Title: Hawaii Health Systems and
Hawaii Government Employees Association
BEFORE ARBITRATOR MICHAEL ANTHONY MARR
STATE OF HAWAII
MICHAEL ANTHONY MARR ttorney, Arbitrator, & Mediator
111 North King Street
Suite # 314
Honolulu, Hawaii 96817
Telephone: (808) 599-5258
ttorney, Arbitrator, & Mediator
111 North King Street
Suite # 314
Honolulu, Hawaii 96817
Telephone: (808) 599-5258
DECISION AND AWARD
The above-referenced matter came on for hearing before the arbitrator on September 24, 25 and November 13 and 14, 2007 in Wailuku, Maui. (Please refer to transcript of these proceedings, hereinafter sometimes referred to as “Tr” or by a witness’s last name followed by the transcript page number(s)). The arbitrator was mutually selected by the parties to arbitrate the grievance of Dr. Daniel J. Lane and to render a final and binding award regarding same.
The parties were represented by zealous, professional, and competent counsel at the arbitration hearing. The Hawaii Government Employees Association, AFSCME, Local 152, AFL-CIO, hereinafter sometimes referred to as “Union” and Dr. Daniel Lane, hereinafter sometimes referred to as the “Grievant” or “Dr. Lane” were represented by Peter L. Trask, Esq. The Hawaii Health Care Systems Corporation, dba, Maui Memorial Medical Center, hereinafter sometimes referred to as “Maui Memorial Medical Center,” or “MMMC” or “Employer” was represented by Kristen S. Shigemura, Esq. During the arbitration hearing the Union called 7 witnesses and introduced into evidence 47 Union exhibits. The Employer called 3 witnesses and introduced into evidence 38 Employer exhibits. Two Joint Exhibits were also received into evidence. Joint Exhibit 1 is the collective bargaining agreement (sometimes hereinafter referred to as “CBA”) that governs the relationship between the MMMC, the Union and Dr. Lane. Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. The parties agreed that their respective closing briefs would be post-marked no later than the close of the business day of January 14, 2008. The arbitrator informed the parties that his decision and award would be post-marked no later than 30 days from January 14, 2008, or February 12, 2008.
The arbitrator has reviewed the testimony and evidence presented during the arbitration hearing as well as reviewed the well-written and convincing briefs submitted by counsel. The arbitrator does not feel compelled to address all of the numerous arguments and issues raised by these professional advocates. Please note that this is not to be interpreted that the arbitrator has not read and reread the transcripts, briefs and numerous pages of exhibits and carefully considered all arguments of counsel. Rather, the arbitrator elects to address only those elements that have a significant impact on his decision-making process. The arbitrator, as a general rule will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by the arbitrator’s decision and award.
I. STIPULATED ISSUES.
The parties stipulated at a pre-arbitration hearing conference and again at the arbitration hearing held on this matter that the following were the issues in this grievance:
a. Is the grievance arbitrable?
b. Did the Employer violate Sections 3, 8 and 17 of the Unit 13 Collective Bargaining Agreement when it terminated Dr. Daniel Lane, effective January 10, 2006?
c. If so, what is the appropriate remedy?
The parties also stipulated that burden of proof as to arbitrability was on the Employer while the burden of proof as to whether there was a CBA violation and the appropriateness of a remedy were on the Union.
II. RELEVANT CONTRACT PROVISIONS.
ARTICLE 3 – MAINTENANCE OF RIGHTS AND BENEFITS.
Except as modified herein, Employees shall retain all rights and benefits pertaining to their conditions of employment as contained in the departmental and civil service rules and regulations and statutes at the time of execution of this Agreement, but excluding matters which are not negotiable under Chapter 89, HRS.
ARTICLE 5 – RIGHTS OF THE EMPLOYER.
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 modified under this Agreement.
ARTICLE 8 – DISCIPLINE
A. Regular Employees shall not be disciplined without proper cause. Grievances regarding these matters shall be handled in accordance with the provisions of Article 11, Grievance Procedures.
B. Exempt Employees who meet all the conditions listed below shall not be disciplined without proper cause. The conditions are:
1. Employee is in an exempt position in an ongoing program and whose appointment does not have a termination date.
2. Employee is in an exempt position which is within the authorized ceiling as provided in the State Appropriations Act.
3. Employee has at least (12) continuous months of service in the Employee’s present position.
Whenever grievances alleging violations of Article 8, Discipline, are filed by any exempt Employee who meets all three (3) conditions sated above, such grievance shall be processed in accordance with the provisions of Article 11, Grievance Procedure.
Exempt Employees in the Hawaii Housing Authority and the Hawaii Public Broadcasting Authority shall not be disciplined without proper cause, notwithstanding that such Employees are appointed for a definite term, provided that they meet conditions 2 and 3 listed above.
Paragraph B does not apply to Employees in programs which provide temporary public service employment, such as SCET and CETA.
C. Disciplinary action taken against any Employee in writing shall be considered confidential.
D. When an Employee is orally reprimanded, it shall be done privately.
ARTICLE 17 – PERSONAL RIGHTS AND REPRESENTATION.
A. The Employer shall not require Employees to transport government equipment in their private vehicles, if such Employees do not receive mileage allowance.
B. Upon the request by the Union, existing dress and personal appearance codes shall be reviewed by the Employer or the Employer’s designee and the Union. The Employer or the Employer’s designee shall consult with the Union before establishing new dress and personal appearance codes.
C. Both parties agree that Employees shall not use their business address (place of employment) to receive personal mail; provided, however, if personal mail is sent to Employee’s business addresses without their knowledge or consent, the Employer shall endeavor to forward such personal mail unopened.
D. The Employer shall provide Employees with supplies and equipment which are required in the performance of the Employee’s official duties. Except in the case of negligence on the part of the Employee, when such equipment is stolen, lost, damaged and/or worn out it shall be repaired or replaced by the Employer.
E. The Employer shall provide legal counsel for an Employee upon request when:
1. the Employee is sued for actions taken by the Employee in the course of the Employee’s employment and within the scope of the Employee’s duties and responsibilities.
2. the Employee must appear as a defendant or is subpoenaed to appear in court when sued for actions taken in the course of employment and within the scope of the Employee’s duties and responsibilities.
3. the Employee must appear as a witness or is subpoenaed to appear in court on a matter arising in the course of employment and within the scope of the Employee’s duties and responsibilities.
4. the Employee is required to give deposition and answer interrogatories on a matter arising in the course of employment and within the scope of the Employee’s duties and responsibilities.
In addition, the Employee’s required presence in any of the foregoing situations shall be considered work time, provided whenever an Employee’s required presence is on the Employee’s scheduled day off or holiday off, the Employee shall be guaranteed a minimum of three (3) hours straight time pay.
F. When grievances are filed against Employees of this unit for actions taken by them in the course of their employment and within the scope of their supervisory and/or managerial duties and responsibilities, the Employer shall provide them with necessary staff support and representation. When such assistance is requested by the Employee and the Employer fails to furnish such assistance, the Employee will not be penalized for any improper action taken.
G. The Employer shall provide Employees with advice and assistance in the interpretation and administration of collective bargaining contracts or agreements covering their subordinates. Whenever Employees perform or carry out their assigned supervisory and/or managerial duties and responsibilities, based on such advice and assistance, the Employer agrees to provide full support to the Employees should conflict or grievances arise.
H. The Employee shall have the right to refuse for good cause as determined by the Employer to work overtime, to accept a temporary assignment, and to perform any work not representative of the Employee’s class.
I. If a judgment or court approved settlement is made against an Employee in a civil suit for actions taken by him in the course of the Employee’s employment and within the scope of the Employee’s duties and responsibilities, the Employer agrees to do no more than submit to the Legislature or the County Council any judgment (or court approved settlement) against the Employee, with the Employer retaining the discretion of recommending or not recommending legislative approval.
J. Bill of Rights.
As used herein, the term “complaint” refers to an allegation against an Employee which is made by an individual who is not employed within the same department. Whenever such a complaint is filed, the following shall be applicable:
1. No Employee shall be required to sign a statement of complaint filed against him.
2. If the Employer pursues an investigation based on such complaint, the Employee shall be advised of the seriousness of the complaint. The Employee will be informed of the complaint, and will be afforded an opportunity to respond to the complaint, and to furnish evidence in support of the Employee’s case. The Employee shall have the right to be represented by the Union in presenting the Employee’s case.
3. Before making a final decision, the Employer shall review and consider all available evidence and data, including factors supporting the Employee’s position, whether or not the Employee offers such factors in the Employee’s own defense.
III. APPLICABLE STATUTORY PROVISIONS.
Chapter 465 governs psychologists, their profession, behavior, and licensure. In particular,
Section 465-7.6 of the Hawaii Revised statutes provides as follows:
(a) A psychologist employed in a civil service clinical psychologist position in this State after January 1, 1988, shall be licensed subject to:
(1) Meeting the requirements of Section 465-7; and
(2) Obtaining licensure within two years from the date of employment.
(b) After the time period in subsection (a) (2) has expired, a psychologist employed
in a civil service clinical psychologist position rendering diagnostic or treatment services, who has not obtained a license, shall immediately cease and desist the practice of psychology until a license is obtained pursuant to this chapter. [L 1988, c 197, § 3; am L 1997, c 37 § 4; am L 2003, c 79, § 2] Chapter 89 of the Hawaii Revised Statutes governs the relationship between Public Employer and Public Employees. In particular, HRS § 89-9(d) (2) which provides as follows:
Excluded from the subjects of negotiations are matters of classification, reclassification, benefits of but not contributions to the Hawaii employer-union health benefits trust fund or a voluntary employees’ beneficiary association trust; recruitment, examination, initial pricing; and retirement benefits except as provided in section 88-8(h). The employer and the exclusive representative shall not agree to any proposal that would be inconsistent with the merit principle or the principle of equal pay for equal work pursuant to section 76-1 or that would interfere with the rights and obligations of a public employer to…
(2) Determine qualifications…
IV. THE GRIEVANT, DR. DANIEL J. LANE
Dr. Daniel Lane presented himself as a very intelligent, articulate, kind and considerate man. The record of four (4) days of testimony indicates that Dr. Lane was a contributing member as well as an asset to the Hawaii Memorial Medical Center. Ms. Knutson, the Director of Human Resources at Maui Memorial Medical Center, characterized Dr. Lane as a good employee and a good psychologist. Knutson at 380:11-13. Dr. McGuffey viewed Dr. Lane as a contributing member of the hospital and an integral part of the treatment team. Dr. McGuffey at 195:2-9. Union Exhibit 28 is a letter from 52 employees to Chief Executive Officer Wesley Ho, dated March 16, 2006, asking that Dr. Lane be reinstated to his previous position as a psychologist at Maui Memorial Medical Center since he is now licensed to practice psychology in the State of Hawaii.
Union Exhibits 30 through 33 are performance appraisals for Dr. Lane. Knutson at 362:15. The performance appraisal forms provide for an employee to be rated in one of three categories, the worst being “Fails to Meet Expectations,” the average being “Meets Expectations” and the best rating being “Exceeds Expectations.” For the period of November 17, 2003 through February 16, 2004, Dr. Lane received an “Exceeds Expectations” rating. (Union Exhibit 30). For the period of February 17, 2004 through May 16, 2004, Dr. Lane received a “Meets Expectations” rating. (Union Exhibit 31). For the Partial Annual performance evaluation from May 17, 2004 through June 30, 2004, Dr. Lane received a “Meets Expectations” rating. (Union Exhibit 32). For the period of July 1, 2004 through June 30, 2005, Dr. Lane received an “Exceeds Expectations” rating. (Union Exhibit 33). Dr. Lane’s overall performance evaluations indicate that he was a responsible employee and contributing member of the Maui Memorial Medical Center medical team. The arbitrator agrees with assessments of Ms. Knutson and Dr. McGuffey concerning Dr. Lane.
Dr. Lane is currently a self-employed clinical psychologist in Makawao, Maui. Dr. Lane at 407:24-25. At the time of his testimony (November 13, 2007) he had been so employed for approximately 21 months. Dr. Lane at 408:3. Dr. Lane started his private practice on February 15, 2006. Dr. Lane at 408:5.
Dr. Lane was licensed by the State of Hawaii as a psychologist on February 15, 2006. Dr. Lane at 488:8-12. Dr. Lane was advised by nurse supervisor Susan Carroll that a psychologist position was posted and asked Dr. Lane to apply. Dr. Lane at 488:18. Dr. Lane looked at the vacancy announcement and informed her that he would not apply because the position was for a lower level, psychologist VI position with a lower rate of pay. Dr. Lane at 488:18-24; 555:18. After being shown Employer Exhibit 37, which is a job vacancy announcement for a Clinical Psychologist VII position, posted on January 30, 2006, which indicates that the salary is negotiable, Dr. Lane testified that that is not what was posted online. Dr. Lane at 557:14-25; 558:17-18.
Irrespective of Employer Exhibit 37, Dr. Lane testified that he still would not have applied for the job position because he was pretty bitter about how unbalanced his relationship was with Maui Memorial Medical Center in terms of commitment. Dr. Lane at 489:1-4. Dr. Lane also feels that he was subjected to a very, very serious injustice and wants this corrected prior to returning to Maui Memorial Medical Center. Dr. Lane at 489:7; 558:21-25. Although Dr. Lane wants his job back, he believes that he does not want to place himself in a position to be further subjected to unprofessional treatment. Dr. Lane at 489:7-11. The grievance process is Dr. Lane’s attempt to get his job back. Dr. Lane at 489:12-15. Dr. Lane wants to right what he perceives as a very serious wrong. Dr. Lane at 490:1-3.
