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Title: State of Hawaii and United Public Workers
Date: 
March 30, 2006
Arbitrator: Michael Anthony Marr
Citation: 2006 NAC 141

 

BEFORE ARBITRATOR MICHAEL ANTHONY MARR

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 PUBLIC SAFETY (Women’s Class Grievance Concerning ACO’s to perform work other than their own without compensation); Sections 1, 11, 14, 26 46, 61; FF-04-33 (2005-136).

                                    Employer.

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CASE NO.    FF-04-33

(Class Grievance WCCC)

MOTION HEARING DATES: MARCH 14, 22, and 23, 2006 

ARBITRATION HEARING DATES: APRIL 21, 24, 25, MAY 9 and 10, 2006

ORDER GRANTING IN PART AND DENYING IN PART EMPLOYER’S MOTION TO COMPEL ANSWERS TO INTERROGATORIES, PRODUCTION OF DOCUMENTS, AND FOR PREHEARING DISCOVERY ORDER; EXHIBITS “A” THROUGH “BB”; CERTIFICATE OF SERVICE

                                                   

MICHAEL ANTHONY MARR
A
ttorney, Arbitrator, & Mediator
111 North King Street
Suite # 314
Honolulu, Hawaii 96817
Telephone: (808) 599-5258
Facsimile:   (808) 599-1545
E-mail: MmarrADR@aol.com

  ORDER GRANTING IN PART AND DENYING IN PART EMPLOYER’S
MOTION TO COMPEL ANSWERS TO INTERROGATORIES,
PRODUCTION OF DOCUMENTS, AND FOR PREHEARING DISCOVERY ORDER

The “Employer’s Motion to Compel Compliance with Employer’s First Request for Answers to Interrogatories and Production of Documents to the Union; Exhibits A – B; Certificate of Service” was filed on February 15, 2006 and is sometimes hereinafter referred to as “MOTION.”  The “UPW’s Memorandum in Opposition to Employer’s First Request For Answers to Interrogatories and for Production of Documents and for Protective Order Relating to Discovery Request; Affidavit of Danny J. Vasconcellos; Exhibits 1-4; Appendix; Certificate of Service” was filed on March 3, 2006 and is sometimes referred to herein as “REQUEST FOR PROTECTIVE ORDER.” The “Employer’s Reply to UPW’S Memorandum in Opposition to Motion to Compel Compliance with Employer’s First Request for Answers to Interrogatories and Production of Documents to Union; Exhibits A –B; Certificate of Service” was filed on March 6, 2006. The “Employer’s Supplement to Reply to UPW’s Memorandum in Opposition to Motion to Compel Compliance with Employer’s First Request for Answers to Interrogatories and Production of Documents to the Union; Exhibits C-E; Certificate of Service” was filed on March 8, 2006.

The Employer’s MOTION and the Union’s REQUEST FOR PROTECTIVE ORDER were heard by this Arbitrator on March 14, 22, and 23, 2006. Both parties were zealously and competently represented by counsel at the hearing. The United Public Workers, AFSCME, Local 646, AFL-CIO, (hereinafter sometimes referred to as AUnion@) was represented by DANNY J. VASCONCELLOS, ESQ.  The State of Hawaii,  Department of Public Safety (hereinafter sometimes referred to as AEmployer@), was represented by Deputy Attorney General JEFFREY A. KEATING.

This Arbitrator has reviewed the extremely well-written above-referenced pleadings and reviewed the transcripts (Tr.) of the MOTION. After the closure of evidence and argument concerning the MOTION on March 13, 2006, this Arbitrator informed the parties that they would be permitted to submit supplemental briefs, arbitral decisions, and other matters concerning the MOTION no later than March 27, 2006. (Tr. 03/23/06 at 36). The Employer, by letter dated March 23, 2006 and the Union, by letter dated March 27, 2006 both submitted additional written legal argument and arbitral decisions.

As a general rule, this Arbitrator will address only those facts and issues that are relevant to this decision and will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by this decision. This Arbitrator informed the parties that he would submit his decision to the parties shortly after of the transcripts of the MOTION were completed. This Arbitrator received the transcripts on Monday, March 27, 2006.

I.  CONCISE STATEMENT OF EMPLOYER'S POSITION.

The Employer has taken the position that the Union has violated Section 658A-17 of the Hawaii Revised Statutes (sometime hereinafter referred to as “HRS”)  by failing to provide answers to interrogatories and to produce documents. The Employer further argues that the requested information is not protected by a union work product privilege or a union representative-union member privilege as these privileges do not exist under Hawaii law.

II. CONCISE STATEMENT OF UNION'S POSITION.

The Union has taken the position that granting the MOTION would be contrary to Section 15A of the Unit 10 Collective Bargaining Agreement (sometimes referred to herein as “CBA”) since there is no discovery provision for the Employer. The Union has also argued that an order providing discovery to the Employer is impermissible since the information sought is privileged and protected by the attorney-client privilege, a union representative-union member privilege, and a union work product privilege. The Union also argues granting the Employer access to the materials that it seeks to obtain would violate the Constitutional Right to Freedom of Association and Hawaii Revised Statutes, Sections 89-3 and 89-13 concerning rights of employees to organize into employee organizations, free from interference, restraint, or coercion.

III.     IS THE INFORMATION REQUESTED BY THE EMPLOYER PROTECTED BY A LEGAL PRIVILEGE?

The position taken by the Union is logical and well-reasoned. It is also supported by an exceptionally well-written law review article that begins with an analysis of most of the many cases that have considered a union representation privilege. The author uses a privilege test based upon competing public policy as to whether a new evidentiary privilege based upon the relationship between a union representative and a union member should exist. The article ultimately concludes that the courts should adopt a qualified privilege based upon the relationship between a union representative and a union member.  Extending a Qualified Evidentiary Privilege to Confidential Communications Between Employees and their Union Representatives, Moberly, 5 Nev. L.J. (Winter, 2004). This law review article is approximately 100 pages long with numerous footnotes and citations. It is interesting and excellent reading for any labor and employment law advocate and arbitrator. This law review article also makes an excellent reference text as it cites all of the cases referred to by the Employer and the Union and considerably more that have not been cited.

The Union has argued that there is a union representative-union member privilege and a union work product privilege, citing Cook Paint and Varnish Co., 258 NLRB 1230, 1981 WL 21122 (1981) (Exhibit “A”), the latter privilege of which is incorporated into the arbitral decisions of Arbitrator Mario R. Ramil, in the Grievance of Bert Taniguchi, dated July 3, 2005, the deferral decision of Arbitrator Jim Nicholson, dated June 22, 2005, Grievance of Victoria Jacobo,  and Arbitrator Paul S. Aoki’s decision, dated August 18, 2005, also deferring to Arbitrator Ramil, concerning Case No.s CU-04-19 to CU-04-45.  In short, these three arbitral decisions stand for the proposition that there is a union work product privilege. (Tr. 03/22/06 at 41). This Arbitrator was leaning toward adopting the positions of these three learned Arbitrators. Their arbitral decisions were well-reasoned. In addition, although the doctrine of stare decises does not apply in the context of the labor arbitration process, this Arbitrator has applied the doctrine for its precedential value, to prevent forum shopping, and to provide consistency to the arbitration process. However, after Arbitrators Ramil, Nicholson, and Aoki issued their respective decisions, the Hawaii Labor Relations Board, on February 26, 2006, in Case No. CE-01-605a and CE-10-605b, UPW v. DHRD et al., with knowledge of these three arbitral decisions, indicated that it was inclined to hold that a union member work product privilege did not exist. The Hawaii Labor Relations Board (sometimes referred to herein as “HLRB”) also questioned whether it had the jurisdiction to create such a privilege. A true and accurate copy of the relevant portions of the transcript concerning the hearing on this case is attached hereto as Exhibit “B”.[1]  

The legal authority relied upon by Arbitrators Ramil, Nicholson and Aoki, is a mixture of Hawaii law and federal law, with emphasis on Cook Paint, supra. The Employer has continued to rely upon American Airlines, Inc. v. Superior Court of  the State of California, 114 Cal. App. 4th 881, 8 Cal.Rptr3d 146 (2004) (Exhibit “C”) for the proposition that union evidentiary privileges do not exist in under Hawaii law. This Arbitrator believes that cases from other jurisdictions that conflict with one another (one set of cases supporting the Union and one set of cases supporting the Employer) are unnecessary to discuss, as a general proposition, since Hawaii law clearly and unequivocally precludes an arbitrator from creating a union representative-union member privilege or a union work product privilege.

