In the Matter of the Arbitration                between the    United Public Workers, AFSCME,  Local 646, AFL-CIO,                                        Union,             and County of Hawaii,                                        Employer. _______________________________________________________________

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Case No: CU-03-72 FINAL ARBITRATION AWARD;  CERTIFICATE OF SERVICE                                                                                                           )  EXHIBITS A through L; Hearing Dates: January 30, 2009, 4:00 PM                            June 1, 2009, 4:00 P.M.

               

  FINAL ARBITRATION AWARD

This Final Arbitration Award (hereinafter sometimes referred to as “Final Arbitration Award”) is the result of the UPW Motion for Final Arbitration Award, Back Pay, Including Ten Percent Interest, Cease and Desist Order & Attorneys Fees filed on December 28, 2008, hereinafter sometimes referred to as “Motion for Final Arbitration Award.” The Motion for Final Arbitration Award was first heard by the arbitrator via a telephone conference call hearing on January 30, 2009 at 4:00 p.m. During the hearing on this motion the parties agreed that the arbitrator’s Final Arbitration Award would be continued for decision by the arbitrator or until moved on by one of the parties. During a telephone conference call hearing held on June 1, 2009, the parties formally agreed to move the Motion for Final Arbitration Award back onto the arbitrator’s calendar for a formal decision. At both hearings, the United Public Workers (hereinafter sometimes referred to as “UPW” or “Union”) was represented by Herbert R. Takahashi and the County of Hawaii (hereinafter sometimes referred to as “Employer” or “County”) was represented by Deputy Corporation Counsel Diane A. Noda. Both Counsel zealously, efficiently, and professionally represented their respective clients.

            The arbitrator, after reviewing the record of this case and after considering the arguments of Counsel at the hearings on the Motion for Final Arbitration Award grants the UPW motion for 

Final Arbitration Award, Back Pay Including Ten Percent Interest, Cease and Desist Order, and Attorney’s Fees as set forth below.

I.                   THE RECORD.

            The most significant and relevant portions of the record concerning this grievance are set forth in this Section I. This Section I shall hereinafter sometimes be referred to as “the record.”

 Arbitrator Edward Parnell issued a decision and award (hereinafter sometimes referred to as the “Parnell Award”) in a grievance between the University of Hawaii and the United Public Workers relating to the Employer’s unilateral action as it related to holiday pay on January 22, 2003. The United Public Workers sought to have the County of Hawaii recognize and follow the Parnell Award. The parties attempted to resolve this grievance but were unsuccessful. On August 22, 2003 the UPW filed a class grievance on behalf of all Unit 1 Bargaining Unit Employees against the County of Hawaii based upon the Parnell Award. On August 1, 2007 the UPW submitted its First Request for Answers to Interrogatories. The arbitrator was mutually selected to act as arbitrator by the parties on September 13, 2007. The County responded to the UPW’s First Request for Interrogatories on September 25, 2007. Thereafter, on October 9, 2007 the UPW filed its First Request for Admissions. The County of Hawaii responded to the request for admissions on November 9, 2007.  

 Subsequent thereto, the United Public Workers filed a “Motion for Summary Disposition; Memorandum in Support of Motion; Declaration of Dayton Nakanelua; Exhibits 1 through 29; Certificate of Service.” The Certificate of Service was dated March 24, 2008. The United Public Workers also filed a “Unions Supplemental Submission in Support of Motion for Summary Disposition; Exhibit 30; Certificate of Service. The Certificate of Service was dated April 16, 2008. Thereafter the County of Hawaii filed an “Employer County of Hawaii’s Memorandum in Opposition to the Union’s Motion for Summary Disposition; Declaration of Michael Ben; Declaration of Diane A. Noda; Exhibits A-D; Certificate of Service.” The Certificate of Service was dated April 30, 2008. The County of Hawaii also filed an “Employer County of Hawaii’s Supplemental Memorandum in Opposition to the Union’s Supplemental Submission in Support of Motion for Summary Judgment; Certificate of Service.” The Certificate of Service was dated June 3, 2008. The United Public Workers responded by filing a “UPW’S Reply Brief in Support of Motion for Summary Disposition filed on March 24, 2008; First Supplemental Declaration of Dayton M. Nakanelua; Exhibits 31 through 37; Certificate of Service.” The Certificate of Service was dated June 23, 2008. The UPW also filed a “UPW’S Supplemental Memorandum In Support of Motion for Summary Disposition Filed on March 24, 2008; Exhibits 38 and 39” on July 14, 2008.  The Certificate of Service was also dated July 14, 2008. The County of Hawaii also filed a Supplemental Memorandum in Opposition to the Union’s Motion for Summary Disposition on July 14, 2008. The Certificate of Service was also dated July 14, 2008.  

The UPW motion for Summary Disposition was heard by the arbitrator on July 18, 2008.  On August 12, 2008, the arbitrator, after substantial research and consideration of the pleadings, exhibits and declarations before him issued an “Order Granting in Part and Denying in Part Union’s Motion for Summary Disposition filed on March 24, 2008.”  A true and accurate copy of this order is attached hereto as Exhibit “A” and incorporated herein by reference and made a part of this Final Arbitration Award. On August 13, 2008, the arbitrator issued an “Order Correcting Order Granting in Part and Denying in Part Union’s Motion for Summary Disposition filed on March 24, 2008.” A true and accurate copy of this order is attached hereto as Exhibit “B” and incorporated herein by reference and made a part of this Final Arbitration Award. The arbitrator found that the County of Hawaii was precluded from re-litigating the issue of whether it may unilaterally withhold holiday pay from employees who are on leave without pay as set forth in the Parnell Award. The Parnell Award is attached hereto as Exhibit “C” and incorporated herein by reference and made a part of this Final Arbitration Award. The arbitrator encouraged the parties to attempt to settle their grievance dispute.

            The parties were unsuccessful in settling their grievance dispute. Thereafter, the  UPW filed a “Motion to Allow and Permit Discovery on Remedial Issues; Affidavit of Herbert Takahashi; Exhibits 1 and 2; Certificate of Service.” The Certificate of Service was dated September 13, 2008. A telephone conference hearing was held on September 22, 2008 to determine if the matter could be settled, and if not, the procedure that would be followed concerning the UPW motion. The County of Hawaii filed an “Employer County of Hawaii’s Opposition to the UPW’s Motion to Allow and Permit Discovery on Remedial Issues; Certificate of Service.” The Certificate of Service was dated September 25, 2008. The United Public Workers responded by filing the “UPW’s Memorandum of Points and Authorities in Response to Hawaii County’s Opposition to Pending Discovery; Exhibits 7 through 9; Certificate of Service.” The Certificate of Service was dated September 26, 2008. An additional telephone hearing conference was scheduled on the UPW motion for September 29, 2008. However, the parties agreed to waive oral argument on this hearing and rested on their pleadings. The arbitrator carefully considered the pleading of the parties. On October 2, 2008, the arbitrator issued his “Order Granting United Public Workers’ Motion to Allow and Permit Discovery on Remedial Issues filed on September 15, 2008. A true and accurate copy of this order is attached hereto as Exhibit “D” and incorporated herein by reference and made a part of this Final Arbitration Award. The parties were again urged to settle their grievance dispute.