Dr. Lane was earning approximately $5,626 per month at Maui Memorial Medical Center. Dr. Lane at 498:19-23. In private practice he averages about $10,000 to $11,000 to $12,000 per month and at times about 2 ½ his earnings at Maui Memorial Medical Center. Dr. Lane at 498:22-25-499:1-6. This income is not his net income, but his gross income. Dr. Lane at 568:3-5. Costs included malpractice insurance, lease rent, deposit, telephone installation and monthly service, and internet service. Dr. Lane at 573:21-25 through 574:1-4. Rent is $1,200 per month, telephone $60 per month, office machines and furnishing about $10,000 to $12,000. Dr. Lane at 574:13-25. Malpractice insurance is approximately $400 per month, internet $35, and liability insurance about $500 a year. Dr. Lane spends about $2,500 to $3,000 per month in operating costs. Dr. Lane at 575:4-25.
However, Dr. Lane testified that he would like to be reinstated because there are benefits in working for the State such as time off and vacation time. Dr. Lane at 499:12-15. The reason why he has not reapplied is because he does not want to be treated unprofessionally. Dr. Lane at 499:16-20. He does not believe that he would be treated unprofessionally if the arbitration is approved in his favor and believes that it would make a difference in how administration treats him. Dr. Lane at 500:1-2. If the arbitration award is held in his favor with reinstatement, Dr. Lane testified that he would reassume his old position although it would take time to close down his private practice. Dr. Lane at 500:3-8.
Prior to 2001, Dr. Lane resided in Sacramento, California. Dr. Lane at 409:19. Dr. Lane was operating two nonprofit corporations, both of which he started in February of 1996, one called Crossroads Treatment Center and the other Lane Educational and Resource Center. Dr. Lane at 410:1-5. The Crossroads Treatment Center is a 24-bed subacute psychiatric level treatment facility for adolescent girls and Lane Educational Resource Center is a nonpublic school program that provides educational services to girls in the Crossroads Treatment Center. Lane at 410:5-9. Dr. Lane was the president and executive director of both corporations. Lane at 410:18-20.
A friend of Dr. Lane brought Dr. Lane’s attention to an internet ad for a clinical psychologist VI position at the Maui Memorial Medical Center. Dr. Lane at 409:10-13. Dr. Lane became interested because he and his wife had been to Maui several times and enjoyed the lifestyle and pace of living in Hawaii. Dr. Lane at 411:1, 6-7. They enjoyed the quality of life and cultural diversity. Dr. Lane at 425:3-4. Dr. Lane was also concerned about crime, traffic, gang activity, and drug activity in Sacramento. Dr. Lane at 411:3-4; 425:4-7. Dr. Lane was also concerned about his ten-year-old daughter’s environment, safety and education. Dr. Lane at 411:4-6; 425:7-10. Dr. Lane’s family would also be closer to his wife’s family living in Japan. Dr. Lane at 411:7-8; 425:3.
Dr. Lane sent a letter of introduction to the Maui Memorial Medical Center (Mark Figgie) inquiring about the position, dated April 19, 2001. Dr. Lane at 409:15-16; Union Exhibit 1. This was Dr. Lane’s first communication with Maui Memorial Medical Center. Dr. Lane at 412:9. In response to Dr. Lane’s letter of inquiry, Mark Figgie of Maui Memorial Medical Center, by letter dated June 22, 2001, informed Dr. Lane that he met the requirements for Clinical Psychologist VI, that he would be placed on a list of eligibles, and that if he had any questions he should contact Ms. Wendy C. Ono, Recruitment Officer, at (808) 986-0930. Dr. Lane at 1-13; Union Exhibit 2.
After Dr. Lane received Union Exhibit 2, Mr. Figgie’s letter of June 22, 2001, Dr. Lane expressed his interest regarding the position by contacting and speaking to Wendy Ono and Kathy Bauer. Dr. Lane at 413:1-6. As a result of this conversation, Dr. Lane was interviewed via telephone by an interview panel that consisted, among possibly other persons, Dr. Moser, Dr. Balog, and Kathy Bauer. Lane at 413:9-15. Dr. Lane was contacted as a result of this interview and offered the job position at Maui Memorial Medical Center. Dr. Lane at 413:17-18. Dr. Lane recommended that he travel at his own expense to Maui Memorial Medical Center to get an “idea of the commitment that I [Dr. Lane] was making,” to meet the staff in the psychiatric unit, and to determine if he was a “good fit.” Dr. Lane at 413:17-24.
Dr. Lane made his trip to Maui in August or September of 2001. Dr. Lane at 415:1. Dr. Lane recommended that he work for a period of six months as he had lived in Sacramento for 14-15 years, had two nonprofit corporations, 115 employees, and wanted to “thoroughly research this before I [Dr. Lane] made this type of a commitment.” Dr. Lane at 415:10-15.
Dr. Lane’s responsibilities and duties included everything that was identified in the job description for a clinical psychologist VI. Dr. Lane at 415:24-15. He was not required by the hospital to be licensed at this time. Dr. Lane at 416:3. Although Dr. Lane believes that he had no supervision and was functioning independently (Dr. Lane at 416:4-9), he was evidently supervised by the medical director of the adolescent psychiatric unit. Dr. McGuffey at 579:2-25; 580:1-11. Dr. Lane was unable to stay for a full six months. Although the Maui Memorial Medical Center allowed him to live in an apartment behind the hospital, Dr. Lane flew back to Sacramento each month for two weeks to attend to his businesses in Sacramento. Dr. Lane at 416:13-22. While Dr. Lane was on Maui, he paid for a rental car, food and gasoline. Dr. Lane at 416:17-18. Dr. Lane also paid for his airfare between Maui and Sacramento. Dr. Lane at 416:17. Dr. Lane asked Maui Memorial Medical Center if they would pay for his expenses but was informed that if that was what he wanted to do it would be at his expense. Dr. Lane at 417:3-4.
After the six-month contract expired, Dr. Lane and Maui Memorial Medical Center entered into a two-month contract because Dr. Lane wanted to make certain that there was going to be a good relationship between himself and Maui Memorial Medical Center. Dr. Lane at 417:12-14. Although the parties were considering a full-time contract after the six-month period, Dr. Lane had also informed Maui Memorial Medical Center that because of his businesses, it could take several months before he would be able to make the transition from Sacramento to Maui. Dr. Lane at 417:19-22.
After the two-month contract expired, the parties went into negotiations for the clinical psychologist VII position. Dr. Lane at 418:5-7. The position that was negotiated was set forth in Union Exhibit 3. Dr. Lane at 418:10. Although the salary limit is $57,000 in Union Exhibit 3, Dr. Lane negotiated his salary to approximately $68,000. Dr. Lane at 419:3-6. Since Dr. Lane had negotiated the level of the position from VI to VII, he was informed that Union Exhibit 3, to be fair and equitable to everyone, had to be posted to see if anyone else wanted to apply. Dr. Lane at 419:20-25 through 420:1-3.
Wendy Cheryl Ono, who has been employed at Maui Memorial Medical Center for the past 9 ½ years, the past 8 years as a Regional Recruitment Officer. Ono at 27:2-8; Ono at 26:22-25; Ono at 27:11-17. Ms. Ono testified that she was involved with a portion of the negotiations concerning the employment for Dr. Lane. Ono at 28:1-2. It is part of her job to recruit individuals such as the clinical psychologist position that was held by Dr. Lane. Ono at 28:5-7; 32:1. Her section was also responsible for posting the position. Ono at 28:12. She was involved in the request to “hire above the vacancy notice announcement” because of the difficulty Maui Memorial Medical Center had in filling the vacancy. Ono at 36:17-19; 39:20-25. To hire above the vacancy announcement, it was necessary to show recruitment difficulties, dates of recruitment, number of eligibles, and a study of comparable salaries. Ono at 40:8-11. The position had been open for at least a couple of years prior to the request to hire above the minimum. Ono at 36:22-24.
The Conditional Offer of Employment to Dr. Lane, Union Exhibit 5/Employer Exhibit 5, from Wendy C. Ono, on behalf of Maui Memorial Medical Center, dated April 7, 2003 set forth the minimum requirements that Dr. Lane would have to meet to maintain his employment with Maui Memorial Medical Center. There are 9 bullet points (conditions) set forth in the letter, the most important of which reads as follows:
• State of Hawaii Board of Psychology License – Please bring in your original Hawaii State Board of Psychology License within 2 years from the date of your appointment.
Employer Exhibit 5 contained several enclosures, Employer exhibits 6, 7, and 8. Employer Exhibit 6 is the Hawaii Health Systems Corporation Minimum Qualification Specifications for the Classes, Clinical Psychologist V, VI, VII, and VIII. Employer Exhibit 7 is the Vacancy Announcement and Employer Exhibit 8 is the Job Description for the position that Dr. Lane held, Clinical Psychologist VII, Position 50242. Ono at 71:24-25; 72:1-4; 76:11; 79:4. In regard to the license requirement, Employer Exhibit 6, page 1 Level 5, Section E provides for “[a] valid license to practice psychology in the State of Hawaii, as described in Chapter 465, HRS.” Employer’s Exhibit 7, page 2, item D provides for “a license to practice psychology in the State of Hawaii, as described in Chapter 465, HRS,” and Employer Exhibit 8, page 3, Item III.A.5 provides for “[a] valid license to practice psychology in the State of Hawaii, as described in Chapter 465, HRS” while Page 3, item D also provides for “[l]icensure: [w]ithin two (2) years from the date of appointment as a Clinical Psychologist VII, employee must meet the requirements for licensing and obtain a license issued by the State Board of Psychology, as required by Chapter 465, HRS.” Dr. Lane reviewed and signed page 4 of Employer Exhibit 8 which concerned his job description and minimum qualifications for employment on December 12, 2003. Nagamine at 129:20-25.
Also sent out on April 7, 2003 with Union Exhibit 5/Employer Exhibit 5 was Employer Exhibit 10, a letter of “Letter of Understanding and Appointment.” Dr. Lane signed this document and returned it to Ms. Ono on April 21, 2003.
After April 21, 2003 Dr. Lane continued to negotiate the contract. Ono at 80:22-25. However, Dr. Lane never set forth concerns that he didn’t understand any of the conditions stated in his offer letter. Ono at 79:5-7. Dr. Lane never questioned or informed Ms. Ono that he did not understand any of the conditions stated in the offer of employment. Ono at 79:5-11.
Employer Exhibit 11 is a memorandum from Steven Mosher, MD, to Kathy Bauer and Wendy Ono, dated June 2, 2003. The memo sets forth various items that Dr. Lane wanted added to his employment agreement. Employer Exhibit 10 provides in relevant part as follows:
Dr. Lane had several things he wanted in his employment agreement:
Thanks. Dr. Mosher
In regard to item #1, Dr. Lane was asking for a guarantee in his contract that he would work on certain units on certain days. Ono at 82:4-10. In regard to item #2, Dr. Lane was asking for a guarantee of 4 hours per week supervision. Ono at 82:1-20. In regard to item #3, Dr. Lane was asking to attend monthly workshops and seminars that would enhance his clinical skills and receive credit for licensure. Ono at 82:21-25. In regard to item #4, Dr. Lane wanted to identify an after-hours compensation rate for on-call services either as overtime or a rate comparable to an outside psychologist. Ono at 83:2-7. Item #5 concerned Dr. Lane’s request for an addendum setting forth criteria that would make him eligible for the psychologist VII position. Ono at 83:12-14. Ms. Ono was advised not to include the items in an addendum. Ono at 83:23-24.
On October 1, 2003, Ms. Ono sent Dr. Lane an “Addendum to Letter of Understanding and Appointment” which incorporated some additional terms that were agreed upon by the parties (Employer Exhibit # 13). Both Ms. Ono and Dr. Lane signed the Agreement, dated October 1, 2003. Ono at 87:11-25. Ms. Ono never informed Dr. Lane that if he failed his licensure he would be kept on or he would be terminated. Ono at 89:13-15. She testified that she did not believe that it was necessary for her to discuss this with Dr. Lane since the burden was on him to bring in all of his documentation to maintain minimum qualifications. Ono at 89:18-24.
Dr. Lane testified that he has seen Union Exhibit 5/Employer Exhibit 5, a letter dated April 7, 2003 from Wendy C. Ono, Recruitment Officer, to Daniel J. Lane. Dr. Lane at 501:24-25. Page 2 of Union Exhibit 5/Employer Exhibit 5 indicates that Dr. Lane was required to bring in proof of his licensure within two years from the date of his appointment. Dr. Lane at 502:2-5. Dr. Lane also testified that he was aware of this requirement before he accepted the position with Maui Memorial Medical Center. Dr Lane at 502:9.
Union Exhibit 5/Employer Exhibit 5 also contained several enclosures, Employer Exhibit 6, the Hawaii Health Systems Corporation, State of Hawaii, Minimum Qualification Specifications Clinical Psychology Assistants III & IV and for Clinical Psychologist V, VI, VII, and VIII, Employer Exhibit 7, Hawaii Health Systems Corporation Vacancy Announcement, posted 03/19/03, for Clinical Psychologist VII, and Employer Exhibit 8, Hawaii Health Systems Corporation, Maui Memorial Medical Center Job Description for Clinical Psychologist VII. Dr. Lane at 503:1-3. Dr. Lane testified that Employer Exhibits 6, 7, and 8 required him to bring in his State of Hawaii Board of Psychology license within 2 years from the date of his employment. Dr. Lane at 503:5-11.