IV.A.  THE HAWAII LABOR RELATIONS BOARD IS INCLINDED TO FIND THAT A UNION WORK PRODUCT PRIVILEGE DOES NOT EXIST.

As noted above, on February 27, 2006 the Hawaii Labor Relations Board (hereinafter sometimes referred to as HLRB), in Case No. CE-01-605a and CE-10-605b, UPW v. DHRD et al., stated it was inclined to rule that there was no union work product privilege. See Employer’s Exhibit “B” at page 16 of the transcript where Chairman Nakamura stated as follows:

The board has conferred regarding the UPW’s motion to quash.  Our inclination is to conclude that there is no union work product…union member work product privilege that we know about and that thejurisdiction of the board doesn’t extend to the creation ofprivilege. Which can as a general rule only be created by statute.(Bold scoring provided.)

It is significant to note that while this Arbitrator realizes that the Hawaii Labor Relations Board  “inclination” is not an order. However until the HLRB indicates that there is or is not a union work product privilege, the HLRB’s inclination that such a privilege does not exist is better an no inclination. The HLRB’s inclination gives arbitrators some guidance on this zealously litigated issue of union evidentiary privileges. It is also significant to note, once again, (see Exhibit “B”) that the Hawaii Labor Relations Board, at the time it had made the above-referenced “inclination” was aware that Arbitrators Ramil, Nicholson, and Aoki had recognized a union work product privilege. The rational for the Hawaii Labor Relations Board’s inclination is unclear. However, what is clear is that Hawaii law supports this inclination.

The Hawaii Administrative Procedure Act, Hawaii Revised Statutes, Section 91-10(1) (Exhibit “D”) supports the Hawaii Labor Board’s inclination. This provision provides as follows:

Except as provided in 91.8.5, any oral or documentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence and no sanction shall be imposed or rule or order be issued except upon consideration of the whole record and such portions thereof as my be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence. The agencies shall give effect to the rules of privilege recognized by law. (Bold scoring provided).

Exactly what does the term “recognized by law” mean in reference to privileges? This Arbitrator believes that such a reference does not implicate California law, New York law, or the laws of some other State other than Hawaii.

As a general proposition, the laws of other jurisdictions are necessary to review and analyze only when a case is of “first impression” or Hawaii law is ambiguous and needs clarification and definition. Agencies such as the Hawaii Labor Relations Board are to give effect to rules and privileges recognized by Hawaii law. There is no Hawaii case, statute, rule or other legal authority that establishes a union representative-union member privilege or a union work product privilege. The inclination of the Hawaii Labor Relations Board that it is without jurisdiction to establish such a privilege appears to be correct, particularly in light of the discussion set forth below in as in Section IV.C. of this order.

In addition, the State of Hawaii Labor Relations Board’s inclination would be consistent  with the New York Tripartite Committee’s position on labor law related privileges. Fairweather’s Practice and Procedure in Labor Arbitration, 4th Ed. (2000) at page 371:

XV.        MISCELLANEOUS PRIVILEGES TO HAVE EVIDENCE EXCLUDED.

The AAA Labor Arbitration Rules and the Code of Professional Responsibility are silent on the issue of the application of testimonial privileges in arbitration. However, the New York Tripartite Committee has stated that witnesses need not testify concerning certain privileged communications with parties in addition to physicians.

b. Husband-Wife – A confidential communication between spouses is privileged where a witness is, at the time of testifying, one of the spouses.

e.    Union and Employer Communications – Intra-union and intra-employer communications are not privileged.

f.   Grievance Discussions – Evidence concerning grievance discussions, other than offers of settlement or compromise, is not privileged unless the parties have explicitly agreed otherwise. ( the labor members  would limit such evidence to admissions and statements of position unless the contract provides for some type of reporting of grievance discussions).

IV.B.  THE STATE OF HAWAII SUPREME COURT DISFAVORS LEGAL PRIVILEGES.

Under Hawaii law, privileges are to be narrowly construed. The Hawaii State Supreme Court, in DiCenzo v. Izawa, 68 Haw. 528, 723 P.2d 171, 175 (1986) has stated that:

Since [a privilege] works to suppress otherwise relevant evidence andforestall a search for the truth, “the limitations which restrict the scope ofits operation… must be assiduously heeded” Sapp v. Wong, 62 Haw. 3438, 609 P.2d 137, 140 (1980) (citations omitted). Put another way, theprivilege “must be strictly limited to the purpose for which it exists.”

In addition, a privilege “ought to be strictly confined within the narrowest limits consistent with the logic of its principle. Id. at 539, 723 P.2d at 177. As a result, the State of Hawaii Supreme Court has embraced a principle that “privileges preventing disclosure of relevant evidence are not favored and may often give way to a strong public interest.’” State v. Peseti, 101 Haw. 172, 180, 65 P.3d 119, 127 (2003) (accused’s right to confront sexual assault victim with her recantation to a victim counselor over the victim-counselor privilege set forth in HRE 505.5).

The Hawaii State Supreme Court has also held that a parent’s communications with a child are not shielded by a privilege.  State v. Kaeka, 3 Haw. App. 444, 653 P.2d 96 (1982). The Hawaii Supreme Court’s reluctance to find a special privilege status between a parent and a child strongly indicates its disfavor for creating legal privileges.   

IV.C.        HAWAII STATUTORY LAW PRECLUDES AFINDING BY AN ARBITRATOR  THAT A UNIONREPRESENTATIVE-UNION MEMBER PRIVILEGE OR A UNION WORK PRODUCT PRIVILEGE EXISTS.

Hawaii law, similar to California law, permits the creation of legal privileges under limited circumstances. The Hawaii Rules of Evidence, hereinafter sometimes referred to as “HRE” is provided in Chapter 626 of the Hawaii Revised Statutes. HRE 501 (attached hereto as Exhibit “E”), provides as follows:

Except as otherwise provided by the Constitution of the United States, theConstitution of the State of Hawaii, or provided by Act of Congress orHawaii Statute, and except as provided in these rules or in other rulesadopted by the Supreme Court of the State of Hawaii, no person has a privilege to:

                        (1)  Refuse to be a witness; or

                        (2)  Refuse to disclose any matter; or

                        (3)  Refuse to produce any object or writing; or

                        (4)  Prevent another from being a witness or disclosing any matter or producing any object in writing.

                        The official commentary to HRE 501 further provides as follows with the exception of reference to supplemental Exhibits “F” and “G” which were added by this Arbitrator:

                        This rule closely resembles Uniform Rule of Evidence 501 (Exhibit “F”) and Cal. Evid. Code Section 911 (Exhibit “G”), the commentary to which states:

                        This section codifies the existing law that privileges are not recognized in the absence of statute.

                        The resolution of privilege rules was perhaps the most controversial aspect in the promulgation the federal evidence rules. The U.S. Supreme Court proposed for adoption thirteen privilege rules that were ultimately rejected by Congress, which enacted one rule, Fed. R. Evid 501. The U.S. Senate Report to Fed. R. Evid. 501 explains:

                        Since it was clear that no agreement was likely to be possible as to the content of specific privilege rules, and since the inability to agree threatened to forestall or prevent passage of an entire rules package, the determination was made that the specific privilege rules proposed by the Court should be eliminated and a single rule (rule 501) substituted, leaving the law in its current condition to be developed by the courts of the United States utilizing the principles of the common law. In addition, a proviso was approved requiring Federal courts to recognize and apply state privilege law in civil cases governed by Erie R. Co. v. Tompkins,… as under present Federal case law. [S. Rep. No. 93-1277, 93d Cong, 2d Sess. (1974).]

