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NO. CAAP-18-0000782

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NATHAN MAKINO, Complainant-Appellant-Appellant,

v.

COUNTY OF HAWAI#I; UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFLCIO, Respondents-Appellees-Appellees,

and

HAWAI#I LABOR RELATIONS BOARD, STATE OF HAWAI#I (2015-009),

Agency-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CIVIL NO. 3CC171000368)

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

In this secondary appeal, Complainant-AppellantAppellant Nathan Makino appeals from the Judgment entered by the

Circuit Court of the Third Circuit on September 12, 2018.1 The

circuit court affirmed a Decision and Order of Agency-Appellee

Hawai#i Labor Relations Board (HLRB or the Board) in favor of

Respondents-Appellees-Appellees County of Hawai#i and United

Public Workers, AFSMCE, Local 646, AFL-CIO (UPW). For the

reasons explained below, we affirm the circuit court's Judgment

affirming the HLRB's Decision and Order.

1 The Honorable Greg K. Nakamura presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000782

05-APR-2023

07:46 AM

Dkt. 105 MO
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BACKGROUND

Makino worked for the County. He was a UPW member. On

January 24, 2014, Makino and a co-worker were involved in a

physical altercation while working. The County placed both

workers on administrative leave. Makino contacted UPW; he was

represented by business agent Alton Nosaka. The County

investigated the incident and prepared a written report.

By letter dated March 11, 2014, the County informed

Makino that his employment was being terminated effective

March 14, 2014. UPW filed a grievance on Makino's behalf. The

County denied the grievance. UPW filed a Step-2 grievance. The

County denied the Step-2 grievance. Before commencing Step-3

(arbitration), UPW initiated settlement discussions with the

County.

The HLRB ultimately made findings of fact concerning

the settlement discussions, all of which were supported by

substantial evidence in the record and were not clearly

erroneous:

Nosaka documented the communications and actions taken

during his representation of Makino for the January 24, 2014

incident by written notes introduced into evidence, which

with the oral testimony established the following facts:

. . . .

Nosaka spoke with the Mayor to find out if the process

could be stopped, and Makino could get his job back. On

March 6, 2014, Nosaka informed Makino of the discussion. 

. . .

On March 10, 2014, Nosaka noted after speaking with

the Mayor, who had consulted with his department heads:

Spoke to BK [Billy Kenoi]. Told me that Dept.

was upset Makino lied & spoke about

investigation when was told not to. He just

making it harder for me. Maybe give them some

time to cool off. I'll try again later. BK

asked why I like them guys come back? They have

family and it's a hardship while they're out

now.

By a March 11, 2014 letter . . . Makino was notified

by the County of his dismissal from his employment as a

Laborer II, effective March 14, 2014, and of his right to

appeal the dismissal under the [UPW collective bargaining

agreement]. . . .

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. . . .

On April 6, 2014, Nosaka called the Mayor, but there

was no answer.

On April 22, 2014, after a follow up call to the

Mayor, Nosaka noted, "No news yet. Still trying[.]"

On May 5, 2014, Nosaka made several notations

regarding Makino's case. His first entry indicated that the

status of the case had not changed. His second entry

pertained to his communication of that status to Makino, who

indicated his concern regarding his back pay:

Talked to Makino. Told him BK said it's going

to be tough bringing him back, but BK still

trying. Still grumbling he was the victim and

would take some back pay from the time he lost

his job. Some suspension. Told him I can try

ask for back pay, next time I talk to BK[.]

In his third entry, the Mayor responded to Nosaka in a

conversation regarding back pay:

Talked to BK about the back pay. He said this

guy crazy. He admitted he choked the other guy. 

He lied from the beginning. BK was "pissed" if

I convince the Dept. to bring him back we gotta

really think about the back pay. . . .

. . . .