This was the first letter of understanding and appointment or a conditional offer of employment that Ms. Ono had written that would “permit an individual to possess a licensure after employment.” Ono at 38:5-7. However, part of the minimum qualifications for Dr. Lane was that he obtain his licensure within two years of employment, otherwise, “he would no longer qualify for that particular classification or that clinical psychologist position.” Ono at 38:14-20. However, Ms. Ono also testified that her letter of understanding and conditional offer of employer did not include what the Employer would do if Dr. Lane did not comply with the 2 year obligation to present a license. Ono at 38:1.
Dr. Lane did not dispute that he must be licensed within 2 years from the date he started to work at Maui Memorial Medical Center. Dr. Lane at 421:3; 501:5-10. However, Dr. Lane testified that he interpreted the cease and desist requirement as meaning that if he did not get licensed, he would stop practicing until he got his license and he never thought it would mean termination. Dr. Lane at 464:1-25 through 465:1-2  Dr. Lane did not take the leaves that he was entitled to because he was saving it as a buffer if for some reason he did not pass the exam the first time. Dr. Lane at 464:22. His plan was to have about four months of comp, vacation, and sick time that he could fall back on and would not be practicing psychology and still have income. Dr. Lane at 464:21-25.
No one made representations to Dr. Lane as to what would happen if he failed to obtain his licensure by November 17, 2005 (the two year anniversary date from his date of appointment), i.e., if he would be terminated or be placed on leave and be permitted to take another exam. Ono at 89:3-24; Nagamine at151:24-152:7; Dr. McGuffey at 216; Dr. Lane at 516:25-518-1.
Dr. Lane took it upon himself to determine how to get licensed as a psychologist for the State of Hawaii. Dr. Lane at 427:4-6. In the summer of 2003, Dr. Lane went online and downloaded a copy of Chapter 465 which governs Psychologists as he wanted to make certain what his licensure requirements were before he moved to Maui. Dr. Lane at 427:9-14. Dr. Lane had absolutely no doubt at that time that he would be able to meet the licensure requirements within the two-year requirement. Dr. Lane at 427:24.
Dr. Lane testified that he met all of the requirements of licensure with the exception of completing 1,900 post doctorate supervisory hours at an approved site and passing the EPPP exam. Dr. Lane at 428:1-25 through 429:18. Prior to being eligible to take the EPPP exam, Dr. Lane had to complete the 1,900 post doctorate hours and submit a full application to the Board of Psychology. The application includes school transcripts and information regarding education and experience. Dr. Lane at 430:1-6. Eligibility for the exam is determined by the Hawaii Board of Psychology. Dr. Lane at 430:12. If the applicant is eligible, the applicant is sent an “authorization to test” letter from the Hawaii Board of Psychology. Dr. Lane at 430:15, 25. The applicant uses the authorization to test letter to contact a testing site headquarters which is on the East Coast to schedule the EPPP exam. Dr. Lane at 430:15-18. Once the authorization to test letter is sent to a test site, the applicant has 60 days from the date the test site receives the letter to take the exam, otherwise the application becomes invalid. Dr. Lane at 430:19-21; 431:1-10. The EPPP exam is a national exam. Dr. Lane at 431:13.
Dr. Lane testified that the 1900 post doctorate hours must be completed at a site that is approved by the State of Hawaii licensing agency. Dr. Lane at 432:9-17. In late 2003, but prior to November 17, 2003, Dr. Lane contacted the Board of Psychology and learned that Maui Memorial Medical Center was not an approved site. Dr. Lane at 433:3-4. Dr. Lane does not believe that Maui Memorial Medical Center knew that they were required to be an approved site. Dr. Lane at 433:9-10. However, before Dr. Lane moved to Maui, he contacted the Board of Psychology, explained his situation and asked them to consider approving Maui Memorial Medical Center as an approved site for him to do his post doctorate internship. Dr. Lane at 433:16-24. The Board of Psychology approved Maui Memorial Medical Center upon Dr. Lane’s request. Dr. Lane at 434:4-5. Dr. Lane wrote Dr. Mosher on May 30, 2003 and informed him that he was going to contact the Hawaii Board of Psychology to have Maui Memorial Medical Center approved as a site for him to acquire his 1900 post doctorate hours. Dr. Lane at 435:1-8. Dr. Moser was the chief medical officer at that time at Maui Memorial Medical Center. Dr. Lane at 435:18. Maui Memorial Medical Center never advised Dr. Lane that it was not an approved site. Dr. Lane at 434:8-9.
Maui Memorial Medical Center agreed to cover the cost of Dr. Lane’s supervision by a psychologist so that he could meet his 1,900 hour post-doctorate requirement. Dr. Lane at 436:8-16. The supervision was to be done by one of Maui Memorial Medical Center’s staff psychologists, either Dr. Rick Sword or Dr. Kelly Bass. Dr. Lane at 436:2-4. Dr. Lane did not contribute to this cost, only his time by meeting with his supervisor. Dr. Lane at 436:18. Dr. Lane met with Dr. Bass once a week for every 20 hours of work or twice a week for every 40 hours of work for face-to-face supervision to meet this 1900 hours requirement. Dr. Lane at 437:1-4.
Dr. Lane’s job description is based on a 40 hour work week. Dr. Lane at 438:5-6. Union Exhibit 46, which is a chronology of events and the hours worked, complied by Dr. Lane indicates that he worked substantially beyond the 40 hours per week required. There were only two pay period where Dr. Lane averaged 40 hours per week. This was for August 1 through August 15, 2004 and February 16, 2005 through February 31, 2005. Dr. Lane at 440:1-5; Union Exhibit 46. During one pay period, March 16 through March 31, 2004, Dr. Lane averaged 58.5 hours per week. Union Exhibit 46-1. This was the pay period where he worked the most hours during his employment at Maui Memorial Medical Center. Union Exhibit 46-1. It is significant to note that although Dr. Lane generally worked more than 40 hours per week, he believes that only 40 hours per week can count towards his licensure. Dr. Lane at 460:15-18.
From April through September, 2003, Dr. Lane made several significant changes in his life. Dr. Lane at 422:24-25. Dr. Lane organized his two corporations where they could function in his absence, flew his wife and daughter out to Maui to look at schools and determine where they wanted to live. Dr. Lane at 422:9-13. Dr. Lane’s wife and daughter subsequently moved to Maui and they rented a home for about three (3) months in Makawao and he sold a portion of his businesses to cover the moving expenses and cost of living. Dr. Lane at 422:14-22. Dr. Lane expended between $25,000 to $30,000 in moving expenses to transport his home belongings and three vehicles. Dr. Lane at 423-10-11. Dr. Lane also put his personal residence on the market and sold it prior to leaving. Dr. Lane at 423:15-18. In late November or early December they found a home in Kula and put a $300,000 down payment on a home as he was here to stay with the intention of having a long-term relationship with Maui Memorial Medical Center. Dr. Lane at 424:1-5.
Dr. Lane testified that he signed Union Exhibit 6/Employer Exhibit 13 that was sent to him from Wendy C. Ono on behalf of the Maui Memorial Medical Center, dated October 1, 2003, regarding an “Addendum To Letter of Understanding and Appointment” which provided him with a start date of November 17, 2003. Dr. Lane at 421:8-12. Dr. Lane testified that he accepted the contract knowing that he had not been given guaranteed educational leave. Dr. Lane at 509:17-20. Dr. Lane also acknowledged that he could have elected not to have taken the job. Dr. Lane at 509:21-22. Dr. Lane took the job because he believed that he could meet all of the requirements. Dr. Lane at 509:25-510:1-2. Dr. Lane further testified that he realized that he would have to study for his licensure while working. Dr. Lane at 529:2-5.
Dr. Lane testified that he had no problems from the date he began his employment on November 17, 2003 until February, 2005 when he contacted the Board of Psychology and asked for it to send him an application. Dr. Lane at 442:9-11. When Dr. Lane read the application, he discovered that his 1900 hours of pre-doctorate work was supposed to be supervised by a licensed psychologist, not a licensed psychiatrist. Dr. Lane at 442:12-21. Dr. Lane had rounded his pre-doctorate hours off to 2,000. Dr. Lane at 443:17. However, approximately three to four hundred hours of Dr. Lane’s pre-doctorate work had been signed off by a psychiatrist in California. Dr. Lane at 442:22-24. According to his calculations, without the hours signed off by the California psychiatrist, he did not have the 1900 pre doctorate hours necessary for licensure in Hawaii. Dr. Lane at 443:1-6. All States calculate these hours differently. Dr. Lane at 444:9. For example, in California, 400 to 500 hours can be supervised by a licensed psychiatrist. Dr. Lane at 444:1-2. Dr. Lane contacted the Board of Psychology in Hawaii and asked if he could do an additional internship or be supervised by someone else to get the additional hours that he needed. Dr. Lane at 444:19-22. Dr. Lane was informed that this could not be done since he had already graduated. Dr. Lane at 445:1-6. It took Dr. Lane approximately 2 months to have his pre-doctorate hours recalculated and verified on the basis that he was conservative in counting his pre-doctorate hours. Dr. Lane at 445:16-25. Dr. Lane had some people go into storage to get his archived files for his internships. Dr. Lane at 446:2-7. Dr. Lane then submitted his supporting documentation to his pre-doctorate supervisors. His supervisors informed Dr. Lane that they could understand how he was entitled to additional hours and signed off on his request. Dr. Lane at 446:9-11. Dr. Lane resolved this problem by approximately March or April of 2005. Dr. Lane at 446:15-16. However, until this issue was resolved, Dr. Lane could not have submitted his application to the Hawaii Board of Psychology because it would have been rejected. Dr. Lane at 446:16-18.
On May 31, 2005 Dr. Lane received an e-mail from Dr. Bjordahl asking him if he had received his license yet, and if not, when. Dr. Lane at 460:20-23. Dr. Lane replied that he intended to take the examination in September or October of 2005. Dr. Lane at 461:24-25.
Dr. Lane purchased his academic review study guides, which is a study program for persons studying for the EPPP exam on February 9, 2005. Dr. Lane at 461:17-21. From that point on, Dr. Lane was devoting whatever time he had in preparation for the EPPP exam. Dr. Lane at 461:25 through 462:2. The materials are current for six months and Dr. Lane was also planning a weeklong workshop on the mainland. Dr. Lane at 462:7-10. The workshop offered by the Company Dr. Lane wanted assistance from gave it at two locations on the West Coast. Dr. Lane at 462:11-13. One was in Las Vegas in May of 2005, but he did not feel ready for the exam. Dr. Lane at 462:13-14. The other was in August of 2005 in San Jose. Dr. Lane at 462:15-16. Dr. Lane signed up for the August 2005 seminar in San Jose. Dr. Lane at 462:15-16.
On August 9, 2005 Dr. Lane received an e-mail notice from Lisa Dang, (Union Exhibit 7) which provides in relevant part as follows:
This is just a reminder that you will need to bring in your license to practice as a Clinical Psychologist no later than November 16, 2005. This is per your job description stating that you will have two years to obtain your license. Please call me at ext 3036 if you have any questions regarding this matter.
Dr. Lane testified that he was not concerned about this e-mail notice. Dr. Lane at 466:2-4. Dr. Lane further testified that since he thought he had a permanent state job and made “tremendous monetary and time contributions” his exams were not going to be an issue. Dr. Lane at 466:5-11.
Dr. Lane did make an application for leave to prepare for his examination. Dr. Lane at 466:14. The formal request is Employer’s Exhibit 33 entitled “Application for Leave of Absence” and is dated August 22, 2005. Dr. Lane wanted to take leave from September 12th to October 10, 2005. Dr. Lane at 467:23. Dr. Lane wanted to schedule his EPPP exam on October 6, 7, and 8, 2005. Dr. Lane at 468:5-11. Because of the review by the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”), Dr. Lane had to change his exam date. Dr. Lane at 467:9-11. Dr. Lane sat for the examination on October 19. Dr. Lane at 468:13. Dr. Lane changed his examination three times to accommodate the JCAHO review. Dr. Lane 468:16-17.
JCAHO certifies the standard of care at hospitals across the nation. Dr. Lane at 467:14-17. Dr. Lane believes that JCAHO reviews hospitals every 7 or 10 years. Dr. Lane at 468:21-22. JCAHO rates hospitals in different areas on the quality of care. Dr. Lane at 469:5-7. Dr. Lane did not discover that JCAHO was reviewing the hospital until mid-2005, but he did not understand at the time the impact of a JCAHO review. Dr. Lane at 469:23-25. During the JCAHO review Dr. Lane was required to give either a one or two day staff- training on suicide prevention because that was one of the standards of care that was required of a psychiatric unit. Dr. Lane at 470:22. Preparing the suicide prevention training took Dr. Lane either 4 hours of one day or 4 hours on each of two days. Dr. Lane at 474:5-9. Nurse Susan Carroll also reminded everyone to read, review and understand from 12 to 18 binders and take a small exam to demonstrate that they had an adequate level of training to be compliant with JCAHO regulations. Dr. Lane at 471:1-9; 12-20, 24-25. The exams were self-administered. Dr. Lane at 472:16-17. The JCAHO review was between October 3 and 6, 2005. Dr. Lane at 473:6.