Former University of Hawaii evidence law professor, Addison M. Bowman, in his Hawaii Rules of Evidence Manuel, Second Edition, © 1998, page 213, made some interesting comments on HRE 501 (Exhibit “H”) which support the Employer’s position:

                        §501-2 Analysis of rule 501. In the administration of justice system, thepublic has a right to exact “every man’s evidence,” United States v. Nixon,418 U.S. 683, 709 (1974) (quoting Branzburg v. Hayes, 408 U.S. 665, 668(1972), and this bedrock principle is codified in rule 501. Unlike mostother exclusionary rules, privileges impede the truth-seeking function ofthe courts. Consequently, Rule 501 forbids the creation or application ofprivileges except as constitutionally required or as provided in statute orrule of court. Apart from the privileges contained in this article, the HawaiiLegislature has adopted a “peer review and quality assurance privilege,Haw. Rev. Statute, Section 624-25.5, and the Hawaii Supreme Court hasrecognized a qualified privilege for investigative reports connected withongoing criminal investigations, see State v. Estrada, 69 Haw. 204, 738P.2d 812 (1987). (Bold scoring provided).

                        HRE 501, which is broader than Cal. Evid. Code Section 911, limits the creation or evidentiary privileges. While California limits the creation of privileges to statute, Hawaii includes, in addition to statute, the Constitution of the United States, the Constitution of the State of Hawaii, act of Congress and rules adopted by the Supreme Court of the State of Hawaii. HRE 501 clearly and unequivocally limits who may create evidentiary privileges. Administrative bodies such as the Hawaii Labor Relations Board, administrative law judges and arbitrators are not included. This Arbitrator is compelled to find that Hawaii law does not permit him to create a legal privilege including a union representative-union member privilege and a union work product privilege.  

IV.D.  THE EMPLOYER HAS NOT VIOLATED THE UNION’S  CONSTITUTIONAL RIGHT TO  FREEDOM OF ASSOCIATION

                        The Union cites several cases for the proposition that the protection of the First Amendment and the Fourteenth Amendment to the United States Constitution and the State of Hawaii Constitution also extends to the right of freedom of association (hereinafter simply referred to as “First Amendment.”) (Tr. 03/22/06 at 8). Clearly, the First Amendment’s protection of association prohibits a State from excluding a person from a profession or punishing her solely because she is a member of a particular political organization or because she holds certain beliefs (refusal to answer an attorney bar question regarding membership in the communist party) is inappropriate as a prerequisite to her admission of the Arizona Bar as it infringes on the First Amendment. Baird v. State Bar of Arizona, 401 U.S. 1, 6, 91 S.Ct. 702, 05-06, 27 L.Ed.2d 639 (1971). In addition, criminal activity in Hawaii not protected by First Amendment freedom of association.  State v. Bates, 84 Haw. 211, 933 P.2nd 48 (1997)  

It is therefore not surprising that the United States Supreme Court held that the NAACP could not be required to provide membership lists by means of a discovery order entered in connection with a pending lawsuit. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (stressing the “vital relationship between freedom to associate and privacy concerning one’s association” existed in the organizations membership list) and Britt v. Superior Court, 574 P.2d 766 (Cal. 1978), finding that an order compelling disclosure of private associational affiliations and activities of members went far beyond any legitimate litigation interest and therefore constituted an unconstitutional infringement on the Plaintiffs’ First Amendment rights.

A determination of whether a Union’s First Amendment rights are being violated by an Employer’s questions must be reviewed case by case. There are several scenarios where an Employer’s questions would violate the Union’s First Amendment rights and several where they would not.

In the case before this Arbitrator, the Employer’s request for answers to interrogatories and for production of documents do not appear to implicate these First Amendment concerns because they are not directed at, nor do they proscribe First Amendment freedoms, i.e. membership in a political organization or certain beliefs held by the individual. The Employer has not violated the Union’s First Amendment right under either the Constitution of the United States or the State of Hawaii.

IV.E.   THE HAWAII REVISED STATUTES, SECTIONS 89-3 AND 89-13 DO NOT CREATE A UNION PRIVILEGE

The Union also argues that given Cook Paint and Varnish Company, 258 NLRB 1230 1232 (1981)[2] and Hawaii Revised Statutes, Sections 89-3 and 89-13, this Arbitrator should establish a union representative-union member privilege and a union work product privilege. In Cook Paint, supra, a union representative who represented a union member during a pre-arbitration settlement process was subsequently threatened with disciplinary action if he did not submit to questioning by the Employer’s counsel as well as turn over his union notebook which contained not only notes kept concerning his representation of the union member, but also information concerning the Union. The National Labor Relations Board found that under the facts of this case, the employer committed an unfair labor practice under the NLRA.

The Union has also argued that the Hawaii Revised Statutes, Section 89-3 and 89-13 supports a union representative-union member privilege and a union work product privilege, HRS Section 89-3 provides as follows:

Employees shall have the right of self-organization and the right to form,join, or assist any employee organization for the purpose of bargainingcollectively through representatives of their own choosing on questions ofwages, hours and other terms of employment, and to engage in lawful,concerted activities for the purpose of collective bargaining or othermutual aid or protection, free from interference, restraint, or coercion. Anemployee shall have the right to refrain from any or all of such activities,except for having a payroll deduction equivalent to regular dues remittedto an exclusive representative as provided in Section 89-4. 

In addition, the Union argues that Hawaii Revised Statutes, Section 89-13, which concerns prohibited practices and bad faith actions supports a union representative-union member privilege and a union work product privilege. The statute provides in relevant part as follows:

                        (a) It shall be a prohibited practice for a public employer or its designated representative willfully to:

                        (1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter.

                        Collective bargaining in the State of Hawaii concerning public employment is governed by Chapter 89 of the Hawaii Revised Statutes. Section 89-1 of the HRS, Statement of findings and policy provides as follows:

The legislature finds that joint decision making is the modern way of administering government. Where public employees have beengranted the right to share in the decision making process affecting wages and working conditions, they have become more responsive and better able to exchange ideas and information on operations with their administrators. Accordingly, government is made more effective. The legislature further finds that the enactment of positive legislation establishing guidelines for public employees is made more effective. The legislature further finds that the enactment of positive legislation establishing guidelines for public employment relations is the best way to harness and direct the energies of public employees eager to have a voice in determining their conditions of work, to provide a rational method for dealing with disputes and work stoppages, and to maintain a favorable political and social environment. The legislature declares that it the public policy of the State to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government. (underscoring provided).

Act 171 (later to become Chapter 89 of the Hawaii Revised Statutes) became law in 1970. The legislature believed that Act 171 was necessary to promote the improvement of employee-employer relations within the various public agencies in the State of Hawaii by recognizing the right of public employees to join organizations of their own choice and to be represented by such organizations in their employment relations and public agencies. In addition, the legislature recognized the importance of employee participation in implementing employment policies and practices.                    

The legislative history for Chapter 89 can be located in Sen. Stand. Comm. Rep. No. 745-70, in 1970 Senate Journal, at 1330-1334 (Exhibit “I”); Sen. Stand. Comm. Rep. No. 376-70, in 1970 Senate Journal, at 1170 (Exhibit “J”);. Hse. Stand. Comm. Rep. No. 752-70, in 1970 House Journal, at 1164-1166 (Exhibit “K”) and Hse. Stand. Comm. Rep. No. 752-70, in 1970 House Journal, at 1170-1172 (Exhibit “L”).

                        Sen. Stand. Comm. Rep. No. 745-70, in 1970 Senate Journal, 1332 addressed the prevention of prohibited practices and injunctive relief and in part provides as follows:

                        (3) Prevention of prohibited practices.

