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Title: State of Hawaii and United Public Workers
Date: 
2003
Arbitrator: 
Michael Nauyokas
Citation: 2003 NAC 129

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

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

                                    Union,

            and

STATE OF HAWAII, DEPARTMENT OF HUMAN SERVICES, HYCF,  

                                    Employer.

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Class Grievance re:  use of special investigator in AG’s
office to conduct administrative investigations; Decs. 1, 11,
58; LS-02-33

Arbitration Hearings:

Dates:             September 4, 5, 20, 30, 2002
                        October 1, 24, 29, 2002
Times:            9:00 am; 10:00 am; 2:00 pm

 

                                                   

 

ARBITRATION DECISION AND AWARD

                                                                                    Michael F. Nauyokas
                                                                                    Attorney, Mediator & Arbitrator
                                                                                    733 Bishop Street, Suite 2300
                                                                                    Honolulu, Hawaii 96813
                                                                                    Telephone:  (808) 538-0553
                                                                                    Facsimile:    (808) 531-3860
                                                                                    Arbitrator


 

IN THE MATTER OF THE ARBITRATION BETWEEN: UNITED

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

AND STATE OF HAWAII, DEPARTMENT OF HUMAN SERVICES, HYCF

(CLASS GRIEVANCE RE: USE OF SPECIAL INVESTIGATOR IN

AG’S OFFICE TO CONDUCT ADMINISTRATIVE INVESTIGATIONS);

SECS. 1, 11, 58; LS-02-33

           

            This matter came on to arbitration at hearings held on September 4, 5, 20, 30, 2002 and October 1, 24, and 29, 2002.  The United Public Workers (“Union” or “UPW") was represented by Herbert R. Takahashi, Esq., and The State of Hawaii, Department of Human Services, HYCF  (“Employer” or “HYCF” or “DHS”) was represented by Daniel A. Morris, Deputy Attorney General.  The Arbitrator made a full disclosure of his prior relationships with both the parties and their counsel, and any objections were specifically waived by the parties to the arbitration through their counsel.  The Collective Bargaining Agreement (“CBA” or “Agreement”) between the Employer and the Union effective December 26, 2000 through and including June 30, 2003 governs this subject.  The arbitration was conducted pursuant to the CBA.  All parties were fully,  fairly, and well represented at the arbitration hearings and subsequently. 


ISSUE PRESENTED

            Pursuant to the documents, testimony and arguments submitted prior to and during the arbitration hearing, the issues presented to the Arbitrator are:

Issue No. 1:

            Whether on and after May 1, 2002 the Office of Youth Service, DHS, violated the Unit 10 CBA by unilaterally changing express and implied terms and conditions of the CBA by having an investigator of the Office of Attorney General with powers to conduct criminal investigations to become involved in disciplinary meetings and investigations of bargaining unit employees?

Issue No. 2:

            If so, what is the appropriate remedy?                            

SUMMARY OF FACTUAL BACKGROUND

            The UPW negotiates contracts for Unit 1 and Unit 10 employees on a multi-employer basis with the State of Hawaii and various counties.  Unit 10 employees include approximately fifty-one (51) youth correction officers at the HYCF.

            UPW and the various public employers have negotiated twelve successive

CBA’s from January 1, 1973 to the present covering bargaining Unit 10.

            With the exception of the 1979 CBA, Gary Rodrigues (“Rodrigues”) was the chief spokesman for the union in bargaining.

            The various CBA’s contain provisions relating to Union Recognition (Section 1), Management Rights (Section 9), Discipline (Section 11) Prior Rights (Section 14), Personnel Information and Personnel Files (Section 17), and Bill of Rights (Section 56).

            HYCF employs approximately fifty-one youth correctional officers in bargaining unit 10 as part of its security staff.  The facility also employs social workers who are represented by HGEA.  To be employed at HYCF, an applicant for employment must submit a statement “under penalty of perjury indicating whether the staff member was ever convicted of a crime other than a minor traffic violation” and be subject to a

criminal history record check.

             Decisions to discharge employees are made by the Director of the DHS based on the recommendations from the Director of the Office of Youth Services, the Administrator of HYCF, and his subordinates.  Decisions to suspend employees for ten days or more are made by the Director of the Office of Youth Services, and lesser suspensions are made by the administrator of the facility with recommendations from the cottage administrator(s).  Decisions to issue written or oral reprimands are made by the cottage administrator(s).  All disciplinary actions are subject to the grievance procedure, and are reviewed and adjusted by the Director of DHS.

            Consultations with the labor relations division of DHS occurs periodically to comply with the requirements of the CBA.  Where some form of disciplinary action is being contemplated, the HYCF administrator often defers to the recommendation of the cottage administrator or supervisor who was primarily involved in the investigation of the complaint and prepares a written investigative report.

            Historically, all administrative (or disciplinary) investigations have been handled exclusively at HYCF by the administrator, the cottage or facility supervisors, and other subordinates.

            Administrative (disciplinary) investigations at HYCF are independently and separately conducted from criminal investigations (which are handled by law enforcement officers).

            On January 1, 1973, the parties to the Unit 10 Agreement agreed that no changes in wages, hours, and terms and conditions of work negotiated for Unit 10 employees would be made by public employers without “mutual consent” of the parties.

