Petition Mandamus 9-28-12

S.C. NO. __________ IN THE SUPREME COURT OF THE STATE OF HAWAII Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Petitioner Hawaii State Teachers Association’s Petition for Writ of Mandamus

(1:139) PETITIONER HAWAII STATE TEACHERS ASSOCIATION'S PETITION FOR WRIT OF MANDAMUS AFFIDAVIT OF REBECCA L. COVERT APPENDICES 1 THROUGH 21 CERTIFICATE OF SERVICE

Of Counsel: TAKAHASHI and COVERT Attorneys at Law

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

TABLE OF CONTENTS Page # I. II. INTRODUCTION ................................................................................................... 1 STATEMENT OF FACTS ...................................................................................... 2 A. B. The Relevant Collective Bargaining History and Background.................... 2 The Role, Authority, and Responsibilities of the Hawaii Labor Relations Board.................................................................................. 6 The Prohibited Practice Proceeding in Case No. CE-05-781....................... 9 1. The Motions for Interlocutory Relief, to Shorten Time, and to Expedite .................................................................................... 11 2. The Board Hears Evidence on The Merits and Concludes the Hearing.................................................................. 14 D. HSTA Earlier Pursuit Of A Writ of Mandamus For Immediate Interlocutory Ruling...................................................................................... 18 The Absence of Other Available Lawful Relief and Prejudice to Employee Rights ..................................................................................... 19

C.

E.

III. IV.

STANDARD OF DISPOSITION .......................................................................... 21 STATEMENT OF ISSUES PRESENTED AND THE RELIEF SOUGHT ......... 25 1. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the merits of the prohibited practice complaint filed by HSTA on July 8, 2011 in Case No. CE-05-781 particularly where the complaint alleges constitutional challenges that cannot be heard by a circuit court until after HLRB’s review? .......................................... 25

2. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the prayer for injunctive relief and the motions for interlocutory orders raised by HSTA in the prohibited practice proceeding?...................... 26 V. STATEMENT OF REASONS FOR THE WRIT.................................................. 27 A. HLRB HAS A DUTY TO DETERMINE THE ISSUES PRESENTED BY HSTA'S PROHIBITED PRACTICE COMPLAINT PROMPTLY ...................................................................... 27 HLRB HAS A DUTY TO RENDER A JUST AND SPEEDY DECISION ON HSTA’S PRAYER AND MOTION FOR INJUNCTIVE RELIEF .................................................... 34 HSTA MEETS THE STANDARD FOR MANDAMUS RELIEF WHERE HLRB HAS NOT MET ITS DUTY TO RENDER A PROMPT DECISION OR ORDER............................................................. 40

B.

C.

VI. VII.

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

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TABLE OF AUTHORITIES

CASES Air Line Pilots Association, International v. Civil Aeronautics Board, 750 F.2d 81 (D.C. Cir. 1984) ............................................................................. 24, 42 Alaska Public Employees Association v. Department of Admin., 776 P.2d 1030 (Alaska 1989)............................................................................................. 5 Allen v. State of West Virginia, Human Rights Commission, 324 S.E.2d 99 (W.Va. 1984) .................................................................................................... 23 Allstate Insurance Co. v. Schmidt, 104 Hawaii 261, 88 P.3d 196 (2004) ............. 35 American Federation of Government Employees, AFL-CIO, 790 F.2d 116 (D.C. Cir. 1986) ................................................................................................ 24 In re American Rivers and Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) .......................................................................................... 24, 41 American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965)...................... 20, 43 Appeal of City of Nashua Board of Education, 695 A.2d 647 (N.H. 1997) ............ 5 Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972) .............................. 30 Barnett v. Broderick, 84 Hawai`i 109, 929 P.2d 1359 (1996) ......................... 21, 22 Board of Education v. Haw. Public Emp. Rel. Board, 56 Haw. 85, 528 P.2d 809 (1974) ................................................. 3, 4, 32, 36, 39 In re Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000) .................................. 23 Brown v. Thompson, 91 Hawai`i 1, 979 P.2d 586 (1999) ..................................... 30 Burlington Fire Fighters Association v. City of Burlington, 457 A.2d 642 (1983) ........................................................................................... 5 Cabatbat v. County of Hawaii, Department of Water Supply, 103 Hawai`i 1, 78 P.3d 756 (2003)........................................................................................ 30

Calif. State Employees' Association, CSU v. PERB, 59 Cal. Rptr. 2d 488 (Ca. App. 1996)................................................................................................... 5 Castle v. Kepana, 5 Haw. 27 (1884)....................................................................... 22 Casumpang v. ILWU Local 142, 108 Hawai`i 411, 121 P.3d 391 (2005)............. 35 Cave v. Elliot, 988 A.2d 1 (Md. App. 2007)......................................................... 42 City of Ocala v. Marion County Police Benevolent Association, 392 So. 2d 26 (Fl. App. 1980)............................................................................................... 5 Commonwealth ex. rel. Duff v. Keenan, 33 A.2d 244 (Pa. 1943) ................... 22, 40 In re Disciplinary Board of Hawaii Supreme Court, 91 Hawai`i 363, 984 P.2d 688 (1999)................................................................................................. 19 Exotics Hawai`i-Kona, Inc. v. E.I. Dupont De Nemours & Co., 104 Hawai`i 358, 90 P.3d 250 (2004)...................................................................... 32 Matter of Fasi, 63 Haw. 624, 634 P.2d 98 (1981).................................................. 31 Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964)..................... 36 First National Maint. Corp. v. NLRB, 452 U.S. 666 (1981).................................... 5 Foley Education Association v. Independent School District, 353 N.W.2d 917 (Minn. 1984) ................................................................................................ 5 Ex parte Fowler, 863 So. 2d 1136 (La. 2001) ........................................................ 24 Galloway Township Board of Education v. Galloway Township Education Association, 393 A.2d 218 (N.J. 1978)............................................................... 5 Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979)............................................. 19 Georgetown-Ridge School District 4 v. IELRB, 606 N.E.2d 667 (Ill. App. 1992) ................................................................................................................... 5 Gibraltar School District v. Gibraltar Mespa Transport, 505 N.W.2d 214 (Mich. 1993) ....................................................................................................... 5
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Gresham Grade Teachers Association v. Gresham Grade School District No. 4, 630 P.2d 1304 (Ore. App. 1981).............................................................. 5 Hanabusa v. Lingle, 119 Hawai`i 341, 198 P.3d 604 (2008) ............................................................................ 21, 22, 23, 44, 40, 41, 45 Hanabusa v. Lingle, 119 Hawai`i 341, 198 P.3d 604 (2008) ............................................................................ 21, 22, 23, 44, 40, 41, 45 Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawai`i 197, 239 P.3d 1 (2010)................................................7, 10, 21, 23, 28, 34, 43, 44, 46 Hawaii Pub. Emp. Rel. Bd. v. Hawaii State Teachers Ass’n, 54 Haw. 531, 544, 511 P.2d 1080, 1087 (1973)................................................................ 21, 44 Hawaii State Teachers Association v. Abercrombie, 126 Hawai`i 318, 271 P.3d 613 (2012).................................................................. 7, 26, 34, 46 Hawaii State Teachers Association v. Hawaii Labor Relations Board, No. SCPW-11-0000640, 2011 WL 4469826 (Sept. 27, 2011) ............................................... 18, 19, 45, 46 Indiana Education Employment Rels. Board v. Mill Creek Classroom Teachers Association, 456 N.E.2d 709 (Ind. 1983)............................................ 5 Inouye v. Board of Trustees of Employees' Ret. System, 4 Haw. App. 526, 669 P.2d 638 (App. 1983)................................................................................. 19 International Brotherhood of Electrical Workers, Local 1357 v. Hawaiian Telegraph Co., 68 Hawai`i 316, 713 P.2d 943 (1986)...................................... 30 International Federal of Professional and Technology Engineers v. State Personnel Board, 736 P.2d 280 (Wash. App. 1987)........................................... 5 Jack Endo Electrical, Inc. v. Siegler, Inc., 59 Haw. 612, 585 P.2d 1265 (1978) ................................................................................................................ 31 James W. Glover, Ltd. v. Fong, 39 Haw. 308 (1952) ............................................ 23 Jefferson County v. Wisconsin Employment Rel. Commission, 523 N.W.2d 172 (Wisc. App. 1994) .......................................................................... 5
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Keen v. Mirabile, 264 N.Y.S.2d 995 (N.Y. Sup. 1965) ................................... 22, 41 Kema v. Gaddis, 91 Hawai`i 200, 982 P.2d 334 (1999) ........................................ 21 Kissam v. Williamson, 545 S.W.2d 265 (Tex. App. 1976) ............................. 22, 41 Kumalae v. Kalauokalani, 25 Haw. 1 (1919) ......................................................... 22 Lansing Fire Fighters Union Local 421 v. City of Lansing, 349 N.W.2d 253 (Mich. App. 1984)................................................................. 36 Liberty County Officers Ass'n v. Liberty County Texas, 1999 WL 817527 (Tex. App. 1999)................................................................................................. 5 MCI Telecommunications Corp. v. F.C.C., 627 F.2d 322 (D.C. Cir. 1980).......... 42 Mahiai v. Suwa, 69 Hawai`i 349, 742 P.2d 359 (1987)......................................... 30 Maine v. Maine Labor Rel. Board, 413 A.2d 510 (Maine 1980)............................. 5 Marshall Const. Co. v. Bigelow, 29 Haw. 48 (1929) ....................................... 23, 40 Marsland v. Town, 66 Haw. 516, 668 P.2d 25 (1983), overruled on..................... 22 Midwest Gas Users Association v. FERC, 833 F.2d 341 (D.C. Cir. 1987) ................................................................................................ 41 NLRB v. Katz, 369 U.S. 736 (1962) .................................................................. 5, 33 N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938) ................ 20, 44 Naipo v. Border, 125 Hawai`i 31, 251 P.3d 594 (2011) .................................. 21, 22 Natural Resources Defense Council, Inc. v. New York City, Department of Sanitation, 630 N.E.2d 653 (N.Y. 1994) .......................................................... 31 New Castle County Vocational Technology Education Association v. Board of Education, 451 A.2d 1156 (Del. App. 1982)....................................... 5 Palea v. Rice, 34 Haw. 150 (1937)................................................................... 23, 40
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Perry v. Planning Commission of the County of Hawaii, 62 Haw. 666, 619 P.2d 95 (1980)................................................................................................... 31 Petition of Public Service Coordinated Transport, 247 A.2d 888 (N.J. Sup. Ad. D. 1968) ..................................................................................................... 28 Philadelphia Housing Authority v. Pennsylvania Labor Rel. Board, 620 A.2d 594 (Pa. Commw. 1993) ............................................................................ 5 Professional Staff Congress/Cuny v. Board of Higher Education of City of New York, 373 N.Y.S.2d 453 (N.Y. App. 1975) ............................................... 5 Raysay Travel, Inc. v. Kondo, 53 Haw. 671, 995 P.2d 1172 (1972) ..................... 23 Salam v. Board of Professional Engineers, 946 So. 2d 48 (Fla. 2007) .................. 24 Salling v. Moon, 76 Hawai`i 273, 874 P.2d 1098 (1994) ...................................... 19 Ex parte Sanders, 659 So. 2d 1036 (La. 1995)....................................................... 24 School Committee of Newton v. Labor Relations Commission, 447 N.E.2d 1201 (Mass. 1983) .............................................................................................. 5 Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn. 1984) ................................................................................................................... 5 Sobiloff Brothers v. Hebert, 120 A. 60 (R.I. 1923)................................................ 22 State ex rel. Cosmos Broadcasting Corp. v. Brown, 471 N.E.2d 874 (Ohio App. 1984) ........................................................................................................ 24 State Ex Rel. Kaneshiro v. Huddy, 82 Hawai`i 188, 921 P.2d 108 (1996)............ 22 State ex rel. Stewart v. Reid, 45 So. 103 (La. 1907) ........................................ 22, 40 State v. Haugen, 104 Hawai`i 71, 85 P.3d 178 (2004)........................................... 29 State v. Higa, 79 Hawaii 1, 897 P.2d 928 (1995)................................................... 32 State v. Himuro, 70 Haw. 103, 761 P.2d 1148 (1988) ........................................... 31 State v. Lotis, 91 Hawai`i 319, 984 P.2d 78 (1999) ............................................... 30
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State v. Sanders, 102 Hawai`i 326, 76 P.3d 569 (2003) ........................................ 22 Sussel v. City and County of Honolulu Civil Service Commission, 71 Haw. 101, 784 P.2d 867 (1989).................................................................................. 24 Swanton Local School Dist. Bd. of Educ. v. State Employment Rel. Bd., 1989 WL 515890 at 5 (Ohio App. 1989)............................................................ 5 Telecommunications Research and Action Center v. Federal Communications Commission, 750 F.2d 70 (1984) ................................... 24, 42 United Public Workers, AFSCME, Local 646, AFL-CIO v. Jeffrey Harris et al., Case No. CE-01-390, Order No. 1643 (Dec. July 8, 1998) .................... 38 United Public Workers, AFSCME, Local 646, AFL-CIO v. Linda Lingle, Case No. CE-01-716a ....................................................................................... 39 United Public Workers, AFSCME, Local 646, AFL-CIO v. Yamashiro, Case Nos. CE-01-260.................................................................................. 37, 38 United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai`i 46, 62 P.3d 189 (2002)................................................. 2, 10, 17, 37 University of Hawaii Professional Assembly v. Tomasu, 79 Hawai`i 154, 900 P.2d 161 (1995)...................................................................................... 5, 33 Van Buren Public School District v. Wayne County Circuit Judge, 232 N.W.2d 278 (Mich. App. 1975)........................................................................ 37 In Re Wai`ola O Moloka`i Inc., 103 Hawai`i 401, 83 P.3d 664 (2004)................. 30 Wallace v. Wallace, 352 So. 2d 1376 (Ala. 1977) ................................................. 24 West Hartford Education Association v. DeCourcy, 295 A.2d 526 (Conn. 1972) ................................................................................................................... 5 Williams v. Hawaii Medical Service Association, 71 Hawai`i 545, 798 P.2d 442 (1990)......................................................................................................... 30

