigues had said no at that
time.
Rodrigues also notified OCB that the Union would withdraw
its proposals on drug testing for probationary employees and all
employees in 1998.
During the first week of February 1998 , Kimura informed
Rodrigues that the employer group had rejected the Union's noncost
proposals.
Thereafter, on February 11, 1998, the employer caucus met
and Kimura asked each jurisdiction to indicate their position on
the pay increase. Hawaii and Maui counties and the State of Hawaii
did not object to the wage increases proposed by the Union. Thus,
Kimura was satisfied that he had the necessary votes on wages,
since only the City and the County of Kauai voiced opposition.
Ebesu was outvoted on the issue of wage increases and informed
HARRIS soon after the meeting that the votes supported the UPW's
proposal on wages.
7
Also, during the employer caucus on February 11, 1998,
the State of Hawaii and the City voted to entertain and consider
the Union's proposals. At this point, Kimura believed that the
City agreed to reconsider the whole package and that it was willing
to discuss all of the issues to try to reach a settlement. Kimura
believed that he had the necessary fifth vote to proceed with
negotiations with the UPW. Without the City's change in position,
Kimura felt that it would have been fruitless to pursue further
negotiations with the Union.
Kimura also informed the employer group that he would
withdraw the employer proposals (approximately 15) which had been
submitted earlier to the UPW. Kimura strongly recommended the
withdrawal of the employer proposals because that had been the
employers' position in the HGEA negotiations. During a heated
discussion in the caucus, Takushi expressed concerns about the
handling of the employer group by Kimura. The next day, Ebesu
called the neighbor island representatives to ask permission to
speak with Kimura to see if the group could pull together and
operate as a unit.
On February 12, 1998, Rodrigues left a message with Robin
Chun-Carmichael (Chun-Carmichael) , a member of Ebesu's staff,
indicating that he would not sign the ARCO Memorandum of Agreement
(MOA) if the City did not support the Unit 01 pay increases.
On February 13 , 1998, Ebesu met with Kimura in an effort
to pull the employer group together. Ebesu told Kimura that it was
important to function as a group and to consider the Union's
proposals. Ebesu was concerned that the employer group would be
accused of not giving the proposals due consideration and Kimura
8
agreed to cooperate and meet separately with the personnel
directors without their staff to see what could be done.
On February 18, 1998, a caucus was held with only the
personnel directors present where Kimura recommended the formation
of a subcommittee composed of Ebesu and himself, along with their
respective staffs, to meet with the UPW over the proposals. All
jurisdictions authorized Kimura and Ebesu to meet with the UPW
negotiators. According to Ebesu, the subcommittee was authorized
to review each proposal, draft language which would be acceptable
to the employer group, meet with the Union to express employer
concerns and report back to the group. Taira, however, recalls no
specific discussion on the scope of the subcommittee's authority.
Ben testified that there was an understanding that the subcommittee
would report back, but no one specifically said that the
subcommittee could not bind the employer group or was otherwise
limited in its authority. According to Tanigawa, the
subcommittee's role was to resolve some "sticky" issues by
discussing them with the Union and "trying to come to a position
that would be acceptable to everybody. "
Although Ebesu assumed that the subcommittee's role was
limited and could not bind the employer group, she also believed
that she represented the entire group. Ebesu also knew that she,
as the City's representative, and Kimura represented five votes on
the employer's side. Kimura nevertheless believed that he had the
fifth vote from the City to proceed with more than a mere
discussion of issues. According to Kimura, when the City agreed to
reconsider the whole package he believed that the City was willing
to discuss all of the issues and try to reach a settlement. Based
9
on the City's reconsideration then Kimura believed that he had the
majority of votes to proceed to settlement. Kimura indicated that
it would have been fruitless to pursue a settlement if he could not
get one of the counties to agree with the State. Kimura informed
Rodrigues that based on the reconsideration of the State and the
City, negotiations could resume. Kimura notified Rodrigues that he
was ready to negotiate on behalf of the State and the City.
Prior to and during this time period, Kimura and Ebesu
discussed the various proposals with members of the employer group.
Neighbor island negotiators contacted Ebesu with their concerns
over interested items. The City presented its lump sum payment
concept to address employer concerns regarding retroactive wage
increases. Ebesu developed counterproposals based on her
discussions with the County personnel directors regarding drug
testing, sick leave, and retroactive wage payments.