Your Committee has reviewed the proceedings utilized by the Hawaii employment relations board for the prevention of unfair labor practices and finds that the same proceedings can effectively be utilized by the Hawaii public employment relations for the prevention of prohibited practices. The proceedings applicable to prohibited practices shall be utilized to remedy any violations of an agreement. Your Committee does not concur with the provision to bring suits for violations of agreement directly to the circuit court.

(4) Injunctive relief. The Committee has provided that the board may institute proceedings for injunctive relief to enjoin any strike, which the board declares to be unlawful or would be unlawful. In order to restrict the use of injunctions, and to minimize any misapplication of its use, only the board may institute proceedings for injunctive relief.

Sen. Stand. Comm. Rep. No. 745-70, in 1970 Senate Journal, 1170 union membership provides in part as follows:

The purpose of this bill is to promote improvement of the employee-employer relationships within the various public agencies in the State of Hawaii by recognizing the right of public employees to join organizations of their own choice and to be represented by such organizations in their employment with public agencies.

Under the existing law public employees have the right to join or not to join any public employee’s association, organization or union not asserting the right to strike or proposing to assist in any strike against the government. Orderly and constructive relationships between government management officials and employees are encouraged. Employee-management cooperation must provide employees with an opportunity for meaningful participation in the formulation and implementation of policies and procedures affecting the conditions of their employment. Employee-management relations shall be consistent with the merit system, laws and rules.

Hse. Stand. Comm. Rep. No. 752-70, in 1970 House Journal, at 1165 provides in part as follows:

3. Rights of public employees. Your Committee believes that in the public service the right to join an employee organization must be accompanied with the right not to join. When the right to join becomes a duty, freedom of choice becomes merely a catchword. The union ship or closed shop may or may not be appropriate for various craft and trade portions of private industry. But given the size of the governmental jurisdictions and agencies involved, the diversity of employee skills and the intense competition between and among public employee organizations, your Committee feels this arrangement is wholly unsuitable in the public service. Accordingly, your Committee has (a) eliminated those provisions permitting a public employee to make an agreement with an exclusive representative to require as a condition of employment the payment of initiation fees and membership dues to the exclusive representative; and (2) reaffirmed the right of any person to refrain from joining an employee organization.

While an employee may refrain from joining an employee organization, he cannot refuse to be represented by the exclusive representative. S.B. No. 1696-70, S. D. 1, H.D.1, permits the employee organization to assess a reasonable service fee on all employees to defray its costs for negotiating and administering an agreement. Your Committee has amended this section to require the Hawaii Public Employment Relations Board to determine and assess reasonable service fees for employees who have not joined an employee organization.

Hse. Stand. Comm. Rep. No. 752-70, in 1970 House Journal, at 1170 provides in part as follows:

Public employees are eager to have a voice in determining their conditions of work. The experiences in other jurisdictions show that without an adequate legal framework in which to channel and release their energies, public employees have resorted to means of pressure and coercion to improve their conditions of work. Your Committee believes that legislation should be enacted to promote harmonious and cooperative relations between government and its employees.

                        In short, the legislative history for the enactment of Chapter 89 was to promote harmonious relationships between the employer and government employees, to provide public employees to right to organize, to ensure employee participation in government decisions, and to ensure that the Employer did not take action against the employee which would constitute a prohibited act. However, there is absolutely nothing in the legislative history of Chapter 89 (of course including 89-3 and 89-13) that creates or suggests that the creation of a union representative-union member privilege or a union work product privilege is the intent of the legislature.

                        In addition, Cook Paint, supra, is a case that involves unfair labor practices under the National Labor Relations Act. This case makes no reference to the federal laws of evidentiary privilege or Federal Rule of Evidence 501. It does not support the creation of a union representative-union member privilege or a union work product privilege. Rather, it supports the finding of an unfair labor practice.

                        The Employer’s request for answers to interrogatories and production of documents, as a general proposition, does not interfere with, restrain, or coerce any employee in the exercise of any right guaranteed under Chapter 89 such as the right to organize or the right or act in concert for the purpose of collective bargaining or other mutual aid or protection. This Arbitrator does not believe that he can take an NLRB case concerning an unfair labor practice that makes no reference to Federal evidentiary privileges or Federal Rule of Evidence 501, combine it with Sections 89-3 and 89-13 of the Hawaii Revised Statutes, which also make no reference to the Hawaii evidentiary privileges or HRE 501 and conclude that there is a union work product privilege. This Arbitrator is without authority to create a union representative-union member privilege or a union work product privilege under Cook Paint, supra, and the Hawaii Revised Statutes, Sections 89-3 and 89-13.

                        However, the Employer must remain extraordinarily cautious in how it seeks to obtain information from the Union and how it presents its interrogatories. In Re Grand Jury Subpoenas dated January 20, 1998, 995 F. Supp. 332 (E.D.N.Y 1998) (Exhibit “M”), the court refused to find that a union official-union member privilege existed either at common law under Federal Rules of Evidence 501, 28 U.S.C.A. However, the court in finding that no union privilege existed did recognize at page 336 of its decision that there are cases that have “held it to be an unfair labor practice for an employer to seek to question a union representative about statements made by an employee who the representative was assisting in an internal disciplinary proceeding.”  

                        IV.F.  HAWAII’S WORK PRODUCT DOCTRINE.

Hawaii’s work product doctrine (Exhibit “N”) is set forth in Rule 26(b)(4) of the Hawaii Rules of Civil Procedure (HRCP), referred to in some arbitral decisions as Rule 26(b)(3). For purposes of this order, this Arbitrator shall continue to refer to Rule 26(b)(4) as Rule 26(b)(3). HRCP 26(b)(6) concerns objections. (Exhibit “N”) provides:

b) Discovery scope and limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

            (1)  In GENERAL. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible          things and the identity the location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i),(ii), and (iii).

            (4) Trial preparation: Materials. Subject to the provisions of subdivision (b)(4) of   this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

            A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(1)(4) apply to the award of expenses incurred in relation to the motion.   For purposes of this paragraph, a statement previously made is (1) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(6)  CLAIMS OF PRIVILEGE OR PROTECTION OF TRIAL PREPARATION MATERIALS.  When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

                        It is significant to note that unlike the lawyer-client privilege, the work product doctrine is a qualified privilege and gives way to a showing that the party seeking the discovery has “substantial need” for the materials in the preparation of the case and is unable without “undue hardship” to obtain the substantial equivalent of the materials by other means. For cases analyzing the work product doctrine, see In Re Grand Jury Subpoena, 357 F.3d 900 (9th Cir. 2004) (“dual purpose” documents, i.e. those prepared both for litigation purposes and for non-litigation purposes, are nevertheless protected as work product when their litigation purpose so permeates their preparation that the two purposes cannot be discretely separated, but there is still a need to show “substantial need” and “undue hardship”);  Save Sunset Beach Coalition v. Honolulu, 102 Haw. 465, 73 P.3d 1 (2003); (environmental impact statement not prepared in anticipation of litigation and thus not protected by work product doctrine); Hac v. University of Hawaii, 102 Haw. 92, 73. P.3d 46 (2003) (University Professor’s questions were irrelevant); Acoba v. General Tire, Inc., 92 Haw. 1; 986 P.2d 288 (1999) (interrogatories were unduly burdensome and overbroad under HRCP 26(b)(1)(iii)); Sameshima v. Yamashiro, 3 Haw. App. 130 (1982) (since information as to who various persons are known only to appellant and there is no other reasonable means to obtain the information, appellant’s knowledge is not protected by work product privilege); In re Baptist Hospitals of Southeast Texas, 172. S.W.3d 136 (Tex. App. Beaumont 2005) (evaluation of design and construction in anticipation of litigation were covered by the work product privilege); Lane v. Sharp Packaging Systems, Inc. 640 N.W. 2d 788 (Wis. 2002) (documents were prepared during a time when litigation was not imminent, thus not shielded by the work product doctrine); State Ex Rel. Chaparro v. Wilkes, 438 S.E. 2d 575 (W.Va 1993) (records, diaries, journals were objected to and need not be disclosed since no showing of “substantial need” as well as “undue hardship,” but names and addresses of persons giving their statement were not protected under Rule 26(b)(1) which contains language concerning  interrogatories information almost identical to HRCP 26(b)(1)); Alachua General Hospital v. Zimmer USA, Inc., (Fla.App., 403 S.2d 1087(1981) (investigator’s communications, reports and memorandum prepared in anticipation of litigation protected under work product privilege where adverse party failed to show “substantial need” and “undue hardship”); State Ex Rel. , State Farm Mut. Auto. v. Keet, Mo. App. 601 S.W. 2d 699 (1980) (in personal injury case, photos, diagrams, recorded statements of witnesses need not be produced since no showing of “substantial need” and “undue hardship.”); Welch v. Globe Indemnity Company, 267 N.Y.S 2d 48 (1966) (reports and statements concerning fire not protected because not prepared in anticipation of litigation). 