            Settlement was evidently not fruitful and the UPW filed a “Motion for Discovery Sanctions Including Attorney’s Fees and Costs of Discovery and other Appropriate Relief; Memorandum in Support of Motion; Affidavit of Herbert Takahashi; Exhibits 1-14; Certificate of Service.” The Certificate of Service was dated November 1, 2008. The County of Hawaii responded with an “Employer County of Hawaii’s Opposition to UPW’s Motion For Discovery Sanctions Including Attorney’s Fees and Costs of Discovery and Other Appropriate Relief; Declaration of Diane A. Noda; Exhibits A through G; Certificate of Service.” Also attached to the County of Hawaii’s pleading was a CD disk. The Certificate of Service was dated November 13, 2008. The UPW responded by filing the “UPW’s Reply in Support of Motion for Discovery Sanctions Against Hawaii County filed November 1, 2008; First Supplemental Affidavit of Herbert Takahashi; Exhibits 15 through 17; Certificate of Service. The Certificate of Service was dated November 29, 2008. The Certificate of Service was dated January 21, 2009. The parties were again encouraged to settle their grievance dispute. No hearing was set on the UPW motion.

Negotiations were unsuccessful and the UPW filed a “Motion for Final Arbitration Award, Back Pay, Including Interest, Cease and Desist Order & Attorney’s Fees; Memorandum in Support of Motion; Affidavit of Herbert Takahashi; Exhibits 40 through 50; Attachments 1 and 2; Certificate of Service.” The Certificate of Service was dated December 29, 2008. The UPW also filed a “Supplemental Filing in Support of Motion for Final Award, Back Pay (With Interest), Cease and Desist Order & Attorney’s Fees; Exhibit 51; Certificate of Service.” The Certificate of Service was dated January 16, 2009. Thereafter the County of Hawaii filed an “Employer County of Hawaii’s Memorandum in Opposition to Union’s Motion for Final Arbitration Award, Back Pay, Including Interest, Cease and Desist Order and Attorney’s Fees; Declaration of Diane A. Noda; Exhibit A; Certificate of Service.” The Certificate of Service was dated January 21, 2009. The UPW responded by filing a “Reply Brief in Support of Motion for Final Arbitration Award, Back Pay, Including Ten Percent Interest, Cease and Desist Order and Attorney’s Fees; Supplemental Affidavit of Herbert Takahashi; Exhibits 51 through 55; Certificate of Service. The Certificate of Service was dated January 28, 2009.

The UPW motion was heard on January 30, 2009. The parties also agreed to consolidate the UPW motion for final arbitration award and motion for discovery sanctions including attorney’s fees and discovery costs that was filed by the UPW with a Certificate of Service date of November 1, 2008. As a result of this hearing the arbitrator issued two orders. The first was a “Discovery Order” that was dated January 31, 2008. The Certificate of Service date as February 2, 2009. A true and accurate copy of this order is attached hereto as Exhibit “E” and incorporated herein by reference and made a part of this Final Arbitration Award. On February 3, 2009, the arbitrator also issued an “Order Granting UPW’s Motion for Discovery Sanctions Including Attorney’s Fees and Costs of Discovery and other Appropriate Relief.” A true and accurate copy of this order is attached hereto as Exhibit “F” and incorporated herein by reference and made a part of this Final Arbitration Award.

On February 23, 2009, the County of Hawaii filed an “Employer County of Hawaii’s Motion to Modify, Correct, or Reconsider the Order Granting UPW’s Motion for Discovery Sanction.” Good cause appearing, on February 25, 2009, the arbitrator issued an “Order Regarding Employer County of Hawaii’s Motion to Modify, Correct, or Reconsider the Order Granting UPW’s Motion for Discovery Sanctions Including Attorney’s Fees and Costs of Discovery and Other Appropriate Relief.” A true and accurate copy of this order is attached hereto as Exhibit “G” and incorporated herein by reference as and made a part of this Final Arbitration Award.” The Certificate of Service was dated February 25, 2009.

On March 9, 2009, the County of Hawaii responded as per Exhibit “G” above. As a result, on March 11, 2009, the arbitrator issued an “Order Regarding Legal Authority to Support Employer Position.”  The arbitrator was particularly concerned with the County of Hawaii’s assertions that employees who are on disciplinary leave, unauthorized leave, or leave without pay were not entitled to holiday pay as same would violate public policy. Clearly, no arbitrator intends his/her award to be interpreted as to violate public policy. This includes the Parnell Award.  The County of Hawaii was given until March 24, 2009 to respond. A true and accurate copy of this order is attached hereto as Exhibit “H” and incorporated herein by reference as and made a part of this Final Arbitration Award.” The Certificate of Service was dated March 11, 2009.

On March 24, 2009 the County of Hawaii responded with an “Employer County of Hawaii’s Memorandum of Law Regarding Violation of Public Policy to Pay Holiday Pay to an Employee who is on Leave Without Pay.” The Certificate of Service was dated March 24, 2009. As a result of this filing, the arbitrator, on March 26, 2009 issued a “Second Order Regarding Legal Authority to Support Employer Position. In a nutshell, the arbitrator set the public policy arguments for hearing and permitted additional pleadings to be filed. A true and accurate copy of this Order is attached hereto as Exhibit “J” and incorporated herein by reference as made a part of this Final Arbitration Award. The hearing on this matter was originally scheduled for April 15, 2009 but was continued and heard on June 1, 2009. The Certificate of Service date on this order was March 26, 2009.

On April 3, 2009, the United Public Workers filed a “UPW’s Memorandum in Opposition to Employer’s Memorandum Regarding Violation of Public Policy to Pay Holiday Pay to an Employee on Leave Without Pay filed on March 24, 2009; Declaration of Dayton M. Nakanelua; Copy of Exhibits 40 and 51; Exhibits 56 through 62. The Certificate of Service was dated April 6, 2009. Thereafter, on May 6, 2009, the County of Hawaii filed an “Employer County of Hawaii’s Reply to UPW’s Memorandum in Opposition to Employer’s memorandum Regarding Violation of Public Policy to Pay Holiday Pay to an Employee on Leave Without Pay Filed on March 24, 2009; Declaration of Diane A. Noda; Exhibits “A” – “D.” The Certificate of Service was dated May 6, 2009.

It is significant to note that April 2, 2009 the United Public Workers filed a “Motion for Attorney’s Fees and Expenses for Refusal to Admit to Requests for Admissions dated October 9, 2007; Memorandum in Support of Motion; Affidavit of Herbert Takahashi; Exhibit 1 through 23.” The Certificate of Service was dated April 2, 2009. On May 6, 2009, the County of Hawaii responded to this motion with an “Employer County of Hawaii’s Memorandum in Opposition to UPW’s Motion for Attorney’s Fees and Expenses for Refusal to Admit to Requests for Admissions dated October 9, 2007; Declaration of Diane A. Noda; Exhibits “A” through “B.” The Certificate of Service was dated May 6, 2009. On May 13, 2009, the United Public Workers filed a “UPW’s Reply Brief in Support of Motion for Attorney’s Fees and Expenses for Refusal to Admit to Requests for Admissions Dated October 9, 2007 filed April 2, 2009; Affidavit of Herbert Takahashi; Exhibits 24 through 29.” The Certificate of Service was dated May 13, 2009.

