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SCAP-18-0000732

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

________________________________________________________________

In the Matter of 

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO, 

Complainant-Appellee-Appellant, 

vs. 

CHRISTINA M. KISHIMOTO,1 Superintendent, Department of Education, 

State of Hawaiʻi; and CONNECTIONS, A New Century Public Charter 

School, Appellants-Appellees, 

and 

HAWAIʻI LABOR RELATIONS BOARD; SESNITA A.D. MOEPONO and J.N.

MUSTO (2003-027), Agency-Appellees-Appellees. 

________________________________________________________________

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT 

(CAAP-18-0000732; CIV. NO. 07-1-0314)

MEMORANDUM OPINION

(By: McKenna, Pollack, and Wilson, JJ., with Nakayama, J., 

dissenting, with whom Recktenwald, C.J., joins)

I. Introduction

This is a secondary appeal brought by the United Public 

Workers, AFSCME, Local 646, AFL-CIO (hereinafter, “UPW”) from 

 

1 Christina Kishimoto has succeeded Patricia Hamamoto (“Hamamoto”) as 

Superintendent of the Department of Education, State of Hawaiʻi and, thus, has 

been automatically substituted for Hamamoto in this case pursuant to Hawaiʻi 

Rules of Appellate Procedure Rule 43(c) (2010).

Electronically Filed

Supreme Court

SCAP-18-0000732

09-JUN-2020

11:40 AM
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2

rulings of the Circuit Court of the Third Circuit (“circuit 

court”) in appeals from decisions of the Hawaiʻi Labor Relations 

Board (“HLRB”). UPW first appeals the circuit court’s2 December 

3, 2008 interlocutory decision and order vacating the June 8, 

2007 HLRB order granting UPW’s motion for summary judgment. 

The HLRB’s June 8, 2007 order had concluded James Ah Sing 

(“Ah Sing”), who had been a custodian at Connections Public 

Charter School (“Connections”) from 2000 to 2003, was covered by 

the terms of a March 15, 2004 stipulation signed by parties that 

included UPW and the Department of Education of the State of 

Hawaiʻi (“DOE”) in another HLRB case concerning civil service 

employees at public charter schools. The HLRB had ordered Ah 

Sing be reinstated to his position. 

The circuit court’s December 3, 2008 order vacated the

HLRB’s June 8, 2007 interlocutory summary judgment order on the 

bases that there were genuine issues of material fact as to (1) 

whether Ah Sing was a member of bargaining Unit 1 at the time of 

his termination; and (2) whether Ah Sing was intended to be in 

the class of workers covered by the stipulation in the other 

HLRB matter. 

On remand, the HLRB ruled in favor of the DOE, and on 

appeal, the circuit court affirmed. UPW therefore also appeals 

 

2 The Honorable Glenn S. Hara presided.
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the circuit court’s affirmance of the HLRB’s rulings on remand. 

UPW raises four points of error on appeal. UPW’s first 

point of error maintains that, in the first appeal, the circuit 

court erred in failing to recognize the violation of merit 

principles and the public policy favoring civil service when it 

vacated the HLRB’s interlocutory ruling that Ah Sing was a civil 

service member of UPW bargaining Unit 1, who was included in the 

stipulation in the other HLRB matter. 

We agree with UPW on its first point of error on appeal

that the circuit court erred in vacating the HLRB’s June 8, 2007 

interlocutory summary judgment order. We therefore need not and 

do not address UPW’s remaining issues on appeal, and we remand 

this matter to the HLRB for further proceedings consistent with 

this memorandum opinion.3

II. Background

A. Ah Sing’s employment at Connections

Ah Sing was initially appointed on September 5, 2000, to a 

nineteen-hours-per-week part-time custodial position at 

Connections at its Mountain View campus. All Connections

 

3 In summary, UPW’s second through fourth points of error arising out of 

the second appeal to the circuit court allege the circuit court erred in: 

failing to address UPW’s argument that if Ah Sing was in fact not a civil 

service employee, Connections and the DOE were required to bargain with UPW 

prior to contracting out his position; affirming HLRB’s application of the 

exhaustion doctrine to Ah Sing’s claim; and affirming the denial of UPW’s 

motion to amend its complaint to include a violation of the stipulation 

between UPW and the DOE.
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employees were appointed by the local school board on a year-toyear basis with a not to exceed (“NTE”) date of June 30th of

each school year. Ah Sing’s initial appointment was classified 

“exempt,” with a NTE date of June 30, 2001.