On August 22, 2014, Nosaka spoke with the Mayor, who

proposed and inquired whether the Union might be interested

in an LCA (last chance agreement). Nosaka's response was

that he would check because he didn't know what his bosses

would say. The Mayor further inquired regarding the case

status, and Nosaka responded that the case was being

processed for arbitration. After inquiring whether the case

could be "pulled back," and receiving Nosaka's assurance

that, "[Y]es, anytime, he can pull it back," the Mayor told

Nosaka to process the arbitration.

On August 25, 2014, Nosaka told Makino that he spoke

to Kenoi, who asked if an LCA would work. Nosaka asked

Makino whether the Mayor's question regarding an LCA was

worth exploring, and Makino's response was "anything but

term." Nosaka said that he would need approval from his

bosses and get back to Makino.

On October 10, 2014, Nosaka informed Makino that there

was "[n]o word yet from BK. Will let him know as soon as

[I] hear anything."

Nosaka did talk to his "bosses" about an LCA, and

obtained approval to draft and submit the LCA to the Mayor. 

UPW Division Director Loyna Kamakeeaina and [UPW State

Director Dayton] Nakanelua reviewed and approved the LCA.

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By letter dated November 7, 2014, UPW submitted

Makino's grievance to arbitration. HLRB made these findings

about what happened next:

On or about December 15, 2014, Nosaka spoke with

Makino to get approval to submit the LCA to the Mayor

requiring Makino to concede the back pay. Nosaka said that

Makino had to consult with his wife, and his wife agreed. 

Nosaka noted:

[D]raft done. Waiting for a meeting with Billy. 

Without pay okay? he spoke to wife; she agree. 

No guarantee I told him. Not going to win in

arb.

. . . .

On December 15, 2014, Nosaka met with and presented a

proposed draft of the LCA for Makino to the Mayor and

[County Department of Public Works Deputy Director Brandon]

Gonzales. The Mayor did not indicate agreement to the

proposal but stated that he would have HR and the

corporation counsel review the LCA and get back to Nosaka. 

Nosaka noted:

Met with Billy Kenoi & B. Gonzales about . . .

LCA. Billy said this is a very hard case to

reconsider. B. Gonzales was silent.

After reviewing the LCA BK said he has to have

HR look at it & corp counsel. But no promises. 

I told BK would be a great XMAS gift if he

brought them back. They get families and they

would really appreciate the reconsideration &

second chance.

He said he'll get back to me.

Nosaka notified Makino of his meeting with the Mayor. . . .

. . . .

On March 6, 2015, Nosaka again met with the Mayor to

discuss Makino's case. Nosaka noted that the Mayor

preferred that Makino . . . resign rather than be terminated

or "like a pardon" when the Mayor left office[.] . . .

Nosaka believed that the Mayor would pardon Makino

before leaving office, which would also require agreement by

his "bosses", so Makino could be reemployed by the County.

On March 10, 2015, Makino called Nosaka, who

documented the conversation as follows:

Nathan Makino called.

Still trying to resolve case.

Billy looking at other options. He still has

LCA.

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These findings were also supported by substantial evidence in the

record and were not clearly erroneous.

Makino wrote to UPW on March 10, 2015: "The only

settlement that I will consider is that I be reinstated

immediately and given full back pay with interest, from

January 24, 2014 to the present. You can tell the County that I

am taking this position because of the way I've been treated by

the County."

By letter dated March 19, 2015, UPW informed Makino

that it had decided not to pursue the arbitration because there

was insufficient proof that the County violated the UPW

collective bargaining agreement (CBA).

Makino filed a prohibited practice complaint with the

HLRB, against the County and UPW, on April 20, 2015. An amended

prohibited practice complaint was filed on May 9, 2016. On

October 19, 2017, HLRB issued its Decision and Order dismissing

the amended complaint.