The hearing on the County of Hawaii’s position that it is a violation of public policy to pay holiday pay an employee who is out on leave without pay, with emphasis on employees who are on disciplinary leave, military leave, and unauthorized leave, and the UPW motion for attorney’s fees and expenses for refusal to admit to requests for admissions dated October 9, 2007 were both heard before the arbitrator on June 1, 2009. The UPW Motion for Final Arbitration Award was also considered.

As a result of the hearing held on June 1, 2009, the arbitrator issued three (3) orders. All three (3) orders were issued on June 8, 2009. The first was an “Order Denying the County of Hawaii’s Motion to Modify, Correct, or Reconsider the Order Granting UPW’s Motion for Discovery Sanction.” The Certificate of Service was dated June 8, 2009. A true and accurate copy of this Order is attached hereto as Exhibit “J” and incorporated herein by reference as made a part of this Final Arbitration Award. In a nutshell, the County of Hawaii was ordered to pay the Law Offices of Herbert R. Takahashi the amount of $5,320.00 as discovery sanctions.

The Second Order issued on June 8, 2009 was and “Order Regarding Employer Position that it is a Violation of Public Policy to Pay Holiday Pay to an Employee who is on Leave Without Pay.” The Certificate of Service was dated June 8, 2009. A true and accurate copy of this Order is attached hereto as Exhibit “K” and incorporated herein by reference as made a part of this Final Arbitration Award. In short, the arbitrator found that given the Parnell Award, it was not a violation of public policy to pay holiday pay to Unit 1 employees who were on disciplinary leave, leave without pay, or military leave.

The Third Order issued on June 8, 2009 was an “Order Denying the United Public Workers’ Motion for Attorney’s Fees and Expenses for Refusal to Admit to Requests for Admissions dated October 9, 2007.” The Certificate of Service was also dated June 8, 2009. A true and accurate copy of this Order is attached hereto as Exhibit “L” and incorporated herein by reference as made a part of this Final Arbitration Award. Briefly, the arbitrator found that the UPW motion for attorneys fees and expenses should be denied based upon the totality of 6 factors, the most significant being Hawaii Labor Relations Board Order Number 1711.

The arbitrator’s “Order Regarding Employer Position that it is a Violation of Public Policy to Pay Holiday Pay to an Employee who is on Leave Without Pay” provided that the UPW was ordered to provide the amounts the it believed was owed to Unit 1 employees and must show “in easily understandable terms how the alleged amount owed was calculated. The order provided that the UPW was to provide these amounts no later than June 15, 2009. The arbitrator intended to incorporate these amounts into a Final Arbitration Award. The order also provided that if the County of Hawaii did not object within 3 business days, the amount would be presumed as valid and not objected to by the County of Hawaii.

On June 15, 2009 the arbitrator the “UPW’s Supplemental Submission Regarding Amounts of Back Pay and Interest to Employees; Affidavit of Herbert Takahashi; Exhibits 1 through 5; Certificate of Service.” The Certificate of Service was also dated June 15, 2009. The amount calculated as due and owing as back pay and interest amounted to $140,477.79.

On June 19, 2009, the County of Hawaii mailed an “Employer County of Hawaii’s Objection to UPW’s Supplemental Submission Regarding Amounts of Back Pay and Interest to 

Employees dated June 15, 2009.” The Certificate of Service was dated June 19, 2009. The County of Hawaii responded by asserting that no amounts were due under the Parnell Award, or if 

amounts were due, the amount should not be $140,477.79 rather $47,131.06 since it was the County of Hawaii’s position that interest should not be awarded to affected UPW employees. 

After a review of the pleading, for reasons set forth below, the arbitrator finds that the amount due to Unit 1 employees from the County of Hawaii is approximately $63,280.90.

II.                FINAL ARBITRATION WARD

The arbitrator incorporates “the record” as set forth in Section I of this Decision and Final Arbitration Award.  The UPW Motion for Final Arbitration Award is granted given “the record” 

set forth in Section I of the Final Arbitration Award.

            The County of Hawaii maintains that since the County of Hawaii pays holiday pay for the holidays established in Section 35 of the CBA as long as the employee is on pay status, and he or she works the day before the day after the holiday, it is in compliance with the Parnell Award. However, this is inconsistent with the Parnell Award since Arbitrator Parnell specifically concluded as follows (Union Exhibit 11-19):

In viewing all of the above circumstances, I have concluded that the weight of the evidence and argumentation indicates that the Union makes the more persuasive case. I find the Employer has violated Section 1.05 and Section 35.01 of the Unit CBA by unilaterally modifying holiday pay eligibility provisions without negotiation and mutual consent. Holiday pay entitlement is a statutory “right” (HRS § 8-1 as well as the CBA) and as such is not subject to unilateral modification by the Employer. (Bold Scoring and Underlining provided).

The County of Hawaii has violated Section 1.05 (Consult and Consent) of the CBA by failing to negotiate wages and conditions of work regarding holiday pay with the United Public 

Workers and Section 14 (Prior Rights, Benefits and Perquisites) because entitlement to holiday pay was previously established by statute (HRS § 8-1) and Section 35 (Holidays) of the CBA 

as set forth in the Parnell Award. 

It is significant note that Exhibits “A” and “B” attached hereto do not address whether the Parnell Award (Exhibit C) applies only to employees who are on leave without pay for a short 

period of time or to all employees irrespective of how long they have been on leave without pay. The County of Hawaii has argued that the Parnell Award should be construed to apply only to 

those employees who are on short term leave. On the other hand, the UPW has argued that holiday pay should apply to employees who are on both short term leave and long term leave. 

The arbitrator believes that the Parnell Award should be construed to apply only to employees on leave without pay for one year or less and not to employees who are on leave for more than 

one year. For purposes of this award, leave for a period of one year or less shall be referred to as short term leave. Leave for a period of more than one year shall be construed to constitute 

 long term leave. As Arbitrator Parnell stated at the last paragraph of page 15 of the Parnell Award:

I am persuaded by the Union's argument that the wording of Section 23A.0.1d.2 cannot be stretched to construe the “proviso to prohibit holiday pay for employees on LWOP for two or more days prior to a holiday.

(Bold Scoring Provided).

The Parnell Award, at page 16, paragraph 6 also provides in relevant part as follows:

…That the Employer’s actions were undertaken unilaterally is not in dispute. I cannot accept that the Union somehow sought a rewording of Section 23.A.0.1d in order to avoid forfeiture of holiday pay for employees on LWOP for two or more days prior to a paid holiday…

(Bold Scoring Provided).

Finally, page 17, paragraph 5 of the Parnell Award provides as follows:

 

As I read the record, eligibility for paid holidays is based on the employee being on the payroll. It is undisputed that the Grievant and the other three named employees enjoyed payroll status. An employee does not lose his or payroll or employment status just because he or she is on LWOP for a short period of time. 