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Wiredata, Inc. v. Village of Sussex, 729 N.W.2d 757 (Wisc. App. 2007), affirmed in part, revered in part on other grounds, 751 N.W.2d 736 (2008) ................................................................................................................ 40 Withrow v. Larkin, 421 U.S. 35, 46 (1975) ........................................................... 24 Young Properties Corp. v. United Equity Corp., 534 F.2d 847 (9th Cir. 1976), cert denied, 429 U.S. 830 (1976)........................................................... 35 BOOKS Random House College Dictionary, (Rev. ed. 1980)............................................. 29

HAWAII SESSION LAWS 2000 Haw. Sess. L. Act 253 ..................................................................... 8, 9, 29, 36 1999 Hawaii Session Laws..................................................................................... 10 1982 Haw. Sess. L. Act 27 ....................................................................................... 7

HAWAII ADMINISTRATIVE RULES Hawaii Administrative Rule § 12-42-2 .................................................................... 7 Hawaii Administrative Rule § 12-42-46 .................................................................. 8

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S.C. NO. _______ IN THE SUPREME COURT OF THE STATE OF HAWAII Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents. (1:139) PETITIONER HAWAII STATE TEACHERS ASSOCIATION'S PETITION FOR WRIT OF MANDAMUS I. INTRODUCTION The Hawaii State Teachers Association (HSTA, Association, or Petitioner) in behalf of 12,486 teachers and other personnel (App. 7-410) of the Department of Education, State of Hawaii (Employer), and as the exclusive bargaining representative of bargaining unit 5 employees (App. 7-235 to 7-236), hereby files this petition for writ of mandamus pursuant to Rule 21 of the Hawaii Rules of Appellate Procedure and Section 602-5 (a) (4), Hawaii Revised Statutes (HRS), directed to the Hawaii Labor Relations Board, James B. Nicholson, chairperson of the Board and Rock Ley, a member of the Board (HLRB, Board, or Respondents).1 The Board’s three-month delay in deciding case CE-05-781 after the final hearing deprives HSTA of having its constitutional challenges
The third Board member, Sesnita Moepono recused herself from the case. (App. 17-4 to 17-9). The recusal of the member Moepono leaves chairperson James Nicholson and member Rock Ley in the case. Under Section 89-5 (e), HRS, states “[a]ny action taken by the board shall be by a simple majority of the members of the board. All decisions of the board shall be reduced to writing and shall state separately its findings of fact and conclusions.”
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) ) ) ) ) ) ) ) ) ) ) ) ) )

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

heard by the circuit court. HSTA filed its prohibited practice complaint with the Board alleging in part constitutional violations by the legislature and/or public employer’s conduct in negotiations under Article XIII Section 2. Respondents' refusal to make and file an order or decision promptly after the final hearing in prohibited practice complaint number CE-05-781 also denies HSTA and its members the right to strike over the negotiations that remain unresolved. The final hearing to receive testimony of witnesses was held on May 10, 2012. (App. 14-141-42, 14-144, 14-152). The final hearing to receive evidence was May 17, 2012. (App. 14-144, 149-50). The parties and intervenor memorandums of law and any proposed findings of fact and conclusions of law and order were filed on June 15, 2012. (App. 14-154). With no decision or order by the Board to date, HSTA lacks other lawful means to adequately redress the wrongs caused by the undue delay before the Board. II. STATEMENT OF FACTS A. The Relevant Collective Bargaining History and Background The constitutional “right to organize for the purpose of collective bargaining” was granted in Hawaii to persons in private employment in 1950. (App. 7157). In 1968 the framers extended that right “as prescribed by law” to “persons in public employment.” (App. 7-166). The intent and object of the 1968 constitutional convention was “to extend to public employees similar rights to collective bargaining previously adopted for private persons.” United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai`i 46, 54, 62 P.3d 189, 197 (2002). (App. 7-177). In 1970 the legislature enacted the public sector collective bargaining statute in chapter 89. (App. 7-218 to 7234). Hawaii is one of five states in the nation, including New York, Florida, Missouri, and New Jersey, which affords constitutional protection for collective bargaining. Yogi, 101 Hawai`i at 51, 62 P.3d at 194. (App. 7-174). Chapter 89, HRS, grants to public employees the “right” to organize and join employee organizations (App. 7-222), to share in the decision making process
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affecting wages, hours, and working conditions (App. 7-219 to 7-220), through duly elected and certified exclusive bargaining representatives (App. 7-227 to 7-228), in thirteen separate and independent bargaining units. (App. 7-225). On May 19, 1971 teachers and other personnel of the department of education, formed, joined and chose HSTA as their exclusive representative (App. 7-237), and the Association was duly certified as the exclusive bargaining representative on May 21, 1971. (App. 7-237 to 7238). From February 9, 1972 to the present HSTA has negotiated approximately sixteen (16) successive bargaining agreements with representatives of the State of Hawaii, setting forth the wages, hours, and other conditions of employment for bargaining unit employees. (App. 7-237 to 7-249, App. 7-296 to 7-382). This Court has long recognized the underlying “public policy” adopted in chapter 89, and the importance of the duty to bargain in good faith in fulfilling the fundamental aim of collective bargaining in Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P.2d 809 (1974). In our opinion the law on collective bargaining in public employment, without ambiguity, clearly requires both the public employer and the exclusive representative of the public employees to bargain (negotiate) collectively in good faith. The need for good faith bargaining or negotiation is fundamental in bringing to fruition the legislatively declared policy ‘to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government.’ Thus, the proper construction of HRS § 89-2(12) is that ‘impasse’ means failure of a public employer and an exclusive representative to achieve agreement in the course of good-faith negotiations (bargaining). (Emphasis added). 56 Haw. at 87, 528 P.2d at 811. In a case involving HSTA and the State of Hawaii (the same parties involved herein), the Court upheld a circuit court decision reversing a labor board decision finding the existence of an impasse in negotiations (App. 7-271 to 7-272), because the agency had failed to determine whether the parties in negotiations had exhausted the duty to bargain in good faith before declaring impasse and resorting to self help. (App. 7-268 to 7-270). 56 Haw. at 87, 528 P.2d at 811. The Supreme Court rejected

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the view that an impasse could be declared without good faith bargaining, and imposed the burden of establishing compliance with the duty on the party contending that impasse exists. We cannot subscribe to appellant's construction of HRS § 89-2(12) that “impasse” ‘could be the failure of a public employer and an exclusive representative to achieve agreement without good-faith bargaining or negotiation.’ Such a construction would totally destroy the efficacy of the law on ‘collective bargaining in public employment’ and give to public employees the power to strike arbitrarily and capriciously. We are of the further opinion that the Hawaii Public Employment Relations Board (HPERB), on its own motion, under the provisions of HRS § 89-11(b), can declare that an impasse exists only after it initially reaches a determination that, at the very least, the party contending that an impasse exists (be it the public employer or the exclusive representative of the public employees) has been bargaining in good faith. (Emphasis added). 56 Haw. at 87-88, 528 P.2d at 811. In the aforementioned dispute, it was HSTA who sought to engage in self-help prematurely without bargaining in good faith before declaring an impasse in negotiations. (App. 7-259). In the present case now pending before the Board in Case No. CE-05-781 it is the employer who declared impasse and engaged in self help measures by unilaterally implementing changes in wages, hours, and working conditions, allegedly without first bargaining in good faith. (App. 7-35). The dispute stems from a decision by the public employer to declare an impasse in negotiations with HSTA on June 3, 2011, twenty seven days prior to the expiration of the July 1, 2009 to June 30, 2011 unit 5 collective bargaining agreement (App. 7-121; App. 7-696), a decision to unilaterally implement a five percent cut in wages and benefits on June 21, 2011, nine days prior the expiration of the agreement (App. 7-815 to 7-816), and a decision to notify employees of the specific unilateral changes on June 23, 2011, and to implement those changes without good faith bargaining (App. 7-818 to 7-819), seven days prior to the expiration of the agreement. (App. 7-372).

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As our Supreme Court held in Univ. of Hawaii Prof’l Assembly v. Tomasu, 79 Hawai`i 154, 159, 900 P.2d 161, 166 (1995), unilateral changes of this nature without bargaining in good faith is prohibited under chapter 89. The duty to bargain arises in two circumstances potentially applicable to this decision: First, the obligation to bargain collectively forbids unilateral action by the employer with respect to pay rates, wages, hours of employment, or other conditions of employment during the term of a labor contract, even if the action is taken in good faith. It is well established that an employer's unilateral action in altering the terms and conditions of employment, without first giving notice to and conferring in good faith with the union constitutes an unlawful refusal to bargain. See, e.g., NLRB v. Katz, 369 U.S. 736, 737, 82 S.Ct. 1107, 1108, 8 L.Ed.2d 230 (1962) (unilateral implementation of automatic wages increases, changes in sick-leave benefits and numerous merit increases violated the statutorily imposed duty to bargain collectively); Burlington Fire Fighters Ass'n v. City of Burlington, 142 Vt. 434, 457 A.2d 642 (1983) (principle that unilateral imposition of terms of employment is a violation of duty to bargain is equally applicable to public sector bargaining); First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981). Therefore, when the employer attempts to promulgate a policy that will affect bargainable topics, the employer cannot do so without first initiating bargaining on such topics. (Emphasis added). 79 Hawai`i at 159, 900 P.2d at 166. The Katz doctrine adopted in Tomasu, 79 Hawai`i at 159, 900 P.2d at 1166, is now well established in approximately twenty two (22) other states where public sector collective bargaining exists.2
See Alaska Public Employees Ass'n v. Dep’t of Admin., 776 P.2d 1030, 1033 (Alaska 1989); Calif. State Employees' Ass'n, CSU v. PERB, 59 Cal. Rptr. 2d 488, 497 (Ca. App. 1996); West Hartford Educ. Ass'n v. DeCourcy, 295 A.2d 526, 541 (Conn. 1972); New Castle County Vocational Tech. Educ. Ass'n v. Bd. of Educ., 451 A.2d 1156, 1162 (Del. App. 1982); City of Ocala v. Marion County Police Benevolent Ass'n, 392 So. 2d 26, 29, 31 (Fl. App. 1980); Georgetown-Ridge School Dist. 4 v. IELRB, 606 N.E.2d 667, 687 (Ill. App. 1992); Indiana Educ. Employment Rels. Bd. v. Mill Creek Classroom Teachers Ass’n, 456 N.E.2d 709, 712-13 (Ind. 1983); Maine v. Maine Labor Rel. Bd., 413 A.2d 510, 515 (Maine 1980); School Committee of Newton v. Labor Relations Comm'n, 447 N.E.2d 1201, 1211 (Mass. 1983); Gibraltar School Dist. v. Gibraltar Mespa_Transp., 505 N.W.2d 214, (Mich. 1993); Foley Educ. Ass'n v. Independent School Dist., 353 N.W.2d 917, 920 (Minn. 1984); Appeal of City of Nashua Bd. of Educ., 695 A.2d 647, 650, 651 (N.H. 1997); Prof’l Staff Congress/Cuny v. Bd. of Higher Educ. of City of New York, 373 N.Y.S.2d 453, 455 (N.Y. App. 1975); Galloway 5
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B. The Role, Authority, and Responsibilities of the Hawaii Labor Relations Board The 1970 collective bargaining statutes required the creation of a labor board to administer the provisions of chapter 89 (App. 7-220; see Section 89-1 (b) (3), HRS), consisting of representatives of “management,” “labor,” and the “public.” (App. 7223; see Section 89-5 (b), HRS). The Board was charged with the resolution of “controversies under this chapter,” “conducting proceedings on complaints of prohibited practices,” and to “take such actions with respect thereto as it deems necessary and proper.” (App. 7-224; see Section 89-5 (i), (3), (4), HRS). Chapter 89 states that all actions taken by the board “shall be by a simple majority of the members of the board” and “all decisions of the board shall be reduced to writing and shall state separately its findings of fact and conclusions.” (App. 7-223; Section 89-5 (e), HRS). Prohibited practices by employers were enumerated in Section 89-13 (a) (1) through (8), HRS (App. 7-232; see Section 89-13 (a) (1) through (10), HRS), and prohibited practices by employees or employee organizations were set forth in Section 89-13 (b) (1) through (5), HRS. (App. 7-232). The Board was authorized “to adopt rules relative to the exercise of its powers and authority and to govern the proceedings before it in accordance with chapter 91.” (App. 7-225, Section 89-5 (i) (9), HRS). Initially Section 89-14, HRS, provided that “any controversy concerning prohibited practices may be submitted to the board in the same manner and with the same effect as provided in section 377-9” (App. 7-232). The statute was amended in 1982 to expressly state that “the board shall have exclusive original jurisdiction” over any
Township Bd. of Educ. v. Galloway Township Educ. Ass'n, 393 A.2d 218, 230 (N.J. 1978); Swanton Local School Dist. Bd. of Educ. v. State Employment Rel. Bd., 1989 WL 515890 at 5 (Ohio App. 1989); Gresham Grade Teachers Ass'n v. Gresham Grade School Dist. No. 4, 630 P.2d 1304, 1308 (Ore. App. 1981); Philadelphia Housing Auth. v. Pennsylvania Labor Rel. Bd., 620 A.2d 594, 599, 600 (Pa. Commw. 1993); Smith County Educ. Ass'n v. Anderson, 676 S.W.2d 328, 339 (Tenn. 1984); Liberty County Officers Ass’n v. Liberty County Texas, 1999 WL 817527 *3 (Tex. App. 1999); Burlington Fire Fighters Ass'n v. City of Burlington, 457 A.2d 642, 643 (Vt. 1983); Int'l Fed. of Prof’l and Tech. Engineers v. State Personnel Bd., 736 P.2d 280, 287 (Wash. App. 1987); Jefferson County v. Wisconsin Employment Rel. Comm'n, 523 N.W.2d 172, 176 (Wisc. App. 1994). 6