Makino appealed to the circuit court on November 17,

2017. Makino's counsel moved to withdraw from the case on

March 13, 2018. The motion was granted. Makino appeared selfrepresented at the circuit court hearing on June 19, 2018. The

court affirmed the HLRB. Judgment was entered on September 12,

2018. This appeal followed.2

STANDARD OF REVIEW

Review of a decision made by the circuit court upon

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

Hawai#i Revised Statutes (HRS) § 91–14(g) (1993) provides:

Upon review of the record the court may affirm the

decision of the agency or remand the case with

instructions for further proceedings; or it may

reverse or modify the decision and order if the

substantial rights of the petitioners may have been

prejudiced because the administrative findings,

conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory

provisions; or

2 The lawyer who withdrew from representing Makino before the

circuit court now represents Makino in this appeal.

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(2) In excess of the statutory authority or

jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole

record; or

(6) Arbitrary, or capricious, or characterized by

abuse of discretion or clearly unwarranted exercise of

discretion.

An agency's findings are not clearly erroneous and

will be upheld if supported by reliable, probative and

substantial evidence unless the reviewing court is left with

a firm and definite conviction that a mistake has been made.

Conclusions of law are freely reviewable under a

right/wrong standard.

Poe v. Haw. Lab. Rels. Bd., 105 Hawai#i 97, 100, 94 P.3d 652, 655

(2004) (Poe II) (cleaned up). In addition, a mixed finding of

fact and conclusion of law is reviewed under the "clearly

erroneous" standard because the determination is dependent on the

facts and circumstances of each individual case. Est. of Klink

ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523

(2007). A conclusion of law that is supported by the trial

court's findings of fact and reflects an application of the

correct rule of law will not be overturned. Id.

DISCUSSION

Makino contends that UPW breached its duty of fair

representation, and that the County violated the UPW CBA when it

terminated his employment. Thus, this appeal is a hybrid action. 

See Poe II, 105 Hawai#i at 102, 94 P.3d at 657 (noting that

employee prevented from exhausting remedies provided by

collective bargaining agreement may sue employer for breach of

collective bargaining agreement and union for breach of duty of

fair representation); Lee v. United Public Workers, AFSCME, Local

646, 125 Hawai#i 317, 319, 260 P.3d 1135, 1137 (App. 2011)

(referring to such a case as a "hybrid action"). In a hybrid

action, to have standing to pursue a claim against an employer

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for breach of a collective bargaining agreement, the employee

must first prove that the labor union breached its duty of fair

representation. Poe II, 105 Hawai#i at 103-04, 94 P.3d at 658-

59. Accordingly, we first address HLRB's resolution of Makino's

claim against UPW.

The HLRB found and concluded that Makino failed to

carry his burden of proving that UPW breached its duty of fair

representation. "A union breaches its duty of fair

representation only when the union's conduct toward a member of

the collective bargaining unit is arbitrary, discriminatory, or

in bad faith." Lee, 125 Hawai#i at 321, 260 P.3d at 1139

(cleaned up) (first citing Vaca v. Sipes, 386 U.S. 171, 190

(1967); and then citing Poe II, 105 Hawai#i at 104, 94 P.3d at

659 ("A union breaches its duty of good faith when its conduct

towards a member of a collective bargaining unit is arbitrary,

discriminatory, or in bad faith.")). 

(A) On appeal, Makino argues that UPW's decision to

withdraw from the Step-3 arbitration "was arbitrary because there

was no 'rational basis' for its decision" and that "the Circuit

Court and HLRB failed to hold . . . UPW accountable by producing

or requiring proof of any 'rational basis' for its decision to

abandon [Makino]'s arbitration." Makino's argument lacks merit.

After the County denied Makino's Step-2 grievance, the

deadline for him to proceed to a Step-3 arbitration was

August 30, 2014. On August 22, 2014, Mayor Kenoi asked Nosaka

whether UPW would be interested in a last chance agreement.

Nosaka needed approval from his bosses to submit a proposed last

chance agreement. UPW and the County agreed to extend the Step-3

deadline to November 14, 2014.