                        The Union argues that Hawaii Rule of Civil Procedure 26(b)(3) gives this Arbitrator authority for creating a union work privilege. Work product that is entitled to receive protection under Hawaii Revised Statutes, Section 26(b)(3) is to be analyzed on a case by case basis. The facts of a particular case may shield union prepared work in one case situation, but not in another. It is inappropriate for this Arbitrator to state that HRCP 26(b)(3) creates a blanket union work product privilege. The arbitrator must first find that the “work product” was prepared in “anticipation of litigation.” In addition, if the Employer shows “substantial need” as well as “undue hardship” the privilege could very well give way to the Employer’s request for discovery. Lastly, certain types of information or certain situations may lead courts to find that HRCP 26(b)(3) should be construed to allow discovery. In Sameshima v. Yamashiro, 3 Haw. App. 130, 130, the Hawaii Intermediate Court of Appeals (Exhibit “O”) stated as follows while broadly discussing HRCP 26:

                        Without merit also, is the work product privilege claim. Since the information as to who the persons were and what they said is known to appellant alone and there is obviously no other reasonable means of obtaining that information, this case does not fall within the parameters of the work product rule.

In addition, the Supreme Court of Appeals of West Virginia, in State Ex Rel. Chaparro v. Wilkes 438 S.E. 2d 575, 577-78 (W.Va. 1993) (Exhibit “P”) stated:

                        The work product doctrine is contained in Rule 26(b)(3) of the West Virginia Rules of Civil Procedure. It federal counterpart is identical. The rule exempts from discovery documents and tangible things “… prepared in anticipation of litigation or by or for that party’s representative[.]

                        In In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984), we recognized that the purpose of Rule 26(b)(3), W.V.R.C.P is to narrow the ability to obtain trial preparation material by expanding the coverage of the work product rule to include persons other than a lawyer. Accordingly, we held that the phrase “Party’s representative” should include, inter alia, a party’s indemnitor, insurer, consultant, surety, accountant, economist, private investigator, claim agent or surveyor, to wit, anyone working under the direction of the lawyer and in anticipation of litigation. Id…

                        Rule 26(b)(1) of the West Virginia Rules of Civil Procedure is identical to its federal counterpart. Pursuant to Rule 26(b)(1), W.V.R.C.P., a party is entitled to discover the identity and location of persons having knowledge of any discoverable matter.” As Professor Moore recognizes in his treatise, “Rule [26(b)(1)] has… been applied to permit inquiry of names and addresses of persons from whom the interrogated party has obtained statements of otherwise interviewed in the course of trial preparation.” 4 Moore’s Federal Practice P 26.57[1], at 26 163 (1980 ed.). See also Ballard v. Allegheny Airlines, Inc., 54 F.R.D. 67, 69 (E.D.Pa. 1972) (holding information sought by interrogatories asking “whether any witnesses gave defendant a statement” to be precisely the type of discovery sanctioned by Rule 26(b)(1)’s provision for discovery of “the identity and location of person having knowledge of any discoverable matter”): Kellher v. Omark Indus. Inc. 20 F.R.Serv.2d 199, 201 (D.Mass. 1975)…

                        It is thus clear that under Rule 26(b)(1), W.V.R.C.P., when a party propounds an interrogatory to an opposing party seeking to discover the identity and location of persons having knowledge of any discoverable matter, such information is not work product. In other words, a party to whom an interrogatory asking for names and addresses is propounded cannot avoid an answer on the ground that the names were learned by counsel in the course of an investigation.

                        Accordingly, while statements taken during an investigation in anticipation of trial are protected and not to be provided absent the required showing under Rule 26(b)(3), W.V.R.C.P., names and addresses of persons giving them are not. The Groves are entitled to the names and addresses of the expert witnesses who have knowledge of the facts of the case. However, the experts’ statements themselves are not discoverable.         

                        The Federal Rules of Civil Procedure, Rule 26(b)(3) is worded exactly as HRCP 26(b)(3). A copy of this Federal Rule of Civil Procedure, Rule 26(b)(3) is attached hereto as Exhibit “Q.” Given the qualifications and limitations in the language of HRCP 26(b)(3), a court or an Arbitrator cannot create a blanket work product privilege for any group of persons, whether the persons be attorneys, physicians or union members.[3] To create such a blanket privilege would be inconsistent with HRE 501 but HRCP 26(b)(3). This Arbitrator is without jurisdiction to create a union work product privilege under HCRP 26(b)(3). Each situation concerning a union’s claim under the work product doctrine must be evaluated on a case by case basis. Professor Addison Bowman’s analysis of the work product doctrine set forth in HRCP26(B)(3) is attached hereto as Exhibit “R.”

                        IV.G.  THE LAWYER-CLIENT PRIVILEGE.

                       

                        Lawyer-client privilege is set forth in Rule 503 of the Hawaii Rules of Evidence. (a) Definitions. As used in this rule:

            (1)  A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional by a lawyer, or who consults a lawyer with a view to obtaining professional legal services.

            (2)  A “representative of the client” is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.

            (3)  A “lawyer is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

            (4)  A “representative of the lawyer” is one directed by the lawyer to assist in the rendition of professional legal services.

            (5)  A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure would be in furtherance of the          rendition of professional services to the client or those reasonably necessary for the transmission of the communication.

            (b)  General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential or professional communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client’s representative and the lawyer or the lawyer’s representative, or (2) between the lawyer and the             lawyer’s representative, or (3) by the client or the client’s representative or the lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their             representatives representing the same client.

            (c )  Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer’s representative at the time of the communication shall claim the privilege on behalf of the client unless expressly released by the client…

The Lawyer-Client privilege is hailed as the “oldest of the privileges for confidential communications known to the common law. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The lawyer-client privilege is the first of 13 privileges codified in the Hawaii Rules of Evidence. The United States Supreme Court, in United States v. Zolin, 491 U.S. 544, 562 (1989) stated that it is important “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice…[through] the aid of persons having knowledge of the law”. The Hawaii Supreme Court, in DiCenzo v. Izawa, 68 Haw. 528, 538, 723 P.2d 171, 177 (1986) stated that the “value of legal advice and assistance based upon full information of the facts and corollary that full disclosure to counsel will often be unlikely if there is fear that others will be able to compel a breach of the confidence.

                        The Union is free to make appropriate objections based upon the lawyer-client privilege. While the Union has presented a very logical and well-reasoned argument that a union representative-union member privilege similar to the lawyer-client privilege should be created by this Arbitrator given the unique relationship between a union representative and union member, especially in the context of industrial due process, union representation, and the grievance process, this Arbitrator is without authority to create a union representative-union member privilege. Professor Addison Bowman’s analysis on the lawyer-client privilege is attached hereto as Exhibit “S.”

