In re: Hawaii Fire Fighters Association and Blangiardi

494 P.3d 742, 149 Haw. 425

• Court: Hawaii Intermediate Court of Appeals
• Decided: August 31, 2021
• Docket: CAAP-17-0000827
• Status: Published

Opinion

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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-AUG-2021 07:55 AM Dkt. 79 MO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF HAWAII FIRE FIGHTERS ASSOCIATION, IAFF, LOCAL 1463, AFL-CIO Complainant-Appellant-Appellant, and RICK BLANGIARDI, MAYOR, CITY AND COUNTY OF HONOLULU; LIONEL CAMARA, JR., ACTING FIRE CHIEF, CITY AND COUNTY OF HONOLULU; HONOLULU FIRE DEPARTMENT, CITY AND COUNTY OF HONOLULU; and CITY AND COUNTY OF HONOLULU, Respondents-Appellees-Appellees, and HAWAII LABOR RELATIONS BOARD; KERRY KOMATSUBARA; SESNITA A.D. MOEPONO; and J N. MUSTO (2016-001), Agency-Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 16-1-1390-07)

MEMORANDUM OPINION (By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

Complainant-Appellant-Appellant Hawaii Fire Fighters

Association, IAFF, Local 1463, AFL-CIO (HFFA or the Union)

appeals from the November 7, 2017 Final Judgment (Judgment)

entered by the Circuit Court of the First Circuit (Circuit NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Court),1 in favor of Respondents-Appellees-Appellees Rick

Blangiardi, Mayor,2 City and County of Honolulu; Lionel Camara,

Jr., Acting Fire Chief,3 City and County of Honolulu; Honolulu

Fire Department, City and County of Honolulu (HFD); and City and

County of Honolulu (collectively, the City), and Agency-Appellee-

Appellee Hawaii Labor Relations Board (HLRB or the Board),

including Kerry Komatsubara, Sesnita A.D. Moepono, and J.N. Musto

(collectively, the Agency). HFFA also challenges the Circuit

Court's October 19, 2017 Order Affirming [HLRB's] Findings of

Fact [(FOFs)], Conclusions of Law [(COLs)], and Decision and

Order Dated June 21, 2016 (Order Affirming HLRB), and November 7,

2017 Notice of Entry of Final Judgment.

This appeal arises out of a Prohibited Practice

Complaint (Complaint) filed by HFFA with the Board, which alleged

that HFD failed to properly consult and/or negotiate with HFFA

regarding implementation of a Rapid Intervention Team (RIT) fire

fighter training program, in violation of various provisions of

Hawaii Revised Statutes (HRS) Chapter 89, as well as the parties'

collective bargaining agreement (CBA). Upon conclusion of

multiple evidentiary hearings on the Complaint, the Board issued

1 The Honorable Keith K. Hiraoka presided. 2 Pursuant to Rule 25(d) of the Hawai#i Rules of Civil Procedure (HRCP), Mayor Rick Blangiardi is substituted for former Mayor Kirk Caldwell. 3 Pursuant to HRCP Rule 25(d), Acting Fire Chief Lionel Camara, Jr. is substituted for former Fire Chief Manuel Neves ( Chief Neves).

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its FOFs, COLs, and Decision and Order (Decision 482), finding no

prohibited practice by HFD and dismissing the Complaint in its

entirety.

HFFA appealed to the Circuit Court, which affirmed

Decision 482. HFFA timely filed a notice of appeal to this court

on November 13, 2017, contending that the Circuit Court erred in

affirming Decision 482.

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues and

arguments raised by the parties, we affirm.

I. BACKGROUND

A. Underlying Facts

On February 4, 1972, HFFA was certified as the

exclusive representative for State of Hawai#i fire fighters,

bargaining unit 11 (BU 11), consisting of supervisory and non-

supervisory employees at Hawaii's fire departments.4 The

Certification Order provided that the City and County of

Honolulu, along with the counties of Hawai#i, Kaua#i, and Maui,

was required to "bargain collectively with [HFFA] and enter into

a written agreement with [HFFA] with respect to wages, hours, and

other terms and conditions of employment which are subject to

negotiations under the [Hawai#i Public Employment Relations

4 Pursuant to the Certification of Exclusive Bargaining Representative and Order to Negotiate (Certification Order), BU 11 does not include: "Administrative and Service Bureau Captain, Service Officer, Fire Suppression Operations Commander, Chief, Deputy Chiefs, Hawaii Battalion Chiefs, Fire Division Commander No. F-149, and all others."