On February 25, 1998, Kimura and Ebesu and their
respective staff members met with the UPW negotiators and worked
off of the Union's settlement proposal. The employer group had
discussed the lump sum proposal which the City drafted for the
group to address administrative costs in making retroactive
payments to the Unit 01 employees. Kimura and Ebesu discussed each
item including cost and noncost items, and Kimura stated whether he
agreed to the provision then would turn to Ebesu who would indicate
assent or disagreement. There were a number of proposals which
were acceptable to both sides. Contested items were put aside.
Kimura and Ebesu spoke for and represented the employer group in
these sessions with the. Union. Rodrigues spoke for the UPW and
10
believed that both Kimura and Ebesu spoke for the entire employer
group.
On February 26, 1998, the employers again met in caucus
and discussed a number of issues.
Some neighbor island members of the employer group
disagreed over such matters as the withdrawal of employer
proposals, consideration of the UPW settlement proposal, sick leave
patterns, prior rights, legal plan and drug testing. Kauai County
opposed the transportation provisions and Maui County opposed the
legal plan. However, in these matters, Kimura and Ebesu
essentially outvoted the dissenting jurisdictions in caucus and
resolved the issues. On nearly all noncost issues, Kimura with
four votes and Ebesu with the fifth vote representing HARRIS
outvoted the other members.
Actions taken in the employer caucuses on all issues and
items were kept confidential from the Union. However, during the
bargaining sessions with the Union representatives, Kimura and
Ebesu indicated their assent verbally and by other conduct on each
item resolved. The City representatives actively participated in
the negotiations. The UPW responded to concerns expressed on such
issues as the retention of personnel records, alcohol and drug
testing, and retroactive wage payments. Ebesu formulated and
presented counter-proposals to address the concerns of the neighbor
island counties and to reach common ground with the UPW.
Concessions were made by the UPW. The City drafted the language
reflecting the agreements reached between the parties. Ebesu
recognized that when she indicated her assent in meeting with the
UPW she was speaking for the employer group and that Kimura also
11
represented the group. Through this process, the parties developed
two documents which contained the substantial and material terms of
an agreement on cost and noncost items. Ebesu had developed the
lump sum proposal on retroactive pay and agreed with the provisions
on noncost.
On March 2, 1998, Kimura, Ebesu, Rodrigues and their
staffs met and discussed SS 2, 11, 15, 17, 23, 36, 37, 42, 52, 55,
58, 61, and 64 . Many items were resolved that day and substantial
agreement was made on most of the terms and conditions. The UPW
agreed to the lump sum concept and needed to work on the details.
According to Rodrigues, the parties substantively agreed to every
major issue, including wages, with the terms to be worked out. At
that point, Rodrigues was approached by a City representative who
asked, "well, can we get automated refuse now?" Relying on the
City's cooperation in bargaining over the Unit 01 cost and noncost
items, Rodrigues indicated that he would sign it later that
afternoon when he met with City representatives. Rodrigues
executed a new MOA regarding the automated refuse routes on the
afternoon of March 2 , 1998. The automated refuse MOA was signed by
Ebesu on March 3 , 1998 . Rodrigues indicated that he would not have
signed the MOA if the City had no authority to negotiate.
On March 4 , 1998, the parties resumed discussions on
SS 2, 11, 12, 15, 17, 36, 37, 42, 55, 54, 48, and 62 . Issues
relating to layoffs (12) , elimination of grievance steps (15) ,
provisions relating to personnel information (17) , retroactive wage
adjustments through lump sum payments (23) , licenses (55) , employee
bill of rights (58) , meal periods affecting DOE (52) , and drug
12
testing (63) were resolved. The final meeting between the UPW and
the State and City negotiators occurred on March 10, 1998.
Neighbor island personnel directors received reports of
bargaining sessions and were afforded an opportunity to present
their concerns, and helped prepare for the subsequent meetings. It
was obvious to everyone in the employer caucuses that negotiations
with the Union were in progress as the parties changed their
positions on various issues and the Union made concessions.
The employer group believed that while the subcommittee
composed of Kimura and Ebesu had limited authority and could not
bind the employer group, they admit that the limitation on
authority was never specifically discussed in caucus. Moreover,
neither the Chief Negotiator nor the City representatives ever
expressed to the Union that there was any restriction on their
authority to negotiate. Also, Rodrigues was never told that any
agreement reached between the parties was subject to a vote or
approval by some employer who was not present at the table.