Dr. Lane was scheduled to take the exam and felt he wanted to take a month off prior to the exam to study. Dr. McGuffey at 197:17-19. Initially Dr. McGuffey had no problems with Dr. Lane’s request. Dr. McGuffey at 197:19.  However, he later learned that there was going to be a JCAHO survey during that time and felt that it was important to have Dr. Lane present during the JCAHO review. Dr. McGuffey at 197:19-22 This would have left Dr. Lane with two weeks prior to his exam. Dr. McGuffey at 197:22-23. JCAHO is an acronym for “Joint Commission of Accreditation of Healthcare Organizations.” Dr. McGuffey at 216:20.
JCAHO is an agency that gives accreditation to hospitals and medical groups, applying a high standard of care and quality; and it is a high achievement to obtain and maintain such accreditation . Dr. McGuffey at 217:1-6. JCAHO reviews occur once every three years. Dr. McGuffey at 217:5-7. JCAHO is continuously present for 3 to 4 days. Dr. McGuffey at 217:8-9. JCAHO accreditation can have an impact on funding as well as Medicare and Medicaid funding sources. Dr. McGuffey at 217:18-21. In fact, an institution has to have JCAHO accreditation in order to become an approved provider under Medicare and Medicaid. Dr. McGuffey at 217:18-21. JCAHO accreditation also affects the MMMC’s ability to receive reimbursements from third-party insurers such as HMSA Quest and Kaiser. Dr. McGuffey at 218:1-6.
Dr. McGuffey has seen Dr. Lane’s Application for Leave of Absence (Union’s Exhibit 42) for leave from September 12, 2005 through October 10, 2005. Dr. McGuffey at 199:22-23. Dr. McGuffey does not recall seeing it at the time it was submitted, but does recall discussing a leave request. Dr. McGuffey at 200:23-24. 203-2. Dr. McGuffey only recently saw the form and does not recall handing the form back to Dr. Lane. Dr. McGuffey at 204:13-16. However, Dr. McGuffey emphasized that the fact that he does not recall seeing it does not mean that he did not see it. Dr. McGuffey at 219:12-14. Dr. McGuffey gave Dr. Lane verbal approval. Dr. McGuffey at 201:1. Dr. McGuffey recalls retracting his verbal approval. Dr. McGuffey at 203:3-4; 204:16. Dr. McGuffey requested that Dr. Lane take less time off before the JCAHO evaluation. Dr. McGuffey at 201:4-9. Dr. McGuffey believed that his concerns regarding the JCAHO review were appropriate. Dr. McGuffey at 205:17-18; 219:3. The JCAHO review was going to be for 3 to 4 consecutive days. Dr. McGuffey at 204:7. The JCAHO visit occurred during October 3 through October 6, 2005. Dr. McGuffey at 222:4-8. If Dr. Lane was not present during the JCAHO review and MMMC had difficulty in establishing that it had psychology services available, JCAHO could have marked MMMC’s rating down. Dr. McGuffey at 218:18-23-24.
Dr. McGuffey could have told Susan Carroll or anyone else that he was not going to deny Dr. Lane’s request for leave because of the JCAHO review. Dr. McGuffey at 206:1-6. Dr. McGuffey testified that he balanced the needs of the hospital and the needs of Dr. Lane. Dr. McGuffey at 206:6-8.
Susan Carroll did request that Dr. Lane be present on the floor during the review. Dr. McGuffey at 201:18-19. The concern was decreasing the service line and established precedent. Dr. McGuffey at 201:21-22. Dr. Lane was concerned about having enough study time, however, Dr. McGuffey did not believe that Dr. Lane would have difficulty passing the exam. Dr. McGuffey at 20:2-6. This was because Dr. McGuffey believed that Dr. Lane was a very competent psychologist and he never had any concern about Dr. Lane’s competence. Dr. McGuffey at 202:16-17. Dr. McGuffey did not mind Dr. Lane taking time off to study for the exam but was concerned about having a psychologist present during the JCAHO review as it is part of a service line that Maui Memorial Medical Center had. Dr. McGuffey at 198:4-7; 19-22.
According to Mr. Lo, the Chief Executive Officer for Maui Memorial Medical Center, JCAHO is probably the most important accreditation that a hospital can have because without it MMMC would be ineligible for Medicare and Medicaid payments. Lo at 268:8-12. Currently, Medicare and Medicaid make up just under 50% of their total revenue stream. Lo at 268:13-14. A hospital functioning without JCAHO certification is a signal that it is in demise. Lo at 268:16-17.
Dr. Lane testified that he initially scheduled his exam for October 7, 2005, the day after JCAHO and changed his mind because he believed it would be “insane” for him to go into a 4 ½ hour exam the next day on Oahu after the JCAHO review. Dr. Lane at 475:22-25. Dr. Lane rescheduled the exam from October 7 to October 9 and then rescheduled again to October 19, 2005 and studied 14 hours a day for 10 straight days. Dr. Lane at 476:1-11. Dr. Lane first sat for the exam on October 19, 2005. Dr. Lane at 468:5-13.
Unfortunately, Dr. Lane discovered that he failed his exam a few weeks after October 19, 2005. Dr. Lane at 533:13-23. Other than Dr. McGuffey, Dr. Lane informed nobody that he failed his exam. Dr. Lane at 534:3-13. After Dr. Lane discovered that he failed the exam he scheduled and took another exam on January 13, 2006. Dr. Lane at 487:23. Dr. Lane passed this exam and was licensed to practice psychology in Hawaii on February 15, 2006. Dr. Lane at 488:1-12.
Dr. Lane was of the belief that from November 17th as far as he understood Chapter 465, he was not engaged in the practice of psychology. Dr. Lane at 484:2-4. Dr. Lane testified as follows:
“Well, if you look at the chronology of events here again, let me see, November 17th, I worked four hours as a psychologist at the hospital. The 28th I worked eight hours. And the 29th of November 2005 I worked eight hours in preparing hospital staff training up at Kula Hospital. December 1st through the 15th I worked - - I actually had 88 hours recorded. I did have my second exam rescheduled, so I was using com and vacation time to take my second exam on January 13th.”
Dr. Lane at 484:11-19.
Dr. Lane was unaware of the numerous e-mails sent between Maui Memorial Medical Center personnel that MMMC was very concerned with Dr. Lane’s licensure requirement until he received, by e-mail, a notification that he was going to be terminated. Union Exhibit 7. Thereafter, Dr. Lane was included in various e-mails regarding his employment and termination.
Ms. Knutson’s first involvement with Dr. Lane was in August of 2005. Knutson at 324:19.  Prior to August of 2005, Ms. Knutson does not recall receiving any notice that Dr. Lane’s status or if he had any problems obtaining his licensure. Knutson at 326:10-18. The facts that led to the termination of Dr. Lane occurred when Ms. Knutson was informed by her staff that the two-year licensure expiration date for Dr. Lane to obtain his license was approaching. Knutson at 310:9-14. She informed her staff to notify Dr. Lane that he needed to obtain is licensure. Knutson at 310:13-14; 324:10-11. This was in August of 2005. Knutson at 324:5-6. Either Lisa Dang or Ann Nagamine brought this to Ms. Knutson’s attention. Knutson at 324:8.
It was Ms. Lisa Knutson’s understanding that the two-year licensure requirement was set forth in the Hawaii Revised Statutes and that this requirement was incorporated into Dr. Lane’s job description. Knutson at 372:15. It was incorporated into the vacancy announcement for Dr. Lane’s position (Knutson at 372:15-17) and the conditional offer of employment that was sent to Dr. Lane on April 7, 2003. Knutson at 372:21; Employer Exhibit 5; Union Exhibit 5.
Ms. Knutson believes that Dr. Lane believes that he was aware that if he failed to meet these requirements, he would be terminated. Knutson at 373:1-3. This is Ms. Knutson’s belief because Dr. Lane signed letter of understanding and also because he signed his job description. Knutson at 373:5-7.
Ms. Knutson is familiar with the grievance of Dr. Lane. Knutson at 308:17. She believes that the grievance was for wrongful termination. Knutson at 309:7-8. She testified that it was her understanding that Dr. Lane was terminated because he did not meet minimum qualifications according to the job description, according to the job announcement, according to the letter of understanding, and according to the Hawaii Revised Statutes. Knutson at 309:13-16.
Ms. Nagamine was involved in Dr. Lane’s attempt to satisfy his two-year obligation to become licensed at Maui Memorial Medical Center. Nagamine at 96:4. She became involved when her supervisor, Lisa Knutson, asked her to make certain that Dr. Lane got his licensure within the two-year requirement. Nagamine at 96:5-15. She believes her involvement began in September but uncertain which year. Nagamine at 97:13-18. This is the first time that they had done an employment case where licensure was required after employment. Nagamine at 96:22-25. Ms. Knutson had advised Ms. Nagamine to talk to the supervisor of the department, Dr. McGuffey, to ensure that Dr. McGuffey knew about the two-year requirement and to make certain that Dr. Lane completed it within this time frame. Nagamine at 97:1-6. Dr. McGuffey knew about the two-year time requirement. Nagamine at 99:14-15. Ms. Nagamine asked Dr. McGuffey to see if Dr. Lane sat for the exam and if he did not, the estimated date of when he would get his licensure. Nagamine at 99:18-21. Dr. McGuffey replied by e-mail and indicated that Dr. Lane had taken his licensure exam on October 19, 2005. Nagamine at 102:1-2. Ms. Nagamine was of the opinion that of this date, Dr. Lane might not make his two-year commitment date for being licensed. Nagamine at 102:9.
Ms. Nagamine called her corporate office to check with them as she was not sure what to do and was directed by Lynette Hanashiro to contact the DCCA licensing branch. Nagamine at 102:22-23. She called Ms. Hashimoto to determine if they had any options and believed that she was informed that they had three options, they could place Dr. Lane on leave without pay, allow him to use his leave or comp time, or write to the Board to see if a licensed psychologist would be willing to oversee Dr. Lane until he received his license. Nagamine at 103:16-20; 138:5-8. Ms. Nagamine testified that as of December 7, 2005, this was a good thing because she believed that Dr. Lane could continue working as long as he was being supervised by a licensed psychologist. Nakamine at 141:14-17.
Ms. Nagamine memorialized her conversation with Ms. Hashimoto of the DCCA licensing branch by sending her a confirming letter, dated November 7, 2005. Nagamine at 138:21-24; Union Exhibit 8/Employer Exhibit 15. Ms. Nagamine had thought that Dr. Lane’s licensure problems had been solved. Nagamine at 138:12-13. She was relieved to find options for Dr. Lane. Nagamine at 138:14-16. Union Exhibit 8/ Employer Exhibit 15 provides in relevant part as follows:
November 7, 2005
Ms. Kathleen Hashimoto, Executive Officer
Dear Ms. Hashimoto,
Thank you for taking the time out of your busy schedule to interpret the DOH statutes that applies to the clinical psychologist license.
As per our conversation on November 4, 2005, Maui Memorial Medical Center has a sole Clinical Psychologist who started employment with us on 11/17/03. His two-year anniversary date is coming up soon and he recently took the clinical psychologist exam on 10/19/05. Maui Memorial would like to continue his employment so if he does not pass or is not able to receive his license by 11/16/05, we were looking at possible options to consider.
You stated that we could consider the following:
1. We can write to the Board of Psychology to see if a licensed clinical psychologist would be willing to oversee our Clinical Psychologist until he receives his license.
2. We can grant him vacation/comp time until we can verify his license; or
3. We can place him on leave-without-pay, until we can verify his license.
You also suggested that we advise our clinical psychologist to mail his check to your office as soon as he receives notification that he passed, and that he could check your website, ehawaii.gov to verify that his license has been issued.
Thanks again for the above information. If you have any questions, please contact me at
Ms. Knutson approved and agreed to Union Exhibit 8/Employer Exhibit 15 in principle prior to it being sent to Ms. Hashimoto. Knutson at 338:9; 12. Ms. Nagamine had informed Ms. Knutson of her conversation with Ms. Hashimoto. Knutson at 338:12.
By letter dated December 21, 2005 from Ms. Kathleen Hashimoto to Ms. Ann Nagamine
(Union Exhibit 9/Employer Exhibit 19), Ms. Hashimoto wrote in relevant part as follows:
December 21, 2005
Ms. Ann Nagamine
Dear Ms. Nagamine:
During its meeting on November 18, 2005, the Board of Psychology (“Board”) discussed your letter dated November 7, 2005. Specifically, you asked whether a clinical psychologist at Maui Memorial Hospital can retain this position if the individual is not licensed as a psychologist and two years of employment has passed. Subsequent to its discussion, the Board noticed that Hawaii Revised Statutes (“HRS”) §465-7.6(b) states “after the time period in subsection (a) (2) has expired, a psychologist, employed in a civil service clinical psychologist position rendering diagnostic or treatment services, who has not obtained a license, shall immediately cease and desist the practice of psychology until a license is obtained pursuant to this chapter”. The time period in subsection (a) (2) is two years. Therefore, based on the requirements in HRS §465-7.6, it was the Board’s informal opinion that once two years of employment has passed, a person is unable to practice as a psychologist unless licensed as a psychologist in this State. The Board was unable to answer your questions on whether the employee may be placed on vacation leave or leave without pay since HRS §465.7.6 does not include alternatives to the “cease and desist” requirement.
Please advise your employee that the payment of fees should be submitted only after the “Notice of Licensure Fees” form is received.
Pursuant to Hawaii Administrative Rules §16-201-90, an informal opinion is issued for informational and explanatory purpose only and is not an official opinion or decision, and therefore, it is not to be viewed as binding on the Board.
Should you have any questions regarding this matter, please contact me at (808) 586-2693.