Effective February 8, 2001, after Connections moved from 

the Mountain View campus to downtown Hilo, Ah Sing’s employment 

was increased to full-time (40 hours per week). At that time, 

Ah Sing became a member of UPW bargaining Unit 1. An employee 

personnel action report dated July 23, 2001, stated that, as of 

that date, Ah Sing was in a temporary, exempt, at-will position 

(“Position No. 111418”), and that the employment could “be 

terminated at any time within 24 hours notice.”

On January 2, 2001, however, the then-DOE Personnel 

Director had memorialized a directive that, beginning with the 

2001-02 school year, all charter schools’ employees would be in 

“temporary civil service positions” that would be filled 

applying normal civil service rules. On July 23, 2001, Ah Sing 

therefore submitted an application for a “Custodian II” civil 

service position, and on the next day, Connections recommended 

Ah Sing to a limited term appointment (“LTA”) as a temporary 

“School Custodian II,” with a NTE date of June 30, 2002.4 Ah 

 

4 This is consistent with the January 2, 2001 DOE memorialized directive 

that, beginning with the 2001-02 school year, all public charter school 

positions would be “temporary civil service positions” and filled in 

accordance with normal civil service procedures.
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Sing completed the civil service application paperwork, and on

August 1, 2001, Ah Sing submitted a separation notice for his 

custodian Position No. 111418 to accept DOE civil service 

Position No. 56376. Ah Sing was informed that his job had

changed to a civil service position, and an August 22, 2001 

employee personnel action report indicates: (1) Ah Sing was 

rehired as a School Custodian II in Position No. 56376 effective 

August 2, 2001; (2) his appointment was for a limited term, with 

a NTE date of June 30, 2002; and (3) he was a member of 

bargaining Unit 1. 

An employee personnel action report for Ah Sing dated 

October 17, 2002, for the 2002-03 school year reflected that Ah 

Sing was appointed to the School Custodian II Position No. 56376

with a NTE date of June 30, 2003, and that effective July 2, 

2002, his position was “[c]onver[ted]” to a civil service member

from a probationary appointment. This report also states that 

“[t]he personnel actions shown above have been taken in 

compliance with the provisions of Chapter[] 76 [], HRS, as 

amended.” Hawaiʻi Revised Statutes (“HRS”) Chapter 76 is the 

“Civil Service Law.” 

As noted, from the 2001-02 school year, the DOE had 

officially been treating public charter school employees as 

civil service employees. On June 9, 2003, however, the thenDirector of the State of Hawaiʻi Department of Human Resources 
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Development (“DHRD”) wrote to the then-Superintendent of the DOE 

stating the DHRD’s position was that employees of public charter 

schools did not have civil service status and that the DHRD had 

been unaware until a few days before that its lists of eligible

employees were being used to fill public charter school 

positions. 

In the meantime, a May 6, 2003 Connections letter addressed 

to Ah Sing indicated the school board had taken action the day 

before “to decline to renew your 89 day contract as of June 30, 

2003.” No reason was stated in the letter. A DOE “Separation 

Notice” for “Classified Personnel” was signed by Ah Sing on June 

27, 2003, and it indicated a separation date effective June 30, 

2003, from the School Custodian II Position No. 56376. The 

notice was signed by a Connections representative on June 30, 

2003, and by the DOE Assistant or Complex Area Superintendent on 

July 8, 2003. 

A July 17, 2003 letter from the Connections “CEO” to Ah 

Sing stated the school board had decided to eliminate Ah Sing’s

position “given the limited funds we will be receiving for the 

coming school year.” After Ah Sing’s position was eliminated, 

custodial work was performed at Connections by non-bargaining 

unit employees, an independent contractor paid for by the 

school’s landlord, and non-profit entities. 
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B. UPW=s HLRB complaints

1. UPW’s complaint on behalf of Ah Sing

On August 18, 2003, UPW filed a prohibited practices 

complaint with the HLRB, challenging the non-renewal of Ah 

Sing’s custodian position at Connections.