            On June 5, 2002, UPW filed a class action grievance challenging the retention and use of a special investigator from the office of the AG by DHS to conduct administrative (discipline) and criminal investigations at the Hawaii Youth Correctional Facility under the direction of the AG.  The grievance was prompted by a presence of Harold Fitchett (“Fitchett), the AG special investigator at a May 22, 2002 pre-disciplinary meeting, in the case of Joseph Mauai (“Mauai”) and proposed meeting with

Phyllis Rosete (“Rosete”) on or about May 30, 2002.  The grievance alleged violations of Sections 1, 11, and 58 of the Unit 10 CBA.

            On June 5, 2002, the Union requested information relating to the retention and involvement of the AG special investigator.  On or about June 19, 2002, DHS provided

a copy a Memorandum of Understanding (“MOU”) between the Office of Youth Services and the AG’s office pertaining to the retention of the AG special investigator.  Under the terms of the MOU and the position description of the AG special investigator, Fitchett

was expressly granted authority and power to perform both criminal and administrative investigations simultaneously for HYCF under the direction and control of the office of the AG.  Both the November 30, 2001 and May 30, 2002 MOU’s placed ”responsibility” and “direction” over Fitchett with the office of the AG.

            On July 10, 2002, the UPW notified Davis Yogi (“Yogi”), Director of the Department of Human Resources Development, of its intent to submit the grievance to arbitration.

APPLICABLE CONTRACT PROVISIONS

            The applicable CBA, in part, provides:

            Section 1.  Recognition.

1.01.  Exclusive bargaining representative.  The Employer recognizes the Union as the exclusive bargaining representative for those public Employees in the Blue Collar Non-Supervisory Unit.

                                  * * *

1.02.  Negotiate and Administer.  The Employer and the Union recognize the rights and obligations of the parties to negotiate wages, hours and other terms and conditions of employment and to administer this Agreement on behalf of covered employees, and that such administration shall apply equally to Employees in the bargaining unit without regard to membership or non-membership in the Union.

                                  * * *

1.05.  Consult or Mutual Consent.  The Employer shall consult the Union when formulating and implementing personnel policies, practices and any matter affecting working conditions.  No changes in wages, hours or other conditions of work contained herein may be made except by mutual consent.

                                  * * *

            Section 9.  Rights of the Employer.

9.01.  The Employer reserves and retains, solely and exclusively, all management rights, powers and authority, including the right of management to manage, control and direct its work forces and operations except those as may be granted under this Agreement.

                                  * * *

Section 11.  Discipline.

11.01  Process.

11.01 a.     A regular Employee shall be subject to discipline by the Employer  for just and proper cause.

11.01 b.     An Employee who is disciplined, and the Union shall be furnished the specific reason(s) for the discipline in writing on or before

the effective date of the discipline except where the discipline is in the form of an oral warning or reprimand.  However, if the oral warning or reprimand is documented or recorded for future use by the Employer to determine future discipline the Employee who is disciplined shall be furnished the specific reason(s) for the oral warning or reprimand in writing.

11.01 c.     When an Employee is orally warned or reprimanded for disciplinary purposes, it shall be done discreetly to avoid embarrassment to the Employee.

11.01 d.     In the event the need to impose discipline other than an oral warning or reprimand is immediate, the Employee and the Union shall be furnished the reason(s) in writing within 48 hours after the disciplinary action is taken.

11.01 e.     Written notifications of disciplinary actions involving suspension and discharge shall include the following:

11.01 e.1.     Effective dates of the penalties to be imposed and

11.02 a.     In the event that an Employee is scheduled in advance by the Employer to meet to answer questions, the Employee shall be informed of the purpose of the meeting.

11.02 b.     When the subject of the meeting is on a job related incident and the Employee reasonably feels that disciplinary action may result

from the meeting, the Employee may request that a Union representative or steward be present in the meeting.

11.02 c.     The Employee shall be credited with work time in the event the meeting is held on non-work hours.

                                  * * *

            Section 14.  Prior Rights, Benefits and Perquisites.

14.01.     Nothing in this Agreement shall be construed as abridging, amending or waiving any rights, benefits or perquisites presently covered by constitutions, statutes or rules and regulations that Employees have enjoyed heretofore, except as expressly superseded by this Agreement.

Section 17.  Official Personnel File.

17.01     Examine and Copy.

17.01 a.     The Employee and/or the Union shall by appointment, be permitted to examine the Employee’s personnel file.

17.01 b.     The Employee and or the Union shall, upon request, be given a copy of material in the file.

17.02     Placements and Explanation.

17.02 a.     No material derogatory to an Employee shall be placed in the Employee’s personnel file unless a copy is provided to the Employee.

17.02 b.     The Employee shall be given an opportunity to submit explanatory remarks to be included in the file.

17.03 a.     Derogatory and History.

17.03 a.     An Employee and the Union may request that derogatory material not relevant to the Employee’s employment be destroyed after two (2) years.

17.03 b.     Derogatory material is defined as material that is detracting from the character or standing of an Employee, expressive of a low opinion of an Employee, degrading, belittling, contemptuous, disparaging, negative, uncomplimentary, and unflattering.