As noted above, Ms. Hashimoto responded to Ms. Nagamine by letter (Union Exhibit 9/Employer Exhibit 19) dated December 21, 2005 and disputed the three options by stating “The Board is unable to answer your questions on whether the employee may be placed on vacation leave or leave without pay since HRS §465-7.6 does not include alternatives to the “cease and desist” requirement. Nagamine at 104:16-25; Union Exhibit 9/Employer Exhibit 19. Ms. Nagamine interpreted Ms. Hashimoto’s letter to mean that that Dr. Lane could not be employed as a psychologist because he was not licensed since the law does not provide alternatives to the “cease and desist” requirement. Nagamine at 105:3-12. She believed that her three options to keep Dr. Lane employed had been taken from her. Nagamine at 144:21-25; 145:1-5. Ms. Nagamine sent Union Exhibit 9 to Lisa Knutson, Wendy Ono and to Henry Kanda. Nagamine at 105:17-23. However, she did not express her interpretation of what the Board meant. Nagamine at 105:24-25.
The letter that Ms. Hashimoto sent to Ms. Nagamine on December 21, 2005 was inconsistent with the alternatives that Ms. Nagamine memorialized on November 7, 2005. Nagamine at 106:3-5. She did not get assistance from in-house counsel or outside counsel in her interpretation, but she did get help from Henry Kanda of Corporate. Nagamine at 106:7-16. Mr. Kanda sent an e-mail to Ms. Nagamine, dated November 1, 2005 which provided as follows:
I don’t know how to interpret this DOH rule. Only DOH can make this interpretation. At the very least, place the person on leave without pay, LWOP, pending licensure. I don’t think you want to terminate him because of recruitment difficulties,” etc.
Other than this e-mail she did not speak to Mr. Kanda. Nagamine at 109:4. She knew there were recruitment difficulties in filling Dr. Lane’s position. Nagamine at 109:8.
Ms. Knutson reviewed this letter (Union Exhibit 9/Employer Exhibit 19) for the first time on December 22nd. Knutson at 338:2 –339-3. Ms. Knutson interpreted Union Exhibit 9/Employer Exhibit 19 as a letter in which the Department of Commerce and Consumer Affairs did not wish to give them an opinion on what Ms. Nagamine wished to do in her letter of November 7, 2005. Knutson at 339:20-23; 342:22-24. Neither Ms. Knutson nor Ms. Nagamine sought further clarification from the Board of Psychology. Knutson at 340:5. Ms. Knutson could not recall if Union Exhibit 8/Employer Exhibit 15 and Union Exhibit 9/Employer Exhibit 19 were sent to counsel for the Maui Memorial Medical Center. Knutson at 341:1-24. After receiving Union Exhibit 9/Employer Exhibit 19, Ms. Knutson could not recall if she asked Ms. Nagamine to further research Chapter 465. Knutson at 343:9. However, Ms. Knutson did not believe that this was necessary because Ann Nagamine had already checked with Maui Memorial Medical Center’s Corporate Department in the beginning of November for assistance in interpreting the Hawaii Revised Statutes and the types of opinions that they had concerning Dr. Lane. Knutson at 374:1-2; Union Exhibit 7-6. Mr. Henry Kanda from corporate indicated that he did not know how to interpret the law and only the DOH could make a proper interpretation. Knutson at 374:10-13; Union Exhibit 7-6. Mr. Kanda indicated that he would follow-up with the interpretation with Lynette. Knutson at 375-1-2. Lynette in turn responded by putting her in contact with Kathleen Hashimoto. Knutson at 375:10.
After Ms. Hashimoto’s letter on behalf of the Board of Psychology (Union Exhibit 9/Employer Exhibit 19) to Ms. Ann Nagamine from Kathleen Hashimoto, dated December 21, 2005, Ms. Knutson testified that she believed that she could not follow the three options provided in Union Exhibit 8/Employer Exhibit 15. This is because Union Exhibit 9/Employer Exhibit 19 provided that it was the Board of Psychology’s informal opinion that it could not answer her questions concerning alternatives because the cease and desist requirement of the Hawaii Revised Statutes does not provide for alternatives. Knutson at 377:12-20. In addition, she believed that Dr. Lane could not be employed at Maui Memorial Medical Center under any one of these three options because he was not licensed and that by being employed at Maui Memorial Medical Center, he was practicing as a psychologist. Knutson at 377:25-378:11-3. This would be improper under the law. Knutson at 378:4-12. Ms. Knutson believed that she had no alternatives to continue the employment of Dr. Lane. Knutson at 378:18-22.
Termination of Dr. Lane first became realized when Maui Memorial Medical Center received the letter from the Board of Psychology. Nagamine at 109:9-15. Ms. Nagamine interpreted the letter from the Board of Psychology to mean that Dr. Lane had to be terminated. Nagamine at 110:6-9. Prior to her receipt of this letter she had operated under the assumption that she had three options to use to keep Dr. Lane employed. Nagamine at 144:6-6-13.
Ms. Nagamine also sent the Board of Psychology letter to Ms. Lisa Knutson and the Regional CEO, Wesley Lo. Nagamine at 110:13-15. She conveyed her opinion only to Ms. Knutson and nobody else. Nagamine at 110:23. The communication between Ms. Nagamine and Ms. Knutson concerning the termination of Dr. Lane was verbal. Nagamine at 111:1-6.
Dr. Lane testified that he first learned that he was terminated for failure to pass his examination was via an e-mail from Ann Nagamine to himself, Dr. Bjordahl and Dr. McGuffey, dated December 27, 2005. Dr. Lane at 483:3. Dr. Lane felt as if he was completely caught off guard by Ms. Nagamine’s e-mail terminating him. Dr. Lane at 483:7-11. Dr. Lane received formal notice of his termination via a letter from Chief Executive Officer Wesley Lo, to himself, dated December 27, 2005. Union Exhibit 11/Employer Exhibit 22.
Ms. Knutson testified that she recalled the letter to Dr. Lane, dated December 27, 2005 from Wesley Lo, Regional CEO (Union Exhibit 11/Employer Exhibit 22) because she drafted it for Mr. Lo. Knutson at 343:20-25. Ms. Knutson discussed the ramifications of Union Exhibit 11 with Mr. Lo. Knutson at 365:16. Mr. Lo evidently agreed that since Dr. Lane no longer met minimum qualifications, MMMC has “no alternatives” but to terminate Dr. Lane. Knutson at 366:8-20. Since Mr. Lo decided to terminate Dr. Lane, Ms. Knutson drafted the letter accordingly. Knutson at 367:17-19. Mr. Lo’s decision to terminate Dr. Lane was based purely on his failure to obtain his licensure within two years. Knutson at 379:17. Dr. Lane was terminated because he no longer met the minimum qualifications for his position and he could no longer practice as a psychologist after two years if he did not have his license. Knutson at 380:22-25. Mr. Lo had no ill will toward Dr. Lane. Knutson at 379:20. He also never said that he was out to get Dr. Lane. Knutson at 379:25. The decision to terminate Dr. Lane was made in good faith. Knutson at 381:1-3. It was Mr. Lo, not Ms. Knutson that made the decision to terminate Dr. Lane as Mr. Lo is the only person with the authority to terminate personnel at the MMMC. Knutson at 369:16-19. Union Exhibit 11/Employer Exhibit 22 provides as follows:
December 27, 2005
Re: HRS 465-7.6(b) Licensure and Minimum Qualification
Dear Dr. Lane:
According to the Department of Commerce and Consumer Affairs, as of today, you have not been issued a psychology license. Here is a recap of the actions that took place regarding your licensure:
• August 19, 2005, the Human Resources Office reminded you to bring in your Psychologist license by November 16, 2005. On August 10, 2005, you responded that you were aware of that date, and it was written in red in your day timer.
• September 21, 2005, the Human Resources Office was informed that you were scheduled to sit for your exam in October 2005.
• October 27, 2005, the Human Resources Office was informed that you took your exam on October 19, 2005 and you expected to hear the results before November 11, 2005.
• November 2, 2005, Dr. McGuffey said that you would either take vacation or use some of your comp time to fulfill the requirement that you “cease and desist the practice of psychology” until you get your license.
• November 21, 2005, you informed the Human Resources office that you are on comp time until December 19, 2005.
We have given you ample notice of the requirements needed for you to retain your position. Thus, according to HRS 465-7.6(b) and your job description, you no longer meet the minimum qualifications for your position and your employment with Maui Memorial Medical Center will end effective January 10, 2005. Effective today and until January 10, 2005, you will be placed on Leave Without Pay.
Dr. Lane had informed Dr. McGuffey on November 29, 2005 that Dr. Lane has failed to pass his exam. Dr. McGuffey at 581:12-18. On December 28, 2005 Dr. McGuffey wrote an e-mail to Ann Nagamine with a copy to Wesley Lo, Rod Bjordahl and Susan Carrol concerning Dr. Lane (Union Exhibit 7-14). In the e-mail he stated that he informed Dr. Lane that he would be eligible for rehire after he obtained his license. He obtained authority to make this offer from Human Resources, Ann Nagamine. Dr. McGuffey at 211:25 and 212:1-9. Mr. Lo verified that Dr. Lane would be eligible for rehire if Dr. Lane applied for his job and it was recommended by his supervisors that he be permitted to come back and work for the hospital. Lo at 271:1-2.
Dr. Lane never reapplied for rehire and his position continued to remain open at Maui Memorial Medical Center as of the date of the last arbitration hearing on this matter, November 14, 2007. Ono at 91-8. Dr. Lane’s position was reposted at Maui Memorial Medical Center on January 30, 2006. Ono at 91:1-6.
Dr. Lane has maintained that Maui Memorial Medical Center had an obligation to work with him in obtaining his licensure. Dr. Lane at 516:18-20. Dr. Lane testified that in the two years he was at Maui Memorial Medical Center nobody ever told him that if he failed to obtain his licensure he would be terminated. Dr. Lane at 516:18-22. Dr. Lane also believes that Maui Memorial Medical Center played a large role in his failure to obtain his licensure in October, 2005. Dr. Lane at 520:2-5. In Dr. Lane’s Affidavit of August 23, 2007 (Employer’s Exhibit 32), Dr. Lane stated that he failed the EPPP exam on October 19, 2005 as a direct result of Dr. Harold McGuffey approving and then denying his leave request after talking to Susan Carroll. Dr. Lane at 535:1-4.
Conversely, Ms. Knutson testified that 80% of the positions at Maui Memorial Medical Center have some type certification or license requirement. Knutson at 382:16-17. Each employee is responsible for maintaining and obtaining their respective licenses in a timely manner. Knutson at 383:20-23; 393:1. Maui Memorial Medical Center has approximately 1,200 employees and tracking everyone’s licensure status would be a “big undertaking.” Knutson at 383:2-6.
Mr. Lo also testified that he has to be careful in setting precedent for matters relating to “certifications” and “credentialing.” Lo at 258:20-25; 259:1-3. The most obvious ones are nurses and physicians. Lo at 258:25. According to Mr. Lo, an employee who does not meet minimum qualifications concerning licensing and certification cannot be allowed to keep their position and continue to provide services. Lo at 259:4-8.
VI. POSITION OF THE UNION.
1. The Union contends that Maui Memorial Medical Center violated Articles 3, 8, and 17 of the Unit 13 CBA when it terminated Dr. Lane. Article 3 was violated because Maui Memorial Medical Center violated rules, regulations, policies, procedures, ordinances and statutes when it terminated Dr. Lane.
2. Article 8 of the Unit 13 CBA was violated because Maui Memorial Medical Center terminated Dr. Lane without just and proper cause.
3. Article 17 of the Unit 13 CBA was violated because Maui Memorial Medical Center did not properly handle a complaint that was filed against Dr. Lane.
4. The Management Rights provision of Article 5 of the Unit 13 CBA is not applicable under the circumstances of Dr. Lane’s termination because MMMC’s actions were unreasonable, arbitrary, and capricious.
5. Chief Executive Officer Wesley Lo and his subordinates acted unreasonably, arbitrarily, and capriciously in determining to terminate Dr. Lane.
6. The Maui Memorial Medical Center had an obligation to monitor and work with Dr. Lane while he attempted to obtain his licensure.
7. The Maui Memorial Medical Center had an obligation not to interfere with the attempts of Dr. Lane to obtain his licensure.
8. Hawaii Revised Statutes, Section 465-7.6 only requires that a Clinical Psychologist employed by the State of Hawaii must obtain his licensure within 2 years of the date of appointment and failure to obtain the licensure mandates that the employee “cease and desist” the practice of psychology. The statute does not mandate that the employee be terminated and Dr. Lane was terminated based upon an erroneous interpretation of said statute. This erroneous application of law constitutes a violation of Chapter 465 of the Hawaii Revised Statutes.
9. The Employer acted unreasonably, arbitrarily, and capriciously in the solicitation, contracting, and operation of its facility adversely affecting Dr. Lane.
10. The arbitrator should reinstate Dr. Lane with all rights and benefits to his position from December 27, 2005 including medical contributions, sick leave and vacation leave, other contractual bargained for wage increases, and such other and further relief as the arbitrator believes just in the premises.
VII. POSITION OF THE EMPLOYER.
1. Maui Memorial Medical Center’s position is that the grievance of Dr. Lane is not arbitrable since Dr. Lane was terminated when he failed to meet the minimum qualifications for his job, MMMC Position #50242, within two years of the date of his appointment. Under the Unit 13 CBA, the Employer retains the exclusive right to manage, direct and control its workforce, and the decision to terminate Dr. Lane when he did not meet the minimum qualifications of his position was discretionary.