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Act]." The CBA at issue in this case was in effect from July 1,

2011, to June 30, 2017.

On August 5, 2014, HFD issued a Special Notice,5 SN-14-

201, instructing all uniformed personnel to complete mandatory

online International Association of Fire Fighters (IAFF) Fire

Ground Survival (FGS) training and informing them of three days

of FGS field training to be conducted that November by HFD

instructors. A follow-up Special Notice, SN-14-213, issued the

next day, invited fire fighters to sign up for "Train-the-

Trainer" training to become instructors for the planned field

course. Following consultation discussions between HFD and HFFA,

the FGS field training course began in approximately February

2015.

In April of 2015, HFD started planning an RIT training

program6 to build on the FGS training. On October 16, 2015, HFD

5 A Special Notice is "a written notice that disseminates or distributes information" to HFD personnel. Chief Neves testified that it is standard practice for Special Notices to be sent to the Union and estimated that approximately 300 or 400 Special Notices are issued by HFD each year. 6 RIT training is a National Fire Protection Association ( NFPA) standard designed to promote the "safety of all fire suppression personnel" and "provide a constant, sustainable rapid intervention capability at the emergency scene." HFD does not adopt NFPA standards per se but uses them as best practice guidelines. Chief Neves testified that some form of RIT training had been part of HFD policy for approximately 10 to 15 years, but that the training program which began in 2015 was the first course implemented by HFD specifically to prepare fire fighters to be part of RITs, in accordance with NFPA standards.

Per the subsection entitled "RIT" of HFD's "Policy & Procedures Manual, Chapter 4-Fire Operations, Article 3-Emergency Response, Section 2- Safety":

RIT. The [Incident Commander] shall provide personnel for the rescue of members operating at emergency incidents (continued...) 4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

issued a Special Notice, SN-15-179, inviting fire fighters to be

trained as instructors for the planned RIT training. The Special

Notice specifically provided that "[a]ppropriate compensation for

off-duty attendance is authorized." On November 20, 2015, HFD

issued a Special Notice, SN-15-201, indicating the 33 fire

fighters who were selected to become RIT trainers and providing

that they were to attend a five-day "Train-the-Trainer Training"

from December 7 to 11, 2015. All of the selected fire fighters

were part of BU 11.

Both Chief Neves and Assistant Chief Socrates Bratakos

(AC Bratakos) testified before the Board that HFD communicated

its intent to conduct RIT training to Union representatives at a

January 4, 2016 meeting, and that the parties discussed creating

a working group for the program.7 Chief Neves testified further

that while HFD did not believe the RIT training required

consultation, it was HFD's desire to "open" the planning process

and involve HFFA "from the get-go." On January 7, 2016, HFD sent

HFFA President Robert Lee (President Lee) a letter regarding RIT

(...continued) if the need arises. A RIT shall consist of at least four members and be available to rescue downed, trapped, lost, or disorientated fire fighters during emergency operations. . .

A RIT shall be established at every confirmed building fire and for any other incident where an extreme life safety hazard exists for responding fire fighters. 7 Chief Neves testified that the January 4, 2016 meeting was part of a series of monthly meetings with HFFA, which began in October, 2015.

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training, announcing HFD's desire to form a working group and

requesting HFFA designate its representatives for the group.

By letter dated January 11, 2016 (January 11 Letter),

HFFA requested the following information regarding the RIT

working group: 1. What is meant by 'Working Groups?';

2. What are these group's [sic] charge?;

3. What are the policy, guidelines, and criteria, if any, provided to the groups to develop recommendations?;

4. What authority does these groups [sic] have in selecting other BU11 members in the process; and

5. What remuneration, if any, is given to BU11 members who participate in these groups.

By letter dated January 15, 2016 (January 15 Letter),

HFFA responded to HFD's request to form a working group, stating

HFFA's position that a working group was "premature in light of

additional information needed in order to thoroughly discuss all

aspects of the [RIT] Training working group." The January 15

Letter also requested consultation on the RIT training program

and its curriculum, and stated that HFFA would contact HFD to

schedule a consultation meeting after receipt of the requested

information.

On January 20, 2016, HFD responded to the January 11

Letter, providing answers to each of the questions posed therein.