17.03 c.     The Employer will determine whether the material is relevant and will decide whether the material will be retained or destroyed from the personnel file.  The decision to retain the material shall include the reasons and shall be in writing.

17.03 d.     The decision of the Employer shall be subject to Section 15, and processed at Step 2 of Section 15.

17.03 e.     The Employee’s employment history record shall not be altered.

                                  * * *

            Section 58.  Bill of Rights.

58.01     Statement.  No Employee shall be required to sign a statement of complaint filed against the Employee.

58.02     Investigation.

58.02 a.     If the Employer pursues an investigation based on a complaint, the Employee shall be advised of the seriousness of the complaint.

58.02 b.     The Employee will be informed of the complaint, and will be afforded an opportunity to respond and/or refute the complaint.

58.03.     Before making a final decision, the Employer shall review and consider all available evidence, data, and factors supporting the Employee, whether or not the Employee provides factors in defense of the complaint.

58.04.     In the event the complaint is not substantiated or the Employee is not disciplined, the complaint and all relevant information shall be destroyed, provided that the Employer may retain a summary of such information outside of the official personnel file whenever such complaint may result in future liability to the Employer, including but not limited to, discrimination complaints.

POSITIONS OF THE PARTIES

EMPLOYER'S POSITION

            The Employer’s position is that it is entitled to dismissal of the grievance, arguing that:

1.         This class grievance should be denied because the Employer’s agreement to use an AG investigator did not, on its face, change any employees’ wages, hours or conditions of work as articulated in the CBA.

2.         UPW has failed to meet its burden of establishing that any Unit 10 employee was harmed as a result of the use of an AG investigator at HYCF.

3.         Entering into the MOU, the Employer fully expected that the AG investigator would act appropriately with respect to maintaining the confidentiality of records, segregating the administrative investigations from any criminal investigation that arose from the same conduct, and abiding by any applicable provisions of the CBA.

4.         Nothing in the MOU authorized the AG investigator to intermingle an administrative investigation with a criminal investigation, or to otherwise conduct investigations in a manner that would violate the CBA.

5.         Fitchett admits that for the first few months of his employment, he was unaware of the importance of segregating an administrative investigation from a criminal investigation.

6.         No Unit 10 employees were subjected to any disciplinary action as a result of Fitchett’s investigations.

7.         All pending investigations have been reassigned to HYCF investigators, and all HYCF administrative files in Fitchett’s possession or at the Attorney General’s office were recalled for return to the custody of HYCF.

8.         There is no violation of Section 1.05 because the MOU, on its face, did not change wages, hours or any conditions of work contained in the CBA.

9.         The second sentence of Section 1.05 requires mutual consent only if the alleged changes are to conditions of work that are “contained herein”, i.e., contained in the CBA.  Any other changes (i.e., personnel policies or practices that affect working conditions) are matters for consultation, pursuant to the first sentence of Section 1.05.

10.       UPW expressly abandoned any claim based on the first sentence of

Section 1.05 that requires consultation when the Employer formulates personnel policies, practices or other matters affecting working conditions.  (Emphasis added.)

11.       The second sentence of Section 1.05 clearly requires the Employer to negotiate with the Union any modification in conditions of work contained in the contract.  (Emphasis added).

12.       There is no evidence whatsoever that the MOU changed any express written terms of the Unit 10 CBA.  Rodrigues acknowledged that nothing in the CBA prohibited the use of an outside AG investigator to conduct administrative investigations.

13.       Rodrigues acknowledged management’s duty to conduct full and fair investigations, and management’s exclusive right to determine if and when an administrative investigation will be conducted.

14.       Hawaii law protects the Employer’s exclusive right to hire and assign employees, and to take any appropriate disciplinary action.

15.       Virtually all aspects of administrative investigations fall within the purview of management’s rights.

16.       Rather than claim the MOU violates express terms of the CBA, Rodrigues claims instead that the second sentence of Section 1.05 should be read so broadly as

to require mutual consent whenever there are changes to any “implied” terms that he asserts are part of the CBA.

17.       Rodrigues is a convicted felon who was recently found guilty of numerous crimes of fraud and dishonesty against his own UPW membership.  As such, Rodrigues’ credibility as a witness is suspect, to say the least.

18.       If a personnel policy or practice affects working conditions under the first sentence of Section 1.05, it defies logic to conclude that mutual consent (rather than consultation) is required under the second sentence for changes to those very same working conditions.

19.       UPW relies primarily on dicta from obscure HYCF arbitration decisions for the proposition that the use of an outside investigator violates Section 1.05.

20.       The focus of this class grievance is completely different from the disciplinary cases relied upon by UPW.  This is not a discipline case, but a contract interpretation grievance.  None of the decisions relied upon by UPW contain any

analysis whatsoever of Section 1.05 or the critical distinction between the first and second sentences of that section.

21.       UPW bears the burden of establishing that the practice of using an outside investigator with law enforcement authority violates some condition of work contained in the CBA, under the second sentence of Section 1.05.

22.       Assuming that the second sentence of Section 1.05 somehow refers to working conditions that are not enumerated in the CBA, UPW has still failed to establish that the MOU itself (rather than Fitchett’s admittedly flawed execution of his duties) operated to change those working conditions.