UPW sent its arbitration notice to the County on

November 7, 2014, a week before the extended deadline. At that

time, UPW had approved a last chance agreement proposal that

required that Makino forego his claim for back pay, but Makino

had not yet agreed so the proposal had not been submitted to the

County. The HLRB made the following findings, which were

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supported by substantial evidence in the record and were not

clearly erroneous:

Makino admits in his Post-Hearing Brief that on July 25,

2014, [Nosaka] told him that the decision to go to

arbitration was his "bosses" decision and not his and that

"he didn't think his 'bosses' would take his case to

arbitration"; that on or about August 14, 2014, [Nosaka]

conveyed his doubts about going to arbitration; and that on

August 27, 2014, [Nosaka] told [Makino] that if the County

doesn't agree to settle his case, "we not going Arb

(arbitration)".

Further, the record shows that as early as January 29,

2014, Nosaka told Makino that "it did not look good. But we

can go through the process. Step 1 & Step 2. Don't know if

we going to arb[]" because "We lost a lot of UPW cases for

less violence." On May 5, 2014, Nosaka told Makino that "BK

said it's going to be tough bringing him back[.]" Nosaka

participated and assisted Makino at the Step 1 and 2

grievance meetings, held on June 4, 2014 and July 25, 2014

respectively. Immediately after the Step 2 grievance on

July 25, 2014, Nosaka communicated his concerns regarding

whether the grievance would proceed to arbitration and told

him that "maybe should try settling before Arb. Case"

because of Nosaka's belief that "no think my bosses going to

take this case to Arb. I can recommend but it's up to

them." Mr. Makino obviously understood Nosaka's position

that settlement should be pursued rather than arbitration

based on his response to "try and talk to BK [Billy Kenoi]." 

Nosaka then replied that he was going to try and work it out

with Kenoi because "We lost too much case[s] regarding WPV

[work place violence][]" and further emphasized that "He's

[Kenoi] is the only one can bring you back[.]" [Makino]

again demonstrated his understanding by his response "to

try." The August 14, 2014 conversation between Nosaka and

Makino is, however, the most persuasive evidence for the

UPW's position because Nosaka "told him [Makino] that the

way it looks, and the history of losses we was [sic] not

going Arb. The best chance is before Arb. I talk to Billy. 

He said 'ok.'" On August 27, 2014, Nosaka explicitly told

Makino that, "if BK no agree [to the LCA] we not going to

[arbitration]. BK is our last hope."

The record supports the inference that UPW demanded arbitration

only to keep the grievance process alive while the parties were

negotiating a possible settlement, which was Makino's "last

hope." Thus, UPW's ultimate withdrawal from the arbitration

after Makino revoked UPW's settlement authority (described below)

was not arbitrary, discriminatory, or in bad faith.

On December 15, 2014, Makino told Nosaka he and his

wife agreed to forego back pay, and Nosaka again told Makino he

was not going to win the arbitration "because of the history of

cases that the Union had lost in arbitration with less violence

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than what occurred" in Makino's case. Nosaka presented the

proposed last chance agreement to Mayor Kenoi that same day. 

By letter dated March 10, 2015, while settlement

negotiations were ongoing, Makino recanted and informed UPW that

he would not settle without being "reinstated immediately and

given full back pay with interest[.]" Nine days later, UPW State

Director Dayton Nakanelua withdrew the arbitration demand

"because there is insufficient proof that there is a violation

of" the CBA. The HLRB made the following findings, which were

supported by substantial evidence in the record and were not

clearly erroneous:

[Makino] implies, but did not plead improper motive,

based on his assertion of retaliation for pushing the

resolution of his case and that no rational basis or

explanation was given for the withdrawal of the arbitration

demand. The Board concurs with the UPW in this case that

there was no proof of an improper motive by the Union in

this case. As fully discussed above, there was no evidence

that Nosaka and the Union lied to Makino regarding the

status of the LCA. Further, as also fully discussed above,

there was more than sufficient evidence that Nosaka informed

[Makino] from the beginning of the grievance process that it

was doubtful that the Union would proceed to the arbitration

step; and accordingly, an LCA was the preferable approach. 