controversy concerning prohibited practices. 1982 Haw. Sess. L. Act 27, at 38. In Hawaii Government Employees Ass'n, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawai`i 197, 239 P.3d 1 (2010), the Court clarified that the Board has the exclusive original jurisdiction to address statutory issues first before the circuit court may address any constitutional issues presented by the interpretation and application of chapter 89.3 Id. at 210, 239 P.3d at 14; See also Hawaii State Teachers Ass’n v. Abercrombie, 126 Hawai`i 318, 271 P.3d 613 (2012). The procedures and practices before the Board are set forth in Section 3779, HRS, Section 89-5 (i), HRS, and Board rules and regulations which were promulgated on February 6, 1981 “to effectuate the purpose of chapter 89, HRS, and to secure the just and speedy determination of every proceeding.” See Hawaii Administrative Rule (HAR) § 12-42-2 (Emphasis added). Section 377-9 (d), HRS, states in relevant portions as follows regarding the Board’s duty at the conclusion of a hearing on a prohibited practice complaint: § 377-9 Prevention of unfair labor practices (d) After the final hearing, the board shall promptly make and file an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added). HRS § 377-9 (d).

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

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In prohibited practice proceedings the Hawaii Labor Relations Board is required to conduct hearings on the merits of the controversy no later than forty (40) days from the date a complaint or amended complaint has been filed. Section 377-9 (b), HRS, states in relevant portions as follows: § 377-9. Prevention of unfair labor practices . . . (b) . . . The board shall fix a time for the hearing on the complaint, which shall be not less than ten nor more than forty days after the filing of the complaint or amendment thereof, and notice shall be given to each party by service on the party personally or by mailing a copy thereof to the party at the party's last known post office address at least ten days before the hearing. . . . (Emphasis added). The time deadlines are also set forth in Hawaii Administrative Rule (HAR) § 12-42-46 as follows: § 12-42-46 Notice of hearing. (a) The board shall issue written notice of hearing upon the parties. The initial notice of hearing shall be served personally or by registered or certified mail with return receipt requested. The notice shall include a statement of the date, time, place and nature of hearing, and such other information in accordance with section 91-9, HRS. (b) The hearing shall be held not less than ten nor more than forty days after the filing of the complaint or amendment thereof. (Emphasis added). HAR § 12-42-46. During the 2000 legislative session the collective bargaining (and civil service) statutes were reviewed as part of the effort to reform employment laws in Hawaii to better implement “two constitutional mandates - that there be a civil service based on merit and that public employees have the right to bargain collectively.” 2000 Haw. Sess. L. Act 253, § 1, at 853. Lawmakers adopted a significant and material change in Section 89-5 (i), HRS, by requiring the Hawaii Labor Relations Board to execute and perform all of its responsibilities in a timely and expeditious manner. 2000 Haw. Sess. L. Act 253, § 95, at 890-92. Section 89-5 (i), HRS, was amended to add subsection 10 which states as follows:
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§ 89-5. Hawaii labor relations board. ... (i) In addition to the powers and functions provided in other sections of this chapter, the board shall: .... (10) Execute all of its responsibilities in a timely manner so as to facilitate and expedite the resolution of issues before it. (Emphasis added). 2000 Haw. Sess. L. Act 253, § 95, at 892. C. The Prohibited Practice Proceeding in Case No. CE-05-781 On July 8, 2011 HSTA filed a verified complaint for prohibited practices against Neil Abercrombie, Kalbert Young, Neil Dietz, Kathryn Matayoshi, Donald Horner, and James Williams (Employer) in Case No. CE-05-781. (App. 1-1 to 1-37, see 1-3 on verification). HSTA alleged that the claims presented “arise under Hawaii Revised Statutes (HRS) chapter 89 in connection with collective bargaining over wages, hours, and other terms and conditions for the July 1, 2011 to June 30, 2013 agreement applicable to teachers and other personnel of the department of education, and a challenge to the constitutionality of a statewide governmental policy to unilaterally implement a five percent (5%) salary reduction, to decrease employer contributions for health care benefits from sixty to fifty percent of premium rates, and to withdraw from the bargaining process core subjects of collective bargaining which impinge upon the constitutional rights of employees.” (App. 1-5). The complaint sets forth five separate counts, including count I that the employer improperly established and implemented a “statewide governmental policy” (App. 1-22 to 1-28), count II that employer adopted a “take it or leave it” approach to bargaining and used unlawful and improper threats (App. 1-28 to 1-30), count III that employer repudiated an agreement entered on April 27, 2011 on how to proceed in negotiations and engaged in unlawful discrimination (App. 1-30 to 1-32), count IV that employer directly dealt with employees to undermine the role of HSTA as the exclusive bargaining representative (App. 1-32 to App. 1-34), and count V that the employer committed multiple breaches of the duty to bargain in good faith including implementing
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unilateral changes in wages, hours, and terms and conditions of employment without bargaining in good faith before declaring impasse. (App. 1-34 to 1-35). In its prayer for relief complainant sought, inter alia, interlocutory and injunctive relief against employer to restore the status quo prior to impasse. (App. 1-36 to 1-37). The complaint was served by the Board on July 11, 2011 on the employer in the case. (App. 2-1 to App. 2-2). The employer filed an answer to the complaint on July 21, 2011. (App. 5). Of particular emphasis to this petition, the complaint challenged the constitutionality of a statewide governmental policy to unilaterally implement a five percent (5%) salary reduction and noted the circuit court’s original jurisdiction over that issue. (App. 1-5, 1-22, 1-23, 1-27). The complaint alleged that the conduct of the legislature and administration withdrew from the bargaining process core subjects of collective bargaining which impinge upon the constitutional rights of public employees. (App. 1-5, 1-27). Under Hawaii Government Employees Ass’n v. Abercrombie, 124 Hawai`i 197, 239 P.3d 1 (2010), these constitutional claims cannot even be considered until an agency appeal can be taken to the circuit court from a final decision of the Board. Id. at 208, 239 P.3d at 208. The complaint revisits the issue decided in United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai`i 46, 62 P.3d 189 (2002), where the Supreme Court invalidated a legislatively established wage freeze from 1999 to 2001 established in Act 100, § 2, at 368-69, 1999 Hawaii Session Laws. (App. 1-22 to 123). HSTA’s complaint pointed out that the Court held that the legislative action was contrary to the purpose and intent of Article XIII, Section 2 of the State Constitution. 101 Hawai`i at 54, 62 P.3d at 197. (App. 1-22 to 1-23). The complaint alleges that Respondents Abercrombie and Young proposed to the legislature and obtained support for and acceptance of a statewide governmental policy (by the legislature) to reduce salaries of all public employees from July 1, 2011 to June 30, 2013 by not less than five percent, and to decrease employer contributions to health care benefits to all public employees from 60% to 50% of premium rates established by the Hawaii EmployerUnion Health Benefits Fund, and Respondents Abercrombie, Young, Dietz, Horner,
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Williams, and Matayoshi unlawfully and unilaterally implemented said policy in violation of the rights of public employees under Article XIII, Section 2 of the State Constitution and HRS chapter 89. (App. 1-19 ¶ 59; See also App. 1-27- to 1-28 ¶¶ 6566). 1. The Motions for Interlocutory Relief, to Shorten Time, and to Expedite On July 18, 2011 HSTA filed a motion for interlocutory relief which was

supported by the verified complaint, a declaration of Wilfred Okabe, the Association's president, and exhibits 1 through 71. (App. 3). The motion requested the board for a status quo order as follows: “[E]njoining Neil Abercrombie, Kalbert Young, Neil Dietz, Kathryn Matayoshi, Donald Horner, and James Williams (Respondents or Employer), their agents, representatives, employees, assigns, and other persons acting in their interest in dealing with public employees, individually and collectively (1) from refusing to meet at reasonable times to negotiate in good faith with respect to wages, hours, and other terms and conditions of employment for the July 1, 2011 to June 30, 2013 collective bargaining agreement for unit 5 employees, (2) from implementing unilateral changes without good faith bargaining to Article XVI (work year) on teacher initiated activities prior to the start of the 2011-2012 school year on July 28, 2011 and July 29, 2011, and teacher institute day for October 10, 2011 to October 14, 2011, (3) from implementing unilateral changes without good faith bargaining to a December 23, 2010 memorandum of agreement regarding employer and employee contributions for health benefit plans through monthly payroll deductions effective August 5 and 20, 2011, and thereafter, and (4) from implementing unilateral changes without good faith bargaining to Article XVII (salaries) through monthly payroll reductions for ten (10) month employees effective August 20, 2011, and for twelve (12) month employees effective August 5 and 20, 2011, and thereafter.” (Emphasis added). (App. 3-1 to 3-2). On July 25, 2011 HSTA filed an amended motion for interlocutory relief (App. 7-1 to 7-2), supported by affidavits from Wilfred Okabe, Joan Lee Husted, Wilbert Holck, Jr., Paul A. Tom, Wylyn B.K. Auna, and Rebecca Covert, and a declaration of Lawrence Dennis III (App. 7-109 to 7-154), exhibits 1 through 77 (App. 7-155 to 7-979),

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and a memorandum in support of the motion.4 (App. 7-5 to 7-108). The memorandum stated the scope of the requested relief (App. 7-5 to 7-6), provided a detailed statement of the case (App. 7-6 to 7-38), cited relevant constitutional and statutory provisions (App. 738 to 7-43), described the applicable standard of review (App. 7-43 to 7-45), presented argument on the facts and law to establish the likelihood of prevailing on the merits of count I regarding the statewide governmental policy (App. 7-45 to 7-55), of count II on the “take-it-or-leave it” approach and threats by the employer (App. 7-55 to 7-66), of count III on repudiation and unlawful discrimination (App. 7-66 to 7-76), on count IV regarding direct dealing with employees (App. 7-76 to 7-82), on count V regarding the duty to bargain (App. 7-82 to 7-98), explained how the rights of employees would be irreparably harmed by the absence of interlocutory relief (App. 7-98 to 7-104), and why the public interest would be furthered by the issuance of interlocutory relief. (App. 7-104 to 7-108). On July 26, 2011 at 7:52 a.m. HSTA filed a motion to shorten time to hear the motion for interlocutory relief and to expedite resolution of issues before the board. (App. 8). The motion was supported by an affidavit of counsel (App. 8-3 to 8-7) which indicated, inter alia, that the absence of a timely hearing and ruling on the amended motion for interlocutory relief would deprive teachers and other personnel of due process and a right to be heard before employer unilaterally implemented changes in wages, hours, and working conditions on July 28, 2011 and July 29, 2011 (App. 8-5, see paragraph 7), that Section 377-9 (b), HRS, entitled the parties to a hearing on the merits no later than August 17, 2011 (App. 8-6, see paragraph 8b), and that unless the Board “executed all of its responsibilities in a timely manner so as to facilitate and expedite the resolution of the issues before it” public employees represented by HSTA would be severely prejudiced. (App. 8-6 to 8-7, at paragraphs 9 and 10). Employer did not oppose
On July 20, 2011 the employer filed a motion to extend the time to respond to HSTA's motion. (App. 4). The Board granted the employer's motion on July 22, 2011 in Order No. 2808. (App. 6; App. 8-4). 12
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the July 26, 2011 motion, but the Board declined to hear the motion for interlocutory relief before July 28, 2011 and July 29, 2011. (App. 9-3). On August 1, 2011 the employer filed its opposition to the amended motion for interlocutory relief (App. 10), supported by the declarations of Annette Anderson, Kalbert Young, Neil Dietz, Kathryn Matayoshi, Lea Albert and James Halvorson. (App. 10-84 to 10-133), exhibits A through 00 (App. 10-134 to 10-420), and a memorandum in opposition. (App. 10-14 to 10-83). The memorandum provided a “factual background” (App. 10-15 to 10-24), and presented argument on the absence of irreparable harm because of monetary relief being involved (App. 10-24 to 10-28), on how the public interest requires the injunction be denied (App. 10-28 to 10-29), and on how HSTA cannot demonstrate likelihood of success on the merits as to count I (App. 10-30 to 1036; 10-40 to 10-44; App. 10-65 to 10-67; App. 10-7l to 10-74; App. 10-74 to 10-82), count II on take it or leave it bargaining and threats (App. 10-36 to 10-39), count IV regarding direct dealing (App. 10-67 to 10-7l)), and count V (App. 10-39 to 10-40; App. 10-44 to 10-46; App. 10-47 to 10-65) of the complaint.5 On August 9, 2011 HSTA filed a reply brief in support of the amended motion for interlocutory relief. (App. 12). The reply added an affidavit of Alvin Nagasako, Georgiana Alvaro and Rebecca L. Covert (App. 12-35 to 12-63), exhibits 83 to 88 (App. 12-64 to 12-191), and a memorandum of fact and law responding to employer's contentions regarding the merits of the claims in count I (App. 12-4 to 12-13), in count II (App. 12-13 to 12-15), in count III (App. 12-15 to 12-16), in count IV (App. 12-17 to 12-2), in count V (App. 12-20 to 12-24), the balance of irreparable harm (App. 12-24 to 12-30), and the public interest factor on injunctive relief. (App. 12-30 to 12-34). Upon filing the amended motion for interlocutory relief on July 25, 2010 HSTA filed a motion to shorten time to hear the amended motion for interlocutory relief
A review of the employer’s opposition to the amended motion for interlocutory relief indicates that no argument was made as to Count III on repudiation and unlawful discrimination. 13
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and to expedite resolution of issues before the Board. (App. 8). At the pre-hearing conference held on August 5, 2011 the Board scheduled oral argument for August 10, 2011 on inter alia the amended motion for interlocutory relief and the motion to shorten time and expedite proceedings. (App. 11-5). On August 10, 2011 oral argument in support and in opposition of the motion for interlocutory relief was heard by the Board. (App. 13-22 to 13-112). On the motion to shorten time, the employer claimed the motion was moot, and the Board stated “[w]e'll deal with that and issue an order in due course.” (App. 9-3). No ruling or order has yet to be issued on HSTA’s amended motion for interlocutory relief.6 (See App. 19). 2. The Board Hears Evidence on The Merits and Concludes the Hearing In evidentiary hearings on the merits of the complaint commenced on