 

(Bold Scoring Provided).

            In addition, Arbitrator Ikeda, in interpreting the Parnell Award stated at pages 10 and 11 of his decision and award (the issue before arbitrator Ikeda was identical to the issue before

this arbitrator regarding unilateral action and holiday pay) In the Matter of the Arbitration Between United Public Workers, AFSCME, Local 646, AFL-CIO, Union, and City and County 

of Honolulu, Holiday Pay; CU-03-68 (unit 1); CU-03-09 (unit 10) 

(2003-022C), dated January 16, 2009, (Union Exhibit 51) as follows:

Pursuant to Section 38 of the CBA, employees can take leave without pay for periods up to one year. The leave may be granted for a variety of reasons such as for employee working on intergovernmental jobs; serving in an appointive position; educational or industrial leave, and personal reasons such as family care. Some exceptions are authorized for longer period. In addition, the City & County has permitted persons to remain on leave without pay who are on disability status but who are awaiting retirement. Pursuant to Section 38.09 of the CBA an employee has return rights, and if the Employer declines to reinstate, the employee has the right to grieve such a decision. The Parnell decision does not distinguish among employees who are on a leave of absence based upon the length of the leave of absence but states that the determining criteria for eligibility for holiday pay while on leave of absence without pay is whether he is on the payroll.

Pursuant to the Parnell decision, a possible interpretation is that certain employees on an extended leave without pay longer than one year could be paid twice for applicable holidays. For example, if a member of Unit One and Unit Ten is serving temporarily in an appointive position, he receives the benefit of the holiday in his appointive position. Since his in on leave without pay from his normal position, he conceivably could receive holiday pay from his status as being absent on leave without pay.  Thus the determination that employees presently entitled to recover holiday pay pursuant to the Parnell decision since August 22, 2003 should not be regarded as binding precedent in the matter of determination of future entitlement for holiday pay during leave of absences longer than one year but should be addressed by collective bargaining.

Therefore, Unit 1 employees who are on leave without pay are entitled to holiday pay under the Parnell Award as long as their leave without pay status does not exceed one year. Holiday pay 

entitlement for periods of longer than one year should be negotiated through the collective bargaining process. Accordingly, for reasons set forth below in Section III (Back Pay and Interest) of 

this Final Arbitration Award, holiday pay entitlement shall apply only to those employees who are on short term leave and not long term leave.

                                    III.       BACK PAY AND INTEREST.

            The County of Hawaii has argued that is against public policy to pay employees who are on disciplinary leave, unauthorized leave, or on military leave to be paid holiday pay while on 

leave without pay. At first glance this argument appears to be correct. However, a more in depth analysis indicates that these the arguments set forth by the UPW are more persuasive.

            Both the County of Hawaii and the UPW relied upon Cammack v. Waihee, 932 F.2d 765, cert. denied, 505 U.S. 1210, 112 S.Ct. 3027, 120 L.Ed 2d 898 (1992) to support their 

arguments concerning their respective positions concerning public policy as it relates to holiday pay. It is significant to note that this decision provides as follows:

Hawaii’s [HRS § 8-1] appropriates no funds to carry out its purposes. By providing for state holidays, however, the statute has at least the fiscal impact that many state and local government offices are closed and many state and local government employees need not report to work. Furthermore, in 1970, the Hawaii Legislature enacted public collective bargaining law which mandated that the terms and conditions of public employment be determined through a collective bargaining process. The statute recognized that “joint decision making [between public employees and their employers] provide for numerous paid lave days, either expressly or through incorporation of [HRS § 8-1}. Good Friday is included as one such leave day. These collective bargaining agreements cover approximately sixty-five percent of Hawaii’s public employees.

            For reasons stated in the arbitrator’s “Order Regarding Employer Position that it is a violation of Public Policy to Pay Holiday Pay to an Employee who is on Leave Without Pay” 

(Exhibit K) attached hereto, Carmmack v. Waihee, supra, supports the position of the UPW rather than the County of Hawaii. It is also significant to note that in regard to those employees who 

are on disciplinary leave, at the hearing on this matter which was held on June 1, 2000, Mr. Takahashi responded to a hypothetical question posed by the arbitrator as follows:

…No, the Union’s position is that the question of holiday eligibility or holiday disqualification is a negotiable subject which the County has an obligation to negotiate. …Now, and if you look at Exhibit 59, you will see that the employer has a right to determine what days a person is disciplined… is subject to disciplined for any suspension. If a person happened to be disciplined for a holiday, that disciplinary action should not disqualify the employee for the holiday pay for that day. But nothing prevents the employer from modifying the disciplinary action for another day….. We the employer… we do not believe that the employer is precluded form disciplining an employee on non-holidays, regardless of what your award sates with respect to holiday pay benefits that are received…. If for example, an employee was on leave without pay and was disciplined on Christmas or 2005, as your hypothetical states, that person would be entitled to the holiday benefit pursuant to your award, but nothing precludes the County from amending their disciplinary action and attributing a word day for disciplinary purposes.

(See transcript of proceedings held on June 1, 2009, pages 22-23).

The County of Hawaii is the one that schedules the disciplinary period for an employee being disciplined. It can easily set the disciplinary period to include a day that does not include a 

holiday. There is no violation of public policy regarding payment of holiday pay while an employee is on disciplinary leave.

            It is also significant to note that in regard to the County of Hawaii’s argument that it is a violation of public policy to pay an employee holiday pay while the employee is on unauthorized 

leave, the Parnell Award has specifically found that holiday pay is a statutory entitlement under the Hawaii Revised Statutes and the CBA. The arbitrator would assume that the employee who is 

on unauthorized leave is not being paid for the day that he was on such leave. The CBA does not provide that an employee who is on unauthorized leave forfeits holiday pay. Lastly, the CBA 

provides the Employer with a remedy for those employees who are on unauthorized leave; specifically, disciplinary action. There is no violation of public policy regarding payment of holiday pay 

while an employee is on unauthorized leave.

            Lastly, it is significant to note that the County has argued that it would be against public policy to pay an employee holiday pay while the employee is on military leave as the employee 

would receive double pay, holiday pay from the County of Hawaii and holiday pay from the military.

Those who put themselves in harms way by wearing a military uniform to protect the Federal, State, County, and other forms of democratic government that exist in the United States are 

owed an obligation by these entities to receive at the same benefits that those who are without the uniform receive. Without their sacrifices, the democratic way of life as we now know it could very

well cease to exist.

With statistics showing we are in the midst of the largest military deployment since World War II, of more than half a million individuals, complying with the Uniformed Services 

Employment and Reemployment Rights Act, 38 U.S.C. 4301-4335 38 and other laws governing military leave of absence has become increasingly important for all employers.

            In Waltermeyer v. Aluminum Company of America, 804 F.2d 821 (3rd Cir. 1986), the Court considered the Vietnam Era Veterans' Readjustment Assistance Act, 38 U.S.C.