The Board also finds adequate proof in the record that the

reasons for the Union's decision not to proceed to

arbitration, which were communicated to Makino, were because

of the UPW's history of losing work place violence cases and

concerns regarding Makino's inconsistent statements made

during the investigation and grievance process. In short,

[Makino] has failed to demonstrate that this alleged conduct

by the UPW constituted "fraud, deceitful action, or

dishonest conduct." Hence, the Board holds that there is no

merit to [Makino]'s position there was a breach of duty of

fair representation based on the "bad faith" conduct of the

UPW.

For the reasons set forth above, [Makino] has failed

to prove that the UPW breached its duty of fair

representation, thereby wilfully violating HRS § 89-13(b)(l)

and (4).

(Footnote omitted.)

Under the circumstances of this case, we conclude that

the HLRB's combined findings and conclusions that Makino "failed

to carry his burden of arbitrary conduct constituting a breach of

the duty of fair representation" and "failed to prove that the

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UPW breached its duty of fair representation" were not clearly

erroneous.

(B) Makino also argues that UPW breached its duty of

fair representation because "[p]ursuing a grievance is

fundamentally different from the legal duty the UPW voluntarily

took on by deciding to take [Makino]'s case to arbitration."

Citing Del Casal v. E. Air Lines, Inc., 465 F. Supp. 1254, 1258

(S.D. Fla. 1979), aff'd, 634 F.2d 295 (5th Cir. 1981), he asserts

that the "general rule of law" is "while a union has a wide

discretion in deciding whether to take a grievance to

arbitration, once the claim is taken to arbitration, the union

must advocate the employee's position."

Del Casal does not stand for the proposition that a

union's duty of fair representation differs between grievance

steps when arbitration is a grievance step under a collective

bargaining agreement. Del Casal was a pilot for Eastern

Airlines. The Airline Pilots Association, International (ALPA)

was the exclusive bargaining agent for Eastern's pilots. Del

Casal twice applied for ALPA membership, but was rejected both

times for incompetency as a pilot. Eastern terminated Del

Casal's employment on the ground that he was an incompetent and

unsafe pilot. Del Casal filed a grievance under the collective

bargaining agreement between Eastern and ALPA. Del Casal was

assisted by an ALPA staff attorney. His grievance was rejected

at the initial stages. He asked ALPA to submit his grievance to

arbitration by the System Board. ALPA's staff attorney initiated

the arbitration. But before the arbitration hearing, ALPA

withdrew its staff attorney because Del Casal was not an ALPA

member. Del Casal retained private counsel for the hearing. The

System Board ruled that Eastern was justified in terminating Del

Casal.

Del Casal then filed suit in federal district court,

claiming (among other things) that ALPA breached its duty of fair

representation. The district court agreed, stating:

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It is also true that ALPA has no duty to press claims

before the System Board on behalf of grievants which it

finds in good faith to be without merit. . . .

ALPA, however, did process [Del Casal]'s claim and

presented it to the System Board. In N.L.R.B. v. P.P.G.

Industries, Inc., 579 F.2d 1057, 1059 (7th Cir. 1978), it

was recognized that "while a union has a wide discretion in

deciding whether to take a grievance to arbitration, once

the claim is taken to arbitration, the union must advocate

the employee's position."

Furthermore, ALPA does provide attorneys to grievants

at their hearings before the System Board. Indeed, it is

clear . . . that [the ALPA staff attorney] would have

represented [Del Casal] but for the fact that he was not a

union member.

Del Casal, 465 F. Supp. at 1257-58 (some citations omitted).