On January 27, 2016, HFD responded to the January 15 Letter: (1)

incorporating by reference the answers provided in its preceding

response; (2) indicating that HFD would produce the requested

materials on the RIT curriculum in advance of the monthly

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HFD/HFFA meeting on February 8, 2016; and (3) noting that due to

the "time sensitive nature" of the RIT program, HFD would like to

schedule a consultation meeting for the week beginning February

16, 2016. On February 3, 2016, HFD emailed HFFA a draft

curriculum, schedule, and instructor list for the RIT program.

On February 4, 2016, HFFA sent HFD an acknowledgment

(February 4 Letter) of HFD's January 20 and January 27 letters,

entitled "[HFD] Working Groups." Therein, HFFA demanded

immediate "consultation on the purpose and function of HFD

Working Groups," and submitted a series of questions regarding

the working group and RIT program which were to be answered in a

requested "proposal" from HFD, to be produced by the following

day. The February 4 Letter did not contain any mention of the

materials HFD provided the previous day.

AC Bratakos testified, and the Board found, that on

February 11, 2016, HFD discussed the RIT program with HFFA and

conducted a "walkthrough" of the facility where the training was

to take place, at which time no objections were raised.8

On February 24, 2016, HFD responded to the February 4

Letter, providing answers to each of the questions posed by HFFA,

incorporating by reference the RIT curriculum, schedule, and

instructor list emailed to HFFA on February 3rd, and attaching an

Emergency Action Plan for the training. HFD also reiterated its

8 President Lee and at least one other HFFA board member were in attendance.

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invitation for HFFA to participate in the working group and

assist with development of the training program. HFD stated that

it would "request a consultation meeting with [HFFA] when the RIT

Working Group discovers issues that significantly affect wages,

benefits, or working conditions." Chief Neves testified, and the

Board found, that while a working group was formed by HFD, HFFA

did not participate.9 The Board found: At [that] point, HFD determined that it could not wait for HFFA to participate in the formulation of the RIT Program protocols (there were issues with the lapse of funding by June 30, 2016, and more importantly, starting training was crucial for the safety of the OPS personnel), and HFD started to implement the RIT Program.

On March 1, 2016, HFD issued a Special Notice, SN-16-

044, to all fire fighters providing for mandatory participation

in the RIT course for all Fire Operations (OPS) personnel,10

"scheduled for off-duty attendance" beginning April 2016, with

"appropriate compensation authorized." The Special Notice

further stated: [HFD] RIT instructors will conduct this training, which encompasses self-survival procedures, panic management, communications, low/reduced profile rescues, disentanglement maneuvers, upper floor rescue techniques, and RIT operations. Training shall be attended on two consecutive days. Students who successfully completed the [IAFF] FGS course that was offered in 2015 and also complete this RIT course will receive an FDTN [(Fire Department

9 At the time of HFD's February 24, 2016 letter to HFFA, the working group consisted of AC Bratakos and the Battalion Chiefs and Fire Captains from Fire Operations and the Training and Research Bureau who were responsible for the training. 10 OPS personnel includes all fire fighters that work in HFD's fire stations, i.e., HFD's fire suppression forces. RIT training was made voluntary for bureau personnel, i.e., those not engaged in fire suppression activities.

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Training Network) 11] Certificate of Completion.

A schedule for the RIT training was attached to Special Notice

SN-16-044.

At the behest of HFFA, Captain Thomas Reppuhn (Captain

Reppuhn), an HFFA board member and representative on the joint

HFD-HFFA safety committee,12 visited the training facility where

RIT training was to take place to evaluate safety aspects during

a "test run" of the program on March 11, 2016. That same day,

Captain Reppuhn advised Assistant Chief Scott Lawton (AC Lawton),

by email, that he had serious concerns regarding the potential

for bodily injury to fire fighters participating in the training

and demanded an emergency meeting of the safety committee.13 AC

Lawton replied later that day to schedule the meeting and solicit

further information regarding Captain Reppuhn's concerns so that

HFD could address them "immediately."

On March 15, 2016, the safety committee convened to

discuss the RIT training program. At the meeting, Captain

Reppuhn stated that based on his observations of the March 11

test run, it was HFFA's position that the training should be

suspended pending "consultation with HFFA" and a "thorough safety

11 FDTN is an organization which provided the RIT curriculum implemented by both Maui Fire Department and Federal Fire Fighters stationed in Hawai#i prior to adoption by HFD. 12 Captain Reppuhn was joined at the training facility by fellow HFFA Board Member Bill Thornock. 13 Captain Reppuhn testified that he did not notify anyone at the training facility of his safety concerns.