 Secs. 2001, et seq., and held that in providing non-seniority benefits to employees on military leave, an employer cannot treat these employees less favorably than other employees on 

comparable forms of leave. In comparing types of employee leave, the court first assessed the purpose of the collective agreements provision regarding holiday pay to those employees that 

either worked during the week of the holiday or were away from work for specified non-military reasons. The court found that the purpose of the benefit was to protect against excessive 

absenteeism during the holiday week, and that the collective bargaining agreements exemption from the policy of certain types of absence from work served to protect those employees who 

were absent involuntarily. Therefore, the court found that because military leave was similar involuntarily, it was comparable to other types of involuntary absences from work and should be 

afforded holiday pay. For supporting cases see Hernandez v. Department of the Air Force, 498 F.3d 1328 (Fed. Cir. 2007); Allen v. United States Postal Service, 142 F.3d 1444 (Fed.

Cir. 1998); and Carney v Cummins Engine Co. of America, 804 F.2d 831 (3^rd Cir. 1986). Compare Tully v. DOJ, 481 F.3d 1367 (Fed. Cir. 2007) where the court acknowledged the

right to holiday pay for military personnel on short term leave of absence but denied holiday pay to the Plaintiff who was on an “extended leave of absence” due to military service in the Middle 

East for a period of 2 ½ years.

            Given the Parnell Award’s emphasis on the fact that holiday pay is a statutory entitlement under HRS §8-1 and the CBA, withholding holiday pay from those who are on military leave 

(short term leave) would constitute a clear violation of the Uniformed Services Employment and Reemployment Rights Act, a law almost identical to the Vietnam Era Veterans' 

Readjustment Assistance Act. The primary goal of both Acts is to protect those in military uniform. There is no violation of public policy regarding payment of holiday pay while an employee 

is on military leave.

            As a general proposition, all Unit 1 Employees are entitled to holiday pay while on leave without pay as long as the leave period is short term and does not exceed one year. For periods 

in excess of one year, this is left for future collective bargaining.

                                   

            The County of Hawaii has argued that the Unit 1 employees are not entitled to interest on any backpay. In National Labor Relations Board cases, interest is routinely awarded in unfair 

labor practice complaints pursuant to Horizon for the Retarded, 283 NLRB 1173 (1987). For several of the more recent cases awarding interest pursuant to Horizon, see Cadence Innovation,

Slip opinion 353-077, Case 15-CA-12544 (January 16, 2009); Capital District Enterprises, Inc. dba Acme Press, Slip Opinion 353-073, Case 03-CA-26824 (December 31, 2008);  and 

Glen Rock Ham, Slip Opinion 352-69, Case 22-CA-27477 (May 23, 2008).

It is also significant to note that Hawaii Revised Statute, Section 658A-21 provides an arbitrator with substantial discretion regarding remedies. As noted:

(a)    An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.

(b)   An arbitrator may award attorney fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding. 

(c)    As to all remedies other than those authorized in subsections (a) and (b) an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted in a court is not a ground for refusing to confirm an award under section 658A-22 or for vacating an award under section 658A-23.

(d)   An arbitrator’s expenses and fees, together with other expenses shall be paid as provided in the award.

(e)    If an arbitrator awards punitive damages or other exemplary relief under subsection (a),the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief.

(Bold Scoring Provided).

            Subsection (a) concerns punitive damages if such an award is allowed by law in a civil action. Subsection (b) concerns attorney’s fees and costs if same were allowed by law in a civil 

action. Both may only be awarded by an arbitrator if State Law permits such an award in a civil action. However, subsection (c) does not provide that interest may only be allowed if allowed by 

law in a civil action. Interest is a remedy that may be ordered in arbitration cases. There is no limitation that it may only be ordered if allowed by law in a civil action. Interest is appropriate to 

encourage the swift movement of grievances and to ensure that Unit 1 employees who are denied holiday pay are justly compensated for being wrongfully denied holiday pay. If interest were not 

at least a possibility, counsel for unions would feel pressured to move cases as quickly as possible, while counsel for employers would have no incentive to quickly process grievances. In addition, 

a dollar today is not worth as much as it was a year ago, and is worth much less than it was 3 years ago. An award of interest helps Grievants become “whole.”

            In addition, Arbitrator Ikeda (Union Exhibit 51) cited that several awards which had included interest at ten (10) percent per annum that have been confirmed by the Circuit Court. The 

County of Hawaii has provided no Hawaii award that has specifically

stated that interest is not a permissible remedy. In fact, it has provided no Hawaii arbitration case where an arbitrator has declined to grant interest in grievances of the nature before the arbitrator. 

On the other hand, the UPW has provided Hawaii arbitral authority granting interest in matters similar to the grievance before the arbitrator. Given the above analysis, Unit 1 employees who have

been denied holiday pay (after the grievance was filed on August 22, 2003) are also entitled to interest at the rate of 10% per annum from the date of the denial to June 8, 2009, the date that 

the arbitrator ordered that back pay be awarded.

            The following amounts of backpay and interest are awarded to the following employees:

                                               

                                    Accumulated        Interest of 10% per                        Total Owed

                                        Back Pay           annum to 06/08/09            Employee

Nelson Doria               $2,446.96                    $   963.49                    $3,410.45

Adam Jardine              $1,563.28                    $   559.10                    $2,122.38

Michael Williams        $1,277.12                    $   678.72                    $1,955.84

Donald Beaumonte     $   218.70                    $     17.80                    $   236.50

Ronald Delos Santos   $   423.90                   $   187.00                    $   610.90

James Deponte            $   175.70                    $     13.48                    $   189.18

Annalyn Grieg            $   642.40                    $   140.62                    $   783.02

Guy Imai                     $   529.90                    $   209.48                    $   739.38

Fred Pira                   *$3,045.70                  *$1,225.67                  *$4,271.37

Kimokeo Wakita         $1,216.00                    $   233.80                    $1,449.80

Andrea Avenue           $     96.73                    $     55.84                    $   152.57

Jeffrey Case                $   138.10                    $     59.33                    $   197.43

David Chong              $   480.18                    $   257.29                    $   737.47

Alfred Fuller III          $   322.09                    $   134.63                    $   456.72

Helen Gabriel              $3,248.60                    $   679.32                    $3,927.92

Craig Gouveia             $   215.01                    $     99.58                    $   314.59

Bradley Kihara            $   108.83                    $     22.12                    $   130.95

Milton Lau Kong        $   108.64                    $     37.53                    $   146.17

Summer Leialoha        $   473.76                    $     71.14                    $   544.90

Russel Medeiros          $   533.63                    $     89.34                    $   622.97

Michael Ramirez         $   139.48                    $     11.35                    $   150.83

Sandra Lee Rosas       $1,607.11                    $   319.23                    $1,926.34

Richard Saya               $2,377.46                    $   693.98                    $3,071.44

Becky Takeya             $    303.99                   $   171.09                    $   475.08

Rudolph Valentino     $    172.35                   $     39.66                    $   212.01

Gilbert Waiau              $    133.80                   $     23.61                    $   157.41

Gary Wana                  $    320.93                   $   113.81                    $   434.74