23.       UPW offers a mish-mash of alleged changes attributable to the MOU.  Rodrigues claimed that since the inception of the MOU, employees were unfairly subject to criminal investigations for on-duty misconduct, and reluctant to provide statements in the course of an administrative investigation out of fear that the statements will be used against the employee in a criminal proceeding.  In addition, Rodrigues claimed that confidential personnel records were compromised, derogatory materials mishandled, and due process rights (i.e., notice of the charges and Union representation) ignored.  Rodrigues did not explain how the MOU had anything to do with these alleged “changes”.

24.       As to criminal prosecution of Unit 10 employees for on the job misconduct, the evidence is undisputed that Yoshimoto and other HYCF administrators have always been free to report misconduct to law enforcement, even before the existence of the MOU.

25.       As to the employees’ reluctance to provide statements, even Rodrigues acknowledged that employees have historically taken advantage of their right to remain silent, even prior to Fitchett’s involvement.  They are still free to do so today.

26.       As to Fitchett’s alleged sharing of administrative records with HPD, HRS

Chapter 92F expressly authorizes administrative records to be shared with law enforcement where the records include evidence of criminal conduct.  The CBA simply cannot be construed to violate Hawaii’s open records law.

27.       The disconnect between the MOU and the alleged working condition changes is highlighted by the testimony of in-house investigator Yoshimoto, who acknowledged that even his own practice of reporting misconduct to law enforcement has changed over time.  Any investigator will bring his or her own experiences to bear in determining when to report crimes, how to implement the due process protections in the CBA, and how to handle documents and evidence in a manner consistent with Chapter 92F and the CBA.

28.       Rodrigues asserts that the MOU by its very terms calls for management “to mix the criminal and the administrative investigation”.  However, that interpretation is contrary to the language in the MOU.  In fact, even Rodrigues conceded that the MOU does not prevent an investigator from abiding by the employees’ rights under the CBA, preserving confidentiality of records, or providing notice of charges and the opportunity for Union representation.

29.       Any employee aggrieved by Fitchett’s alleged mishandling of a particular investigation has the right to file a grievance.

30.       Mauai’s grievance was amicably settled between the Employer and UPW, and any other complaint by individual employees aggrieved by Fitchett’s handling of a particular investigation should be handled in like fashion.

31.       The MOU allows for both criminal and administrative investigation, but says nothing about intermingling the two.

32.       UPW has failed to sustain its burden of establishing that any Unit 10 employees suffered any harm.  Fitchett worked on only a limited number of cases.  No employees were disciplined as a result of Fitchett’s investigation.  Other than Mauai, there is no evidence that any employee was placed on leave pending Fitchett’s investigation.

33.       There is no pending MOU, and there is no AG investigator conducting administrative investigations at HYCF.  There is no viable remedy left to grant, even if the Employer somehow violated Section 1.05.

34.       UPW clearly seeks relief that has either been granted by the Employer or is beyond the scope of the arbitrator’s authority.

35.       No employees have been disciplined, and the only employee placed on leave pending investigation (Mauai) filed a separate grievance that has already been resolved.

36.       No legal basis to support Rodrigues’ request for a cease and desist order that would prohibit HYCF investigators from starting a new administrative investigation “from scratch” for cases that were previously handled by Fitchett.  Just as a tainted criminal investigation may be redone independently, a new and properly conducted administrative investigation that is in compliance with the CBA must remain an option for the Employer.  To give HYCF employees a “freebie” just because Fitchett had once been assigned the case is against public policy, and would give greater protection to employees accused of administrative misconduct than those accused of crimes.

37.       Where the controversy surrounding the grievance no longer exists, the parties should be barred from even arbitrating their dispute.

38.       The MOU to obtain investigative services from the AG’s office is no longer in effect.  There is no credible evidence of any adverse effects to Unit 10 employees.  Thus, the essential subject matter of this arbitration no longer exists.

UNION'S POSITION

            It is the Union’s position that the Employer has violated the CBA, when it

retained and used a special investigator from the office of the AG to conduct administrative (discipline) and criminal investigations at the HYCF under the direction of the AG, noting that: 

1.         On January 1,1973, the parties to the Unit 10 Agreement agreed that no changes in wages, hours, and terms and conditions of work negotiated for Unit 10 employees would be made by public employers without “mutual consent” of the parties.

2.         Section 1.05 of the CBA was intended to prohibit unilateral mid-term modifications to the express and implied terms of the Agreement, and was “founded on the statutory duty to bargain”.

3.         Section 1.05 has been retained in all successive Unit 10 Agreements since 1973.

4.         The requirements of mutual consent have been applied to a wide variety of “conditions of work” impliedly or expressly contained in the CBA.

5.         The Employer’s use of an AG investigator does not involve a “personnel policy” or practice which merely affects working condition, it changes terms and conditions of employment.

6.         After thirty years of litigation since Section 1.05 was initially negotiated, there is a general consensus among arbitrators and the labor board that unilateral management action violates Section 1.05 when:

“the challenged management action is found to conflict with, negate, deny, derogate, infringe, repudiate or otherwise negatively impact some “condition of work” expressly or impliedly bargained for into the contract by the parties.”

(Emphasis added).

7.         DHS is familiar with the requirements of Section 1.05 since on three separate occasions arbitrators have reversed unilateral changes made by HYCF to terms and conditions of work of Unit 10 employees.