Rodrigues indicated that had he been told that the City
representatives lacked authority to bind the Mayor, the Union would
have sought a declaration of an impasse in negotiations. Further,
Rodrigues indicated that if the negotiators' agreement was subject
to a majority vote of counties not present, he would not have
resumed negotiations. Rodrigues testified that previously, if the
employers had to check with others, the negotiators would say that
they could not commit and needed to check. Rodrigues understood
that whoever was present had the authority to negotiate on behalf
of the group or at least to bind the parties present. Both Kimura
and Ebesu believed they represented the employer group as a whole
13
and had the requisite votes between them needed to resolve the
issues.
On March 10, 1998, Rodrigues hand-carried the agreements
to OCB. After the bargaining concluded, the negotiators shook
hands and congratulated each other. As of March 10, 1998,
Rodrigues and Kimura believed that an agreement had been reached,
subject to employee ratification. Rodrigues testified that no one
from the employer group indicated that the tentative agreement was
subject to ratification by the employers. Kimura initialed each
section of the agreement in the presence of Chun-Carmichael and
Allison Murakawa, another City staff member, after verifying that
the documents reflected the understanding of the parties reached in
bargaining. Ebesu was not present when Kimura signed the tentative
agreements (TAs) but acknowledges that Exhibits 13 and 14 reflect
the substantial and material terms of the deal with UPW. After
Kimura initialed each of the TAs, the documents were transmitted
for initialling by Rodrigues.
Later that day, Chun-Carmichael and Murakawa reported to
Ebesu that Kimura signed the TAs. Ebesu called Kimura to express
her concerns regarding Kimura's initialling of the TAs but Kimura
does not recall that Ebesu raised any opposition to the TAs.
Ebesu, however, never notified the UPW of any objections to the
process or that the TAs were not authorized.
The Union proceeded to schedule ratification meetings
soon after the documents were initialed. By letter, dated
March 10, 1998, Ben confirmed a conversation with Kimura regarding
the direction of "negotiations for Unit 01. " Ben expressed his
concern over not having meaningful input and an "apparent 5-3 vote
14
system" employed to settle the Unit 01 talks. Ben warned Kimura
that if the contract was settled without due consideration for his
concerns, the County might lobby the Council to reject the cost
items.
On March 13 , 1998, Ebesu and Malcolm Tom, Director of the
City's Budget department met with Rodrigues. The discussion
centered on when and in what manner lump sum payments would be made
in accordance with the wage settlement. Ebesu tried to dissuade
Tom from proceeding with the meeting, but she realized at the time
that the City had been outvoted on the wage and cost items in the
negotiations and could be held to the commitments made in
accordance with the multi-employer process. Rodrigues indicated
that he would look at specific proposals and could work it out
later. No one at the meeting said that the Mayor could not pay for
the wage increases. Ebesu knew that Kimura would have signed all
of the TAs by March 10, 1998 but never told Rodrigues that the
agreement was not final and a vote would be taken at a meeting on
March 17, 1998.
Ratification meetings commenced on March 16, 1998. The
Union held ratification meetings at State work sites. The
respective counties denied the Union's request to conduct
ratification meetings and the Union, nevertheless, proceeded to
conduct ratification meetings to present the tentative agreement
for a vote by employees during previously scheduled Section 8
meetings. According to the Rodrigues, ninety-seven percent of
those voting ratified the agreement.
Also on March 16, 1998 , HARRIS instructed Ebesu to vote
"no" on the Unit 01 package.
15
On March 17, 1998, Kimura presented the TAs to the
employer group and explained each item. Ebesu did not oppose the
presentation of the TAs. The neighbor island county
representatives raised some concerns over certain items but
believed that the State and the City had agreed to the tentative
agreement because they had voted together on all items in prior
employer caucuses (except on wages) , and Ebesu did not object or
oppose what Kimura presented as the settlement package. Kimura did
not ask for a vote on the tentative agreement but presented the
material as to what was agreed to.
As the meeting broke, Ben indicated for the "record" that
Hawaii County was not "agreeing to the package. " Maui County,
Kauai County, and the City also indicated "no" to the package. The
neighbor island representatives assumed that the City had outvoted
them on the package and were surprised that the City voted "no. "
The ground rules provide that the negotiators resolve the
issues on an item-by-item basis. There is no provision requiring
voting on the whole package. Taira testified that previously,
Unit 01 negotiators resolved issues on an item-by-item basis and it
was not normal for the group to vote on the entire package.