5 In the complaint, UPW 

alleged that DOE and Connections (collectively, “Employer”) 

violated the collective bargaining agreement (“CBA”) with UPW,

and HRS Chapter 89, by terminating Ah Sing. Specifically, the 

complaint alleged the non-renewal of Ah Sing’s position (1) 

willfully violated various terms of the bargaining Unit 1 CBA in 

violation of HRS § 89-13(a)(8) (1993); and (2) constituted a 

willful refusal and failure to comply with the duty to bargain 

in good faith over mid-term changes in wages, hours of work, 

other terms and conditions of employment under HRS §§ 89-3 

(Supp. 2000) and 89-9(a) (Supp. 2000),6 and the duty to recognize 

 

5 HLRB Case No. CE-01-539.

6 HRS § 89-3 provides in relevant part:

Rights of employees. [Section effective June 1, 2002. For 

present provision, see main volume.] Employees shall have 

the right of self-organization and the right to form, join, 

or assist any employee organization for the purpose of 

bargaining collectively through representatives of their 

own choosing on questions of wages, hours, and other terms 

and conditions of employment, and to engage in lawful, 

concerted activities for the purpose of collective 

bargaining of other mutual aid or protection, free from 

interference, restraint, or coercion. 

(Bracketed material in original.)

HRS § 89-9 provides in relevant part:

(continued. . .)
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UPW as the exclusive bargaining agent under § 89-8(a) (1993).7 

UPW’s complaint also alleged Employer’s “willful refusal and 

failure to comply with the provisions of [HRS] chapter 89”

constituted prohibited practices under HRS §§ 89-13(a)(1), (5), 

and (7).8 Ah Sing’s September 23, 2003 amended complaint added a 

 

(continued. . .)

Scope of negotiations; consultation. [Section effective 

July 1, 2002. For section effective June 30, 2002, see 

aboe.] (a) The employer and the exclusive representative 

shall meet at reasonable times[] . . . and shall negotiate 

in good faith with respect to wages, hours . . . and other 

terms and conditions of employment which are subject to 

collective bargaining and which are to be embodied in a 

written agreement as specified in section 89-10, but such 

obligation does not compel either party to agree to a 

proposal or make a concession[.]

(Bracketed material in original.)

7 HRS § 89-8 provides in relevant part:

Recognition and representation; employee participation. 

(a) The employee organization which has been certified by 

the board as representing the majority of employees in an 

appropriate bargaining unit shall be the exclusive 

representatives of all employees in the unit. As exclusive 

representative, it shall have the right to act for and 

negotiate agreements covering all employees in the unit and 

shall be responsible for representing the interests of all 

such employees[.] 

8 HRS § 89-13 provides in relevant part:

Prohibited practices; evidence of bad faith. (a) It shall 

be a prohibited practice for a public employer or its 

designated representative wilfully to:

(1) Interfere, restrain, or coerce any employee in 

the exercise of any right guaranteed in this 

chapter;

. . . .

(5) Refuse to bargain collectively in good faith 

with the exclusive representative as required 

in section 89-9;

(continued. . .)
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claim alleging violation of layoff rights under section 12 of 

the CBA. 

2. The UPW complaint against the DOE and the UPW/DOE 

stipulation

At the time Ah Sing’s HLRB complaint was filed, the status 

and rights of employees at public charter schools were the 

subject of various additional UPW filings before the HLRB.9 

Before filing Ah Sing’s complaint, on July 3, 2003, UPW and the 

Hawaiʻi Government Employees Association (“HGEA”) filed a 

prohibited practice complaint with the HLRB on behalf of all 

employees in bargaining Units 1, 2, 3, 4, and 6, against the 

then-Director of the DHRD and then-Governor of the State of 

Hawaiʻi, regarding the civil service status of public employees 

at charter schools (“UPW complaint”). The UPW complaint, which 

was later amended to add the DOE and the Board of Education 

(“BOE”), alleged that the DHRD’s position that charter school 

employees were not civil service employees and the DOE’s 

subsequent implementation of the DHRD directive violated the 

collective bargaining rights of affected charter school 

 

(continued. . .)

. . . .

(7) Refuse or fail to comply with any provision of 

this chapter; [or]

(8) Violate the terms of a collective bargaining

agreement[.]

9 HLRB Case Nos. CE-01-537a, CE-02-537b, CE-03-537c, and CE-04-537d.
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employees. 

On July 3, 2003, UPW had obtained from the DOE’s Hawaiʻi 

Regional Office’s Personnel Regional Officer in Hilo a list of 

Big Island public charter school employees who might be impacted 

by the DHRD’s June 9, 2003 directive that public charter school 

employees were not civil service employees. The list provided 

to UPW by the DOE included Ah Sing. 