2. The minimum requirement of obtaining licensure within two years of appointment is based on Hawaii law, HRS §§ 465-2 and 465-7.6, that provides that a psychologist employed in a civil service position shall cease and desist the practice of psychology if he has not obtained a State of Hawaii Board of Psychology license by that date.
3. Dr. Lane was aware that he was required by to present his State of Hawaii Board of Psychology to MMMC within 2 years of his appointment to MMMC Position #50242. This requirement was listed in the Job description, the Vacancy Announcement, and the Minimum Qualifications for Position #50242 that were provided to Dr. Lane before he accepted the job.
4. Dr. Lane had two years to study for and pass the licensing exam. As a professional responsible for his own licensure, Dr. Lane should have and could have taken additional steps to ensure he received his license by November 17, 2005.
5. Although Dr. Lane was not eligible to sit for the board exam until June 2005 when he completed his 1900 post-doctorate supervised clinical hours, he should have started studying for the exam at any time. This would have allowed him to take the exam as soon as he was eligible and would have allowed him an opportunity to retake the exam in the event he did not pass on the first attempt.
6. Dr. Lane did not take the exam until October 2005 because he wanted to first take a week-long intensive study course in San Jose, California in August, 2005.
7. However, the study program he had signed up for, Academic Review, offered the same week-long intensive study course at other locations throughout the year. The course was offered on the West Coast in Las Vegas in May and San Jose in August. It was also offered at various locations in the Midwest, East Coast, and Canada. In addition, there was at least one other study program that Dr. Lane could have enrolled in instead of Academic Review.
8. Dr. Lane was given paid time off by MMMC to attend the week-long intensive study course in San Jose in August 2005. Dr. Lane attempted to charge MMMC overtime totaling 10 hours, during the week he was in San Jose for the board study course.
9. Dr. Lane could have taken the study course in Las Vegas in May of 2005 or at other times in other cities, but he chose not to.
10. By taking the exam in October 2005, Dr. Lane was in essence, only allowing himself one chance to pass the licensure exam in time to meet the Minimum Qualifications by November 17, 2005.
11. Although Dr. Lane orally asked to use additional days of comp time off (from September 12 to October 10) to study for the exam in October 2005, his request conflicted with the JCAHO survey on October 3-5, 2005, when MMMC needed his presence at the hospital. Comp time usage is not an automatic right and the employer has discretion in granting comp time leave requests. MMMC allowed Dr. lane to use comp time to study for the exam beginning on October 7, 2005, the day immediately following the end of the JCAHO survey.
12. Dr. Lane was allowed to use comp time from October 7, 2005 through October 18 just prior to the board licensure exam which he scheduled for October 19, 2005.
13. In the belief Dr. Lane would pass the October 2005 exam, but that he might not receive his license by November 17, 2005, MMMC made efforts to find a way to keep Dr. Lane employed in the interim time between the November 17, 2005 two-year anniversary of his appointment and when he received his license.
14. As of November 7, 2005, MMMC believed that the DCCA had given MMMC three options that it could use to continue to employ Dr. Lane without violating Hawaii law. MMMC used some of these options after November 17, 2005.
15. On December 27, 2005, however, MMMC received a letter from the DCCA refusing to confirm whether MMMC could continue to employ Dr. Lane under one of three options, instead merely repeating that the law stated that Dr. Lane must cease and desist the practice of psychology after the two-year anniversary of his appointment to the civil service position. Thus, despite its efforts to seek guidance from the Board of Psychology in complying with the law, MMMC was given no assurance that if it continued to employ Dr. Lane, it would not be held in violation of the law.
16. On December 27, 2005, MMMC learned that Dr. Lane had not passed the October 19, 2005 exam and had not received his license. At that point, there was no way of knowing when and if Dr. Lane would pass the Board of Psychology exam and receive a license to practice.
17. The decision to terminate Dr. Lane was based on the fact that he did not meet the minimum qualifications of his job of which he was clearly aware, MMMC had no reassurance that it could continue to employ Dr. Lane in his position without violating the law, there was no guarantee when or if Dr. Lane would be able to legally work as a psychologist, and to continue to employ Dr. Lane under these circumstances would set an unfair and bad precedent.
18. There is no competent evidence to establish that Mr. Lo made the decision to terminate Dr. Lane in bad faith, or in any arbitrary or capricious manner. To the contrary, the record demonstrates that the decision was related to the employment relationship and it was logically based on specific facts and criteria, including Hawaii law, the Job Description and the Minimum Qualifications for Position #50242. In addition, MMMC clearly made efforts to continue to employ Dr. Lane above and beyond what would be expected or required of an employer, which wholly rebut any allegation that the decision was made in bad faith.
19. The Union has failed to present evidence establishing by a preponderance of the evidence that the Employer has violated Articles 3, 8 or 17 of the Unit13 CBA and the grievance must be denied.
20. Even if the Arbitrator finds that the termination was a violation of the Unit 13 CBA, Dr. Lane has not suffered any damages awardable by the Arbitrator. Since his termination, Dr. Lane has earned greater total income from his private practice than he would have earned as an employee of MMMC. Dr. Lane estimated that he received (pre-tax) a gross income of $8,000 - $9,000 per month. Phyllis Miguel, Payroll Supervisor, testified that when Dr. Lane was employed at MMMC, he received (pre-tax) gross income of $5,000 - $6,100 per month, inclusive of his overtime pay.
21. The Unit 13 CBA only allows the Arbitrator to award back pay, subject to Dr. Lane’s duty to mitigate damages. The Unit 13 CBA does not allow the Arbitrator to award incidental damages such as money invested in opening a private practice, credit card interest charge, or mental and emotional distress damages. Thus, Dr. Lane’s demands for these damages are irrelevant.
22. The arbitrator should find that the grievance is not arbitrable on the grounds that the matter is within the reserved rights of management, that the Employer did not violate the Unit 13 CBA when it terminated Dr. Lane effective January 10, 2006 and deny the grievance in full and sustain the termination of Dr. Lane.
VIII. DOES THE “RIGHTS OF THE EMPLOYER” PROVISON, UNDER ARTICLE 5 OF THE CBA GIVE MAUI MEMORIAL MEDICAL CENTER THE ABSOLUTE RIGHT TO TERMINATE EMPLOYEES WHO FAIL TO MEET MINIMUM QULAIFICATONS OR ARE THOSE RIGHTS SUBJECT TO AN IMPLIED COVENANT OF GOOD FATIH AND FAIR DEALING WHICH PROHIBTS MAUI MEMORIAL MEDICAL CENTER FROM ACTING ARBITRARILY AND CAPRICOUSLY TOWARDS ITS EMPLOYEES SUCH AS DR. LANE?
Maui Memorial Medical Center has argued there are no limitations on the exercise of the reserved rights of management in reference to Article 5, the management rights provision of the Unit 13 CBA. However, the law in Hawaii is that there is an implied covenant of good faith in all contracts. Television Events & Marketing, Inc., v. Amcon Distributing Co., 484 F. Supp. 2d 1124 (D. Hawaii 2006); Baird v. State Farm Mutual Insurance Company, 11 F. Supp. 2d 1204 (D. Hawaii 1998); Best Place, Inc, v. Pennsylvania American Insurance Company, 920 P.2d 334, 82 Haw. 120, as amended (1996).
In addition, two major legal treatises support the arbitrator’s conclusion. The first is Elkouri & Elkouri, How Arbitration Works, 5th Ed., at 660:
…Certainly, many arbitrators are reluctant to uphold arbitrary, capricious, or bad faith managerial actions that adversely affect bargaining unit employees. Even where the agreement expressly states a right in management, expressly gives it discretion as to a matter, or expressly makes it the “sole judge” of a matter, management’s actions must not be arbitrary, capricious, or taken in bad faith… (Citations omitted).
Secondly, in Fairweather’s Practice and Procedure in Labor Arbitration, 4th Ed., at page 303, citing Arbitrator Vernon L. Stouffer in Green River Steel Corp., 41 LA 132, 136 (1945):
Management is entitled in the first instance to determine whether it has the required machinery, tools, and equipment to perform a job… If it be ultimately found that Management’s judgment was arbitrary, capricious, unreasonable, or made in bad faith, then its decision may be set aside. However, a mere error in judgment is not in itself sufficient to set the same aside, provided it is made in good faith. (Citations omitted).
Lastly, Chapter 89 of the Hawaii Revised Statutes was enacted pursuant to Act 171 and became law in Hawaii in 1970. This Chapter governs the collective bargaining relationship between public employers and public employees. The statement of findings and policy is set forth in Section 89-1 of the Hawaii Revised Statutes and provides in relevant part as follows:
(a) The legislature finds that joint decision-making is the modern way of administering government… 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.
(b) The legislature declares that it is 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…
The relevant legislative history for the enactment of Act 171 also provides as follows:
Your Committee recognized that unresolved disputes in the public service are injurious to the public agencies and to public employees. This bill provides adequate means for preventing controversies between public agencies and for resolving them when they occur. See Sen. Stand. Comm. Rep. No. 376-70, in 1970 Senate Journal, at 1179.
Harmonious and cooperative relations would not be possible if a public employer acted in an arbitrary, capricious and bad faith manner towards its public employees. If public employees had no recourse against arbitrary, capricious and bad faith action, this most certainly would be contrary to the legislative history of Chapter 89 of the Hawaii Revised Statutes.
With all due respect to the Maui Memorial Medical Center, if there were no limitations on the rights of a Public Employer, unjust and illogical Employer actions could occur. For example, a conservative interpretation of Article 5 would give management the right to change Dr. Lane’s classification from psychologist to receptionist. The arbitrator could be mistaken, but the arbitrator don’t see provision in the CBA that would prohibit this action.
Management rights provisions are subject to the implied covenant of good faith. Good faith in turn prohibits bad faith, arbitrary and capricious action by an employer that is directed at its employees. Any other interpretation of Article 5 of the Unit 13 CBA would be inconsistent with established contract law in Hawaii, the legislative history and intent for the enactment of Act 171, and Chapter 89 of the Hawaii Revised Statutes.
IX. ARE MAUI MEMORIAL MEDICAL CENTER’S MINIMUM QUALIFICATIONS FOR DR. LANE’S EMPLOYMENT AS A CLINICAL PYSHOLOGIST VII BEYOND THE SCOPE OF THE ARBITRATOR’S AUTHORITY AND THEREFORE NOT ARBITRABLE?
It is significant to note that the Maui Memorial Medical Center, in its post-hearing brief, cited a recent memorandum decision issued by the Intermediate Court of Appeals for the State of Hawaii (hereinafter sometimes referred to as “ICA”), dated April 17, 2007 which has facts very similar to those set forth in the Grievance of Dr. Lane.  In a nutshell, the ICA addressed an arbitrator’s authority to order the promotion of an employee who did not meet the minimum requirements for a posted job position. The ICA, in concluded that the arbitrator exceeded his authority and violated HRS § 89-9. The ICA held as follows:
A collective bargaining agreement or an arbitration award that interferes with a public employer’s right and obligation to determine the qualifications for a particular employment decision violates HRS § 89-9 (d) (2).
The minimum requirement for the job position concerned a license requirement. See Public Workers United v. City and County of Honolulu, (hereinafter referred to as “Pearson”). The State of Hawaii Supreme Court granted certiorari on September 21, 2007 and later dismissed the certiorari proceeding on October 26, 2007, stating:
Upon further consideration of the application for writ of certiorari, the papers in support and in response, and the record and files in this case, it appears that the writ of certiorari was improvidently accepted. Therefore, IT IS HEREBY ORDERED that this certiorari proceeding is dismissed.
The Supreme Court of Hawaii therefore elected to let the ICA order in Pearson stand. The order was as follows:
For the foregoing reasons, we vacate the “Order Granting Union’s Motion to Correct Typographical Error and to Confirm Arbitrator Paul S. Aoki’s Arbitration Decision Dated September 25, 2003 and Denying Employer’s Motion to Vacate Arbitrator Paul Aoki’s September 25, 2003 Decision filed on December 18, 2003, in the circuit court, and we remand the case for further proceedings consistent with this opinion.
Pearson was a Wastewater Collection System Helper (the position hereinafter sometimes referred to as “helper”) for the City and County of Honolulu (hereinafter sometimes referred to as “City”). As a helper assigned to a maintenance crew consisting of three other individuals, one supervisor and two repairers (the latter sometimes hereinafter referred to as “repairer), Pearson traveled to individual sites to perform maintenance work on sewer lines.
Pearson, being a helper was eligible to apply for the position of repairer provided he meet the minimum qualifications of having at least one year experience as a helper and possesses a valid Type B Commercial Driver’s License (“CDL”). A CDL was necessary because a repairer, unlike a helper, would occasionally need to operate a Commercial Motor Vehicle (“CMV”) as part of his duties.
Helpers who did not possess a CDL, but who were interested in being promoted to repairer, were eligible to enroll in a driver training program administered by the City and County of Honolulu. In May of 2002, the City announced four new opening for the repairer position.
Pearson, who had been employed for the City for approximately seven (7) years applied for the position. Although Pearson at one time held a CDL, he no longer possessed one. The City learned about Pearson’s failure to possess a CDL. Pearson requested permission to enroll in the City’s CDL driver training program. On August 26, 2002, the City then sent Pearson to undergo pre-employment testing for both controlled substances and alcohol. The results for the testing indicated that Pearson tested above acceptable levels for alcohol but negative for controlled substances.