Tanigawa also confirmed that all proposals during the bargaining
process are taken up one at a time and voting does not occur on the
package. For employer negotiators, voting on an item-by-item basis
occurred in caucus.
During the employer caucuses no one indicated that
bargaining commitments made would be conditioned on a vote on the
entire package by a majority. The concept of a vote on the whole
package was not raised nor presented. The Union was never informed
16
that an agreement was contingent upon a majority vote of all
employers on the entire package.
Thereafter, Kimura contacted Rodrigues to advise him that
the City was "backing out of the agreement. " Rodrigues asked
Kimura whether the State was also backing out of the deal. Kimura
informed Rodrigues that there was an agreement. Governor Cayetano,
Kimura, Takushi and Budget and Finance Director Earl Anzai executed
the memorandum of agreement which indicated their commitment to the
Unit 01 agreement.
On March 27, 1998, HARRIS wrote to Rodrigues:
My understanding from Sandi Ebesu, my
Personnel Director is that the official vote
on the unit 1 contract was taken on March 17,
1998. The City voted against the settlement
package because while I feel unit 1 employees
deserve a pay raise, the Cit does not have the
money to fund an increase at this time.
By letter dated April 9, 1998, Rodrigues informed Ebesu
that since the City repudiated the Unit 01 contract, the ARCO MOA
was void.
Thereafter, on or about May 1, 1998 , Mayor Stephen K.
Yamashiro, Mayor, County of Hawaii, issued a notice to all Unit 01
employees, which indicated, inter alia, that the Unit 01 contract
expired as of midnight on April 30, 1998 and the terms and
conditions of employment were governed by civil service laws and
regulations.
With respect to the issuance of injunctive relief, the
Board has relied upon the analysis provided by the Hawaii
Intermediate Court of Appeals in Penn v. Transportation Lease
Hawaii. Ltd. , 2 Haw. App. 272 (1981) , in considering whether
interlocutory relief is appropriate. The three requirements for
17
granting interlocutory injunctive relief are: 1) Is the party
seeking relief likely to prevail on the merits? 2) Does the
balance of irreparable damage favor issuance of injunctive relief?
3) Does the public interest support the granting of injunctive
relief? The court also noted that:
The more the balance of irreparable damage
favors the issuance of the injunction, the
less the party seeking the injunction has to
show likelihood of success on the merits.
[Citations omitted. ] Likewise, the greater
the probability the party seeking the
injunction is likely to prevail on the merits
the less he has to show that the balance of
irreparable harm favors the issuance of the
injunction.
Based on the Penn analysis, then, where the movant shows
a great possibility of succeeding on the merits, the less the
movant has to show that the balance of irreparable harm favors the
issuance of the injunction.
The UPW contends in this case that the Union and the
employers negotiated a new agreement and that HARRIS later
repudiated such agreement. The UPW contends that Kimura and Ebesu
had actual authority to bind the entire employer group or apparent
authority to negotiate the contract. The UPW argues that an
employer's refusal to honor or sign an agreement reached through
negotiations is prohibited. The UPW further contends that absent
injunctive relief, there will be irreparable harm to the bargaining
unit employees and to the bargaining relationship and that the
public interest favors restoration of the status quo ante to
prevent Respondents from undermining the bargaining process.
The City contends that the UPW is attempting to enforce
a purported agreement for UPW pay raises that was not entered into
18
by HARRIS and/or his authorized representative, Ebesu. The City
also contends that in order to coerce the Respondents into acceding
to the Union's demand for pay increases and other conditions of
work, the UPW and its members have undertaken illegal strike
activity by refusing to comply with the conditions of the ARCO MOA.
The City further contends that the ARCO MOA was not connected with
the pay raise negotiations.
The City alleges that the negotiations over the Unit 01
contract recommenced in January 1998 and during most of the
negotiations and public employer caucuses, the City was represented
by Ebesu and Chun-Carmichael. The City contends that the public
employers designated a subcommittee to review the Union's Unit 01
proposals in order to determine which of the proposals would be
considered by the public employer. The City contends that the
subcommittee was composed of the City and OCB representatives with
the understanding that the subcommittee was to report its
recommendations to the group for consideration. The City contends
that on February 26, 1998, at an employer caucus, representatives
of the counties advised Kimura of their disagreement with the UPW
increases and the overall contract package. The City argues that
without the authority of the counties, Rodrigues and Kimura
initialed the tentative agreements on approximately March 10, 1998.