ALPA appealed. The Seventh Circuit clarified:

The issue in this case is whether a union may refuse to

represent a member of the bargaining unit on the ground that

he is not a member of the union without violating its duty

of fair representation. Thirty-five years ago this court

established the principle that a union may not discriminate

against members of its bargaining unit on the basis of that

person's status as a nonmember of the union. Hughes Tool

Co. v. NLRB, 147 F.2d 69 (5th Cir. 1945).

. . . .

In the instant case the appellee Del Casal argues that

ALPA's discriminatory refusal to allow a staff attorney to

represent him at the System Board hearing based upon his

nonmember status constituted a breach of ALPA's duty to

fairly represent him. We agree. The record shows that ALPA

does provide attorneys to grievants at their hearings before

the System Board. It is also clear from the record that

. . . the ALPA staff attorney[] would have represented Del

Casal but for the fact that he was not a union member. 

While ALPA has the authority to decide under what conditions

an attorney will be supplied to a grievant, the fact that

the grievant is not a member of the union can play no part

in that decision.

Del Casal v. E. Airlines, Inc., 634 F.2d 295, 300-01 (5th Cir.

1981). Contrary to Makino's argument, both Del Casal opinions

stand for the proposition that a union owes the same duty of fair

representation at all steps of the grievance process, including

arbitration.

The Fifth Circuit's Del Casal opinion did not cite

P.P.G. Indus., which was quoted by the district court in the

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portion of its opinion relied on by Makino.3 The district

court's citation to P.P.G. Indus. was inapt for two reasons. 

P.P.G. Indus. did not involve an arbitration, because the union's

executive board unanimously agreed not to take the grievance to

arbitration. Thus, the P.P.G. Indus. court's statement that

"once the claim is taken to arbitration, the union must advocate

the employee's position" was dicta.

Second, the P.P.G. Indus. court cited Kesner v. Nat'l

Lab. Rel. Bd., 532 F.2d 1169, 1174-75 (7th Cir. 1976), cert.

denied, 429 U.S. 983 (1976), for the proposition that "once the

claim is taken to arbitration, the union must advocate the

employee's position." P.P.G. Indus., 579 F.2d at 1059. The

facts of Kesner are contained in Truck Drivers, Oil Drivers and

Filling Station and Platform Workers Local No. 705, 209 N.L.R.B.

292 (1974).4 Aaron Kesner was a truck driver for F&K. He was a

member of Local 705. He was laid off. One day he saw another

driver, who had also been laid off, driving an F&K truck. He

complained to Local 705 that F&K violated the call-back seniority

provisions of the union contract. The union refused to file a

grievance. Kesner filed his own grievance.

Step 1 was a meeting with the employer. Kesner and a

Local 705 business representative named Heim met with an F&K

manager. Heim explained that Kesner did not have seniority over

the called-back driver. Heim declared the step-1 meeting a

deadlock, triggering step 2 — a hearing before a Joint Grievance

Board composed of both union and employer representatives. 

During the hearing Heim stated that ruling that Kesner was

entitled to a seniority call-back "would be contrary to the

agreement and the practice in the industry and would generally

upset labor relations in the area." Truck Drivers, 209 N.L.R.B.

at 299. The board denied Kesner's grievance. The union

3 Makino's briefs do not discuss the Fifth Circuit Del Casal

opinion.

4 The case presented a multitude of facts that, while interesting,

are not all relevant to Makino's appeal. We recite only the relevant facts.

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agreement did not provide for arbitration as a next step. Id. at

304.

Kesner filed a complaint against Local 705 and F&K with

the National Labor Relations Board (NLRB). An administrative law

judge found that Local 705 did not breach its duty of fair

representation, and that F&K did not breach the union agreement. 

Kesner appealed. The NLRB concluded that Local 705 breached its

duty of fair representation:

It is clear from the record that Heim, who attended the

[Joint Grievance Board] meeting as spokesman for [Local 705]

(and hence for Aaron Kesner), openly stated at that meeting

that he believed that Kesner did not have a valid grievance. 

By making this statement, Heim in effect abdicated his duty

to present the grievance in the light most favorable to

Kesner.