August 30, 2011 in CE-05-781. (App. 14-1, 14-5). Testimony was received over approximately thirty five days of hearings. (App. 14). Those testifying were James Williams (App. 14-3, 14-8, 14-12, 14-16), Donald Horner (App. 14-20, 14-24), Bruce Coppa (App. 14-28), Neil Dietz (App. 14-28, 14-32, 14-36, 14-40), Kathryn Matayoshi (App. 14-44, 14-48, 14-52), Kalbert Young (App. 14-56, 14-60), Neal Miyahira (App. 14-64), Ralph Schultz (App. 14-64, 14-68, 14-72), Susan Keliikuloa (App. 14-72), Annette Anderson (App. 14-76, 14-80, 14-84, 14-88, 14-92, 14-96, 14-100), Erin Nakamura (App. 14-100), Amy Asselbaye (App. 14-104), Andrew Aoki (App. 14-104), Paul Tom (App. 14-104), Elynne Chung (App. 14-108), Laurie Sogawa (App. 14-108), Joan Husted (App. 14-108), Georgiana Alvaro (App. 14-113, 14-133), Wylyn Auna (App. 14-117), Roberta Yamamoto (App. 14-117), Paul Daugherty (App. 14-121), Wilbert Holck (App. 14-121), Alvin Nagasako (App. 14-125), Dennis Tynan (App. 14129), Wil Okabe (App. 14-138), and Raymond Camacho. (App. 14-142). In the midst of
On August 31, 2011 the Board filed its Order Denying Complainant’s Motion To Shorten Time To Hear Motion For Interlocutory Relief And To Expedite Issue Before The Board, filed on July 26, 2011. (App. 19-13). HSTA filed an appeal from the August 31, 2011 order which is now on appeal to the Intermediate Court of Appeals in ICA No. CAAP-11-1107, fully briefed. 14
6

the hearings the employer filed a motion to expedite the proceedings. (Compare App. 14 with App. 19-17). The Board has not ruled on that motion. (See App. 19). The last witness testified on May 10, 2012. (App. 14-141-42, 14-144, 14152). On May 17, 2012 questions of the exhibits were resolved. (App. 14-144, 149-50). The Board set June 15, 2012 as the deadline for the parties to submit post-hearing briefs. (App. 14-154). HSTA requested to file a proposed findings of fact, conclusions of law and order. (See App. 14-153). On June 15, 2012 the respective post-hearing memorandum were filed by HSTA (App. 15), the employer (App. 17), and intervenor (App. 18), and HSTA filed its proposed findings of fact, conclusions of law and order. (App. 16). HSTA argued that the testimony of the witnesses and the documentary evidence established five (5) critical stages of the bargaining process where the employer willfully interfered, restrained and coerced teachers and other personnel of the Department of Education (DOE) in the exercise of their statutory and constitutional rights, retaliated and discriminated against them for engaging in protected activity, breached their obligation to negotiate in good faith, and violated the terms of provisions of prior agreements entered with HSTA. (See App. 15-3). The five stages of the bargaining process were: 1. From October 29, 2010 when the employer opened all articles and appendices of the bargaining unit 5 agreement to afford the new state administration the opportunity to amend the agreement consistent with its policies and goals, and culminated in the setting of uniform terms on cost items for all bargaining units in the closing days of the 2011 legislative session, imposing a government-wide policy. (App. 15-3 to 15-17). On the morning of April 27, 2011, continuing into the afternoon, and ending in the early evening hours of the same day during which time the HSTA negotiating team was told it was “crunch time” or “make or break time,” and was presented a “final settlement offer” consisting of a 5% labor cost savings and 50-50 on health benefit contributions, was told that the final offer would be taken off the table at the expiration of 24 hours (from a meeting with the legislator
15

2.

3.

4.

5.

on April 26, 2011) unless accepted, and was informed that those bargaining units not accepting the offer by the end of day would be confronting a 10% across-the-board cut in the budget and “nasty things in the work environment,” including loss of jobs in the DOE, imposing a “take it or leave it” position in bargaining. (App. 15-17 to 15-23). On the late evening of April 27, 2011 and continuing over six bargaining sessions thereafter, a June 17, 2011 meeting, and after June 21, 2011 when the HSTA board voted not to approve the labor cost savings provisions offered by the employer, at which point the respondents refused to negotiate further and repudiated paragraphs 5 and 6 of an April 27, 2011 agreement between the parties by unilaterally implementing a five percent wage reduction to accomplish budget reductions and an increase in employee health benefit contributions from 40% to 50% and engaging in retaliation and discrimination towards Unit 5 employees, compared to employees in other units who also did not reach an agreement before June 30, 2011 when their contracts expired. (App. 15-24 to 15-37). On or about June 23, 2011 when respondent Matayoshi sent a letter addressed to each and every teacher and other employees in bargaining unit 5 setting forth changes in their wages, hours, and other terms and conditions of employment to become effective July 1, 2011, engaging in direct dealing with the employees. (App. 15-37 to App. 15-41). On or about June 21, 2011 when Employer respondents issued a “notice of unilateral implementation” which stated: “the Board of Education and Superintendent of Education, with the concurrence of the Governor will be implementing the June 9, 2011 Last, Best, and Final Settlement Offer, and the June 17, 2011, Tentative Agreements Executed by the Employer,” and by other acts resulting in the respondents breach of the duty to bargain. (App. 15-41 to App. 1552). Specific to the constitutional claims related to the first stage of the

(See also App. 16).

Employer respondents’ conduct, HSTA pointed out the following fact scenario: 1. On February 4, 2011 the Governor raised the issue and indicated that his administration's position was to achieve a 5% labor cost savings with all public sector unions. The position included reduction in employees’ wages and increases in health benefit contributions by
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2.

3.

4.

5.

employees. It was a “uniform” and “unaltered position” which had been formulated before Neil Dietz became chief negotiator. It was a “consistent position” to be adhered to by the chief negotiator with all unions. (App. 15-5). On or about April 28, 2011 what emerged was a measure intended to mandate the State to obtain labor cost savings from all bargaining units amounting to $88.2 Million per year in Section 96 of the Budget and to implement further reductions in employer contributions for health benefits in Section 97 of the Budget. (App. 15-6). Section 96 of the Budget stated: “Notwithstanding any provision to the contrary, the director of finance, with the approval of the governor, shall transfer into retirement benefit - state (BUF 741) $88,200,000 for fiscal year 2011-2012 and $88,200,000 for fiscal year 2012-2013 for labor savings attributable to collective bargaining agreements for all bargaining units[.] (App. 15-6) (emphasis added). The Governor signed the foregoing provision into law on June 23, 2011. The budget was also based on an across the board reduction of employer contributions to 50% of premium rates. The law has been construed by State officials to be a “mandate” for labor cost savings which the employer is duty bound to achieve for each bargaining unit. (App. 15-7). The requirement that “collective bargaining agreements for all bargaining units” contain a provision “for labor cost savings” equivalent to a one day furlough a month valued at $88.2 million per year and a “uniform” and “unaltered position” that all bargaining unit employees be subject to a 5% wage cut and a 50-50 split in health premium rates is an unconstitutional infringement of the rights of public employees in violation of Article XIII, Section 2 of the State Constitution. (See App. 15-11). See Yogi, 101 Hawai`i at 56, 62 P.3d at 199.

Despite HSTA’s motion to expedite filed at the outset of the proceedings (which was denied) (App. 7, App. 19-13), and the employer’s motion to expedite the proceedings filed in December 2011 (App. 19-17), the Board has not issued its decision. Three months have passed since the briefs were filed and HSTA remains without relief and

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remedy from these constitutional violations and without the right to leverage any strike action as an economic tool in negotiations. (App. 1). D. HSTA Earlier Pursuit Of A Writ of Mandamus For Immediate Interlocutory Ruling On August 29, 2011 HSTA filed a petition for a writ of mandamus from the Board proceedings specific to its request for preliminary interlocutory relief in the case.7 (See App. 20). On September 27, 2011 the Supreme Court entered its order finding HSTA was not entitled to mandamus relief under the standard for granting mandamus relief. Id. Upon consideration of the petition for a writ of mandamus filed by petitioner Hawaii State Teachers Association and the papers in support, it appears that: (1) no statute or rule prescribes a time in which respondent Hawaii Labor Relations Board (HLRB) must resolve a motion for interlocutory relief and absent such prescribed time, the “timely” resolution under HRS § 89–5(i)(10) (Supp. 2010) of petitioner's motion for interlocutory relief is within the discretion and judgment of respondent HLRB and is not a ministerial duty subject to mandamus; (2) HRS § 377– 9(d) (Supp. 2010) requires “prompt” filing of a final order, not an interlocutory order; and (3) there is no evidence that respondent HLRB's ruling on petitioner's motion for interlocutory relief, when issued, will not be supported by “findings of fact and conclusions” pursuant to HRS § 89– 5(e) (Supp. 2010). (Emphasis added). Id. The Supreme Court also found that as to other prohibited practice complaints of HSTA against the employer pending with the Board, “HRS § 89–12(b)(2) (Supp. 2010) requires resolution only of Case No. CE–05–781 before petitioner may exercise its right to strike.” Id.

HSTA also requested mandamus relief (1) to facilitate and expedite the determination of the rights of the parties in a written decision with separate findings of fact and conclusions of law in a motion submitted on August 10, 2011, (2) to make full, prompt, and complete disclosure of private communications with the employer, and (3) to expedite and exhaust twelve other pending proceedings to prevent prohibited practices between HSTA and the employer in multiple cases. See Hawaii State Teachers Ass’n v. Hawaii Labor Relations Board, No. SCPW-11-0000640, 2011 WL 4469826 (Sept. 27, 2011) (App. 20). These issues are not raised in this mandamus petition. 18

7

On the discretionary standard in a petition for mandamus, the Court cited two recent case. See id.; See also In re Disciplinary Bd. of Hawaii Supreme Court, 91 Hawai`i 363, 368, 984 P.2d 688, 693 (1999) (noting that mandamus relief is available to compel an official to perform a duty allegedly owed to an individual only if the individual's claim is clear and certain, the official's duty is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available) and Salling v. Moon, 76 Hawai`i 273, 274 n. 3, 874 P.2d 1098, 1099 n. 3 (1994) (quoting from the case: “A duty is ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion and judgment.”). (App. 20). E. The Absence of Other Available Lawful Relief and Prejudice to Employee Rights As noted above, until the Board issues its order or decision in CE-05-781, HSTA’s counts of constitutional violations cannot even start to be heard by the Circuit Court. Absent a decision by they Board, public employees also lack the right of self-help, i.e., to strike (under Section 89-12 (b) (2), HRS), in response to the employer's unilateral course of conduct under challenge due to the board’s failure to act promptly in Case No. CE-05-781. (See App. 20-2). Under the existing statutory scheme a party in a prohibited practice proceeding who is aggrieved has no right to obtain judicial review in the circuit court until “a final decision and order in a contested case” has been rendered or until the Board enters “a preliminary ruling of the nature that deferral of review pending entry of the subsequent final decision would deprive appellant of adequate relief.” See Sections 377-9 (f), and 91-14 (a), HRS. A decision and order is “final” when it ends the proceedings “leaving nothing further to be accomplished.” Gealon v. Keala, 60 Haw. 513, 520, 591 P.2d 621, 626 (1979). Judicial reviews of preliminary rulings by an agency are a rare exception to the general rule that court intervention await a “final order.” See Inouye v. Bd. of Trustees of Employees' Ret. Sys., 4 Haw. App. 526, 530, 669 P.2d 638, 641 (App. 1983). Absent a “final order” the circuit court lacks jurisdiction to review an