Thereafter, on or about April 9, 1998 , Ebesu received a letter from
Rodrigues where he claimed that since the City revoked its
agreement on the Unit 01 contract, the ARCO agreement was therefore
void.
The City contends that there is no evidence to support a
finding that Ebesu agreed to the pay increases at issue. The City
19
contends that without HARRIS' agreement to the UPW pay raises, the
Board may not enforce the alleged agreement. The City contends
that there is no meeting of the minds on the proposals submitted.
The City further contends that the UPW failed to establish any
irreparable harm and that greater harm will result by compelling
one party to comply with the purported agreement without its
assent. The City also argues that the City is unable to pay the
additional 10-14 million dollars related to the pay raise.
With respect to the likelihood of success on the merits,
the Board finds that the UPW has carried its burden of proving that
the employers are bound by the Unit 01 contract negotiated between
Rodrigues and Kimura and Ebesu. The Board agrees with the UPW that
the negotiators at the bargaining table must have sufficient
authority to negotiate. Any limitation on authority must be
clearly expressed. The record is clear in this case that Rodrigues
was never told that the subcommittee was not authorized to
negotiate a contract. He testified that if he had known that the
subcommittee lacked authority, he would not have pursued further
negotiations.
In University of Bridgeport, 229 NLRB 1074 (1977) , the
National Labor Relations Board held that ratification by a person
with ultimate authority was unnecessary where negotiators have
apparent authority to negotiate. The foregoing case recognizes
that the authority to negotiate may be limited, but that such
limitation must be disclosed prior to reaching an agreement.
Moreover, if the necessity of the employer's approval of an
agreement reached by the employer's agent is not clearly
understood, under the cases cited by the Union, the employer's
20
refusal to sign the agreement is unlawful. Thus, an agent
appointed to negotiate a collective bargaining agreement has the
apparent authority to bind the principal in the absence of notice
to the contrary.
In N.L.R.B. v. Donkin's Inn, Inc. , 532 F.2d 138 (9th Cir.
1976) (Donkin's Inn) , the Court concluded that even if the
negotiator was not vested with actual agency to accept the
contract, he was vested with apparent agency authority. The Court
discussed the concept of apparent authority and stated:
Apparent authority, while a term
admitting of some confusion, has been defined
in the 2nd Restatement of the Law of Agency,
§ 8, as:
. . . the power to affect the legal
relations of another person by
transactions with third persons,
professedly as agent for the other,
arising from and in accordance with
the other's manifestations to such
third persons. "
This court in Hawaiian Paradise Park Corp. v.
Friendly Broadcast Co. , 414 F.2d 750
(9th Cir. 1969) , discussed further the
principle of apparent authority.
"Apparent authority results when the
principal does something or permits
the agent to do something which
reasonably leads another to believe
that the agent had the authority he
purported to have . [Citations
omitted] In determining whether
there was apparent authority, the
factual inquiry is the same as in
the case of actual implied
authority, except that the
principal's manifestations to the
third person are substituted in
place of those to the agent.
Restatement of Agency (Second) , § 8 ,
at 31.
"The principal's manifestations
giving rise to apparent authority
21
may consist of direct statements to
the third person, directions to the
agent to tell something to the third
person, or the granting of
permission to the agent to perform
acts and conduct negotiations under
circumstances which create in him a
reputation in the area which the
agent acts and negotiates. "
414 F.2d at 756.
The Court in the Donkin's Inn case, supra, held that the
evidence was convincing that the agent was vested with apparent
agency authority, if not actual agency authority to enter into an
understanding that would be embodied in a written agreement.
In Metco Products. Inc. v. N.L.R.B. , 884 F.2d 156
(4th Cir. 1989) , the Court held that the employer's negotiator had
apparent authority to enter into the collective bargaining
agreement and the employer's failure to execute the agreement
constituted an unfair labor practice. The Court discussed the
concept of apparent authority and stated:
In the context of collective bargaining,
the NLRB has adopted a clear and simple rule
regarding the creation of apparent authority
on the part of a labor negotiator. The NLRB
has long held that "when an agent is appointed
to negotiate a collective-bargaining agreement
that agent in deemed to have apparent
authority to bind his principal in the absence
of clear notice to the contrary. " University
of Bridgeport, 229 NLRB 1074, 95 LRRM 1389,
1390 (1977) . See also Aptos Seascape
Corporation , 194 NLRB 540 , 79 LRRM 1110
(1971) , Medical Towers Limited, 289 NLRB
(No. 123) 129 LRRM 1169 (1987) , enf. granted
without opinion, Medical Towers Ltd. v.