8.         Bert Matsuoka (“Matsuoka”), who made the decision to retain the AG investigator, was unaware of either of the two prior Hicks awards on Section 1.05, and the rulings were not a consideration in his determination.  HYCF’s Administrator, Melvin Ando (“Ando”), who recommended the AG retention, was not aware of Hicks I (decided by Arbitrator Peter Trask), and knew of Hicks II (rendered by Arbitrator Kuriyama), but admits the award was not a consideration in his recommendation.

9.         Although public employers have tried to defend unilateral actions in changing “conditions of work” based on claims to “management rights” under HRS

            Section 89-9(d), Arbitrators in Hawaii have consistently required joint decision making in accordance with Section 1.05 where the actions have “conflicted with, negated, denied, derogated, infringed, repudiated, or otherwise negatively impacted” employee “conditions of work.”

10.       The Employer recognizes that management rights does not “trump” Section 1.05 of the CBA.

11.       The Hawaii Labor Relations Board also reaffirmed its view that “management rights” must be balanced with “employee rights,” and ruled that HRS Section 89-9(d) cannot “supercede[s] the rights contained in the bargaining agreement.”  The Board declined to adopt a literal reading of HRS Section 89-9(d) because it would be “disastrous to bargained [sic] for rights and relationships” under the agreement.

12.       Since the initial Agreement in 1973, the parties to the Unit 10 Agreement have adopted the “just and proper cause” standard for all disciplinary actions.  The

first CBA also required that employees be “furnished the reason or reasons for discipline in writing” in Section 11.01 (to ensure timely notice and to avoid subsequent changes in the grounds for discipline,) and made employer discipline subject to the grievance procedure in Section 11.02.  In 1977, Section 11.01 was amended to extend the deadline for providing a statement of reason to 48 hours after disciplinary actions for suspension and discharge actions and to indicate

the “effective dates of the penalties to be imposed.”  In 1979, Section 11.03 was added to afford CETA participants to the right to grieve, and Section 11.04 was added to afford union representation during employer interrogations for “job related incidents” which could lead to disciplinary actions, to require that employees be “informed of the purpose of the meeting,” and to have such meetings during paid time.  In 1981, Section 11.01 was amended to require that disciplinary actions in the form of oral warnings and reprimands “be done privately.”

13.       In 1987, Section 11.01 was amended to require more “details of the specific reasons” for suspensions and discharges, and to afford employees an “opportunity to respond to charges prior to the effective date of discharge.”  The parties also negotiated a new Section 11A for “leaves pending investigation of charges.”  The later provision limited indefinite suspensions pending investigations.

14.       HYCF has no policies, rules, or guidelines for the use of third parties (including child protective service or police officers) in disciplinary proceedings.

15.       Since the decisions by Arbitrators Trask, Kuriyama, Okano and Nicholson, public employers have made no effort to negotiate a provision allowing third parties to conduct disciplinary investigations on Unit 1 and Unit 10 employees.

16.       In 1968, the U.S. Supreme Court in Garrity v. State of New Jersey, held that the use of statements obtained in administrative (disciplinary) proceedings for fixing traffic tickets in a criminal prosecution violates the 14th Amendment of the U.S. Constitution.  According to Donald Wong (“Wong”), Chief Investigator in the AG’s office, Garrity prohibits the concurrent investigations of administrative (disciplinary) and criminal misconduct of the same suspect, and the use of investigative records obtained in administrative proceedings for criminal cases.

17.       Fitchett, a former police detective and employee of the Honolulu Police Department (“HPD”) for thirty years, was advised in April 2002 by the internal affairs unit of HPD that administrative and criminal proceedings had to be handled separately, and the records in one could not be mixed with the other.  HPD recognizes a “conflict between doing criminal cases and administrative cases.”  According to Fitchett, it is improper to commingle records of administrative and criminal investigations, and it would violate a public employee’s constitutional right to use information obtained in administrative investigations in criminal prosecutions.

18.       The HYCF administrator is familiar with CBA Section 56.6 provision on “bill of rights”.

19.       In accordance with Section 17, personnel records are considered confidential and are not available even to police access. Ando considers all records and reports of administrative investigations to be sensitive and confidential.  Cottage Administrator (now corrections supervisor) Glenn Yoshimoto (“Yoshimoto”) who has been involved in hundreds of investigations of complaints against Youth Correctional Officers (“YCO’s”) since 1996 considers reports of administrative (disciplinary) investigations to be confidential and to not be disclosed to anyone.  According to Ando, disciplinary reports and records are confidential and are not made available to police or law enforcement officials, and have not been subpoenaed from HYCF.  Records of administrative investigations are not considered public records, and have not been turned over to the police department for use in criminal investigations in the past.

20.       Section 56.02 of the CBA was intended to afford employees notice of complaints and an opportunity to respond with the right of union representation during “an investigation based on such a complaint.”  The purpose of Sections 56.03 and 56.04 was to require the employer to consider “mitigating circumstances,” and “available evidence and data” whether offered by the employee in his or her defense prior to the implementation of any disciplinary action.  In 1995,

Section 56.05 was amended to require that records of unsubstantiated complaints be “destroyed.”  In 1999, Section 56 was renumbered to Section 58.