On March 15, 2004, UPW, the HGEA, the DOE, and the BOE 

entered into a stipulation and order in the UPW complaint 

(“UPW/DOE stipulation”). The UPW/DOE stipulation provided in 

relevant part as follows: 

1. The UPW is an employee organization and the exclusive

representative, as provided under HRS § 89-2, of 

employees in bargain unit 01, non-supervisory 

employees in blue collar positions.

. . . .

4. The UPW [] and the State of Hawaii are at all times 

relevant herein part[y] to the collective bargaining 

agreement[] covering employees in bargaining unit 01

. . . .

5. Classified employees of the [DOE] covered by these 

collective bargaining agreements have historically 

and customarily been part of the “merit” or “civil 

service” system of the State of Hawaii. There are 

approximately 150 classified positions of DOE which 

are in public charter schools and covered by such 

civil service system.

6. The collective bargaining agreements contain 

provisions for the maintenance of prior rights of 

employees pursuant to civil service statutes and 

rules, and require negotiations before changes in 

conditions of work may be implemented.

7. On or about June 9, 2003 the Department of Human 

Resources Development (DHRD) informed Employer of its 

position (and policy) that employees of public 

charter schools in the DOE “do not have civil service 
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status” and are no longer part of the merit system.

 8. On or about June 12, 2003 DHRD requested Employer to 

“convert all public charter school positions to 

reflect the fact that these positions do not have 

civil service status” by June 30, 2003, and 

thereafter informed Employer that DHRD would not 

provide “certified lists of eligible applicants” and 

“civil service appointments may not be made to fill 

public charter school positions.”

 9. On and after July 8, 2003 the aforementioned DHRD 

position, policy, and actions were communicated to 

public charter school administrators and employees.

 10. As a direct consequence various public charter school 

employees (in order to preserve and maintain their 

civil service status, rights and benefits), initiated 

transfers and other changes in their terms and 

conditions of work.

 11. As a further consequence on or about July 1, 2003 and 

thereafter, DOE failed to process for hiring 

approximately fifteen (15) or more public charter 

school employees in classified positions through the 

statewide merit system for compliance with civil 

service requirements, and as a result these employees 

are currently exempt from civil service coverage.

. . . .

 14. Employer hereby stipulates and agrees to cease and 

desist from implementing the aforementioned DHRD 

position or policy regarding loss of civil service 

status for public charter school positions and 

employees, and to make whole all adversely [affected]

employees (including but not limited to the 

restoration or return of said employees to their 

former public charter school positions without loss 

of rights, privileges, and benefits).

 15. Within 30 days from the date of this Stipulation and 

Order Employer shall process all currently exempt 

public charter school employees in classified 

positions through the statewide merit system and 

restore them to civil service status. All classified 

positions in public charter schools shall be restored 

to the merit system within thirty days.

 3. HLRB order granting UPW’s motion for summary judgment

in Ah Sing’s case

 On March 16, 2004, UPW filed a motion for summary 

judgment in Ah Sing’s case before the HLRB, contending it was 
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entitled to judgment as a matter of law based on the UPW/DOE 

stipulation because Ah Sing fell within the affected class of 

the UPW/DOE stipulation. In support of its motion, UPW 

attached: (1) a copy of the UPW/DOE stipulation; (2) Ah Sing’s 

declaration stating he was notified on June 27, 2003, that his 

civil service position was not being renewed; (3) a copy of Ah 

Sing’s separation notice from the DOE; and (4) the July 17, 2003 

letter from Connections to Ah Sing stating Ah Sing’s position 

was being eliminated due to limited funding. 

In their memorandum in opposition, Employer argued that UPW 

failed to meet its burden of demonstrating that Ah Sing was 

adversely affected by the DHRD’s position that public charter 

school employees were not entitled to civil service status and 

were thus covered by the UPW/DOE stipulation. Employer

contended UPW could not meet this burden because the school 

board decided on May 5, 2003, to not renew Ah Sing’s temporary 

appointment, which was before the DHRD announced its policy. In 

support of its memorandum, Employer attached a declaration from 

a DOE personnel specialist stating that “it is [her] 

understanding that the decision not to renew Mr. Ah Sing=s 

temporary appointment was based upon cost or funding concerns -

not civil service status[] . . . [and] that the decision . . . 

was made on or about May 5, 2003.” 