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agency decision and action by HLRB. In re Hawaii Gov't Employees' Ass'n, Local 152, AFSCME, AFL-CIO, 63 Haw. 85, 87, 621 P.2d 361, 363 (1980).8 Under established law in the private sector the parties to the collective bargaining process have various economic weapons available to resolve labor disputes, including the lock out, see American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965), and the right to strike in response to unfair labor practices committed by an employer. See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). But HSTA's lawful rights and remedies to address the employer's decision to engage in selfhelp measures announced on June 21, 2011 (App. 7-815 to 816), and implemented on June 23, 2011 (App. 7-818 to 7-819), are statutorily restricted by Section 89-12 (b), HRS. In our public sector the legislature restricted the right to strike in Section 89-12 (b) (7), HRS, by conditioning the right of an employee to participate in a strike upon the exhaustion of proceedings for the prevention of prohibited practices. § 89-12. Strikes, rights and prohibitions. (a) It shall be unlawful for any employee to participate in a strike if the employee: (1) Is not included in the appropriate bargaining unit involved in an impasse; or (2) Is included in the appropriate bargaining unit involved in an impasse that has been referred to arbitration for a decision; (b) It shall be lawful for an employee, who is not prohibited from striking under subsection (a) and who is in the appropriate bargaining unit involved in an impasse, to participate in a strike under the following conditions: (1) The requirements of section 89-11 relating to the resolution of disputes have been complied with in good faith; (2) The proceedings for the prevention of any prohibited practices have been exhausted; (3) The collective bargaining agreement and any extension of the agreement has expired; and
However, once the circuit court's jurisdiction is invoked Section 377-9 (i), HRS, states: “[p]etitions filed under this section shall have preference over any civil cause of a different nature pending in the circuit court, shall be heard expeditiously, and the circuit courts shall always be deemed open for the trial thereof.” 20
8

(4) The exclusive representative has given a ten-day notice of intent to strike, together with a statement of its position on all remaining issues in dispute, to the employer and the board. Within three days of receipt of the notice of intent to strike, the employer shall submit its position on the remaining issues in dispute that are included in the statement transmitted by the exclusive representative with its notice of intent to strike. The board shall immediately release the information on the positions of the parties to the public. (Emphasis added). See Hawaii Pub. Emp. Rel. Bd. v. Hawaii State Teachers Ass’n, 54 Haw. 531, 544, 511 P.2d 1080, 1087 (1973) (where the court held that Section 89-12 (a), HRS, prohibited HSTA from striking over a dispute over which the parties had voluntarily agreed to submit to interest arbitration under Section 89-11 (a), HRS). III. STANDARD OF DISPOSITION A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner first demonstrates a clear and indisputable right to relief and a lack of other means adequately to redress the alleged wrong or obtain the requested action. Barnett v. Broderick, 84 Hawai`i 109, 111, 929 P.2d 1359, 1361 (1996); Hanabusa v. Lingle, 119 Hawai`i 341, 346, 198 P.3d 604, 609 (2008); Naipo v. Border, 125 Hawai`i 31, 34, 251 P.3d 594, 597 (2011). Hawaii courts have recognized that mandamus relief is available under several distinct circumstances. See HRS § 602-5(a)(4) (“To exercise original jurisdiction in all questions arising under writs directed to courts of inferior jurisdiction . . . or if the supreme court consents to receive the cases arising under writs of mandamus directed to public officers to compel them to fulfill the duties of their offices[.]”). Writs directed to lower courts are permissible where a judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which it has a legal duty to act. Kema v. Gaddis, 91 Hawai`i 200, 204, 982 P.2d 334, 338 (1999) (noting that such writs are not meant to supersede the legal discretionary authority of the lower court, nor are they meant to serve as legal remedies in lieu of normal appellate

21

procedures). Mandamus is also an appropriate remedy where the court below has failed “to follow statutory rules,” Marsland v. Town, 66 Haw. 516, 523, 668 P.2d 25, 30 (1983), overruled on other grounds, State v. Sanders, 102 Hawai`i 326, 76 P.3d 569 (2003), has disregarded court rules and orders, Barnett, 84 Hawai`i at 111, 929 P.2d at 1361, or misapplied the law, State Ex Rel. Kaneshiro v. Huddy, 82 Hawai`i 188, 194, 921 P.2d 108, 114 (1996). In addition, mandamus is available in extraordinary situations where no right of immediate appeal exists to restore rights or privileges which have been illegally deprived. Naipo, 125 Hawai`i at 35, 251 P.3d at 598, citing Abrams v. Cades, Schutte, Fleming & Wright, 88 Hawai`i 319, 323, 323, 966 P.2d 631, 635 (1998). Historically, where there are unreasonable delays in the adjudication of cases writs of mandamus have issued “to fix a case for trial, for a day certain, and to try it,” State ex rel. Stewart v. Reid, 45 So. 103, 109 (La. 1907), to “command an inferior judicial tribunal to act in a matter pending before it, wherein the parties appear to have been unreasonably delayed,” Sobiloff Bros. v. Hebert, 120 A. 60, 61 (R.I. 1923), to “decide and adjudicate all of the aforementioned cases and submit decisions in these cases . . . within sixty days,” Commonwealth ex. rel. Duff v. Keenan, 33 A.2d 244, 251 (Pa. 1943), to “set the case down for trial for a specific day certain and then to decide the action upon the facts and evidence presented before it,” Keen v. Mirabile, 264 N.Y.S.2d 995, 998 (N.Y. Sup. 1965), and “perform his duty to rule” whether “his power to determine the matter be called judicial, administrative or political,” Kissam v. Williamson, 545 S.W.2d 265, 266 (Tex. App. 1976). Writs of mandamus may also be directed to compel a public official to perform a duty owed to an individual if the individual's claim is clear and certain, the official's duty is ministerial, and no other remedy is available. Hanabusa v. Lingle, 119 Hawai`i 341, 347, 198 P.3d 604, 610 (2008). Thus, writs of mandamus have been issued to a minister of finance to prevent sales of bonds for less than par, in Castle v. Kepana, 5 Haw. 27, 30 (1884), to a county canvassing officer to issue certificates of election, in Kumalae v. Kalauokalani, 25 Haw. 1, 9 (1919), to a board of harbor commissioners to
22

award a bid on a contract to the lowest responsible bidder in Marshall Const. Co. v. Bigelow, 29 Haw. 48, 60 (1929), to a board of trustees of a pension fund for neglecting to enlarge the amount of pension payments consistent with legislation, in Palea v. Rice, 34 Haw. 150, 156 (1937), to an auditor to draw warrants in payment of claims for balance due on a completed contract, in James W. Glover, Ltd. v. Fong, 39 Haw. 308 (1952), to the director of taxation to collect general excise taxes from airlines, in Raysay Travel, Inc. v. Kondo, 53 Haw. 671, 995 P.2d 1172 (1972), and to the governor for unreasonable delay in the nomination and appointments of member of the board of regent to the University of Hawai`i, in Hanabusa, 119 Hawai`i at 351, 198 P 3d at 614. “One of the principal offices of mandamus is to remedy official inaction.” Palea v. Rice, 34 Haw. 150, 156 (1937). Where an official’s duty encompasses a mandate to act, mandamus relief is appropriate to compel action if the official fails to act within a reasonable time or refuses to act as the purpose behind mandamus relief “is to prevent a denial of justice, and it therefore issues in all cases where the law has assigned no specific relief by the ordinary means, or even where a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it, and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever.” Marshall Const. Co. v. Bigelow, 29 Haw. 48, 59-60 (1926). A public officer's duty to act “is enforceable by mandamus when the duty is ‘postponed unreasonably’ and not performed after the passage of an ‘unreasonable period of time.’” Hanabusa, 119 Hawai`i at 351, 198 P.3d at 614. In granting writs of mandamus for unreasonable delays before administrative agencies courts have recognized that “due process of law implies not merely an opportunity to be heard, but also opportunity to be heard with reasonable promptness.” Allen v. State of West Virginia, Human Rights Comm’n, 324 S.E.2d 99, 116 (W.Va. 1984). Courts have interfered with the normal progression of agency proceedings to correct “transparent violations of a clear duty to act” In re Bluewater
23

Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000), because “[i]t is obvious that the benefits of agency expertise and the creation of a record will not be realized if an agency never takes action.” Telecommunications Research and Action Center v. Federal

Communications Comm’n, 750 F.2d 70, 79 (1984). “There is ‘no per se rule as to how long is too long’ to wait for agency action, but a reasonable time for agency action is typically counted in weeks or months, not years.” In re American Rivers and Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (citing In re Int’l Chem Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)). “By definition, a claim of unreasonable delay cannot await final agency action before judicial review, since it is the very lack of agency action which gives rise to the complaint.” Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81, 85 (D.C. Cir. 1984). Delays in formal hearings where statute set a specific time frame, i.e., 15 days, are enforceable by writ of mandamus. Salam v. Bd. of Prof’l Engineers, 946 So. 2d 48 (Fla. 2007). “Long delays in the adjudication of labor-management cases may indeed render decisions eventually issued, or relief ultimately awarded, ‘beside the point.’” In American Fed’n of Gov’t Employees, AFL-CIO, 790 F.2d 116 (D.C. Cir. 1986), citing Weiler, Promises to Keep: Securing Workers Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, at 1794 (1983). A writ of mandamus is a proper method of challenging noncompliance with judicial canons where impartiality could reasonably be questioned. Ex parte Fowler, 863 So. 2d 1136, 1141 (La. 2001); Ex parte Sanders, 659 So. 2d 1036 (La. 1995); Wallace v. Wallace, 352 So. 2d 1376 (Ala. 1977). Mandamus may issue to direct compliance with the judicial canons. State ex rel. Cosmos Broadcasting Corp. v. Brown, 471 N.E.2d 874 (Ohio App. 1984). In Hawaii, the Code of Judicial Conduct has been found to be applicable to administrative agencies are required to hold contested case hearings. See Sussel v. City and County of Honolulu Civil Service Comm'n, 71 Haw. 101, 107-09, 784 P.2d 867, 870-71 (1989) (Since the fundamentals of just procedure impose a requirement of impartiality on “administrative agencies which adjudicate as well as [on] courts[,]” Withrow v. Larkin, 421 U.S. 35, 46 (1975), we see no reason why an administrative adjudicator should be allowed to sit with impunity in a case
24

where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on his impartiality. IV. STATEMENT OF ISSUES PRESENTED AND THE RELIEF SOUGHT The following is a statement of the issues presented by the petition for mandamus and a discussion of the relief sought by petitioner: 1. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the merits of the prohibited practice complaint filed by HSTA on July 8, 2011 in Case No. CE-05-781 particularly where the complaint alleges constitutional challenges that cannot be heard by a circuit court until after HLRB’s review? The first issue is presented by reason of Respondents’ purposeful refusal to consider and determine the merits of the allegations in the prohibited practice complaint filed by HSTA on July 8, 2011 (App. 1), following the conclusion of the evidentiary hearing on May 17, 2012 and the post-hearing briefs filed on June 15, 2012. (App. 14-154 to 14155, App. 15 through 18). The statute is very clear in requiring the Board to expeditiously decide the merits once the hearings on the proceeding are done. § 377-9 Prevention of unfair labor practices .... (d) After the final hearing, the board shall promptly make and file an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added). Since no final ruling has been rendered by Respondents in the three plus months that have elapsed, HSTA requests a writ ordering Respondents to render a just and prompt decision and order on the prohibited practice complaint in CE-05-781. The necessity for a prompt decision by the HLRB is further supported by the constitutional claims contained in the HSTA complaint. (App. 1-5, 1-22, 1-23, 1-27).

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The complaint alleged that the conduct of the legislature and administration withdrew from the bargaining process core subjects of collective bargaining which impinge upon the constitutional rights of public employees. (App. 1-5, 1-27). The complaint alleges that Respondents Abercrombie and Young proposed to the legislature and obtained support for and acceptance of a statewide governmental policy (by the legislature) to reduce salaries of all public employees from July 1, 2011 to June 30, 2013 by not less than five percent, and to decrease employer contributions to health care benefits to all public employees from 60% to 50% of premium rates established by the Hawaii EmployerUnion Health Benefits Fund, and Respondents Abercrombie, Young, Dietz, Horner, Williams, and Matayoshi unlawfully and unilaterally implemented said policy in violation of the rights of public employees under Article XIII, Section 2 of the State Constitution and HRS chapter 89. (App. 1-19 ¶ 59; See also App. 1-27- to 1-28 ¶¶ 6566). Until HLRB has reviewed and decided the statutory allegations, the claims and relief sought from constitutional violations goes unheard. See Hawaii Government Employees Ass'n, AFSCME Local 152, AFL-CIO, 124 Hawai`i at 210, 239 P.3d at 14; Hawaii State Teachers Ass’n v. Abercrombie, 126 Hawai`i 318, 271 P.3d 613 (2012). 2. Whether the Hawaii Labor Relations Board has a duty to render a just and speedy decision or order after the final hearing on May 17, 2012 and June 15, 2012 when the post-hearing briefs were filed on the prayer for injunctive relief and the motions for interlocutory orders raised by HSTA in the prohibited practice proceeding? The second issue is presented by reason of Respondents’ continue refusal to consider and determine HSTA’s request for injunctive relief, (App. 1-36, App. 3-1 to 3-2, App. 7). In HSTA’s motion for interlocutory relief filed on July 18, 2011 HSTA sought to maintain the status quo in bargaining. HSTA informed the Board of the scope of the allegations arising from unlawful conduct by respondents including the respondents’ unilateral changes as announced on June 21, 2011 (App. 7-815 to 7-817), and on June 23, 2011 (App. 7-818 to 7-819) in wages, hours, and working conditions that altered the