21.       HYCF supervisors recognize corrective and progressive discipline to be “consistent with the just cause requirements of the contract.”  Yoshimoto, who has handled hundreds of complaints since 1996, applies corrective or progressive discipline principles to the cases he is assigned.  In discharge cases, a pre-disciplinary “hearing” is afforded to the YCO.  Due process requires a notice of the charges, fair hearing and opportunity to be heard for the YCO.  Written notice of the disciplinary action is provided in a letter or an internal communication form.

22.       The retention and use of Fitchett in his dual capacity fundamentally changed the existing “terms and conditions of work” of Unit 10 employees at HYCF as provided in Sections 22 (Just and Proper Cause), 14 (Prior Rights under Garrity) and 17 (on confidentiality and destruction of derogatory materials), and 58 (Employee Bill of Rights).

23.       HYCF’s unilateral changes to terms and conditions of work of Unit 10 employees violates Section 1.05 of the CBA.

24.       HYCF officials who made the decision to retain and use an AG investigator were apparently unaware of a 1984 arbitration award which forewarned that the unprecedented utilization of “an administrative hearing committee” to investigate and recommend discipline violates Section 1.05 by its failure to afford Unit 10 employees a “fair and objective investigation.”

25.       According to Fitchett sometime in late April 2002, he learned from HPD’s internal affairs unit that a “conflict” existed in his dual conduct of administrative and criminal investigations against Unit 10 employees.  Fitchett brought the matter to Wong’s attention, and Wong agreed that what Fitchett had done was “obviously wrong” under Garrity.   Wong acknowledged that Fitchett could not conduct a criminal and administrative investigation against the same target, and could not release reports, documents, notes and other records obtained in an administrative investigation to someone handling a criminal investigation for use in the later.

26.       Although Fitchett claimed he limited himself to administrative investigations after late April, the AG investigator remained involved in criminal investigative efforts thereafter against Mauai, Rosete and Marciel, Scott Rosete, and Hicks.  There was no change in his power or authority in the MOU dated May 2.  A careful review of the documentary and testimonial proof also indicates that no clear line of separation existed (between administrative and criminal case) in any of the eight major cases Fitchett was assigned to handle.

27.       The retention and use of the AG special investigators clearly changed the pre-existing practice and procedure at HYCF where criminal investigations were separately and independently conducted (by HPD) from administrative cases.  Those involved in administrative investigations lack authority, power, and training to conduct criminal investigations, and at no time was a police officer on the HYCF staff.  Law enforcement officers have never conducted administrative investigations at HYCF, and were not involved in any aspect of the disciplinary review process.  Records and files of administrative investigations were considered confidential and were not provided or accessible to police officers.

28.       The practice and custom at HYCF was clearly consistent with the “prior rights” of public employees covered by the U.S. Constitution.

29.       As decided by the Hawaii Labor Relations Board in Decision No. 409, under Section 17 of the Unit 1 and Unit 10 collective bargaining agreements, “derogatory materials”, notes, and records may not be retained outside of the official personnel files of employees and their use (when kept outside of the official personnel file) is strictly prohibited.

30.       Prior to Fitchett’s retention and involvement, HYCF officials complied fully with CBA Section 11 requirements.  They held meetings in a cooperative setting where employees were given a full and fair opportunity to respond to or refute charges.

31.       HYCF does not have the “management right” to repudiate the specific terms and conditions in the Unit 10 contract.

32.       Appropriate remedies should be ordered for repetitive violations of Union recognition requirements by HYCF.


ARBITRATOR’S ANALYSIS

Issue No. 1:

            Whether on and after May 1, 2002 the Office of Youth Service, DHS, violated the Unit 10 CBA by unilaterally changing express and implied terms and conditions of the CBA by having an investigator of the Office of Attorney General with powers to conduct criminal investigations to become involved in disciplinary meetings and investigations of bargaining unit employees?

Issue No. 2:

            If so, what is the appropriate remedy?

            The relevant Collective Bargaining Agreement provisions are:

            Section 1.  Recognition.

1.01.  Exclusive bargaining representative.  The Employer recognizes the Union as the exclusive bargaining representative for those public Employees in the Blue Collar Non-Supervisory Unit.

                                                                           * * *

1.02.  Negotiate and Administer.  The Employer and the Union recognize the rights and obligations of the parties to negotiate wages, hours and other terms and conditions of employment and to administer this Agreement on behalf of covered employees, and that such administration shall apply equally to Employees in the bargaining unit without regard to membership or non-membership in the Union.

                                                                           * * *

            1.05.  Consult or Mutual Consent.  The Employer shall consult the Union when formulating and implementing personnel policies, practices and any matter affecting working conditions.  No changes in wages, hours or other conditions of work contained herein may be made except by mutual consent.

                                                                           * * *

Section 11.  Discipline.

11.01  Process.

11.01 a.     A regular Employee shall be subject to discipline by the Employer  for just and proper cause.

11.01 b.     An Employee who is disciplined, and the Union shall be furnished the specific reason(s) for the discipline in writing on or before the effective date of the discipline except where the discipline is in the form of an oral warning or reprimand.  However, if the oral warning or reprimand is documented or recorded for future use by the Employer to determine future discipline the Employee who is disciplined shall be furnished the specific reason(s) for the oral warning or reprimand in writing.