N.L.R.B. , 862 F.2d 309 (3rd Cir. 1988) . The
laudable purpose of this rule is to lessen the
opportunities for ambiguity and confusion by
requiring a party who chooses to negotiate
through an agent to disclose any limitations
on the agent's authority. See University of
Bridgeport, 95 LRRM, at 1390.
22
r
In Cho Mark Oriental Food v. K & K International,
73 Haw. 509, 516-17, (1992) , the Court discussed the theory of
apparent authority and stated:
Apparent authority arises when "the principal
does something or permits the agent to do
something which reasonably leads another to
believe that the agent had the authority he
was purported to have. " Hawaiian Paradise
Park Corp. , 414 F.2d at 756; see also Grisham,
126 Ariz. at 126, 613 P.2d at 286; Restatement
(Second) of Agency SS 8, 27. The critical
focus is not on the principal and agent's
intention to enter into an agency
relationship, but on whether a third party
relies on the principal's conduct based on a
reasonable belief in the existence of such a
relationship. See, e.g. , Lewis, 463 A.2d at
670 n.7. Apparent authority can occur under
the following circumstances:
(1) [T]he principal has manifested
his consent to the exercise of such
authority or has knowingly permitted
the agent to assume the exercise of
such authority; (2) . . . the third
person knew of [the principal's
actions] . . . and, acting in good
faith, had reason to believe, and
did actually believe, that the agent
possessed such authority; and (3)
. . . the third person, relying on
such appearance of authority, has
changed his position and will be
injured or suffer loss if the act
done or transaction executed by the
agent does not bind the principal.
[cites omitted. ]
HARRIS authorized Ebesu to represent the City in the
Unit 01 contract negotiations. Ebesu, supported by her staff, was
present at the caucus and represented the City's vote. The
evidence is clear that HARRIS never attended any caucuses or
bargaining sessions and did not give Ebesu any specific
instructions with regard to the Unit 01 contract except to vote
against the Unit 01 wage increases and later to vote against the
23
whole Unit 01 package. Previously, Ebesu executed the Unit 01
extension agreements, she negotiated and signed other amendments to
the Unit 01 contract, and numerous settlement agreements on behalf
of the City. In prior multi-employer negotiations with the UPW,
Rodrigues had negotiated with a group smaller than the whole
employer negotiating team on such matters, including the drug
testing issue in the commercial driver's license context. Thus, it
was not unreasonable for Rodrigues to rely on the team of Kimura
and Ebesu as representing the whole employer group or at least two
employers, sufficient to cast at least five votes constituting a
simple majority of the employer group.
The Board also finds based on the evidence in the record
that the employer representatives authorized Kimura and Ebesu to
meet with Rodrigues but did not expressly authorize them to
negotiate an agreement with the UPW. There was an informal
"understanding" in the employer group that the subcommittee was to
meet with the Union, clarify the Union's position, present the
employers' position and come back to the group with a short list of
articles to be negotiated. Ebesu testified that the intent of the
subcommittee was to work on language acceptable to the whole group.
According to the City's contentions, Kimura and Ebesu were merely
authorized to meet with the Union to find common ground.
When the subcommittee met with Rodrigues, Kimura believed
that the City would support the agreement reached because the City
agreed to reconsider the whole package of proposals, including the
cost items. Kimura believed he had the City's fifth vote
indicating a majority of the votes necessary to settle the Unit 01
contract. Ebesu already knew she had been outvoted on the wage
24
increases since the counties of Hawaii and Maui voted in favor of
the increases and she was reluctant to ignore the rest of the
settlement package of noncost issues presented by the Union. Ebesu
pursued the development of the issues presented which included the
retroactive wage payments as part of the cost package. Kimura and
Ebesu went through the proposals item-by-item and indicated their
assent to each item.
At the close of the March 2, 1998 meeting, because
substantial progress had been made especially with regard to the
wage issues, Rodrigues was asked by the City to sign the ARCO MOA
and he agreed. Ebesu and Chun-Carmichael knew that Rodrigues would
not sign the ARCO MOA if there was no Unit 01 "deal. " Thus, it is
clear that at that point the City negotiators believed that they
had a "deal" or at least an agreement in principle on the whole
Unit 01 agreement because it is unreasonable for this Board to
believe that these negotiators would have consciously misled
Rodrigues to commit to the ARCO MOA otherwise.