                        V. RELEVANT CONTRACT PROVISIONS AND DISCOVERY.

Section 89-10(a) of the Hawaii Revised Statutes provides in part that  collective bargaining agreements “may contain a grievance procedure and an impasse procedure culminating in final and binding arbitration[.] Further Section 89-11(a) provides that the employers and exclusive representatives “shall have the power to enter into written agreement… setting forth a grievance procedure culminating in a final and binding decision, to be invoked in the event of any dispute concerning the interpretation or application of a written agreement.” The United Public Workers and the State of Hawaii agreed that the CBA should contain Section 15A to govern their Grievance procedure.  Section 15A also provides for discovery. Relevant portions of this grievance procedure are set forth as follows:

15A. Grievance Procedure.

Section 15, was replaced with Section 15A for the State of Hawaii, the Judiciary and the Hawaii Hospital Systems Corporation on February 11, 2002. Section 15A was amended on June 28, 2002 and August 5, 2002. Section 15A does not apply to the Counties.

15A.01 Process.

A grievance that arises out of alleged Employer violation, misinterpretation, or misapplication of the Unit 10 Agreement, its attachments, exhibits and appendices shall be resolved as provided in Section 15A.

15A.05 Information.

The Employer shall provide information in the possession of the Employer  that  is needed by the grieving party and/or union to investigate the process of a grievance as follows:

15A.05a.

Copy and give the material requested to the grieving party and/or the  Union within seven (7) calendar days of the request; or

15A.05b.

Make the material requested available to the grieving party and/or Union within seven calendar days of the request for the purpose of copying or review for five (5) calendar days on the condition that the grieving party and/or the Union agrees to sign Exhibit 15A.05 and be responsible for the material until it is returned.

15A.07 Step 1 Grievance.

In the event the grievance is not satisfactorily resolved on an informal basis, the grieving party and/or the Union may file a formal grievance form provided by the Union. The grievance shall be filed with the department head in writing as follows…

15A.11 Step 2: Arbitration

Reference to “arbitration shall include proceedings before an Arbitrator or a Performance Judge.

15A.15 Arbitrability.

15A.15a. A grievance may not be arbitrated unless it involves an alleged violation, misinterpretation, or misapplication of a specific section of the Unit 10 Agreement and/or Section 15A.21.

15A.16b. FINAL AND BINDING.

The award of the Arbitrator shall be final and binding provided the award is within the scope of the Arbitrator’s authority as described as follows:

15A.16b.1 The Arbitrator shall not have the power to add to, subtract from, disregard, alter, or modify any of the sections of the Unit 10 Agreement and/or Section 15A.21.

15A.16b.2. The Arbitrator shall be limited to deciding whether the Employer has violated, misinterpreted, or misapplied any of the sections of the Unit 1 Agreement and/or Section 15A.21.

15A.16b.3  A matter that is not specifically set forth in the Unit 1 Agreement shall not be subject to Arbitration.

15A.16b.4 The Arbitrator shall not consider allegations that have not been alleged in Step 1. (Bold scoring provided).

An arbitrator must act within the scope of the authority conferred upon him  by the parties as set forth in the collective bargaining agreement. Clawson v. Habilitat, Inc, 71 Haw. 76, 78, 783 P.2d 1230 (1989).  If an arbitrator enters an order that is contrary to the clear intent of the contract between the parties, said order will be vacated. Keebler Co. Milk Drivers and Dairy Emp. Union, 80 F.3d 284, 289 (1996).

Section 15A must be read must be read as a whole section, not interpreted subsection by subsection. See Territory of Hawaii by Sharpless v. Arneson, 354 P.2d 9081, 44 Haw. 383 (1960); K.M. Young & Associates, Inc. v. Cieslik, 675 P.2d 793, 4 Haw. App. 657, reconsideration denied 753 P.2d 253, 5 Haw. App. 683 (1983); United Truck Rental Equipment Leasing, Inc. v. Kleenco Corp., 929 P.2d 99, 84 Haw. 86 (1996). The parties control the content of their arbitration agreement. Goldstein v. Hawaii Med Serv. Ass’n, 297 F. Supp. 2nd 1259 (D. Haw. 2003).

Section 15A.01 of the CBA provides that every provision of Section 15A concerns the grievance process. This is clear and unambiguous language. It appears to this Arbitrator that as long as a grievance remains pending, whether it is at the Step 1, the pre-hearing conference level or the arbitration level, Section 15A.05 requires the Employer to provide information needed by the union to “investigate and process the grievance.”  

Section 15A of the CBA provides for a process by which the Union will receive information from the Employer. As a general proposition, it does not limit the types of information that the Union is entitled to receive during the grievance process. This absence of limitation on the use of interrogatories supports their use during the grievance process. Discovery is permissible once the grievance process begins. The grievance process includes and does not exclude a pre-arbitration hearing conference or even the arbitration hearing.   

However, It is very significant to note that Section 15A does not address how an Employer obtains discovery during the grievance process. Logically, one could argue that since there is no provision regarding discovery for the Employer, the Employer is not entitled to discovery. However, the CBA does not state that the Employer is not permitted discovery or that the Employer’s discovery is limited. The source of the Employer’s discovery rights evidently does not come from the CBA but comes from Chapter 658A of the Hawaii Revised Statutes.

VI.         THE EMPLOYER’S DISCOVERY ARE SET FORTH UNDER THE HAWAII REVISED STATUTES, CHAPTER 658A .

The relevant statutory authority governing the CBA is set forth in Hawaii Revised Statutes, Section 658A-17. The statute provides as follows:

Witnesses; subpoenas, depositions; discovery.

(a) An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena shall be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.

(b) In order to make the proceedings fair, expeditious, and cost effective, upon request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions                         which the deposition is taken.

(c) An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious, and cost effective.

(d) If an arbitrator permits discovery under subsection (c), the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator’s discovery-related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this State.

(e) An Arbitrator may issue a protective order to prevent disclosure of privileged information, confidential information, trade secrets, and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this State.

(f) All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition, or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this State.

(g) The court may enforce a subpoena or discovery-related order for the attendance of a witness within this State and for the production of records and other evidence issued by an arbitrator in connection with an arbitration proceeding in another State upon conditions determined by the court so as to make the arbitration proceeding fair, expeditious, and cost effective. A subpoena or discovery-related order issued by an arbitrator is another state shall be served in the manner provided by law for service of subpoenas in a civil action in this State and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by law for enforcement of subpoenas in a civil action in this State.

The Hawaii Revised Statutes, Section 658A-3, Chapter 658A became effective on July 1, 2002 and governs all Collective Bargaining Agreements made before July 2, 2002. The Unit 10 Collective Bargaining Agreement between the Employer and the Union became effective on July 1, 2003 and is therefore governed by Chapter 658A of the Hawaii Revised Statutes.

The legislative history for the enactment of Chapter 658A of the Hawaii Revised Statutes can be found in Sen. Conf. Stand. Comm. Rep. No. 115 in 1991, Senate Journal at 905 (attached hereto as Exhibit “T”) :

The purpose of this bill is to standardize Hawaii’s arbitration laws with those used in other states by replacing the current statutory chapter on arbitration and awards with the Uniform Arbitration Act.

Your Committee on Conference has amended this bill by:

(1)   Clarifying that from July 1, 2004, (rather than from January 1, 2020), the provisions of the Uniform Arbitration Act will apply to all agreements to arbitrate, including those entered into prior to the effective date of this bill; and

(2)   Changing the effective date to July 1, 2002…

In addition, the legislature evidently wished to adopt the Uniform Arbitration Act because it was recommended for adoption in all 50 states, wished to update otherwise out-dated arbitration laws, facilitate arbitration as an effective means of resolving contractual disputes without the need for litigation by augmenting procedure to meet modern needs, and ensure that State law will not be preempted by the Federal Arbitration Act. See Sen. Stand. Comm. Rep. No. 1248 in 1991 Senate Journal at 1420 (attached hereto as Exhibit “U”); Sen. Stand. Comm. Rep. No. 1467 in 1991 Senate Journal at 1514 (attached hereto as Exhibit “V”); Hos. Conf. Rep. No. 115 in 1991 House Journal at 1093 (Exhibit “W”); Hos. Stand. Comm. Rep. No. 189 in 1991 House Journal at 1204 (Exhibit “X”); and Hos. Stand. Comm. Rep. No. 587 in 1991 House Journal at 1355 (Exhibit “Y”).