The HLRB held a hearing on UPW’s motion on March 29, 2004, 
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where the parties presented their arguments. On June 8, 2007, 

the HLRB entered an order granting UPW’s motion for summary 

judgment. In its order, the HLRB stated Ah Sing’s employment 

status and treatment by the DOE and Connections were “hopelessly 

muddled[]” and that “[t]he record reflects at least six 

alternative representations[,]” but that it was unnecessary to 

sort through the “minutia of [Ah Sing’s] particular 

circumstance” because “Ah Sing was in all probability the victim 

of the confusion surrounding the employment rights and status of 

public charter school workers[.]” The HLRB concluded Ah Sing 

fell within the terms of the UPW/DOE stipulation and ordered his 

reinstatement. 

C. First appeal to the circuit court

1. Parties’ briefs

Employer filed a notice of appeal to the circuit court on 

July 27, 2007. In its opening brief, Employer claimed the 

HLRB’s grant of summary judgment was improper because there were 

genuine issues of material fact. Employer argued the HLRB’s 

order itself acknowledged factual disputes. Employer also 

asserted Connections could not be found to have willfully 

engaged in a prohibited practice based on the entry of the 

UPW/DOE stipulation because Connections was not a party to the 

stipulation. Employer also claimed the HLRB exceeded its 

authority and jurisdiction by ordering Ah Sing’s reinstatement 
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to a position that no longer existed. 

The HLRB’s answering brief noted that, after hearing 

arguments, it had concluded there were no issues of material 

fact and that UPW was entitled to judgment as a matter of law. 

Based on the circumstances surrounding Ah Sing’s termination, 

the HLRB maintained that “Ah Sing should have been reinstated to 

his position or a similar position as were other classified 

charter school employees by the [UPW/DOE stipulation]” and 

viewed Employer’s failure to do so as both violating the UPW/DOE 

stipulation and breaching the CBA. With respect to Respondent’s 

argument that the HLRB had exceeded its jurisdiction by ordering 

Ah Sing’s reinstatement, the HLRB noted its broad authority to 

fashion remedies for unfair or prohibited practices. The HLRB 

cited this court’s opinion in Del Monte Fresh Produce (Hawaii), 

Inc. v. International Longshore and Warehouse Union, Local 142, 

AFL-CIO, 112 Hawaiʻi 489, 508-10, 146 P.3d 1066, 1085-87 (2006), 

which held that the HLRB had not abused its discretion in 

fashioning a substantive remedy for laid-off employees. In Del 

Monte, this court noted that because the “legislature empowered 

the HLRB with discretion in ordering affirmative remedies” and 

because discretion is a flexible concept, only an arbitrary or 

capricious decision by the HLRB would be an abuse of discretion. 

112 Hawaiʻi at 508-09, 146 P.3d at 1085-86. The HLRB requested 

that, absent a showing it had abused its discretion, the circuit 
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court affirm its remedial order. 

2. Circuit court order vacating the HLRB’s order granting 

UPW’s motion for summary judgment

After oral arguments, on December 3, 2008, the circuit 

court entered its decision and order vacating the HLRB's order 

granting UPW's motion for summary judgment in Civil No. 07-1-

314. The circuit court found the HLRB erroneously granted UPW’s 

motion for summary judgment because there were genuine issues of 

material fact as to: (1) whether Ah Sing was a member of 

bargaining Unit 1 at the time of his termination; and 

(2) whether Ah Sing was intended to be in the class of workers 

covered by the UPW/DOE stipulation. The circuit court thus 

vacated the HLRB’s order granting UPW’s motion for summary 

judgment. 

D. HLRB proceedings on remand

On remand, in summary, in its July 9, 2014 Order No. 3005,

the HLRB denied Employer’s motion to dismiss for lack of subject 

matter jurisdiction, denied Employer’s alternative motion for 

summary judgment because the circuit court had overturned the 

HLRB’s grant of summary judgment in favor of UPW based on 

alleged genuine issues of material fact, and denied UPW’s motion 

to amend the Ah Sing complaint to add a claim for breach of the 
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UPW/DOE stipulation.10 The HLRB reasoned that, if Ah Sing was 

covered by the UPW/DOE stipulation, there was already an amended 

UPW/HGEA complaint against the DOE in Case No. CE-01-537a 

alleging a violation of the UPW/DOE stipulation and that, 

therefore, amending the Ah Sing complaint to add a claim against 

the DOE would result in two complaints for the same controversy, 

in violation of Hawaiʻi Administrative Rules (“HAR”) § 12-42-

42(f) (1981).