While the City now contends that the Unit 01 negotiations
and the ARCO MOA are unrelated, the Board finds that the evidence
in the record indicates that while the agreements were negotiated
at different times and under different circumstances, at least from
January 1998, Rodrigues made it abundantly clear to the Respondents
and their representatives that the signing of the ARCO MOA depended
upon the City's support of the Unit 01 pay raises. Thus, the
execution of the ARCO MOA by Rodrigues supports his testimony that
he believed that Ebesu had authority to negotiate on behalf of the
employer group as well as HARRIS.
25
Moreover, the neighbor island representatives knew that
during the caucuses that the City and the State outvoted the
counties on many noncost issues. In addition, at some point, the
neighbor island representatives realized that the subcommittee was
negotiating with the Union since counterproposals were being made,
there was movement or change in positions, and concessions were
being made by the Union. The employer representatives also knew
that the subcommittee was successful in negotiating the lump sum
retroactive wage proposal which was developed by the City and
presented in caucus. However, while some employer representatives
of the counties had previously contacted Rodrigues on other
matters, e.g. , legislation, no one said anything to Rodrigues as to
the limited authority of the subcommittee.
The evidence is clear that Rodrigues was never put on
notice that the subcommittee was not authorized to negotiate a
contract with the Union. No one conveyed the limited authority of
the subcommittee to Rodrigues and there was no mention that HARRIS
or any other employer needed to approve the whole package. Neither
Kimura nor Ebesu told Rodrigues about the limitation during the
bargaining sessions, after the signing of the TAs, nor during the
meeting with Tom and Ebesu after the TAs were signed.
During the bargaining sessions with the Union, Kimura and
Ebesu actively negotiated the provisions and eventually assented to
each provision discussed. Moreover, the conduct of the City
representatives was such that even the neighbor island negotiators
believed that the City supported the Unit 01 contract. It was only
at the time of the actual vote on March 17 , 1998 that the other
counties as well as the State realized that the City did not
26
support the whole Unit 01 package because of the Mayor's
instructions given to her on the previous day.
The City contends that Chapter 89, HRS, requires a formal
vote to consummate a multi-employer collective bargaining
agreement. It is clear to the Board, however, from the evidence
presented that the procedures followed in the employer caucuses are
informal. The Chief Negotiator does not call for a vote; rather,
he either polls the jurisdictions or the representatives are
expected to voice any opposition to the issue presented. The
record also indicates that in previous negotiations, the articles
were negotiated on an item-by-item basis and then tentatively
agreed to. These tentative agreements were then set aside and
negotiations continued on the remaining articles. There has never
previously been a vote on the whole package.
Based upon the arguments presented, the Board finds that
on February 11, 1998, the employer group voted on the Unit 01 wage
increases and there were six votes to support the wage increases.
There is no dispute that the City opposed the wage increases and
also no dispute that Ebesu was outvoted by the simple majority of
employer votes, with Hawaii and Maui counties voting with the State
to support the wage increases. Thereafter, on March 17, 1998, the
employer group reviewed the Unit 01 settlement package which had
been presented as a tentative agreement but voted "no" to the
Unit 01 package. Ebesu indicated, however, that she supported the
noncost proposals. Thus, the Board finds based upon the evidence
in the record that there were sufficient votes to approve the cost
items and also, to approve the noncost items but insufficient votes
from a single county to approve the package as a whole.
27
The Board, however, agrees with the Union based upon the
authorities cited that Kimura and Ebesu had the apparent authority
to bind the multi-employer group to the Unit 01 contract because
there was no express limitation placed upon their authority to
negotiate. In addition, Ebesu had the apparent authority to bind
HARRIS to the Unit 01 contract because HARRIS permitted her to
perform acts and conduct negotiations which created in her a
reputation of possessing authority in the area which she
negotiated. Rodrigues believed she had the authority and relying
on such appearance changed his position so that he and the Unit 01
membership would suffer loss if the contract did not bind HARRIS.
Moreover, under the Bridgeport case, there was no express
limitation placed on her authority to negotiate on his behalf. The
refusal of an employer to sign an contract embodying agreed upon
terms is evidence of a refusal to bargain collectively in good
faith. NLRB v. Strong, 393 U.S. 357, 359, 89 S.Ct. 541,
21 L.Ed.2d 546 (1969) ; H.J. Heinz v. National Labor Relations
Board, 311 U.S. 514 , 523-26, 61 S.Ct. 320, 85 L.Ed. 309 (1941) .