Howard Ward, Jr.       $1,180.80                    $   574.53                    $1,755.33

Scott Zambuto             $    130.15                   $     22.96                    $    153.11

Ernest Mattos              $    756.40                   $   414.47                    $1,170.87

Boddy Iyo                  $    412.80                   $   177.45                    $    590.25

Donn Hakoda             $   128.48                    $     28.34                    $    156.82

Walter Higa                 $1,611.44                    $   801.34                    $2,412.78

Troy Asia                   $   254.88                    $   139.91                    $    394.79

Dwight Carvalho        $3,033.28                    $1,415.75                    $4,449.03

Frank Degele               $1,978.88                    $   290.84                    $2,269.72

Alan Familar               $    211.68                   $     92.22                    $    303.90

Alton Nosaka             $1,005.44                    $   460.20                    $1,465.64

Wayne Okutsu            $1,083.44                    $   427.77                    $1,511.21

Ronald Reis                $   118.72                    $     24.13                    $   142.85

Michael Perez            *$3,179.04                  *$   931.58                  *$4,110.62

Henry Cho, III             $2,164.72                    $   293.41                    $2,458.13

Gary Tamondong      *$2,241.68                  *$   865.45                  *$3,107.13

Santo Cabison           $1,548.88                    $   350.34                    $1,899.22

Thomas Kualii           *$1,809.28                   *$  868.03                   *$2,677.31

Nathan Makino           $1,960.72                     $  863.11                    $2,823.83

Totals                        $47,131.06                    $16,149.84                  $63,280.90

*Four employees, Fred Pira, Frank Degele, Michael Perez, and Gary Tamondong are entitled to receive military leave for various holidays disclosed by the County of Hawaii as unpaid holidays. The County of Hawaii shall provide the UPW with the leave dates and return dates for each of these employees for the unpaid holiday. The information provided to the UPW must enable it to determine if the unpaid holiday fell within a short term leave period or a long term leave period. A short term leave period shall be defined as a period of leave that is one year or less. Long term leave period shall be defined as a period of leave in excess of one year. If the holiday fell within a short term leave period, the employee shall be entitled to holiday pay for that holiday. If the holiday fell within a period of long term leave, the employee shall not be entitled to holiday pay for that holiday.

            Since the County of Hawaii must provide leave figures for those employees on military leave to the UPW, the amounts due shall be due within 60 days from the date of this order. Interest shall continue to accrue at the rate of 10% per annum until the date principal and interest is paid to the affected employee.  

 

                                    IV.       CEASE AND DESIST ORDER.

           

                        The UPW has requested a Cease and Desist order. Arbitral authority appears to support an arbitrator’s authority to issue a Cease and Desist order.

            In Elkouri & Elkouri, How Arbitration Works, (4^th Edition, 1997) at pages 397 and 398, it is provided as follows:

A type of relief included in some arbitration awards is an injunction offering a party not to do (or cease from doing) some specified act that the arbitrator has ruled violative of the collective bargaining agreement; although arbitral use of injunctions was relatively infrequent in the past, use of this remedy does appear to be increasing.

The New York Court of Appeals has recognized significant authority in arbitrators to grant such injunctive relief in proper circumstances, the court observing that “Traditionally, arbitrators have been licenses to direct such conduct of the parties as is necessary to the settlement of the matters in dispute. The court upheld an award containing an injunction where the collective agreement did not directly affirm or deny power in the arbitrator to use such remedy, and where nothing short of an injunction would have accomplished the intent of the parties for speedy relief against prohibited activity. Moreover, the court also held that the New York Anti-Injunction Act did not forbid injunctions by arbitrators even though that Act severely limited the jurisdiction of the courts to issue injunctions in labor disputes…

While arbitrators do not often issue awards that prohibit a party form carrying out some specified act, awards in the nature of “mandatory injunctions” that command a party to take some affirmative action, such as an award ordering the employer to reinstate an employee, are very common in arbitration.

(Citations Omitted).

 

            Likewise, In Schoonhoevn’s Fairwheather’s Practice and Procedure in Labor

Law (4^th Edition, 1999), it is stated as follows at pages 494-295 as follows:

Arbitrators may order various kinds of injunctive relief. For example, arbitrators have ordered employers to reopen plants, … engage in bargaining, cease and desist from certain actions…

(Citations Omitted).

            Lastly, in Hokama v. University of Hawaii, 92 Hawai‘i 268, 273, 990 P.2d 1150, 1155 (1999), the State of Hawaii Supreme court stated that arbitrators have “broad discretion to 

fashion appropriate remedies.” Arbitrators have the authority under Hawaii law to issue Cease and Desist Orders.

            As a general proposition, if a party acknowledges a collective bargaining agreement violation by use of some type of documentation, i.e., a settlement agreement, letter, or 

acknowledgement on the record of a grievance proceeding, the arbitrator will not issue a cease and desist order. Same is unnecessary as the documentation for all practical purposes is the same 

as a cease and desist order. The arbitrator believes that such an order should only be issued if a party maintains a position that is contrary to the collective bargaining agreement or arbitral authority.

In the grievance before the arbitrator a cease and desist order appears to be appropriate. It is significant to note that the County of Hawaii filed an “Employer County of Hawaii’s 

Memorandum in Opposition to Union’s Motion for Final Arbitration Award, Back Pay, Including Ten Percent Interest, Cease and Desist Order and Attorney’ Fees on January 21, 2009. The 

County of Hawaii, at page 5 of it memorandum states as follows:

In this instant grievance, the County pays holiday pay for the holidays established in Section 35 of the collective bargaining agreement (“CBA”) as long as the employee is on pay status, and he or she works the day before or the day after the holiday. (See attached Exhibit “A,” Declaration of Michael Ben, paragraph #7, previously attached to the County’s Memorandum in Opposition to UPW’s Motion for Summary Disposition dated April 30, 2008). The County would never have been in such a situation like the Parnell decision, nor have such a grievance filed against the County, since under the County’s pay policy the grievants would have received holiday pay.

           

Further, to the extent the UPW appears to be asking for holiday pay for employees who did not work the day before or the day after the holiday, UPW’s request is inconsistent with the Parnell decision where the affected employees  worked on the day before or the day after the holiday. The County’s employees who have been on LWPOP status are not in the same position as Mark Amundson (New Year’s Day), Eric Nakamura (Admission Day), Walter Yoshitomi (Labor Day), and Patricia Carreira (President’s Day) because the County employees identified in the above-referenced discovery responses did not work the day before or the day after the holiday and were/are on “long term” as opposed to “short term” leave without pay, and therefore are not entitled to holiday pay. (See Declaration of Michael Ben, paragraph #7).

            The Declaration of Michael Ben, paragraph #7 provides as follows:

7. Prior to July 1, 2005, it had been a long-standing practice of the County to pay an employee his/her regular salary on a holiday provided the employee is on paid status on the day before and/or the day after the holiday. Since July 1, 2005, all employees are paid their regular salary on a holiday provided the employee is on paid status either on the workday immediately before or after the employee’s return to duty.