The City later learned that under the terms of its Collective Bargaining Agreement (hereinafter sometimes referred to as “CBA”) with the United Public Workers, Pearson should have been tested only for controlled substances and not alcohol. Although Pearson should not have been tested for alcohol the City concluded that the test results could not be ignored. The City decided not to discipline Pearson for an alcohol testing violation, however, the City retained Pearson’s test results and required him to undergo an SAP evaluation, and if necessary, a treatment program prior to permitting Pearson to train for a CDL.
Pearson appeared for his SAP evaluation as scheduled but did not discuss or accept any counseling as advised by the United Public Workers (hereinafter sometimes referred to as “UPW”). On September 25, 2002, the UPW filed a Step 1 Grievance. Since Pearson underwent a pre-employment alcohol test that violated the CBA and was thereafter prohibited from training for a CDL based upon the tainted test results, the UPW grieved that the City destroy the test results and enroll Pearson in the CDL training course. Since the City failed to respond, the UPW filed a step 2 grievance on October 20, 2002.
The City informally consulted with the Hawaii Division of the Federal Safety Administration, who agreed with the City’s decision to retain the test results and require Pearson to complete the SAP evaluation process. On October 17 the City denied the Step 1 grievance and on October 18 the City denied the Step 2 grievance.
On October 23, 2002 the City informed Pearson by letter that he would not be permitted to enroll in the CDL course and would not be permitted to perform safety-sensitive functions for the City until he completed the SAP evaluation and obtained treatment if recommended by the SAP. The City, on January 29, 2003 also informed Pearson that he was ineligible for consideration as a Repairer and that he could not be considered for one of the four vacant repairer positions.
The UPW exercised its option to proceed to arbitration and Paul S. Aoki was selected as the arbitrator (sometimes hereinafter referred to as “Arbitrator Aoki”). The parties stipulated to the arbitrability of the grievance. The City did not contest that it violated the CBA by having Pearson take a pre-employment alcohol test as a prerequisite for being considered for the position of repairer. The UPW and the City and agreed that the sole issue before the arbitrator would be what the appropriate remedy would be for Pearson in light of the City’s CBA violation.
At the arbitration hearing held on March 11 and June 18, 2003, the UPW characterized the City’s actions as being disciplinary as Section 63.11d of the CBA provides that “a test which is not valid as provided in the DOT Rules or violated the Employees rights shall not be used for discipline.” The UPW asked Arbitrator Aoki to reverse the consequences of the City’s actions by requiring the City to enroll Pearson in a CDL training course without a SAP evaluation, destroy all test records, and appoint Pearson to the position of repairer at the higher pay rate. The City countered by arguing that its post-testing procedures were necessary and non-disciplinary, therefore, no further remedy for its violation of the CBA was necessary. Arbitrator Aoki ordered the following remedy:
1. The Employer shall remove all records pertaining to the alcohol test from the Grievant’s records and they shall not be used against him in any way.
2. The Employer shall allow Grievant to participate in CDL training.
3. The Employer shall promote Grievant to the position of Wastewater Collection System Repairer.
4. The Employer shall pay Grievant the difference between the Wastewater Collection System Repair’s rate of pay and pay that he actually received from the date that the four Wastewater Collection System Repairer positions were filled in June 2003 until the date of Grievant’s promotion to Wastewater Collection System Repairer.
The City required the possession of a valid CDL as one of the minimum requirements for the repairer position in the beginning of 1993. Therefore, the City also argued that its rights pursuant to HRS § 89-9 (d) (2) to determine job qualifications by that portion of the arbitration award that required the City to promote Pearson, without making promotion contingent upon Pearson first obtaining a CDL. The City further argued that Arbitrator Aoki’s order required the City to waive the CDL requirement for Pearson. The City construed this portion of the arbitration award as violating its right to determine qualifications by disregarding one already established. This argument was disputed by the UPW argument that a CDL license was not a necessary qualification for an employee holding the position of repairer. The UPW stressed that although the City’s Civil Service job description expressly listed possession of a CDL as a minimum qualification, in practice, the City allowed employees who did not have a CDL to fill the position of repairer.
It is significant to note that Pearson’s supervisor testified at the arbitration hearing that several repairers did not have their CDL licenses but were grandfathered into the positions when the CDL requirement was implemented in 1993. Testimony was also elicited to the effect that the City temporarily assigned helpers without a CDL to the position of repairer when there were not enough repairers to complete a full crew. In a scenario such as this, the helper would perform all the duties of a repairer with the exception of those that required the operation of a CDL such as excavating trenches and operating heavy equipment such as dump trucks. Testimony also indicated that sometimes a week or two would pass without a repairer on a crew needing to operate a CMV. Although these facts arguably made the CDL license requirement unreasonable, arbitrary and capricious, and even discriminatory, the Hawaii Intermediate Court of Appeals found no merit to this argument and stated as follows:
We do not agree with the UPW’s argument that the City’s temporary assignment program and its covey of grandfathered repairers nullify the CDL requirement. In fact, having a significant number of grandfathered repairers without a CDL on staff made it even more exigent that the City promote only those helpers possessing a CDL, in order to ensure that when a CMV did need to be operated on the job, the crews would be sufficiently staffed to allow them to function properly. In addition, the fact that tasks requiring the operation of a CVM encompassed only a portion of a repairers overall responsibilities, and that a helper without a CDL could temporarily fill a repairer’s position in a pinch, did not lessen the importance of a CDL.
After adopting the CDL requirement in 1993, the City established a CDL as a necessary qualification for all repairers hired subsequently. Pursuant to HRS § 89-9 (d) (2), it was within the City’s managerial authority to make such a determination, and neither collective bargaining nor an arbitration decision could override the City’s establishment of a CDL as a minimum qualification for the repairer position. See Hanneman, 106 Hawai‘ i at 365, 105 P.3d at 242; In the Grievance Arbitration, 101 Hawai´i at 19-20, 61 P.3d at 530-31. We conclude that in order the City to promote Pearson, who did not have CDL, to the position of repairer, Arbitrator Aoki exceeded his authority and violated the public policy embedded in HRS § 89-9 (d) (2). See Univ. of Hawai´i Prof ´l Assembly ex rel. Watanabe, 66 Haw. 232, 234-35, 659 P.2d 732, 734 (1983); Hanneman, 106 at 365, 105 P.3d at 242; In re Grievance Arbitration, 101 Hawai‘ i at 19-20-, 61 P.3d at 530-31.
In regard to Maui Memorial Medical Center’s argument that Dr. Lane’s licensure requirement is beyond the scope of the arbitrator’s authority, it is significant to note that in Pearson, the law did not require, as a minimum requirement for the position of repairer, that the repairer have a CDL. Conversely, in the case of Dr. Lane, Hawaii Revised Statute 465-7.6 mandates that Dr. Lane obtain his license to practice psychology within 2 years from the date of appointment. There is no condition precedent or subsequent for the licensure of a repairer. Given the foregoing, Maui Memorial Medical Center’s argument that Dr. Lane’s license requirement is a minimum qualification for his position and therefore is beyond the scope of the arbitrator’s authority pursuant to the Hawaii Revised Statutes, §89-9 (d) (2) is substantially more compelling than the license requirement in Pearson.
The arbitrator’s decision is also consistent with University of Hawaii v. University of Hawaii Professional Assembly ex rel. Watanabe, 66 Haw. 232 (1983) hereinafter sometimes referred to as University. In University, an arbitrator found that a Faculty Handbook which was established pursuant to statute and which set forth the criteria for promotion of faculty members, was arbitrary and capricious because it conflicted with the collective bargaining agreement and other employer policies. The Supreme Court of Hawaii in University ruled similarly to Pearson on the issue of qualifications regarding the promotion by stating as follows:
We find, however, that the Faculty Handbook (1973 Revision) is the basic authority governing classifications. It was established by the University Board of Regents pursuant to the mandate of statute. It sets forth the criteria for promotion of faculty members on the Manoa and Hilo campuses. And where there is a conflict between these criteria and criteria established other than by, or pursuant to a clear grant or authority by, the Board of Regents, the Handbook criteria must prevail. The Handbook criteria required a Ph.D. The grievant did not have a Ph.D. The arbitrator was therefore in error when he declared the application by the University of the Handbook criteria to have been arbitrary and capricious. We have emphasized that the arbitrator must accept the criteria established by the University in every case and follow the University’s interpretation unless he finds the University itself has failed to apply its criteria. (Citations omitted).
By deciding contrary to statute that the Faculty Handbook does not apply, the arbitrator exceeded his powers. HRS § 658-9 (4) allows us to vacate the award for that reason….The arbitrator did not have the power to decide which qualifications to use; he should only have considered the limited question of whether the University had applied its qualifications in an arbitrary and capricious way. We therefore affirm the lower court’s decision and vacate this award. (Bold Scoring Provided). (Citations omitted).
Id. at 235.
The arbitrator exceeded his authority by deciding to promote that grievant, who did not have a PhD, because a PhD was a minimum qualification for the position that the grievant sought. However, the Supreme Court of Hawaii held that although the arbitrator exceeded his authority on the issue of minimum qualifications for the position sought, the arbitrator had authority to decide whether the employer applied its qualifications in an arbitrary and capricious way.
Needless to say, University and Pearson are also consistent with University of Hawaii Professional Assembly ex rel. Matsuda v. University of Hawaii, 66 Haw. 207 (1983), hereinafter sometimes referred to as “Matsuda.” In Matsuda, the Supreme Court of Hawaii held that HRS Section 89-9 (d) (7) was not a bar to an arbitration concerning promotion and tenure:
A review of the fairness of the procedure does not infringe upon the power to promote or grant tenure. The agreement limits the power of the arbitrator in that he is not to substitute his judgment for that of a University official unless he finds the University’s decision to be arbitrary and capricious. The arbitrator must therefore accept the criteria established by the University in every case, and follow the University’s interpretation unless he finds that the University failed to apply its criteria.
We interpret § 89-9 (d) (7) to allow for arbitration in these cases, also because we would require more direct language in a statute to allow it to take away the bargained-for remedy of arbitration. One purpose of arbitration is to quell unrest before it kindles a strike. Since strikes by public workers can be very disruptive and dangerous to the health of the state, calming tensions through arbitration is more imperative in the public sector than in the private sector. We agree with those courts which favor arbitration in the area of promotion and tenure of public employees in the field of education. (Citations omitted).
Matsuda at 212.
University, Pearson, and Matsuda are also consistent with University of Hawaii v.University of Hawaii Professional Assembly ex rel. Wiederholt, 66 Haw. 228 (1983), hereinafter sometimes referred to as “Wiederholt.” The arbitrator in Wiederholt found that the University was arbitrary and capricious regarding its action concerning promotion and tenure. The arbitrator ordered that a special tenure review committee be impaneled to make the decision for him. The Hawaii Supreme Court, in finding that the arbitrator exceeded his authority stated the following regarding what constitutes arbitrary and capricious conduct:
Although we do not pass judgment on the arbitrator’s finding of arbitrary and capricious conduct by the University officials in this case, we do pause to emphasize the standard which must guide him: unless the arbitrator can find the decision of the appointing University Official to lack any rational basis whatsoever, he cannot substitute his judgment for that of such official. The Official’s decision need not be the most fair, logical or judicious one; it need only be rational.
Wiederholt at 231.
University, Pearson, and Matsuda, and Wiederholt, when read in conjunction with each other, and as applied to the case before the arbitrator, stand for the general proposition that an employer’s minimum qualifications for a job position are nonnegotiable under §89-9 (d) (2) and therefore not arbitrable. Also, an arbitrator does not have the authority to find that job qualifications set by an employer are arbitrary and capricious as minimum qualifications are nonnegotiable. A review of the fairness of the procedure does not infringe on an employer’s right to set minimum qualifications for a job position. Matsuda at 212. However, if an employee alleges arbitrary and capricious action by an employer concerning job qualifications, an arbitrator has limited authority to determine if an employer has applied job qualifications to the employee in an “arbitrary and capricious manner way.” University at 235. (Bold Scoring Provided). In determining what is arbitrary and capricious, “an official’s decision need not be the most, fair, logical, or judicious one, it need only be rational.” Wiederholt at 231.
Maui Memorial Medical Center’s licensure requirement was a minimum job qualification of Dr. Lane’s employment at MMMC. The arbitrator does not have the power to reinstate Dr. Lane given the fact that he failed to meet and maintain the minimum qualifications for the Psychologist VII position as set by Maui Memorial Medical Center. If the arbitrator were to reinstate Dr. Lane, the arbitrator would be violating the principles of law set forth in University and Pearson. Minimum job qualifications set by Maui Memorial Medical Center are nonnegotiable and not arbitrable.
The arbitrator’s decision is also consistent with the Unit 13 CBA, Article 3, Maintenance of Rights and Benefits. This provision of the Unit 13 CBA specifically addresses matters that are not negotiable under Chapter 89 of the Hawaii Revised Statutes. As provided:
Except as modified herein, Employees shall retain all rights and benefits pertaining to their conditions of employment as contained in the departmental and civil service rules and regulations and statutes at the time of execution of this Agreement, but excluding matters which are not negotiable under Chapter 89, HRS. (Bold Scoring Provided).
X. DOES THE ARBITRATOR HAVE THE AUTHORITY TO INTERPRET SECTION 465-7.6 OF THE HAWAII REVISED STATUTES UNDER THE FACTS OF THIS GRIEVANCE?