                        The legislative history does not address the reason for implementing Section 658A-17 of the Hawaii Revised Statues. However, it was clearly the intent of the State of Hawaii Legislature to adopt the Uniform Arbitration Act, now encoded as Chapter 658A of the Hawaii Revised Statutes. Hawaii Revised Statutes, Section 658A-17 is taken verbatim from the Uniform Arbitration Act. See Uniform Arbitration Act (U.L.A.) Section 17 which is attached hereto as Exhibit “Z”. 

                        The comment to the Uniform Arbitration Act (U.L.A.) Section 17 is the key to one of the issues before this Arbitrator. It provides in relevant part as follows:

1. Presently, UAA Section 7 provides an arbitrator with subpoena authority only to require the attendance of witnesses and production of documents at the hearing (RUAA Section 17(a)) or to depose a witness who is unable to attend a hearing (RUAA Section 17(b)). Section 17(b) allows an arbitrator to permit a hearing deposition only when such deposition will insure that the proceeding is “fair, expeditious, and cost effective.” This standard is also required in Section 17(c) concerning prehearing discovery and in Section 17(g) regarding the enforcement of subpoenas or discovery orders by out-of-state arbitrators.

Section 17(a) and (b) are not waivable under Section 4(b) because they go to the inherent power of an arbitrator to provide a fair hearing by insuring that witnesses and records will be available at an arbitration proceeding. The other subsections of Section 17, including whether to allow prehearing discovery can be waived or varied by agreement of the parties under Section 4(a)…

Most courts have allowed discovery only at the discretion of the arbitrator…The few state arbitration statutes that have addressed the matter of discovery also leave these issues to the discretion of the arbitrator…

3. The approach to discovery in Section 17( c) is modeled after the Center for Public Resources (CPR) Rules for Non-Administered Arbitration of Business Disputes, R. 10 and United Nations Commission on International Rules Trade Law (UNCIRTAL) Arbitration Rules, Arts. 24(2), 26. The language follows the majority approach under the case law of the UAA and FAA which provides that, unless the contract specifies to the contrary, discretion rests with the arbitrators whether to allow discovery. The discovery procedure in Section 17(c) is intended to aid the arbitration process and ensure an expeditious, efficient and informed arbitration, while adequately protecting the rights of the parties. Because Section 17(c) is waivable under Section 4 (a), the provision is intended to encourage parties to negotiate their own discovery procedures. Section 17(d) establishes the authority of the arbitrator to oversee the prehearing process and enforce discovery-related orders in the same manner as would occur in a civil action, thereby minimizing the involvement of (and resort of the parties to) the courts during the arbitral discovery process.

At the same time, it should be clear that in many arbitrations discovery is unnecessary and that the discovery contemplated by Section 17(c) and (d) is not coextensive with that which occurs in the course of civil litigation under federal or state rules of civil procedure. Although Section 17(c) allows an arbitrator to permit discovery so that parties can obtain necessary information, the intent of the language is to limit that discovery by considerations of fairness, efficiency, and cost. Because Section 17(c) is subject to the parties’ arbitration agreement, they can decide to eliminate or limit discovery as best suits their needs. However, the default standard of Section 17(c) is meant to discourage most forms of discovery in arbitration. (bold scoring provided).

The source of the Employer’s discovery rights is provided by Chapter 658A. [4]  Accordingly, this Arbitrator finds that it was the intent of the State of Hawaii Legislature to enact the Uniform Arbitration Act verbatim as set forth in Chapter 658A. Therefore, as guidance, the comments thereto should be considered for interpretation purposes.

The parties through their CBA have defined the discovery process. However, the parties have failed to specifically set forth in the CBA what the Employer’s discovery rights consist of. The CBA is not specific as to whether the Employer’s right to discovery is non-existent or limited. In such an event, the Employer is limited to the discovery rights provided by Hawaii Revised Statutes, Section 658A. The Employer has all discovery rights under Hawaii Revised Statutes, Sections 658A-17(a) (subpoena and subpoena duces tecum) and 658A-17(b) (depositions) since these are not waivable under a CBA. In addition, since 658-17A( c) was not eliminated or limited by the CBA, the Employer is entitled to discovery under the “default provision” of Hawaii Revised Statutes, Section 658A-17( c). Under this provision, since most forms of discovery are “discouraged” “to encourage the parties to negotiate their own discovery procedures”, “discretion rests with the arbitrators whether to allow discovery.”

This Arbitrator shall permit discovery to be conducted by the Employer, particularly since this Arbitrator is allowing the Union broad discovery rights and the fact that the Step 1 grievance form (Exhibit “AA”), while clear as to which sections have allegedly been violated by the Employer, is vague and unclear as to how and when said sections were violated. This conclusion is consistent with the CBA and HRS Section 658A as same does not “specify to the contrary”. It is also necessary since the parties have been unable to come to an agreement regarding the discovery process of the class grievance before this Arbitrator. This Arbitrator will oversee the discovery process to ensure that same is as “fair, expeditious, and cost effective” as possible. HRS § 658-17(c) and (d).

VII. CONCLUSION AND ORDER.

                        Given the Hawaii Labor Relations Board’s inclination that a union member work product privilege does not exist and that it does not have jurisdiction to create same, the fact said privilege does not exist under Hawaii law, the fact that Hawaii Supreme Court disfavors privileges, the fact that HRE 501 precludes an arbitrator from creating an evidentiary privilege, and the fact that a union representative-union member privilege and a union work product privilege has not been established by the Constitution of the United States, the Constitution of the State of Hawaii, Act of Congress or Hawaii Statute, or in other rules adopted by the Supreme Court of the State of Hawaii, this Arbitrator finds that he lacks jurisdiction and is precluded from creating a union representative-union member privilege and a union work product privilege.    

The rights provided to the Union and its members under the Hawaii Revised Statutes, Section 89-3 to organize and associate with one another and under Hawaii Revised Statutes, Section  89-13 to act freely and without interference from the Employer are extraordinary Union rights. However, the answers sought by the Employer from the Union do not appear to be designed to interfere, impede, or coerce the Union or its members from organizing or otherwise associating with one another. Nor do the answers sought appear to threaten individual union members with disciplinary action for refusing to answer questions concerning the Union’s protected activities, as was the situation in Cook Paint, supra. In addition, the answers do not appear to infringe on the constitutional rights of the Union and its membership, such as requesting the revealing of private associational affiliations, activities, or membership lists. Rather, the Employer’s interrogatories seek responses that are germane to the grievance class, specifically, how, when, and under what circumstances did the Employer violate the CBA as set forth in the Step 1 grievance.

                        Still, the Employer must remain cautious in how it presents its interrogatories. Interrogatories that request responses to protected Union information or activities may constitute a prohibited practice under Chapter 89 of the Hawaii Revised Statutes.

                        The questions begin by asking who is answering the interrogatories (Question #1). All of the remaining questions 2, 3, 4, 5, 6, 7, 8, 9 10, 11, 12, and 13 start by making reference to the Step 1 Grievance Form. In addition, the subsections are all related to the allegations made in the Step 1 Grievance Form and appear to seek more definite information regarding the Step 1 Grievance Form. The Union, in presenting its case is most likely going to provide the information requested by the Employer at the Arbitration hearing to argue that it has proven its class grievance. Earlier production will lead to a more efficient, productive and cost effective arbitration hearing. For example, there is substantially less likelihood that the Employer will find it necessary to request additional arbitration hearing days to recall its witnesses or to call rebuttal witnesses due to information being provided by the Union shortly before or during the arbitration hearing. In addition, there is a greater likelihood of settlement prior to the arbitration hearing if the Employer, after analyzing the evidence that will be produced by the Union, concludes that Union is correct and that an Arbitrator will most likely grant a grievance.