11.01 c.     When an Employee is orally warned or reprimanded for disciplinary purposes, it shall be done discreetly to avoid embarrassment to the Employee.

11.01 d.     In the event the need to impose discipline other than an oral warning or reprimand is immediate, the Employee and the Union shall be furnished the reason(s) in writing within 48 hours after the disciplinary action is taken.

11.01 e.     Written notifications of disciplinary actions involving suspension and discharge shall include the following:

            11.01 e.1.     Effective dates of the penalties to be imposed and

11.02 a.     In the event that an Employee is scheduled in advance by the Employer to meet to answer questions, the Employee shall be informed of the purpose of the meeting.

11.02 b.     When the subject of the meeting is on a job related incident and the Employee reasonably feels that disciplinary action may result from the meeting, the Employee may request that a Union representative or steward be present in the meeting. 11.02 c.  The Employee shall be credited with work time in the event the meeting is held on non-work hours.

                                                                           * * *

            Section 58.  Bill of Rights.

58.01     Statement.  No Employee shall be required to sign a statement of complaint filed against the Employee.

58.02     Investigation.

58.02 a.     If the Employer pursues an investigation based on a complaint, the Employee shall be advised of the seriousness of the complaint.

58.02 b.     The Employee will be informed of the complaint, and will be afforded an opportunity to respond and/or refute the complaint.

58.03.     Before making a final decision, the Employer shall review and consider all available evidence, data, and factors supporting the Employee, whether or not the Employee provides factors in defense of the complaint.

58.04.     In the event the complaint is not substantiated or the Employee is not disciplined, the complaint and all relevant information shall be destroyed, provided that the Employer may retain a summary of such information outside of the official personnel file whenever such complaint may result in future liability to the Employer, including but not limited to, discrimination complaints.

            After review of the record, including the CBA, all of the testimony, all of the exhibits, and the briefs, the circumstances presented by the Union are not consistent with Sections 1, 11 and 58 of the CBA.

            Section 1.05, the applicable section of the CBA, expressly and specifically refers to the Union and the Employer’s agreement states:

                                                                           * * *

No changes in wages, hours or other conditions of work contained herein may be made except by mutual consent.

                                                                           * * *

            Thus, under the clear language of the contract, the CBA prohibits unilateral modifications to the express and implied terms of the Agreement.  Specifically, the CBA requires mutual consent by the Union and the Employer (collectively “the parties”).  Since the inception of the CBA on January 1, 1973, the parties to the Unit 10 Agreement agreed that no changes in wages, hours, and terms and conditions of work negotiated for Unit 10 employees would be made by public employers without “mutual consent” of the parties.  In the instant case, the Employer violated the CBA when it retained and used Fitchett to conduct administrative(discipline) and criminal investigations at the HYCF under the direction of the AG.

            Three elements must be proven to establish a Section 1.05 violation.  First, the Employer must act unilaterally.  Second, the challenged management action must conflict with, negate, deny, derogate, infringe, repudiate or negatively impact some condition of work.  Third, the condition of work must be contained in the CBA.

            Here, the Union proved all elements of a Section 1.05 violation.

            First, management admitted they did not even consult the UPW, much less obtain consent before using the AG investigator to conduct administrative investigations.

            Second, the use of the AG investigator to conduct administrative investigations infringed on or negatively impacted the employee’s right under the “just cause” section and Section 58 of the CBA to give his or her side of the story.  By using a criminal investigator with police powers, this infringes or negatively impacts on the employee’s rights because the employees may feel intimidated from telling their side of the story to someone with police powers.  Further, the employee may not tell his side of the story because he believes it may incriminate him criminally.  Thus, the action infringed or negatively impacted on a condition of work.

            Third, the condition of work is contained in at least two sections of the CBA.  Section 11, the “just cause” section under the seven tests, allows the employee to tell his side of the story.  Section 58.02b expressly affords the employee the opportunity to respond and refute the complaint.

            Thus, all elements of a Section 1.05 violation were proven by the Union.

            The Employer’s unilateral management action did not simply involve a “personnel policy” or practice which merely affected work conditions.  Rather, it changed the terms and conditions of employment which violates Section 1.05 of the CBA.

            Furthermore, the retention and use of Fitchett, in his dual capacity as a criminal investigator as well as an administrative investigator, fundamentally changed the existing “terms and conditions of work” of Unit 10 employees at HYCF as provided for in Sections 11 and 58 of the CBA.

            It is clear that since the inception of the initial Agreement in 1973, the parties to the Unit 10 Agreement have adopted the “just and proper cause” standard for all disciplinary actions.  This provision allows employees’ the right to a full and fair investigation.

            In the instant case, the Arbitrator concurs with Hicks (I) (1984) (“Hicks I”), a prior arbitration decision by Arbitrator Peter Trask (“Trask”) whereby Trask’s award provided that the unprecedented utilization of “an administrative hearing committee” to investigate and recommend discipline violates Section 1.05 by its failure to afford Unit 10 employees a “fair and objective investigation.” 

            Similarly, in Hicks (II) (1998) (“Hicks II”), Arbitrator Christine Kuriyama (“Kuriyama”) held that HYCF violated Section 1.05 of the CBA by changing the disciplinary investigation process unilaterally by having Child Protective Service (“CPS”) conduct an investigation which resulted in the improper discharge of Hicks.  This Arbitrator concurs with Kuriyama.