Subsequent pleadings also indicate that the County of Hawaii continues to maintain that it is compliance with the Parnell Award. The position of the County of Hawaii is contrary to two 

very important principles of law set forth in the Parnell Award. The first is that a public employer may not unilaterally change established holidays and holiday pay requirements. The second is that 

Unit 1 employees are entitled to holiday pay as long as they are on the payroll while on short term leave without pay. To the arbitrator, short term leave without pay under Section 38 of the 

collective bargaining agreement is any employee on leave without pay for no longer than one year. The fact that the Unit 1employees did or did not work on the day before or after the holiday 

is irrelevant under the Parnell Award.  The County of Hawaii has never admitted that is has violated the Parnell Award. Rather, it has consistently maintained that it has not violated the Parnell Award.

            The most concerning violations of the Parnell Award do not involve employees who were on disciplinary leave, unauthorized leave, or military leave. Rather, they involve employees who were denied holiday pay while on the payroll and in good standing with the County of Hawaii as employees. As per the UPW’s Supplemental Submission Regarding Amounts of Back Pay and Interest to Employees, dated June 15, 2009, such employees include Michael Williams (denied holiday pay on 12/25/03), Kimokeo Wakita (denied holiday pay on 12/25/07 and 01/01/08), Helen Gabriel (denied holiday pay on 12/25/06, 12/25/07 and 01/01/08), Milton Lau Park (denied holiday pay on 12/25/05), Sandra Lee Rosas (denied holiday pay on 12/25/07 and 01/01/08), Richard Saya (denied holiday pay on 12/25/03, 01/01/04, 12/25/05, 01/01/06, 12/25/07), Gary Wana (denied holiday pay on 12/25/05 and 01/01/06), Howard Ward, Jr., (denied holiday pay on 12/25/04); Ernest Mattos (denied holiday pay on 12/25/03 and 01/01/04), Walter Higa (denied holiday pay on 12/25/03, 01/01/04), Dwight Carvoho (denied holiday pay on 12/25/03 and 01/01/04), Henry Cho (denied holiday pay on 12/25/07), and Santos Cabison (denied holiday pay on 12/25/06). The County of Hawaii has recognized these violations but has maintained that it is in compliance with the Parnell Award.

            Given the position of the County of Hawaii, the arbitrator is concerned that if a cease and desist order is not granted against the County of Hawaii from (1) unilaterally changing holiday 

pay requirements to holiday pay entitlement and (2) failing to continue to pay Unit 1 employees who were on leave without pay for less than one year, the County of Hawaii’s payroll department 

may continue to improperly withhold holiday pay from eligible Unit1employees.

Accordingly, a cease and desist order is issued prohibiting the County of Hawaii from violating items (1) and (2) above.

                                    V.        UPW’S MOTION FOR DISCOVERY SANCTIONS.

           

            The arbitrator incorporates herein by reference the record of this case in Section I. above. Please see the following orders regarding discovery sanctions:

(1) ORDER GRANTING UPW’S MOTION FOR DISCOVERY SANCTIONS INCLUDING ATTORNEYS FEES AND COSTS AND OTHER APPROPRIATE RELIEF. (Exhibit F of the record).

(2) ORDER REGARDING EMPLOYER COUNTY OF HAWAII’S MOTION TO MODIFY, CORRECT, OR RECONSIDER THE ORDER RANTING UPW’S MOTION FOR DISCOVERY SANCTIONS INCLUDING ATTORNEY’S FEES AND COSTS AND OTHER RELIEF. (Exhibit G of the record).

(3) ORDER DENYING THE COUNTY OF HAWAII’S MOTION TO MODIFY, CORRRECT OR RECONSIDER THE ORDER GRANTING THE UPW MOTION FOR DISCOVERY SANCTIONS. (Exhibit J of the record).

(4) ORDER DENYING UPW MOTION FOR ATTORNEY FEES AND EXPENSES FOR REFUSAL TO ADMIT TO REQUESTS FOR

ADMISSIONS DATED OCTOBER 7, 2007 Exhibit L of the record).

            The United Public Workers is entitled to Discovery Sanctions from the County of Hawaii in the total amount of $5,320.00 as per Exhibits F and J above. The UPW is not entitled to 

discovery sanctions for the County of Hawaii’s failure to admit to requests for admissions dated October 9, 2007 based upon the totality of the six factors listed in Exhibit L above, the most 

significant of which is Hawaii Labor Relations Board Order Number 1711 as per Exhibit L attached hereto. For a full discussion of Hawaii Labor Relations Board Order Number 1711, please 

see Exhibit A of this Final Arbitration Award, pages 73 through 80.

VI.     THE ORDER GRANTING IN PART AND DENYING IN               

                 PART UNION’S MOTION FOR SUMMARY    

           DISPOSITION WHICH IS ATTACHED TO THIS FINAL

                  ARBITRATION AWARD AS EXHIBIT “A.”

           

            The parties are respectfully requested to read the Order Granting in Part and Denying in Part Union’s Motion for Summary Disposition, which is attached hereto as Exhibit A, carefully. When Exhibit A was written, the arbitrator wished to consider all aspects of res judicata and collateral estoppel prior to issuing an order. While not intended, Exhibit A was written both as an arbitral order as well as a a mini law review article concerning of the law of res judicata and collateral estoppel in Hawaii. The parties, when referring to Exhibit A, have easy reference to legal citations when dealing with future issues relating to res judicata and collateral estoppel.

Section I concerns the background for the UPW class grievance regarding holiday pay with citations to the Hawaii Uniform Arbitration Act (pages 3 through 7). Section II relates to whether res judicata and collateral estoppels applies to labor arbitrations (pages 7 through 9). Section III addresses prior steps and the grievance process as it relates to procedural arbitrability with emphasis on the step process (pages 9 through 11). While not discussed in Exhibit A attached hereto, the arbitrator’s decision in In the Matter of the Arbitration Between the United Public Workers, AFSCME. Local 646, AFL-CIO, Union, and City and County of Honolulu, Department of Facility Maintenance, All Corporation Yards, Employer, Unit 1 Class Grievance Sections 11 and 58 of the Unit 1 Agreement, CZ/01/28, (Marr, 2003) concerns procedural arbitrability and not substantive arbitrability, the latter of which, as a general proposition, cannot be waived. Schoonhoven, Fairwheater’s Practice and Procedure in Labor Arbitration, 4^th Edition (1999) at pages 168 through 172. Section IV discusses final judgments and notice as it relates to procedural arbitrability (pages 11 through 22). Section V (there are 2 section IVs, the second Section IV is mistakenly identified as Section IV rather than section V) relates to the law of res judicata and collateral estoppel (both nonmutal defensive issue preclusion and nonmutal offensive issue preclusion) and their historical development and application by Federal and State Courts (pages 22 through52). Section VI. concerns Federal Law, State Law, and constitutional restrictions on res judicata and collateral estoppels (pages 52 through 54). Section VII addresses whether the UPW met its burden of proving the 4 prerequisite factors necessary for issue preclusion application, as set forth in Dorrance v. Lee, 90 Haw. 143,148 (1999), (page 54). Section2 VIIA concerns prior adjudications and identity of issues (pages 54 through 57). Section VIIB concerns final judgments on the merits (pages 57 through 60). Section VIIC concerns whether the issues decided in a prior adjudication were essential to the final judgment (page 60). Section VIID concerns the issue of privity between parties (pages 60 through 69). Section VIII relates to whether it would be against public policy or be unfair to apply nonmutual offensive issue preclusion to a party that has not had the opportunity to litigate the disputed issues, in the case before the arbitrator, the County of Hawaii (pages 69 through 81).