                        The Employer has argued that the Step 1 grievance form is vague and provides very few facts to support its allegations. It therefore argues that the Union should submit its reply to interrogatories before the Employer. The Union, on the other hand, argues that the Employer should submit its answers to interrogatories first, since the Union is the party with all of the requested information. (Tr. 03/22/06 at 5-6).[5]

                        As this Arbitrator indicated to the parties during the hearing on this MOTION, in a disciplinary action, the party who would logically have most of the knowledge regarding a grievance would be the Employer. However, in a class grievance dispute, this may not necessarily be the case, particularly if the class of union members are not specifically identified, the alleged violations are numerous and the Step 1 grievance form is vague as to how, when and why the CBA was violated. To maintain the status quo, the parties shall be ordered to provide their discovery to one another on the same date and time as set forth below.

                        The Employer’s MOTION to compel answers to interrogatories, production of documents, and for prehearing discovery is granted in part and denied in part as set forth below pursuant to the Hawaii Revised Statutes, Section 658A-17(c ) and (d). The Union’s REQUEST FOR PROTECTIVE ORDER is also granted in part and denied in part pursuant to Hawaii Revised Statues, Section 658-17(e) as set forth below.

                        The Employer’s Interrogatories were filed on February 3, 2006. The Union has had substantial time to prepare its responses to these interrogatories.     This grievance has also been scheduled for arbitration hearings on April 21, 24, 25, May 9 and 10, 2006. In addition, the Union is to begin with the presentation of evidence first. Given these facts, the Union should have no difficulty in preparing its responses to interrogatories by April 7, 2006 at 4:00 p.m.

                        As this Arbitrator stated at the hearing on this motion (Tr. 03/22/06 at 20 and 03/23/06 at 15), “good faith” is implied in every CBA. This Arbitrator is confident that the parties to this arbitration shall act in good faith. Although this Arbitrator has found that he is without legal authority and jurisdiction to create a union representative-union member privilege or a union work product privilege, and each assertion of work product protection must be analyzed on a case by case basis, the Union is free to assert that it’s work constitutes work product and qualifies for protection under Hawaii Rules of Civil Procedure, Rule 26(b)(3) and 26(b)(6) just as it could concerning the work of an attorney, consultant, surety, indemnitor, insurer or other agent.

                        The Union is ordered to answer each and every interrogatory (interrogatories 1-13 and corresponding subsections) completely and thoroughly by April 7, 2006 at 4:00 p.m. If the Union has a specific objection to an interrogatory, i.e., the interrogatory is protected by the attorney-client privilege, is protected by the work product doctrine under Hawaii Rule of Civil Procedure, 26(b)(3), is irrelevant, or some other objection recognized under Hawaii law, the Union may lodge an objection. If an objection is lodged, the Union is ordered to maintain an objection log directly below each interrogatory by (1) fully stating the reason for the objection directly below the appropriate interrogatory or subsection of the interrogatory; (2) giving a brief description or summary of the content of the document or communication; (3) indicating the date the document or statement was prepared or made; (4) providing the name(s) of the person(s) or who prepared the document or made the statement; (5) indicating the person to whom the document was directed, or for whom it was prepared,  (6) providing the purpose for preparing the document or communication; and (7) providing how the document or communication satisfies the asserted privilege(s) and objections. To the extent that the interrogatory calls for a response that is only partially protected by a privilege, the portion of the response that is not protected must be provided completely and thoroughly. The representative objecting on behalf of the Union or the Grievant shall also sign his or her name and indicate the date of the signature next to the objection.

                        Items (1) through (7) above should be answered by the Union so that it is in compliance with HRCP 26(b)(6). For example, this doctrine shall only protect work product that was prepared in anticipation of litigation. The Union’s responses to items (1) through (7) above are essential to this Arbitrator being able to determine if a response is or is not protected. See Section IV.F above concerning Hawaii’s work product doctrine.

                        The Union shall provide a copy of its responses to interrogatories and production of documents no later than April 7, 2006 at 4:00 p.m. The Employer may file a written response to any objection to the Arbitrator no later than April 13, 2006. This Arbitrator shall work over the Easter holiday and shall rule by Monday, April 17, 2006 as to the objection of a particular interrogatory, if any. If this Arbitrator rules that the interrogatory must be complied with, the information requested will be submitted forthwith to counsel for the Employer.

                        This procedure and items (1) thru (7) are recommended by Moore’s Federal Practice, Third Edition, Volume 6, 26-237, § 26.90[2]. Same is attached hereto as Exhibit “BB.”

                                                DATED: Honolulu, Hawaii, March 30, 2006.

                                                                                   

                                                                                                            _________________________________
                                                                                                            MICHAEL ANTHONY MARR
                                                                                                            ARBITRATOR

 

STATE OF HAWAII                                   )
                                                                    
)
CITY AND COUNTY OF HONOLULU    
)

On this 30th day of March, 2006, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing AOrder Granting in Part and Denying in Part Employer’s Motion to Compel Answers to Interrogatories, Production of Documents, and for Pre-Hearing Discovery Order; Exhibits “A” through “BB@; Certificate of Service and acknowledged that he executed same as his free act and deed.

____________________________________
Notary Public, State of Hawaii
My Commission expires on ______________.

CERTIFICATE OF SERVICE

I, MICHAEL ANTHONY MARR, Arbitrator in the above-referenced matter, do hereby certify that at a copy of the attached order, dated March 30, 2006, attached hereto, was duly mailed, postage prepaid, to the following persons at the addresses listed below:

Danny J. Vasconcellos, Esq.                                 Jeffrey A. Keating
345 Queen Street, Suite #506                               Deputy Attorney General
Honolulu, Hawaii 96813                                          State of Hawaii
                                                                                 
235 South Beretania Street, 15th Floor
                                                                                  Honolulu, Hawaii 96813

DATED: Honolulu, Hawaii, March 30, 2006.

_________________________________
MICHAEL ANTHONY MARR
ARBITRATOR



[1] Please note that this Arbitrator has attached hereto Exhibits “A” through “BB”  so that the parties may more conveniently review, compare, analyze and understand this Arbitrator’s analysis much more readily than if the exhibits were not attached and the parties had to go from law book to law book to review the exhibits.

[2] Cook Paint & Varnish, 648 F.2d 712, 106 LRRM 3016 (D.C. Cir., 1981)  in remanding this matter to the NLRB held that “[a]s part of a contractual arbitration procedure, an employer may conduct a legitimate investigatory interview in preparation for a pending arbitration,” with the basic limitation that the interview “may not pry into protected union activities.”  Upon remand, in Cook Paint and Varnish Co., 258 NLRB 1230, 1981 WL 21122 (N.L.R.B.)  the Board stated in finding that a union steward was being interviewed in violation of the National Labor Relations Act, “Finally, in view of the court’s admonition against our promulgation of a “blanket rule,” we wish to emphasize that our ruling in this case does not mean that all discussions between employees and stewards are confidential and protected by the Act. Nor does our decision hold that stewards are, in all instances, insulted from employer interrogation. We simply find herein that, because of Whitwell’s representational status, the scope of the Respondent’s questioning, and the impingement on protected union activities, Respondent’s April 21, 1978 interview of Jesse Whitwell violated Section 8(a)(1) of the Act.” 

[3] It is very significant to note that these limitations on the work product doctrine are not applicable to the privileges set forth in HRE 501. 

[4] A comparison of Chapter 658A and the Uniform Arbitration Act indicates that the State of Hawaii Legislature decided to adopt the Uniform Arbitration Act in its entirety, section by section, sentence by sentence, word for word, unlike some state legislatures which modified their version of the Uniform Arbitration Act.

[5] Both the Employer and the Union have filed motion to compel answers to interrogatories and for production of documents. Both motions were scheduled for on March 11, 22, and 23 2006.

  

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