26

bargaining relationship and deprived HSTA members of their rights and benefits under the law. (App. 7-2). Section 377-9 provides with respect to motions for interlocutory relief, § 377-9 Prevention of unfair labor practices (d) After the final hearing, the board shall promptly make and file an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added). One issue raised by the complaint is whether HSTA is entitled to injunctive relief. App. 1-36. The Board never ruled on that motion (App. 19), but concluded the evidentiary hearing in May 2012. (App. 14-154 to 14-155). Since no final ruling on HSTA’s request for injunctive relief has been rendered by Respondents up to the present despite conclusion of the hearings and submissions of the briefs, HSTA requests a writ ordering Respondents to render a just and prompt decision and order on the prayer for injunctive relief and the motions for injunctive relief filed in CE-05-781. V. STATEMENT OF REASONS FOR THE WRIT A. HLRB HAS A DUTY TO DETERMINE THE ISSUES PRESENTED BY HSTA'S PROHIBITED PRACTICE COMPLAINT PROMPTLY As a review and analysis of the statutes, rules and regulations, and case law governing proceedings to prevent prohibited practices indicate petitioner has a clear and indisputable right to a just and speedy determination once the prohibited practice complaint in CE-05-781 was submitted to the Board in May 2012. (App. 14-154 to 14155). Petitioner lacks other means adequately to redress the wrong caused by Respondents' refusal to render a prompt decision and order. (See App. 20). Chapter 89 sets forth a public policy “to promote harmonious and cooperative relations between government and its employees to protect the public by assuring effective and orderly

27

operations of government.” See HRS § 89-1. In construing chapters 89 and 377, HRS, this Court has adopted the following interpretive guidelines: First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. And fifth, in construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. (Emphasis added). Hawaii Gov't Employees Ass'n, AFSCME, Local 152, AFL-CIO v. Lingle, 124 Hawai`i 197, 202, 239 P.3d 1, 6 (2010). The Board respondents delay in issuing its decision and order violates the duty spelled out for it by the legislature. First, the statutory framework requires prompt action by the Board in a proceeding after the final hearing. The legislature, inter alia, created the Hawaii Labor Relations Board “to administer the provisions of chapters 89 and 377.” Section 89-1 (b) (3), HRS. Among its powers and functions the Board has “exclusive original jurisdiction” to determine controversies over prohibited practices in the same manner and with the same effect as provided in Section 377-9, HRS, under Section 89-14, HRS. Section 89-5 (i) (3) and (4), HRS, expressly grants to the Board the authority to “resolve controversies under chapter 89” and “to conduct proceedings on complaints of prohibited practices by employers . . . and take such action with respect thereto as necessary and proper.”9 Section 89-1 (a), HRS.

The words “necessary and proper” mean appropriate and adapted to carrying into effect a given object. Petition of Public Service Coordinated Transport, 247 A.2d 888, 891 (N.J. Sup. Ad. D. 1968). 28

9

In 2000 the legislature, as part of a reform of employment laws to implement the constitutional right of public employees to collective bargaining (Haw. Sess. L. Act 253, § 1 at 853), amended Section 89-5, HRS, as follows: § 89-5. Hawaii labor relations board. . . . (i) In addition to the powers and functions provided in other sections of this chapter, the board shall: .... (10) Execute all of its responsibilities in a timely manner so as to facilitate and expedite the resolution of issues before it. (Emphasis added). 2000 Haw. Sess. L. Act 253, § 95, at 892. In Chapter 377, HRS, the legislature further directed the Board’s duty to quickly decide proceedings. Section 377-9 (d), HRS, in the first sentence contains the word “promptly” where it refers to the making and filing of final orders and decisions rendered by the Board. These terms “expedite,” HRS § 89-5 (i) (10), and “prompt,” HRS § 377-9 (d), have a well recognized meaning, which are plain, unambiguous, and explicit: Expedite. v.t. 1. to speed up the progress of; hasten. 2. to accomplish promptly, as a piece of business, dispatch. 3. to issue or dispatch, as an official document, letter, etc. – adj. 4. Obs. ready for action; alert. * * * Prompt. adj. 1. done, delivered, etc. without delay: a prompt reply. 2. quick to act or respond. – v.t. 3. to induce (someone) to action. 4. to occasion or inspire (an act). 5. to supply (an actor or reciter) with his forgotten lines, lyrics, or the like. – v.i. 6. to supply forgotten lines, lyrics, or the like to an actor, singer, etc. – n. 7. Com. a time limit given for the payment of a debt. 8. the act of prompting. 9. something serving to suggest or remind. – promptly. adv. Random House College Dictionary, 465, 1059, 1376 (Rev. ed. 1980). It is a cardinal rule of statutory interpretation that “where the terms of a statute are plain, unambiguous, and explicit, we are not at liberty to look beyond the language for a different meaning.” State v. Haugen, 104 Hawai`i 71, 75, 85 P.3d 178, 182 (2004). Here, based on the clear language of the statute, Respondents have a duty to act in a “timely manner” so as to “facilitate and expedite” the resolution of the issues before it as submitted by the prohibited practice complaint filed July 8, 2011.
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Second, it is axiomatic that administrative rules have the force and effect of law. State v. Lotis, 91 Hawai`i 319, 984 P.2d 78 (1999); Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972). The Hawaii Administrative Rules (HAR) provide in relevant portions as follows: § 12-42-2 Construction of rules. This chapter shall be liberally construed to effectuate the purpose of chapter 89, HRS, and to secure the just and speedy determination of every proceedings. .... § 12-42-48 Interlocutory order. Pending the final determination of the controversy the board may after hearing, make interlocutory orders which may be enforced in the same manner as final orders. (Emphasis added). In this case three months have lapsed since the filing of post-hearing briefs after the conclusion of the final hearing a month prior and the Board has not issued its “determination” of the proceeding in CE-05-781. The general principles of construction which apply to statutes also apply to administrative rules. Cabatbat v. County of Hawaii, Dept. of Water Supply, 103 Hawai`i 1, 78 P.3d 756 (2003); In Re Wai`ola O Moloka`i Inc., 103 Hawai`i 401, 425, 83 P.3d 664 (2004); Mahiai v. Suwa, 69 Hawai`i 349, 742 P.2d 359 (1987). As in statutory construction, courts look first at an administrative rule's language. Int'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68 Hawai`i 316, 323, 713 P.2d 943, 950 (1986) (citing 1A Sutherland Statutory Construction §§ 31.06 at 532 (4th ed. 1985 Rev.). In the absence of “a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Kaiama v. Aguilar, 67 Hawai`i 549, 553, 696 P.2d 839, 842 (1985)); see also Brown v. Thompson, 91 Hawai`i 1, 9, 979 P.2d 586, 594 (1999). Furthermore, courts strive to give meaning to all parts of an administrative rule and to avoid construing any part as superfluous. Williams v. Hawaii Medical Service Ass'n, 71 Hawai`i 545, 550, 798 P.2d 442, 445 (1990) (citing Int’l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Telephone Co., 68 Hawai`i at 316, 713 P.2d at 947).

30

By the use of the word “shall” HAR § 12-4-2 indicates a mandatory purpose and object. State v. Himuro, 70 Haw. 103, 105, 761 P.2d 1148, 1149 (1988); Matter of Fasi, 63 Haw. 624, 626, 634 P.2d 98, 100-01 (1981); Jack Endo Elec., Inc. v. Siegler, Inc., 59 Haw. 612, 616, 585 P.2d 1265, 1269 (1978); Perry v. Planning Comm'n of the County of Hawaii, 62 Haw. 666, 676, 619 P.2d 95, 103 (1980); Natural Resources Defense Council, Inc. v. New York City, Dept of Sanitation, 630 N.E.2d 653 (N.Y. 1994). The Board, therefore, is bound by the mandate under HAR § 12-4-2 which states that “[t]his chapter shall be liberally construed to effectuate the purpose of chapter 89, HRS, and to secure the just and speedy determination of every proceeding.” (Emphasis added). Although HAR § 12-42-48 does not specify a time frame within which prohibited practice complaints and pleas and motions for interlocutory orders should be rendered, the rule must be construed liberally to effectuate the purpose of chapter 89, HRS, and to secure the just and speedy determination of every proceeding. In this case the delay is made evident not only by the lapse of time since the final hearing but also by the fact the Board has in effect had even more then the three plus months to become familiar with the legal issues and facts. As a result of HSTA’s motion for interlocutory relief the Board received extensive briefing on the appropriateness of injunctive relief, at the outset of the case, including oral argument on August 10, 2011 in support and in opposition of the motion for interlocutory relief that argued inter alia the legal merits of the complaint. (App. 13-22 to 13-82; App. 13). HSTA counsel addressed the applicable standard (App. 13-22 to 13-23), the threshold question of who has the burden of establishing good faith bargaining where one party declares impasse and implements a last, best, and final offer (App. 13-23 to 13-26), discussed the merits of count I (App. 13-27 to 13-39), count II (App. 13-39 to 13-46), count III (App. 13-46 to 13-55), count IV (App. 13-55 to 13-63), count V (App. 13-64 to 13-72), and addressed the factor of irreparable harm to the parties (App. 13-74 to 13-78), and the public interest factor. (App. 13-78 to 13-82). HSTA noted in its oral argument that it lacks the right to strike at present. (App. 13-81). Counsel for employer emphasized the significance of the
31

budget shortfall (App. 13-96 to 13-97), made a point about the burden of proof (App. 1397 and 13-98), referred to the irreparable harm (App. 13-98 to 13-99), and the public interest (App. 13-99 to 13-100), and contended that before unilateral action was taken all items had been rejected by HSTA, leaving nothing. (App. 13-101). On this point counsel for HSTA submitted a rebuttal. (App. 13-110 to 13-112). Furthermore, the law in the areas raised by the HSTA’s complaint were settled in Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P. 809 (l974). In a case involving HSTA and the State of Hawaii (the same parties involved herein), the Court upheld a circuit court decision reversing a labor board decision finding the existence of an impasse in negotiations (App. 7-271 to 7-272), because the agency had failed to determine whether the parties in negotiations had exhausted the duty to bargain in good faith before declaring impasse and resorting to self help. (App. 7-268 to 7-270). 56 Haw. at 87, 528 P.2d at 811. The Supreme Court rejected the view that an impasse could be declared without good faith bargaining, and imposed the burden of establishing compliance with the duty on the party contending that impasse exists. We cannot subscribe to appellant's construction of HRS § 89-2(12) that “impasse” ‘could be the failure of a public employer and an exclusive representative to achieve agreement without good-faith bargaining or negotiation.’ Such a construction would totally destroy the efficacy of the law on ‘collective bargaining in public employment’ and give to public employees the power to strike arbitrarily and capriciously. We are of the further opinion that the Hawaii Public Employment Relations Board (HPERB), on its own motion, under the provisions of HRS § 89-11(b), can declare that an impasse exists only after it initially reaches a determination that, at the very least, the party contending that an impasse exists (be it the public employer or the exclusive representative of the public employees) has been bargaining in good faith. (Emphasis added). 56 Haw. at 87-88, 528 P.2d at 811.10
The employer is precluded by the doctrine of collateral estoppel to re-litigate the issues decided by the Supreme Court in 1974. Exotics Hawai`i-Kona, Inc. v. E.I. Dupont De Nemours & Co., 104 Hawai`i 358, 369, 90 P.3d 250, 261 (2004). The issues decided in 1974 are (a) identical to the one presented in CE-05-781, (b) there is a final judgment on the merits, (c) the 32
10

Moreover, two prior opinions of the Attorney General clearly state that upon the expiration of an agreement an employer may not implement changes in wages, hours, and working conditions. (App. 7-130 to 7-131; App. 7-411 to 7-415, June 15, 1983 opinion of Jean Chiogioji; App. 7-416 to 7-418, June 1, 1999 opinion of James Halvorson). Upon expiration of a collective bargaining agreement public employers have been advised since June 15, 1983 by the Office of the Attorney General that the terms of the most recently negotiated agreement “continues in force” (App. 7-411), and “it is the public employer's duty to maintain the ‘status quo,’ even if such responsibility is not statutorily specified.” (App. 7-411 to 7-412). The opinion further states that “to make any unilateral change at the expiration of a collective bargaining agreement constitutes a refusal to bargain in good faith.” (App. 7-413). On June 1, 1999 the Office of Attorney General reaffirmed the validity of the June 15, 1983 opinion. (App. 7-416). The opinion referred to the decision in N.L.R.B. v. Katz, 369 U.S. 736 (1962), which was followed in Tomasu, 79 Hawai`i at 159, 900 P.2d at 166 (App. 7-417). The injury to HSTA from the Board’s failure to comply with its duty to issue a prompt decision is magnified because HSTA has raised and presented a factual scenario that supports the allegations of constitutional violations but those allegations of wrongful conduct cannot be heard until there is a final ruling by the Board. See App. 1-5, 1-22, 1-23, 1-27. The complaint alleged that the conduct of the legislature and administration withdrew from the bargaining process core subjects of collective bargaining which impinge upon the constitutional rights of public employees. See App. 1-5, 1-27. The complaint alleges that Respondents Abercrombie and Young proposed to the legislature and obtained support for and acceptance of a statewide governmental

issues of burden of proof and good faith bargaining being complied with prior to impasse and self help being allowed were essential to the final judgment, and (d) the parties against whom issue preclusion is asserted are the same. (App. 7-250 to 7-278). “The doctrines of res judicata and collateral estoppel also apply to matters litigated before an administrative agency.” State v. Higa, 79 Hawaii 1, 8, 897 P.2d 928, 935 (1995) (quoting Santos v. State, 64 Haw. 648, 653, 646 P.2d 962, 966 (1982)). 33