11

The HLRB then conducted a hearing on the prohibited 

practices complaint on October 22, and 23, 2014, December 11, 

2014, and May 21, 2015. On August 16, 2017, the HLRB entered 

Decision No. 491 with its findings of fact, conclusions of law, 

and an order dismissing Ah Sing’s complaint. The HLRB made 

numerous findings of facts and concluded: (1) Ah Sing was a 

bargaining Unit 1 member at the time that he was terminated and 

was required to exhaust his contractual remedies before filing 

the complaint;12 (2) Ah Sing was not covered by the UPW/DOE 

 

10 The HLRB also denied UPW’s motion to amend to add claims for: (1) 

breach of the ninety-day layoff notice provision in the CBA; (2) breach of 

the HLRB’s oral ruling in Ah Sing’s case; and (3) attorney’s fees and costs; 

these denials were not appealed.

11 HAR § 12-42-42(f) states: “Only one complaint shall issue against a 

party with respect to a single controversy.”

12 The HLRB noted in Decision No. 491 that it had declined to dismiss the 

complaint based on Ah Sing=s alleged failure to exhaust remedies twice before: 

Notwithstanding these two prior rulings, following 

the hearing on the merits on remand, the Board exercises 

(continued. . .)
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stipulation because (a) he was not employed by the DOE in March 

2004 when the stipulation became effective; (b) Ah Sing’s 

limited term position was eliminated due to lack of funding and 

not the DHRD’s directive; and (c) the law of the case did not 

constrain the HLRB’s conclusion because its initial decision was 

vacated by the circuit court; (3) UPW failed to carry its burden 

of showing that the DOE contravened the duty to bargain in good 

faith in violation of HRS §§ 89-13(a)(1), (5), and (7); and 

(4) Connections willfully retaliated against Ah Sing by 

cancelling his rubbish hauling contract in violation of HRS 

§ 89-13(a)(4), but that UPW failed to show that the retaliatory 

conduct violated HRS § 89-13(a)(1) by interfering with Ah Sing’s 

right to bargain collectively.13

 

(continued. . .)

its discretion to reconsider this issue based on Hawaii 

federal precedent. . . . 

The Board concludes that the evidence on remand was 

“substantially different” on this issue because unlike the 

record at the time of the first and second motions to 

dismiss, the record on remand is undisputed that Ah Sing 

was a Unit 1 member. For this reason, the Board, in its 

discretion, reconsiders the exhaustion issue and agrees 

with [Employer] based on the record that because Ah Sing 

was a Unit 1 member at the time of his termination, he was 

required to file a grievance and exhaust[] his contractual 

remedies[.]”

13 HRS § 89-13 states in relevant part:

(a) It shall be a prohibited practice for a public employer 

or its designated representative wilfully to:

(1) Interfere, restrain, or coerce any employee in 

the exercise of any right guaranteed in this 

chapter[.]

(continued. . .)
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E. Second appeal to the circuit court

UPW appealed the HLRB’s decisions on remand to the circuit 

court.14 On August 28, 2018, the circuit court entered a written 

decision and order15 affirming the HLRB’s rulings on remand 

entered its judgment on September 19, 2018. 

F. Appeal to the ICA and transfer to this court 

On September 26, 2018, UPW appealed the circuit court’s 

decision to the ICA. This court granted UPW’s application for 

transfer of the appeal on July 2, 2019.

III. Standards of review

A. Secondary appeals

Review of a decision made by the circuit court upon 

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

The standard of review is one in which [the appellate] 

court must determine whether the circuit court was right or 

wrong in its decision, applying the standards set forth in 

HRS § 91-14(g) [(1993)] to the agency’s decision.

HRS § 91-14, entitled “Judicial review of contested 

cases,” provides in relevant part: 

(g) 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) In excess of the statutory authority or 

jurisdiction of the agency; or 

(3) Made upon unlawful procedure; or 

 

(continued. . .)

14 Employer initially filed a cross-appeal, which it later withdrew. 

15 The Honorable Henry T. Nakamoto presided.
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(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.