            Matsuoka, who made the decision to retain Fitchett, was unaware of either of the two prior Hicks awards pertaining to Section 1.05 of the CBA, and the rulings were not a consideration in his determination.  Despite Ando’s knowledge of Hicks II, he admitted that Kuriyama’s arbitration award was not a consideration when he recommended the retention of Fitchett.

            The Employer is familiar, or should have been familiar, with the requirements of Section 1.05 since on three separate occasions, arbitrators have reversed unilateral changes made by HYCF to terms and conditions of work of Unit 10 employees.     

            The Employer argues that its retention and use of an AG investigator did not change any employees’ wages, hours or conditions of work as provided for in the CBA, nor was any Unit 10 employee harmed as a result of the use of an AG investigator at HYCF.

            On the contrary, the Employer violated Section 1.05 of the CBA by unilaterally changing a condition of work by actually retaining and using Fitchett to perform criminal and administrative investigations without the mutual consent of the Union.

            The Employer further argues that virtually all aspects of administrative investigations fall within the purview of management’s rights, and that the Union acknowledged management’s duty to conduct full and fair investigations and also acknowledged management’s exclusive right to determine if and when an administrative investigation will be conducted.

            Although the term “management’s rights” can be construed to be very “broad” in meaning and application, the Arbitrator is of the opinion that an employee, as outlined in this Agreement, is at least afforded certain constitutional as well as contractual rights.  In this case, under Garrity, the Employer violated the employees’ rights under the 14th Amendment of the U.S. Constitution, as Garrity prohibits the concurrent investigations of administrative (disciplinary) and criminal misconduct of the same suspect, and the use of investigative records obtained in administrative proceedings for criminal cases.  Thus, management’s rights have limitations.

            The Employer argues that for the first few months after the retention of Fitchett, Fitchett was unaware of the importance of segregating an administrative investigation from a criminal investigation.  Fitchett’s lack of knowledge, however, cannot be taken lightly, nor can it be condoned.

            The Employer is of the position that Mauai’s grievance was amicably settled between the Employer and the Union.  Nevertheless, prior to the settlement of this grievance, Mauai was not afforded the right to a “fair and objective investigation” as provided for in the “just and proper cause” provision of the CBA.

            The Employer argues that the Union has failed to sustain its burden of establishing that any Unit 10 employees suffered any harm.  First, the Arbitrator does not believe that damages are necessarily an element of a Section 1.05 violation.  Second, some of the employees may have been harmed by the improper dissemination of information, among other things.  Thus, the Employer’s argument fails.

            Under the circumstances in evidence, the Employer violated the terms of Section 1.05 of the CBA which were known to the Employer (and was never changed) since the inception of the parties’ Unit 10 Collective Bargaining Agreements on
June 1, 1973.   


DECISION AND AWARD

            Based upon the foregoing, the Arbitrator finds that the Union proved that the Employer violated the parties’ Collective Bargaining Agreement.  Following the Agreement’s language, the class action grievance must be affirmed.  Accordingly, the grievance is upheld in its entirety.

REMEDY:

            The Arbitrator hereby issues a declaratory order that HYCF has committed multiple violations of Section 1.05 of the CBA by unilaterally changing “conditions of work” as provided in Sections 11 and 58 of the Unit 10 CBA.  HYCF improperly retained and used an AG investigator which conflicted with, negated, denied, derogated, infringed, repudiated and/or otherwise negatively impacted on the Unit 10 members rights of (1) just cause; (2) destruction of records of unsubstantiated ward complaints under Section 58.05 and (3), the bill of rights of Unit 10 employees, including a right to be heard (w/o police intervention).

            The Arbitrator hereby also orders injunctive relief that HYCF officials cease and desist from (1) continuing violations of Section 1.05 as indicated above; (2) using law enforcement officers in disciplinary investigations; (3) commingling administrative and criminal investigations; (4) releasing records, documents and other information obtained in administrative investigations to law enforcement, and (5) imposing any discipline against YCO’s who were subject to investigations by Fitchett.

            Finally, as part of its make whole relief for employees, HYCF is ordered to retrieve from Fitchett, HPD, the Office of the Prosecutors, Wong, and the Office of the Attorney General and destroy (1) the original and all copies of investigative reports prepared by Fitchett on Unit 10 employees, and (2) all notes, records, letters, memos, and other items which were released to them by HYCF offices and Fitchett during the investigations he conducted on Unit 10 employees.

            The Arbitrator declines at this time to order the Union reimbursement for it fees and costs. 

            DATED: Honolulu, Hawaii,                                     , 2003.

            ____________________________________
            MICHAEL F. NAUYOKAS
            Arbitrator

                                                                        Pacific Guardian Center, Makai Tower
                                                                        733 Bishop Street, Suite 2300
                                                                        Honolulu, Hawaii  96813

STATE OF HAWAII                                      )
                                                                        )           SS
CITY AND COUNTY OF HONOLULU        )

           

            On this _____th day of __________ 2003, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

___________________________________
Notary Public, State of Hawaii
My Commission expires: _______________                                                                            

 

 

 

       

  

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