policy (by the legislature) to reduce salaries of all public employees from July 1, 2011 to June 30, 2013 by not less than five percent, and to decrease employer contributions to health care benefits to all public employees from 60% to 50% of premium rates established by the Hawaii Employer-Union Health Benefits Fund, and Respondents Abercrombie, Young, Dietz, Horner, Williams, and Matayoshi unlawfully and unilaterally implemented said policy in violation of the rights of public employees under Article XIII, Section 2 of the State Constitution and HRS chapter 89. See App. 1-19 ¶ 59; See also App. 1-27- to 1-28 ¶¶ 65-66. Until HLRB has reviewed and decided the statutory allegations, the claims and relief sought from constitutional violations goes unheard. See Hawaii Government Employees Ass'n, AFSCME Local 152, AFL-CIO, 124 Hawai`i at 210, 239 P.3d at 14; Hawaii State Teachers Ass’n v. Abercrombie, 126 Hawai`i 318, 322, 271 P.3d 613, 617 (2012) (finding that even constitutional claims, if they arise from a “controversy concerning prohibited practices,” must first be submitted to the HLRB). B. HLRB HAS A DUTY TO RENDER A JUST AND SPEEDY DECISION ON HSTA’S PRAYER AND MOTION FOR INJUNCTIVE RELIEF In the present case respondents have unreasonably delayed the consideration, review, and ruling on the motions for injunctive relief sought by HSTA. On July 8, 2011 HSTA filed a verified complaint, setting forth in considerable detail about the factual basis for its five claims for relief. (App. 1). In the prayer for relief petitioner indicated that it would seek injunctive relief against the employer to restore the status quo prior to impasse. (App. 1-36 to 1-37). On July 18, 2011 a motion for interlocutory relief was filed to enjoin employer from implementing unilateral changes slated to occur at the commencement of the school year on or about July 28, 2011. (App. 3-1 to 3-2). Although the second sentence in Section 377-9 (d) discussed above that relates to “interlocutory orders” does not contain the word “promptly” the first sentence of the statute clearly requires the Board to promptly resolve all issues raised by the

34

prohibited practice complaint, which includes here not only findings of any unlawful conduct but injunctive and make whole relief as well. See HRS § 337-9 (d). Each of the terms “expedite,” HRS § 89-5 (i) (10), and “prompt,” HRS § 377-9 (d), must be given full force and effect for “if possible, a statute should be construed in such a way that no word is void, superfluous or insignificant.” Casumpang v. ILWU Local 142, 108 Hawai`i 411, 421, 121 P.3d 391, 401 (2005); see also Allstate Ins. Co. v. Schmidt, 104 Hawaii 261, 265, 88 P.3d 196, 200 (2004). Thus, the use of the word “promptly” in the first sentence of Section 377-9 (d), HRS, applies with equal force to the “findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties” as related to a request for injunctive and interlocutory relief once the final hearing is held. See HRS § 377-9 (d); HAR § 12-42-2 (This chapter shall be liberally construed to effectuate the purpose of chapter 89, HRS, and to secure the just and speedy determination of every proceedings) (emphasis added). Furthermore, read in the proper context, the second sentence of Section 377-9 (d), HRS, makes clear that interlocutory orders “may be enforced in the same manner as final orders.”11 As all parties presented and submitted evidence and argument on HSTA’s motion for injunctive relief, first through the motion for interlocutory relief and then in their post-hearing memorandums of law, the Board should promptly issue its decision on the injunctive relief sought by HSTA. The Board has been provided a record by which to determine all the issues presented by HSTA’s prayer and motion for injunctive relief. As noted above, in 2000 the legislature, as part of a reform of employment laws to implement the constitutional right of public employees to bargain collectively (Haw. Sess. L. Act 253, § l, at 853), amended chapter 89 to add Section 89-5 (i) (10), HRS,

An “interlocutory order” is “one which does not finally determine cause of action but decides some intervening matter pertaining to a cause and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.” Young Properties Corp. v. United Equity Corp., 534 F.2d 847, 851 (9th Cir. 1976), cert denied, 429 U.S. 830 (1976). 35

11

mandating the Board to “execute all of its responsibilities in a timely manner so as to facilitate and expedite the resolution of issues before it.” 2000 Haw. Sess. L. Act 253, § 95, at 892. A decision and order on the injunctive relief as sought by HSTA in its prayer for relief and motions for interlocutory relief is needed in light of the continuing bargaining between the parties who have yet to reach an agreement for the 2011-2013 contract period. As this Court determined nearly thirty seven years ago in Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 528 P.2d 809 (1974), the purpose of chapter 89 cannot be achieved without good faith bargaining or negotiations. In our opinion the law on collective bargaining in public employment, without ambiguity, clearly requires both the public employer and the exclusive representative of the public employees to bargain (negotiate) collectively in good faith. The need for good faith bargaining or negotiation is fundamental in bringing to fruition the legislatively declared policy ‘to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government.’ Thus, the proper construction of HRS § 89-2(12) is that ‘impasse’ means failure of a public employer and an exclusive representative to achieve agreement in the course of good-faith negotiations (bargaining). (Emphasis added). 56 Haw. at 87, 528 P.2d at 811. In the present case, petitioner seeks interlocutory relief to protect the integrity of the bargaining process (App. 3-1 to 3-2) in the face of unilateral changes to wages, hours, and other terms and conditions of employment by employer. (App. 7-815 to 7-816; App. 7-818 to 7-819). Courts have long upheld the policy of implementing the status quo ante remedy to ensure the continuation of meaningful bargaining. Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216 (1964) (the Board’s normal remedy in unlawful unilateral change cases is to order restoration of the status quo ante as a means to ensure meaningful bargaining); Lansing Fire Fighters Union Local 421 v. City of Lansing, 349 N.W.2d 253, 260 (Mich. App. 1984) (finding that the state board’s order restoring the status quo ante to insure meaningful bargaining was designed to promote the policies of
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the statute); Van Buren Public School Dist. v. Wayne County Circuit Judge, 232 N.W.2d 278, 291 (Mich. App. 1975) (finding lesser remedy would allow the employer to enjoy the fruits of its unlawful conduct, and the union would have no meaningful opportunity to have any input or leverage especially in the public sector where employees are limited as to the economic sanctions that can be utilized to resolve disputes). Hawaii courts have similarly recognized that injunctive relief is appropriate where there is a likelihood of irreparable damage to the integrity of the bargaining process, and where doing so furthers the public policy of the State “to promote harmonious and cooperative relations between government and its employees.” United Public Workers, AFSCME, Local 646, AFL-CIO et al. v. Yogi, et al., Civil No. 99-379310 (Oct. 28, 1999) (citing Bd. of Educ. v. Haw. Pub. Emp. Rel. Bd., 56 Haw. 85, 87, 528 P.2d 809, 811 (1974)). In United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi (Yogi), 101 Hawai`i 46, 62 P.3d 189 (2002), the trial court carefully reviewed each aspect of the five-count complaint and issued a permanent injunction against the employers from enforcing Section 2 of Act 100 which prohibited public employers and public employees' unions from collectively bargaining over cost items for the biennium 1999 to 2001. Id. at 48, 62 P.3d at 191. (App. 7-188 to 7-192). The Hawaii Supreme Court reviewed the language and history of this constitutional provision and held that the State could not unilaterally impose by statute a two-year wage freeze on public employees. The employers’ unilateral implementation of “core subjects” of employment violated the constitutional right of public employees “to organize for purposes of collective bargaining.” Id. at 53, 62 P.3d at 196. The Hawaii Labor Relations Board has also consistently recognized that when presented with an employer who unilaterally implemented changes in wages, benefits, and other conditions of employment without bargaining with the exclusive representative of the employees the status quo ante must be promptly restored in order to uphold the integrity of the collective bargaining process. See United Public Workers, AFSCME, Local 646, AFL-CIO v. Yamashiro, Case Nos. CE-01-260; CE-10-273; CE37