[U]nder HRS § 91-14(g), conclusions of law are 

reviewable under subsections (1), (2), and (4); questions 

regarding procedural defects under subsection (3); findings 

of fact under subsection (5); and an agency’s exercise of 

discretion under subsection (6).

United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 106 

Hawaiʻi 359, 363, 105 P.3d 236, 240 (2005) (second and third

alterations in original). “Pursuant to HRS § 91-14(g), an 

agency’s conclusions of law are reviewed de novo.” 106 Hawaiʻi 

at 363, 105 P.3d at 240. “A circuit court’s conclusions of law 

are subject to de novo review.” Paul’s Elec. Serv., Inc. v. 

Befitel, 104 Hawaiʻi 412, 420, 91 P.3d 494, 502 (2004).

B. Summary judgment

An appellate court reviews a grant of summary judgment de 

novo:

Summary judgment is appropriate if the pleadings, 

depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. A 

fact is material if proof of that fact would have the 

effect of establishing or refuting one of the essential 

elements of a cause of action or defense asserted by the 

parties. The evidence must be viewed in the light most 

favorable to the non-moving party. In other words, we must 

view all of the evidence and inferences drawn therefrom in 

the light most favorable to the party opposing the motion.

Uyeda v. Schermer, 144 Hawaiʻi 163, 170, 439 P.3d 115, 122 

(2019).
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IV. Discussion

In its opening brief, UPW raises the following points of 

error:

1. The circuit court erroneously failed to recognize the clear 

violation of the merit principles and public policy 

favoring civil service when it vacated the [HLRB’s] prior 

grant of summary judgment and then affirmed the [HLRB’s] 

later conclusion that the [UPW/DOE stipulation] and order 

did not extend to Ah Sing and his civil service position at 

Connections.

2. The circuit court erroneously failed to recognize 

[Employer’s] duty to negotiate over the elimination of 

Connections’ only unit 1 employee and their duty to bargain 

over the decision of privatizing the work if Ah Sing was in 

fact not a civil service employee.

3. The circuit court erred in affirming the [HLRB’s] 

abrogation of its exclusive original jurisdiction as 

delegated by the legislature when HLRB misapplied the 

exhaustion doctrine to refuse to decide [UPW’s] claims for 

violations of the [CBA] under [HRS § 89-13(a)(8)].

4. The circuit court erroneously determined that the [HLRB] 

did not err in denying [UPW’s] motion to amend the original 

complaint to include the violation of the [UPW/DOE 

stipulation]. 

As noted earlier, we agree with UPW’s first point of error 

on appeal. For the reasons explained below, the circuit court 

erred in vacating the HLRB’s June 8, 2007 order granting summary 

judgment in favor of UPW on the grounds that there were genuine 

issues of material fact as to: (1) whether Ah Sing was a member 

of bargaining Unit 1 at the time of his termination; and 

(2) whether Ah Sing was intended to be in the class of workers 

covered by the UPW/DOE stipulation. Based upon our de novo 

review, the circuit court erred because there were no such 

genuine issues of material fact. We therefore need not and do 
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not address UPW’s remaining issues on appeal, and we remand this 

matter to the HLRB for further proceedings consistent with this 

memorandum opinion.

First, there is no genuine issue of material fact regarding 

whether Ah Sing was a member of bargaining Unit 1 at the time of 

his termination. When Ah Sing accepted DOE civil service

Position No. 56376 in August 2001, the August 22, 2001 employee 

personnel action report clearly indicated he was a member of 

bargaining Unit 1. His employee personnel action report of 

October 17, 2002, for the school year ending June 30, 2003, also 

clearly indicated he was a member of bargaining Unit 1. Thus, 

the circuit court erred by ruling in its December 3, 2008 

decision and order that the HLRB erred in granting UPW’s motion 

for summary judgment on the grounds that there was a genuine 

issue of material fact as to whether Ah Sing was a member of 

bargaining Unit 1 at the time of his termination on June 30, 

2003. 

The circuit court also based its vacatur of the HLRB’s June 

8, 2007 summary judgment order, however, based on its conclusion 

that there was also a genuine issue of material fact as to 

whether Ah Sing was intended to be covered by the UPW/DOE 

stipulation. The HLRB’s June 8, 2007 decision did state that 

“[t]he record reflects at least six alternative representations 

of [Ah Sing’s] employment status and consequent reasons for 
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termination[,]” and that “Ah Sing was in all probability the 

victim of the confusion surrounding the employment rights and 

status of public charter school workers[.]” These observations, 

however, do not raise genuine issues of material fact as to 

whether or not Ah Sing was covered by the UPW/DOE stipulation. 