HARRIS' later repudiation of the Unit 01 contract constitutes a
refusal to bargain in good faith in violation of S 89-13 (a) (5) ,
HRS.
The City raises the issue of whether the UPW conducted an
illegal strike by refusing to comply with the ARCO MOA and
allegedly instructing its membership not to perform work under the
MOA. The Board finds this argument to be outside the scope of the
instant complaint. Moreover, the Board does not make a specific
finding with regard to the validity of the ARCO MOA. The Board
finds that the ARCO MOA is relevant and material in the instant
28
case as it reflects the belief of the negotiators during the
bargaining process that an agreement had been reached.
With respect to the showing of irreparable harm, the
Board agrees with the Union that there will be irreparable harm to
the ongoing negotiations process and the Unit 01 employees if the
Respondents are permitted to repudiate the contract. The record
indicates that the Unit 01 agreement expired on April 30, 1998.
The City contends that there is no irreparable harm because the
employees are working under contract extensions. However, there is
no evidence in the record that the contract has been extended past
April 30, 1998. The evidence in the record suggests that the
status and working conditions of the employees as provided under
the prior Unit 01 contract are no longer applicable. The record
indicates that in one jurisdiction, Unit 01 employees were notified
that they were no longer covered under the prior Unit 01 agreement.
Thus, there is considerable disruption to the bargaining
relationship between the Union and the public employers as well as
uncertainty with regard to the employees' rights. Moreover, while
the City contends that the contract will cost 10-14 million
dollars, these matters are not in the record. Even if the cost
issues were properly before the Board, however, the Board finds
that the balance of irreparable harm tips in the Union's favor.
With regard to the public interest, the Board finds that
the policies underlying Chapter 89, HRS, that joint decision-making
and the collective bargaining process promote effectiveness in
government is furthered by the issuance of the subject order. In
addition, the Board finds that the public policy in promoting the
parties to negotiate in good faith supports a finding here that the
29
r '
public employer be bound by the actions of its agent who had
apparent authority to negotiate the contract. Respondent HARRIS
should not be permitted to repudiate a contract which his
bargaining representatives have negotiated since the Union relied
upon their apparent authority.
Based upon the foregoing, the Board hereby orders
Respondent HARRIS to cease and desist from repudiating the Unit 01
contract negotiated by his representatives. Affirmatively, HARRIS
shall recognize the agreement and give effect to its terms.1
1The City contends that there has been no "meeting of the
minds" as to the terms of the applicable terms of the Unit 01
contract. The evidence in this record establishes that the
tentative agreements constitute the substantial and material terms
of the Unit 01 contract. In the Donkin's Inn case, supra, the
Court recognized that the critical question is whether the two
sides have reached an "agreement. " The Court stated:
In the context of labor disputes, and
particularly section 8 (a) (5) violations,
however, the technical question of whether a
contract was accepted in the traditional sense
is perhaps less vital than it otherwise would
be. Rather, a more crucial inquiry is whether
the two sides have reached an "agreement, "
even though that "agreement" might fall short
of the technical requirements of an accepted
contract. Judge Duniway stated for this court
in Lozano Enterprises v. NLRB, 327 F.2d 814,
818 (9th Cir. 1964) :
"We do not think that, in deciding
whether, under a particular set of
circumstances, an employer and a
union have in fact arrived at an
agreement that the employer is then
obliged to embody in a written
contract upon the union's request,
the Board is strictly bound by the
technical rules of contract law. "
30
•
UNITED PUBLIC WORKERS, F CM , LOCAL 64 , FL CASE NOE CEMYOHHARRIS,
Mayor, City and County
ORDER NO. 1643
ORDER GRANTING COMPLAINANT'S MOTION FOR INTERLOCUTORY RELIEF
DATED: Honolulu, Hawaii,
July 8 , 1998
HAW II LABOR R IONS BOARD
11'
B 'T M. TOMASU, Chairperson
4Orri" (al
RUSSELL T. H Iirr Board Member
A
ace4
CHESTER C. KUNITAKE, Board Member
Copies sent to:
Herbert R. Takashashi, Esq.
Paul A. Brooke, Deputy Corporation Counsel
Joyce Najita, IRC
31