01-274, Order No. 1277 (Jan. 12, 1996) (“[T]he Board agrees with the Union that there is irreparable harm to the integrity of the negotiating process where one party unilaterally implements its policies while the subject matters are being negotiated.”) (App. 7-906 to 7-919); Lingle v. United Public Workers, AFSCME, Local 464, AFL-CIO; Case Nos. CU-01-121; CE-01-297, Order No. 1333 (May 17, 1996) (finding unilateral actions that alter the status quo ante undermine the integrity of the collective bargaining process where maintaining the status quo ante is essential to good faith negotiations) (App. 7-920 to 7948); United Public Workers, AFSCME, Local 646, AFL-CIO v. Jeffrey Harris et al., Case No. CE-01-390, Order No. 1643 (Dec. July 8, 1998) (restoring the status quo ante after finding the unilateral changes resulted in “considerable disruption to the bargaining relationship between the union and the public employers as well as uncertainty with regard to the employees’ rights.”) (App. 7-949 to 7-979). The Board’s review of whether injunctive relief is appropriate is settled law. In United Public Workers, AFSCME, Local 646, AFL-CIO v. Yamashiro, Case Nos. CE-01-260; CE-10-273; CE-01-274, Order No. 1277 (Jan. 12, 1996) the Board held that “there is irreparable harm to the integrity of the negotiating process where one party unilaterally implements its policies while the subject matters are being negotiated.” (App. 7-906 to 7-919). Repeatedly after Yamashiro, the Board has recognized the need to restore the status quo to protect the integrity of the bargaining process. See; Lingle v. United Public Workers, AFSCME, Local 464, AFL-CIO; Case Nos. CU-01-121; CE-01297, Order No. 1333 (May 17, 1996) (finding unilateral actions that alter the status quo ante undermine the integrity of the collective bargaining process where maintaining the status quo ante is essential to good faith negotiations) (App. 7-920 to 7-948); United Public Workers, AFSCME, Local 646, AFL-CIO v. Jeffrey Harris et al., Case No. CE-01390, Order No. 1643 (Dec. July 8, 1998) (restoring the status quo ante after finding the unilateral changes resulted in “considerable disruption to the bargaining relationship between the union and the public employers as well as uncertainty with regard to the employees’ rights.”) (App. 7-949 to 7-979).
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The injunctive relief HSTA seeks is supported by a public interest to promote a shared decision-making process affecting wages and working conditions. The public interest is placed in jeopardy when employers engage in direct dealing, fail to meet and bargain in good faith, and engage in acts of threats, repudiation, and unlawful discrimination – all which harm the process of collective bargaining and employees. See HRS § 89-1; See also United Public Workers, AFSCME, Local 646, AFL-CIO and Jeremy Harris, Case No. CE 01-390 (Order No. 1643, July 8, 1998) (App. 7-979 to 7979) (finding “public policy in promoting the parties to negotiate in good faith supports a finding here that the public employer be bound by actions of its agent who had apparent authority to negotiate the contract”) (App. 7-977 to 7-978); Bd. of Educ. v. Hawaii Public Emp. Relations Bd., 56 Haw. 85, 87, 528 P.2d 809 (1974). A speedy determination of the prayer and motions for injunctive type relief (App. 1, 3 & 7) is also consistent with the public interest defined by the legislature under Chapter 89, HRS. The Board has consistently followed the reasoning of the Hawaii Supreme Court in Bd. Of Education, supra, to find public interest favoring interlocutory relief where the employer has imposed unilateral changes to wages, hours, and other working conditions of public employees in the midst of or in the absence of collective bargaining. See United Public Workers, AFSCME, Local 646, AFL-CIO v. Linda Lingle, Case No. CE-01-716a and CE-10-716b (Order No. 2653, October 21, 2009) (App. 474) (holding public interest favored interlocutory relief (and so ordered) where the State, upon expiration of the collective bargaining agreement, unilaterally implemented changes to the agreement by eliminating paid leave time to attend educational and informational meeting conducted by the union) (citing Bd. of Educ. v. Hawaii Public Employment Relations Bd., 56 Haw. 85, 87, 528 P.2d 809, 811 (1974)); Lingle v. United Public Workers, AFSCME, Local 464, AFL-CIO; Case Nos. CU-01-121; CE-01-297 (Order No. 1333; May 17, 1996) (App. 7-947) (granting interlocutory relief by returning the parties to the “status quo ante” and ordering the employer to negotiate with the union in good faith over the decision to privatize refuse collection work); See also App. 7-871 to 7-873,
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App. 7-906 to 7-919, App. 7-949 to 7-979). Clearly, under the applicable statutory provisions respondents was required to act “without delay” in rendering a decision inclusive of the injunctive and interlocutory relief sought by HSTA in the proceeding. (App. 1, 3 & 7). C. HSTA MEETS THE STANDARD FOR MANDAMUS RELIEF WHERE HLRB HAS NOT MET ITS DUTY TO RENDER A PROMPT DECISION OR ORDER A mandamus in this petition is supported by the Board’s inaction since the final hearing. “One of the principal offices of mandamus is to remedy official inaction.” Palea v. Rice, 34 Haw. 150, 156 (1937). Where an official’s duty encompasses a mandate to act, mandamus relief is appropriate to compel action if the official fails to act within a reasonable time or refuses to act as the purpose behind mandamus relief “is to prevent a denial of justice, and it therefore issues in all cases where the law has assigned no specific relief by the ordinary means, or even where a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it, and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever.” Marshall Const. Co. v. Bigelow, 29 Haw. 48, 59-60 (1926). A public officer's duty to act “is enforceable by mandamus when the duty is ‘postponed unreasonably’ and not performed after the passage of an ‘unreasonable period of time.’” Hanabusa v. Lingle, 119 Hawai`i 341, 351, 198 P.3d 604, 614 (2008); See also Wiredata, Inc. v. Village of Sussex, 729 N.W.2d 757, 772-73 (Wisc. App. 2007) (finding failure of authority to promptly respond to records request constituted a denial subject to mandamus action to compel), affirmed in part, revered in part on other grounds, 751 N.W.2d 736 (2008). Courts have not hesitated to provide mandamus relief where there are unreasonable delays in official action or in the adjudication of a case. State ex rel. Stewart v. Reid, 45 So. 103, 109 (La. 1907) (mandamus issued “to fix a case for trial, for a day certain, and to try it”); Commonwealth ex. rel. Duff v. Keenan, 33 A.2d 244, 251 (Pa. 1943) (ordering a judge to consider, decide and adjudicate all of the cases in question
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within sixty days); Keen v. Mirabile, 264 N.Y.S.2d 995, 998 (N.Y. Sup. 1965) (requiring the judge to set the case down for trial for a specific day then to decide the action to a final determination upon the facts and evidence presented before it); Kissam v. Williamson, 545 S.W.2d 265, 266 (Tex. App. 1976) (requiring the judge to perform his duty to rule after a hearing on the petition had been held and taken under advisement). In Hanabusa v. Lingle, 119 Hawai`i 341, 346, 198 P.3d 604, 609 (2008), this Court held that the governor had a nondiscretionary duty to nominate and appoint six candidates to replace “holdover” members of University of Hawai‘i Board of Regents whose terms had expired. There, the governor contended that the duty was not so plainly prescribed as to be free from doubt because Article X, Section 6 and HRS §§ 304A104(a) and 304A-104.5(e) do not provide a timeline in which nominations and appointments are to be made. Id. at 350, 198 P.3d at 613. The Court however was persuaded by the reasoning in other jurisdictions finding that the governor’s duty was subject to a reasonable time standard and that a public officer's duty to act “is enforceable by mandamus when the duty is ‘postponed unreasonably’ and not performed after the passage of an ‘unreasonable period of time.’” Id. at 351, 198 P.3d at 614. While the Court in Hanabusa did not establish a bright line rule regarding how much time constituted unreasonable delay, there the governor’s ten-month delay was adjudged to be unreasonable. Id. at 352, 198 P.3d at 615. This is in accord with similar rulings in the federal circuit that have also not established a per se rule regarding how much time is too much time to constitute unreasonable delay, however, find that a reasonable time for agency action is typically counted in weeks or months, not years. In re American Rivers and Idaho Rivers United, 372 F.3d 413, 419 (C.A. D.C. 2004) (finding a six-year delay by the Federal Energy Regulatory Commission to answer petition seeking its formal consultation with environmental agency under Endangered Species Act regarding effect of hydropower operations on certain fish species to be egregious); Midwest Gas Users Ass'n v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987) (“[T]his court has stated generally that a reasonable time for an agency decision could
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encompass ‘months, occasionally a year or two, but not several years or a decade.’” (quoting MCI Telecomms. Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980)). In guiding review of agency delay under the Administrative Procedure Act, federal circuits have adopted the D.C. Circuit’s six-factor guiding test in assessing claims of agency delay as established in Telecommunications Research and Action Center v. F.C.C., 750 F.2d 70, 80 (D.C. Cir. App. 1984) (“TRAC”). The “TRAC” factors weighed by courts include: (1) the time agencies take to make decisions must be governed by a “rule of reason,” (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed. Id. at 80. Courts have interfered with the normal progression of agency proceedings to correct “transparent violations of a clear duty to act” where, for example, the TRAC factors warrant such relief. See In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (“[i]t is obvious that the benefits of agency expertise and the creation of a record will not be realized if an agency never takes action”); Air Line Pilots Ass'n, Intern. v. C.A.B., 750 F.2d 81 (D.C. Cir. 1984) (finding that judicial review of claims of unreasonable delay do not prematurely inject the courts into the agency's consideration of the merits of the issue before it and that the Board’s five year delay in adjudicating claims for unemployment assistance payments was patently unreasonable); MCI Telecommunications Corp. v. F.C.C., 627 F.2d 322, 341 (D.C. Cir. 1980) (“Many of the same considerations that impel judicial protection of the right to a “speedy trial” in criminal cases or implementation of civil decrees with all deliberate speed are not inapposite in agency deliberations.”) (footnotes omitted); see also Cave v. Elliot, 988
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A.2d 1 (Md. App. 2007) (finding, without assessing the TRAC factors, that where the agency’s own rules required a prompt hearing and the evidence showed that for some 15 months, despite constant demands, the agency steadfastly flouted that requirement by postponing the trial board hearing on the charges, the court had the power to enforce the law there by terminating the investigation and prosecution of charges). Similarly, here, although Chapter 89 does not specify any timelines in which Respondents must render a final decision, but the statute and rules applied to the Board impose the duty to promptly decide the proceeding upon the final hearing. In cases of this nature prompt, expeditious, and timely action is critical “to effectuate the purpose of chapter 89.” As this Court is aware petitioner lacks other means to adequately redress the wrong caused by Respondents' refusal to render a prompt decision and order. See App. 20; See also Hawaii Gov’t Employee's Ass'n, AFSCME, Local 152, AFL-CIO v. Lingle, 124 Hawai`i 197, 239 P.3d 1 (2010) (where the Court clarified that the Board has the exclusive original jurisdiction to address statutory issues first before the circuit court may address any constitutional issues presented by the interpretation and application of chapter 89). Under the existing statutory scheme a party in a prohibited practice proceeding who is aggrieved has no right to obtain judicial review in the circuit court until “a final decision and order in a contested case” has been rendered (or until the Board enters “a preliminary ruling of the nature that deferral of review pending entry of the subsequent final decision would deprive appellant of adequate relief.”). See Sections 377-9 (f), and 91-14 (a), HRS. HSTA's lawful rights and remedies to address the employer's decision to engage in self-help measures announced on June 21, 2011 (App. 7-815 to 816), and implemented on June 23, 2011 (App. 7-818 to 7-819), are statutorily restricted by Section 89-12 (b) (1), HRS. Under established law in the private sector the parties to the collective bargaining process have various economic weapons available to resolve labor disputes, including the lock out, see American Ship Building Co. v. N.L.R.B., 380 U.S.

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300 (1965), and the right to strike in response to unfair labor practices committed by an employer. See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). However, in the public sector the legislature restricted the right to strike in Section 89-12 (b) (7), HRS, by conditioning the right of an employee to participate in a strike upon the exhaustion of proceedings for the prevention of prohibited practices. See HRS § 89-12 (making if unlawful for any employee to participate in a strike if the proceedings for the prevention of any prohibited practices have not been exhausted). See Hawaii Pub. Emp. Rel. Bd. v. Hawaii State Teachers Ass’n, 54 Haw. 531, 544, 511 P.2d 1080, 1087 (1973) (where the court held that Section 89-12 (a), HRS, prohibited HSTA from striking over a dispute over which the parties had voluntarily agreed to submit to interest arbitration under Section 89-11 (a), HRS); App. 20. The plain reading of HRS Section 89-12(b) provides that public employees who are not prohibited by law from striking must satisfy four requirements before they may strike, one being that “proceedings for the prevention of any prohibited practices have been exhausted.” HRS §89-12(b)(2) (emphasis added). Petitioners, therefore, may strike only when the conditions of Section 89-12(b) are met. Here, as long as there remains the prohibited practice proceeding 05-CE-781 pending before the Board, Petitioner is not in a position to lawfully exercise their right to strike. Until this prohibited practice proceeding is exhausted, Section 89-12 (b) (2), HRS, prohibits employees in bargaining unit 5 from exercising the option to strike over the employers’ alleged prohibited practices as alleged in the July 8, 2011 verified complaint. Accordingly, HSTA requests a writ ordering Respondents to issue its decision and order including the prayer for injunctive relief. Given the state of the law, HSTA has shown it has a clear and indisputable right to relief to support its petition for mandamus. Here where petitioner lacks other means adequately to redress the wrong caused by Respondents' refusal to render a prompt decision and order including the injunctive relief sought by HSTA. (App. 18-95).

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Mandamus is also appropriate where HSTA’s constitutional claims go unheard. In Hanabusa v. Lingle, 119 Hawai`i 341, 198 P.3d 604 (2008), two state senators filed a petition for writ of mandamus directing then Governor Linda Lingle to nominate six candidates to replace “holdover” members of University of Hawai‘i Board of Regents (BOR) whose terms had expired. Id. at 342-43, 346, 198 P.3d at 605-06, 609. The standing of the senators to bring the mandamus action was challenged by the governor. Id. at 346, 198 P.3d at 609. The Supreme Court agreed that the senators through their role of advice and consent had a constitutional duty that was usurped by the governor’s action that allowed them to bring the mandamus action. Id. HSTA has brought to the Board's attention its request that the Board render a decision in the case in an expedited manner. See App. 8. On December 30, 2011 the Employer respondents urged the Board to expedite the case. App. 19-17. The evidentiary hearing concluded by May 17, 2012 and the parties filed their respective post-hearings briefs on June 15, 2012. Despite these requests and the final hearing, the Board has failed to issue a prompt final decision or order in the proceedings. (App. 14-144 to 14-155). Based on the recent Supreme Court rulings in the HGEA (124 Hawai`i 197, 239 P.3d 1 (2010)), and the HSTA (126 Hawai`i 318, 271 P.3d 613 (2012)) cases and the prior mandamus petition (App. 20), until the prohibited practice proceeding is exhausted in CE-05-781, Section 89-12 (b) (2), HRS, employees in bargaining unit 5 are proscribed from having their constitutional claims heard and from exercising the option to strike over the employers’ alleged prohibited practices as alleged in the July 8, 2011 verified complaint. App. 20-2. Accordingly, the elements supporting a mandamus are present to compel the Board respondents to expedite and promptly issue a decision or order in CE05-781. The order by this Court in Hawaii State Teachers Ass’n v. Hawaii Labor Relations Board, SCPW-11-0000640, 2011 WL 4469826 (Sept. 27, 2011) (App. 20), is of guidance here to support granting HSTA’s second petition for mandamus. In the first mandamus action the Court was constrained to grant the petition because HSTA sought a
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mandamus to compel the Board to rule on HSTA’s motions for interlocutory relief prior to a final hearing. Upon consideration of the petition for a writ of mandamus filed by petitioner Hawaii State Teachers Association and the papers in support, it appears that: (1) no statute or rule prescribes a time in which respondent Hawaii Labor Relations Board (HLRB) must resolve a motion for interlocutory relief and absent such prescribed time, the “timely” resolution under HRS § 89–5(i)(10) (Supp. 2010) of petitioner's motion for interlocutory relief is within the discretion and judgment of respondent HLRB and is not a ministerial duty subject to mandamus; (2) HRS § 377– 9(d) (Supp. 2010) requires “prompt” filing of a final order, not an interlocutory order[.] (Emphasis added). Id. at *1, App. 20-2. HSTA brings this petition after the final hearing in the case, and therefore the “timely” and “prompt” mandates of the legislature apply to warrant an order to direct the Board to comply and render its decision or order in CE-05-781. VI. RELEVANT STATUTORY PROVISIONS AND RULES Relevant statutory provisions, court and agency rules are attached here as Appendix 21. VII. CONCLUSIONS For the foregoing reasons petitioner requests a writ of mandamus ordering respondents to render a just and speedy decision and order on the merits of CE-05-781 and the remedy sought in the prohibited practice complaint (App. 1), including the injunctive relief sought to maintain the status quo as existed prior to the employer respondents’ declaration of impasse, pending bargaining. Dated: Honolulu, Hawaii, September 28, 2012. /s/ Rebecca L. Covert Rebecca L. Covert Herbert Takahashi Davina W. Lam Attorneys for Petitioner

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S.C. NO. _______ IN THE SUPREME COURT OF THE STATE OF HAWAII Hawaii State Teachers Association, Petitioner, and Hawaii Labor Relations Board; James B. Nicholson, Chairperson, Hawaii Labor Relations Board; and Rock B. Ley, Member, Hawaii Labor Relations Board (2012-017), Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Petitioner Hawaii State Teachers Association’s Petition for Writ of Mandamus

(01:139) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was duly served upon the following person(s) by electronic transmission through the Court’s Judiciary Electronic Filing and Service Systems (JEFS): Valri Lei Kunimoto, Esq. Hawaii Labor Relations Board 830 Punchbowl Street, Room 434 Honolulu, Hawaii 96813 Attorney for all Respondents Hawaii Labor Relations Board, James B. Nicholson and Rock B. Ley David M. Louie, Esq. The Attorney General served through Russell Suzuki, Esq. First Deputy Attorney General Robyn Chun, Esq.

Deputy Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Attorneys for The Office of the Attorney General James E. Halvorson, Esq. Richard H. Thomason, Esq. Deputy Attorneys General Department of the Attorney General Employment Law Division 235 So. Beretania Street, 15th Floor Honolulu, Hawaii 96813 Attorneys for Employer in HLRB Case No. CE-05-781

Thomas Anthony Gill, Esq. Linda M. Aragaon, Esq. David A. Sgan, Esq. Gill, Zukeran & Sgan 707 Richards Street, Suite 100 Honolulu, Hawaii 96813 Attorneys for Intervenor UHPA in HLRB Case No. CE-05-781 DATED: Honolulu, Hawaii, September 28, 2012.

/s/ Rebecca L. Covert Rebecca L. Covert Herbert Takahashi Davina W. Lam Attorneys for Petitioner

2