Ah Sing’s employee personnel action report of October 17, 

2002, for the school year ending June 30, 2003, indicates he was 

hired effective July 2, 2002, in DOE civil service Position No. 

56376 for a one-year period with a NTE date of June 30, 2003, 

and that he was a member of bargaining Unit 1. Also, the DOE 

itself included Ah Sing in the July 3, 2003 list of Big Island 

public charter school employees impacted by the DHRD’s June 9,

2003 directive that public charter school employees were not 

civil service employees. 

The plain language of the UPW/DOE stipulation states it 

applied to “approximately 150 classified positions of DOE [] in 

public charter schools [] covered by [the] civil service system”

(paragraph 5), which included bargaining Unit 1 employees 

(paragraphs 1 and 4), for whom DOE was informed that “[o]n or 

about June 9, 2003 . . . that employees of public charter 

schools in the DOE ‘do not have civil service status’” 

(paragraph 7).

In paragraph 14 of the stipulation, Employer agreed to 

“cease and desist from implementing the aforementioned DHRD 
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position or policy regarding loss of civil service status for 

public charter school positions and employees[.]” The 

“aforementioned” DHRD position or policy included the DHRD’s 

statement that “[o]n or about June 9, 2003 . . . that employees 

of public charter schools in the DOE ‘do not have civil service 

status’” (paragraph 7), which included Ah Sing, who was still a 

civil service public charter school employee as of that date. 

Then, as stated in paragraph 6 of the UPW/DOE stipulation, 

“[t]he collective bargaining agreements contain provisions for 

the maintenance of prior rights of employees pursuant to civil 

service statutes and rules, and require negotiations before 

changes in conditions of work may be implemented.” Ah Sing had 

such civil service rights as a bargaining Unit 1 civil service 

employee.

Employer argues that despite including Ah Sing’s name in 

the list of employees affected by the DHRD’s June 9, 2003 

directive in its July 3, 2003 letter to UPW, Ah Sing was not 

included in the stipulation because he had been notified in May

6, 2003, that Connections would not be renewing his contract due 

to budget limitations. This, however, is not a genuine issue of

material fact as to whether Ah Sing was covered by the UPW/DOE 
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stipulation.

16 The stipulation included civil service bargaining 

Unit 1 public charter school employees as of June 9, 2003, when 

the DHRD stated he did not enjoy civil service rights. Ah Sing 

was denied rights as a civil service employee, which existed 

whether or not Connections had reduced funding. Therefore, he 

is included in the UPW/DOE stipulation, and the circuit court 

also erred in vacating the HLRB’s June 8, 2007 summary judgment 

order based on its conclusion that there was a genuine issue of 

material fact as to whether Ah Sing was intended to be covered 

by the UPW/DOE stipulation.

Accordingly, we need not address UPW’s additional points of 

error arising out of the HLRB’s decisions after remand.

V. Conclusion

Based on the reasons explained above, we remand this matter 

to the HLRB for further proceedings consistent with this 

memorandum opinion. If the remedy ordered by the HLRB in its 

June 8, 2007 order is no longer available or appropriate, as 

stated in Del Monte, the “legislature empowered the HLRB with 

 

16 Accordingly, we disagree with the dissent. Also, Connections’ 

purported May 6, 2003 non-renewal of Ah Sing and the DOE employee’s 

attestation that Ah Sing’s non-renewal was not related to DHRD’s position 

regarding civil service status of the various employees does not create a 

genuine issue of material fact because Ah Sing was still a civil service 

employee as of June 9, 2003; the DOE itself included Ah Sing in the July 3, 

2003 list of Big Island public charter school employees impacted by the 

DHRD’s June 9, 2003 directive that public charter school employees were not 

civil service employees. 
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discretion in ordering affirmative remedies[.]” 112 Hawaiʻi at 

508, 146 P.3d at 1085. 

DATED: Honolulu, Hawaiʻi, June 9, 2020.

Rebecca L. Covert, /s/ Sabrina S. McKenna

(Herbert R. Takahashi

with her on the briefs) /s/ Richard W. Pollack

for claimant

/s/ Michael D. Wilson

James E. Halvorson and

Richard H. Thomason,

for appellants-appellees