The arbitrator found that the UPW did not give proper notice to the County of Hawaii concerning claims relating to temporary disability leave and entitlement to holiday pay as per in In the Matter of the United Public Workers, AFSCME, Local 646, AFL-CIO, and the University of Hawaii, Grievance of Yong Mi Han, decided by Arbitrator Walter Ikeda on August 30, 2007. The arbitrator therefore did not consider these UPW allegations. However, the arbitrator found that the County of Hawaii was precluded, via nonmutal offensive issue preclusion, from relitigating the Parnell Award.  

The arbitrator believes that nonmutal offensive issue preclusion is the future of arbitration law in the area of labor and employment law. It is a legal tool that shall be equally applied by Unions as well as employers. As the arbitrator stated at page 80 of Exhibit A:

Based upon the foregoing, this arbitrator believes that his decision, logic, and reasoning are consistent with the Hawaii State Supreme Court decision in Exotics and the United States decisions in Parklane and Taylor. There are no fairness factors argued by the County  of Hawaii that have been established to preclude this arbitrator from applying nonmutual offensive issue preclusion against the County of Hawaii.

The application of nonmutal offensive issue preclusion or for that matter nonmutal defensive issue preclusion are favorable for use by both the UPW and public employers to the Unit 1 Collective Agreement. Will the next use of these doctrines be a public employer to the multi-employer bargaining unit or the United Public Workers?

On matter is clear from this arbitrator’s order. Both the public employers and the UPW shall ultimately benefit where issue preclusion is applicable. Undobutedly, there shall be many more grievances filed based upon the Unit 1 Collective Bargaining Agreement. However, there shall no longer be the need to relitigate identical collective bargaining agreement provisions that raise the same issues and that have been decided. Just as important, there shall be consistency in arbitral decisions. Lastly, there shall be less grievances filed (multiplicity of lawsuits), and as a consequence, substantial savings in money, time, and resources for both public employers, their attorneys and legal staffs and the UPW. These are the express reasons for issue preclusion as stated in most of the Hawaii cases when applying issue preclusion.

VII.     CONCLUSION.

            As noted above, a final award granting the UPW grievance concerning holiday to Unit 1 employees has been granted. A Cease and Desist Order is issued against the County of Hawaii from (1) unilaterally changing holiday pay requirements to holiday pay entitlement and (2) failing to continue to pay Unit 1 employees who were on leave without pay for one year or less. Unit 1 employees, from August 22, 2003 (date grievance was filed as per Union Exhibit 21 attached to the UPW motion for Summary Disposition) to June 8, 2009 (date the arbitrator ordered back pay amounts to be calculated by the UPW) who were not paid holiday pay shall receive holiday pay plus interest at the rate of 10% per annum. In addition, interest shall continue at the rate of 10% per annum until principal and interest is paid to the affected employee. An employee’s entitlement to holiday pay as per the Parnell Award is for a maximum period of one year while on leave without pay status. This Final Arbitration Award should not be interpreted as precedent for future holiday pay payment to Unit 1 employees who are on extended leave without pay beyond one year as such situations should be left to the collective bargaining process and was not considered in the Parnell Award. Payment to Unit 1 employees who were denied holiday pay while on leave without pay shall be made no later than 60 days from the date of this award. However, interest shall continue to be calculated at the rate of 10% per annum from the date of holiday pay denial to the date payment is made.

            The arbitrator wishes to note that the Employer has options available to it other than requiring an employee to forfeit holiday pay which Arbitrator Parnell found was a statutory entitlement under HRS §8-1 and the Collective Bargaining Agreement of the parties. The arbitrator shall gladly share his thoughts with the parties if mutually agreed.

Such suggestions by the arbitrator shall only be made with the mutual consent of the parties.

            Lastly, the arbitrator realizes that this arbitration has been a difficult process for the County of Hawaii and the United Public Workers. New principles of law have been applied to this grievance. History shows us that when new principles of law are applied by the courts as well as arbitrators, they are sometimes at first glance difficult to accept.

The arbitrator can understand that both the County of Hawaii and the United Public Workers will be disappointed with the Final Arbitration Award. Clearly the County of Hawaii is disappointed that the arbitrator has found that it is precluded from re-litigating the issue of holiday pay based upon the doctrine of nonmutual offensive issue preclusion. Likewise, the United Public Workers is disappointed that the arbitrator did not grant its motion for sanctions based upon the County of Hawaii’s failure to admit requests for admissions. Arbitrators are selected by the parties based upon their reputations for arbitral independence, integrity, fairness, impartiality, patience and common sense intelligence. While the arbitrator understands that the parties may not agree with the contents of this Final Arbitration Award, the arbitrator hopes that he has met the expectations of the parties concerning his arbitral reputation and that the parties believe that the Final Arbitration Award is based upon sound legal reasoning.

            The arbitrator shall maintain jurisdiction over this case for a period of 90 days from the date of this Final Arbitration Award to address issues needing clarification and/or action by the arbitrator.

                        Respectfully submitted,

DATED: Honolulu, Hawaii, this 9th day of July, 2009.

 

 

 

                                                _____________________________________

                                                MICHAEL ANTHONY MARR

                                                Arbitrator

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE ARBITRATOR MICHAEL ANTHONY MARR

                                                      STATE OF HAWAII

In the Matter of the Arbitration                         )  Case No: CU-03-72

                                                                        )

between the                                          )  Class Action: Holiday Pay Grievance

                                                                        )

United Public Workers, AFSCME,                   )  CERTIFICATE OF SERVICE

Local 646, AFL-CIO,                                      ) 

                                                                         )  
            Union,                                                   ) 

and                                                                    )

                                                                         )

COUNTY OF HAWAII,                                 ) 

                                                                        ) 

                                                                        )

                        Employer.                                )

____________________________________)

                                                CERTIFICATE OF SERVICE

I do hereby certify that a copy of the foregoing “AMENDED FINAL ARBITRATION AWARD dated July 9, 2009 was duly mailed, postage prepaid, on July 9,  2009 to the following persons at the following addresses:

Herbert R. Takahashi, Esq.                                     Diane Noda

Takahashi Vasconcellos & Covert                          Deputy Corporation Counsel

345 Queen Street                                                   County of Hawaii

Room #506                                                            101 Aupuni Street, Suite #325

Honolulu, Hawaii 96813                                         Hilo, Hawaii  96720

 

                        DATED: Honolulu, Hawaii, July 9, 2009.

 

 

 

                                                ______________________________________

                                                MICHAEL ANTHONY MARR

                                                Attorney, Arbitrator, Mediator