The core issue in this grievance is the interpretation of HRS § 465-7.6. The Union argues that Maui Memorial Medical Center incorrectly interpreted the “cease and desist” requirement set forth in HRS §465-7.6 by concluding that it had no alternative but to terminate Dr. Lane. The Union argues that such an interpretation is incorrect because HRS § 465-7.6 does not expressly state that an employee who fails to obtain his licensure within 2 years of the date of appointment must be terminated. In fact, nowhere in Chapter 465 does it provide for termination for failure to meet the licensure within two years of the date of appointment. The Union further argues that Dr. Lane could have been placed on leave rather than be terminated. While on leave, he would not be practicing psychology, but rather would be studying for his licensure.
Maui Memorial Medical Center has argued that its personnel in good faith interpreted HRS
§465-7.6 and for reasons set forth in Section V of this decision and award, believed that it had no alternative but to terminate Dr. Lane after Ms. Nagamine received Ms. Kathleen Hashimoto’s letter, dated December 21, 2005 (Union Exhibit 9/Employer Exhibit 19). This letter addressed the “cease and desist” requirement. Maui Memorial Medical Center’s interpretation of this letter and the “cease and desist requirement” was that Dr. Lane, since he failed to obtain his licensure within two (2) years from the date of his employment and failed to maintain minimum qualifications, must not only cease and desist the practice of psychology, but also had to be terminated. Maui Memorial Medical Center has also argued that it would be unreasonable to require it to keep Dr. Lane employed in his position as there was no guarantee that Dr. Lane would pass his licensure exam.
Under the facts of this grievance, given University and Pearson, the arbitrator does not have the authority to render a statutory interpretation of HRS § 465-7.6. Clearly, if the arbitrator found that HRS § 465-7.6 should be interpreted as the Union argues, the arbitrator, similar to situations in University and Pearson, he would be powerless to order the reinstatement of Dr. Lane, since Dr. Lane failed to meet minimum qualifications that he obtain his licensure within two years from the date of appointment. If the arbitrator ordered the reinstatement of Dr. Lane, given the fact that Dr. Lane had not obtained his license to practice psychology within the two year deadline, the arbitrator’s order could be vacated under University and Pearson for a violation of HRS §89-9 (d) (2). Matters excluded from the scope of negotiations pursuant to HRS §89-9 (d) (2) are not arbitrable.
It is significant to note as referenced above that Dr. Lane took a second EPPP exam on January 13, 2006 and was licensed to practice psychology in Hawaii on February 15, 2006. However, with all due respect to the Union, Dr. Lane’s grievance must be viewed by the arbitrator in the context and time period that he filed his grievance. At that time, Dr. Lane was not a licensed psychologist. The arbitrator cannot use Dr. Lane’s current status as a licensed psychologist when he applies the law to facts that occurred before Dr. Lane’s successful licensure.
XI. DOES THE ARBITRATOR HAVE AHTHORITY TO DETERMINE IF THE MAUI MEMORIAL MEDICAL CENTER APPLIED ITS MINIMUM QUALIFICATONS IN AN ARBITRARY AND CAPRICIOUS MANNER?
Under the facts of this grievance, the arbitrator does not have the authority to determine if Maui Memorial Medical Center applied its qualifications in an arbitrary and capricious manner. Each and every allegation of Dr. Lane’s grievance is dependent upon or related to the nonnegotiable minimum qualification that Dr. Lane receive his licensure within two (2) years from the date of his appointment. In addition, the relief that Dr. Lane is requesting is premised on the arbitrator ordering his reinstatement despite the fact that he failed to meet and maintain minimum qualifications. Assuming arguendo that the arbitrator found in favor of Dr. Lane and ordered his reinstatement based upon any one or more of the allegations that he has set forth in his grievance, i.e., that Maui Memorial Medical Center acted in an arbitrary and capricious manner, including, but not limited to, neglecting to inform Dr. Lane that it was not a State approved psychology site for the accrual of post doctorate hours, failing to monitor his licensure progress, interfering with his licensure progress, and wrongfully terminating him, the arbitrator would be exceeding his authority and violating HRS §89-9 (d) (2). Once again, matters excluded from the scope of negotiations pursuant to HRS §89-9 (d) (2) are not arbitrable. Reinstatement would lead to the same consequence that the arbitrators faced in University and Pearson.
Given the foregoing, the arbitrator’s decision and award concerning Dr. Lane’s grievance should be narrowly construed to the facts of this case and the law governing minimum qualifications. Each case concerning Section 89-9 (d) of the Hawaii Revised Statutes must be analyzed on a case-by-case basis. This is evident from the cases listed in footnote 9 above. As a general proposition, matters regarding minimum qualifications are not arbitrable pursuant to Section 89-9 (d) (2) of the Hawaii Revised Statutes and University and Pearson. Also, as a general proposition, review by the arbitrator is permissible to determine if an employer has applied its minimum qualifications in an arbitrary and capricious manner, provided such a review does not result in violating Section 89-9 (d) (2) of the Hawaii Revised Statutes and the principles of law set forth in University and Pearson.
XIII. DECISION AND AWARD
Maui Memorial Medical Center has requested in its closing brief that if the arbitrator finds that the grievance is not arbitrable, the finding should be on the grounds that the matter is within the reserved rights of management. However, Article 11 of the Unit 13 CBA, Grievance Procedure, page 11, provides in relevant part as follows:
If the Employer disputes the arbitrability of any grievance, the Arbitrator shall first determine whether the Arbitrator has jurisdiction to act; and if the Arbitrator finds that the Arbitrator has no such power, the grievance shall be referred back to the parties without decision or recommendation on its merits.
Based upon the foregoing, the arbitrator finds that he does not have jurisdiction to act concerning the grievance of Dr. Lane. Given this finding, the grievance is referred back to the parties without decision or recommendation as to the merits of Dr. Lane’s grievance.
The arbitrator shall maintain jurisdiction for a period of 90 calendar days from the date of this decision and award.
Respectfully submitted this 8th day of February, 2008.
CITY AND COUNTY OF HONOLULU
CITY AND COUNTY OF HONOLULU
On this 8th day of February, 2008, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing “Decision and Award” and acknowledged that he executed same as his free act and deed.
Notary Public, State
My Commission expires on May 2, 2008.
Notary Public, State
My Commission expires on May 2, 2008.
CERTIFICATE OF SERVICE
I do hereby certify at a copy of the forgoing “Decision and Award” was duly mailed, postage prepaid, on the date indicated below and to the following persons at the addresses listed
Kristin S. Shigemura, Esq.
Peter Liholiho Trask, Esq.
DATED: Honolulu, Hawaii, February 8, 2008.
Dr. Lane also reviewed and signed page 5 of Employer Exhibit 9 which
concerned his job description on July 22, 2005.
Nagamine at 130:18-21.
Page 3, III, A.5
of Employer Exhibit 9 provides as
follows: “[l]icensure: A valid license to practice psychology in the
State of Hawaii, as described in Chapter 465, HRS. In addition, Page
3, III D. provides Licensure: Within two (2) years from the date of
appointment as a Clinical Psychologist VII, employee must meet the
requirements for licensing and obtain a license issued by the Hawaii
State Board of Psychology, as required by Chapter 465, HRS.” Dr.
Lane signed page 5 of Employer Exhibit 9 on July 22, 2005. The only
difference between Employer Exhibit 8 and Employer Exhibit 9 is a
change of supervision.
Nagamine at 130:1.
 There are several typos as well as spelling and grammatical errors in Dr. Mosher’s letter which the arbitrator has not corrected.
 Dr. Lane was evidently later provided supervision via a separate contract between Maui Memorial Medical Center and Dr. Bass for 1-2 hours per week rather than in a contract with Dr. Lane. Ono at 87:4-15; 92:18-25; Employer’s Exhibit 12.
to 1988, the conditional licensure for state employed clinical
psychologists did not exist. Until 1998, there was no Section
465-7.6 in the Hawaii Revised Statutes. A state employed clinical
psychologist could not practice psychology for two years upon a
condition precedent that the psychologist meet the requirements of
Section 465-7 and obtain licensure within 2 years of the date of
employment. In addition, the requirements for licensing were much
more restrictive prior to 1988. Act 197 (House Bill Number 3286)
amended Chapter 465 of the Hawaii Revised Statutes by including
§465-7.6. The law concerning this new section of the Hawaii Revised
Statutes clearly provided for alternatives to previous requirements
for licensure and also provided for a condition subsequent licensure
provided the employee obtained his licensure within two (2) years
from the date of employment. Also see Conference Committee Report
7-88 on House Bill Number 3286, in the 1988 House Journal at page
Hse. Stand. Comm. Rep. No. 598-88, in
1988 House Journal at page 1061; Sen. Stand. Comm. Rep. No. 2585 in
1988 Senate Journal at page 1097; and Conf. Com. Rep. No. 130 on
H.B. No. 3286 in 1988 Senate Journal at page 633.
McGuffey has been the Director of the Behavioral Health Sciences at
Maui Memorial Medical Center since July, 2005.
McGuffey at192:1-8. Dr.
Lane was under his supervision
Dr. McGuffey at 194:12.
Dr. Bjordahl was Dr. Lane’s previous supervisor. Dr. McGuffey at 194:17-18.
 Ms. Knutson is employed at the Maui Memorial Medical Center. Knutson at 298:10. She holds the position of Regional Human Resources Director. Knutson at 298:12; 370:15. She has held that position since January, 2004. Knutson at 298:14. Prior to January, 2004 she held the position of Labor Relations Officer with Maui Memorial Medical Center. Knutson at 299:4. She held this position since October, 2000. Knutson at 299:15. Prior to being employed at Maui Memorial Medical Center she was employed by the State of Hawaii, Department of Labor and Industrial Relations. Knutson at 299:25. She held the position of Employment Specialist for approximately three (3) years. Knutson at 300:2; 370:4. Her duties included assisting people to find jobs. Knutson at 300:6. Prior to this she was employed as the Human Resources Director for the Community Clinic of Maui for approximately one (1) year. Knutson at 370:10. Prior to her work at the Community Clinic of Maui she was employed as the Human Resources Director at Pioneer Mill for about four (4) years. Knutson at 370:18. Prior to her employment at Pioneer Mill she was the Assistant Human Resources Director at the Hyatt Regency Maui for approximately three (3) years. Knutson at 370:25. She graduated from the University of Hawaii with a major in Travel Industry Management and a minor in Human Resources. Knutson at 371:14-18. Her entire professional career has been related to Human Resource Issues. Knutson at 371:19-21.
Ann Nagamine testified that she started work with Maui Memorial
Medical Center in 1990 at level I and worked up to level V. Nagamine at 95:3-5. Her
division is part of Human Resources.
Nagamine at 95:5. She is
presently designated to the area of classification and compensation
and has been in this area since 1992.
Nagamine at 95:14-25.
 As a general proposition, memorandum decisions should not be cited as case law authority. However, in the arbitral setting, particularly when the issue appears to be “on point,” the arbitrator would give such an opinion, equal weight, if not more weight than an arbitration award confirmed by the Circuit Court, State of Hawaii. This is particularly the case with opinions that have been granted certiorari and then dismissed because they have been “improvidently accepted.”
 The arbitrator has carefully and meticulously reviewed the major Hawaii cases interpreting Section 89-9 (d) of the Hawaii Revised Statutes. They include United Public Workers, Local 646 v. Hanneman, 106 Haw. 359, 105 P.3d 236 (2005) (transfer of bargaining unit employees not negotiable); Hoopai v. Civil Service Commission, 106 Haw. 205, 103 P.3d 365 (2004) (negotiated grievance procedures for promotions and demotions are sanctioned by HRS §89-9 (d)); Grievance Arbitration v. Police Department, 101 Haw. App. 11, 61 P.3d 522 (2002) (no arbitral jurisdiction over job classification issues); University of Hawaii Professional Assembly v. Tomasu,70 Haw. 154, 900 P.2d 161 (1995) (compliance with the federal “Drug-Free Workplace Act was not bargainable, but its implementation was since it would cover mandatory subjects of bargaining such as drug treatment programs, funding and disciplinary action for a violation of the policy); and University of Hawaii Professional Assembly v. University of Hawaii, 207 Haw. 207 (1983) (HRS § 89-9 (d) is not a bar to the arbitration of promotions and tenure of faculty members); University of Hawaii Professional Assembly v. University of Hawaii, 66 Haw. 232 (1983) (arbitrator has authority if an employer has arbitrarily and capriciously applied the employer’s qualifications but does not have the authority to decide which qualifications to use). The last of these cases is applicable to the case before the arbitrator and will be set forth in more detail below.
 The parties stipulated to arbitrability and the City conceded that it had violated a provision of the CBA which concerning employees being tested for alcohol testing. The sole issue before the arbitrator was the appropriateness of a remedy in light of the admitted violation. This case did not involve allegations of alleged arbitrary and capricious action.
 Although the Arbitrator recalls reading the Pearson memorandum decision in October of 2007, after the Supreme Court had granted certiorari, he had forgotten that the facts were very similar to the facts alleged by Dr. Lane until he reviewed it as set forth in detail in the closing brief of Maui Memorial Medical Center.
 The CBA in University specifically provided that matters regarding promotion and tenure were subject to an arbitrary and capricious test if same was contested by an employee. Still, the fact remains that the State of Hawaii Supreme Court held that a portion of the grievance was not arbitrable (minimum job qualifications) while a portion was arbitrable (job qualifications as applied were subject to the arbitrary and capricious test). This case is one of four (4) cases that were decided by the Hawaii State Supreme Court in 1983 concerning the University of Hawaii and the University of Hawaii Professional Assembly concerning issues relating to promotion and tenure.