In our view, once [Local 705] undertook to present

Aaron Kesner's grievance to the Joint Grievance Board, it

became obligated to represent him fully and fairly. This

obligation included the duty to act as advocate for the

grievant, which here Heim clearly did not do. To the

contrary, by saying that he did not believe Aaron Kesner's

claim was valid, Heim undermined Kesner's case before the

Joint Grievance Board. In these circumstances, we are

constrained to conclude and find, contrary to the

Administrative Law Judge, that by this conduct [Local 705]

breached its duty of fair representation and restrained and

coerced Kesner in the exercise of his Section 7 rights,

thereby violating Section 8(b)(1)(A) of the [National Labor

Relations] Act.

Truck Drivers, 209 N.L.R.B. at 292-93. The NLRB ordered that

Local 705 cease and desist from failing or refusing to advocate

members' positions in grievances heard by the Joint Grievance

Board. The NLRB agreed that F&K did not breach the union

agreement.

Local 705 appealed. The Seventh Circuit affirmed,

stating:

It is one thing for a grievant to attempt to pursue his

remedy without assistance and opposed only by one adversary. 

When that situation is compounded by two opponents, one of

whom is supposedly his "own people," the bearing on the

likelihood of his success assumes substantial significance. 

When one's own representative who has been willing to assume

that status proclaims a lack of merit, it is indeed likely

to be a coup de grace to the claim. The Board held that it

was upon the facts of the case before us even though

ultimately it was also determined that it was an unnecessary

dagger.

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On the basis of the record in this case, it is our

holding that the Board's conclusion that Local 705, through

Business Agent Heim, breached its duty of fair

representation by failing to meet the obligation it

undertook of fully and fairly advocating Kesner's grievance

must be sustained on the union's petition to review.

Kesner, 532 F.2d at 1175. 

In this case, unlike in Kesner, Nosaka never took a

position adverse to Makino before the County — even though UPW 

evaluated Makino's grievance as questionable because it had lost

a number of arbitrations involving less serious allegations of

workplace violence. To the contrary, the record indicates that

Nosaka vigorously pursued a settlement on Makino's behalf,

keeping his grievance alive by serving a Step-3 arbitration

notice, until Makino rescinded settlement authority. At that

point, UPW withdrew the arbitration notice because – as it had

consistently maintained — there was insufficient proof that the

County violated the CBA. See Vaca v. Sipes, 386 U.S. 171, 191

(1967) ("Though we accept the proposition that a union may not

arbitrarily ignore a meritorious grievance or process it in

perfunctory fashion, we do not agree that the individual employee

has an absolute right to have his grievance taken to arbitration

regardless of the provisions of the applicable collective

bargaining agreement."). HLRB's combined findings and

conclusions that Makino "failed to carry his burden of arbitrary

conduct constituting a breach of the duty of fair representation"

and "failed to prove that the UPW breached its duty of fair

representation" were not clearly erroneous. 

Having failed to prove that UPW breached its duty of

fair representation, Makino lacks standing to pursue a claim that

the County breached the CBA. Poe II, 105 Hawai#i at 103-04, 94

P.3d at 658-59. Accordingly, we need not address Makino's other

contentions on appeal.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

CONCLUSION

For the foregoing reasons, the circuit court's Judgment

entered on September 12, 2018, affirming the HLRB's Decision and

Order of October 19, 2017, is affirmed.

DATED: Honolulu, Hawai#i, April 5, 2023.

On the briefs:

Ted H. S. Hong,

for Complainant-AppellantAppellant Nathan Makino.

 

D. Kaena Horowitz,

Deputy Corporation Counsel,

County of Hawai#i,

for Respondent-AppelleeAppellee County of Hawai#i.

Herbert R. Takahashi,

Rebecca L. Covert,

for Respondent-AppelleeAppellee United Public

Workers, AFSCME, Local 646,

AFL-CIO.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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