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review of [the] program." AC Lawton testified, and the Board

found, that both he and Battalion Chief Ryan Young (BC Young)

asked Captain Reppuhn to share specifics on his concerns

regarding the RIT program and that Captain Reppuhn refused to do

so. HFD did not resolve to suspend the program but agreed to

schedule a walkthrough of the program for March 28, 2016.

After the emergency meeting, Captain Reppuhn emailed a

list of his safety concerns to President Lee, along with a

summary of the meeting. Captain Reppuhn recommended HFFA contact

Hawaii Occupational Safety and Health (HIOSH) to do an

inspection. In recapping the safety meeting, Captain Reppuhn

commended BC Young for his "immediate intervention" regarding RIT

safety protocols, stating BC Young (1) "identified numerous

concerns," (2) gave "recommendations to HFD to make corrections,"

and (3) had already addressed several of the issues identified at

the March 11 test run.

On March 21, 2016, HFFA filed a "Formal Complaint

Related to the Safety and Health of Hawaii Fire Fighters" with

HIOSH (HIOSH Complaint). The gravamen of the HIOSH Complaint was

that "[t]he RIT program as it is currently being implemented,

threatens physical harm and creates an environment whereby

imminent danger exists that can reasonably cause serious physical

harm and/or death." HFFA requested that HIOSH conduct a site

inspection and review of the RIT program in the presence of its

representatives and asked HIOSH to require full disclosure from

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HFD regarding the training to be reviewed by HIOSH to "insure no

additional safety hazards exists [sic]." Appended to the HIOSH

Complaint was a "Labor Agreement Grievance Form," apparently

filed March 15, 2016, alleging violations of several sections of

the CBA and demanding consultation, negotiation, and suspension

of the RIT training. After exchanges between HIOSH, HFD, and the

Union regarding the HIOSH Complaint, HIOSH found HFD's internal

investigation and corrective actions to be "satisfactory" and

closed the HIOSH Complaint on April 20, 2016.

On March 22, 2016, while the HIOSH Complaint was still

pending, the Union sent HFD a letter demanding HFD cease

implementation of the RIT training and make the training

voluntary, pending negotiation with the Union as to whether the

training may be mandatory. The following day, Captain Reppuhn

sent HFD a similar letter in his capacity as a Union

representative on the safety committee.

On March 28, 2016, HFD held a two-hour walkthrough of

the RIT training facility with Captain Joseph Condlin (Captain

Condlin), who led the training, for the safety committee, with

President Lee and other representatives of HFD and HFFA in

attendance. Captain Reppuhn testified that the walkthrough

consisted of demonstrations of several training elements and was

followed by a meeting wherein the parties discussed their

respective positions. On April 1, 2016, HFFA wrote to Chief

Neves, reiterating its demand for consultation. On April 12,

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2016, the safety committee met to follow-up on the March 28

walkthrough, among other issues; however, Captain Reppuhn

testified that HFFA acquiesced to HFD's position that there was

"no reason to discuss [RIT]" given that the HIOSH Complaint was

pending.

B. Board Proceedings

On March 30, 2016, HFFA filed the prohibited practice

Complaint at issue in this appeal, challenging HFD's adoption and

implementation of the RIT training program. The Complaint

alleged that HFD's intentional and willful failure and/or refusal

to consult or negotiate with HFFA regarding the RIT program (1)

violated various provisions of the BU 11 CBA pertaining to

"Recognition,"14 (2) violated the duty to bargain in good faith

14 The Complaint alleged violations of "Section 1(A), (B) and/or (C) of the [CBA]." Section 1 of the CBA states, in relevant part:

A. Recognition. The Employer recognizes the Union as the certified exclusive bargaining representative of all fire fighters, including supervisory personnel, of the State and its political subdivisions whose principal duties are to prevent and respond to fires, attend to search and rescue, HAZMAT and medical emergencies, except for officers and Employees who are excluded or may be excluded from the bargaining unit by law and the Hawaii Labor Relations Board. . . . .

B. Consultation. All matters affecting Employee relations, including those that are, or may be, the subject of a regulation promulgated by the Employer or any Personnel Director, are subject to consultation with the Union. The Employer shall consult with the Union prior to effecting changes in any major policy affecting Employee relations.

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

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over changes in wages, hours, and other terms and conditions of

employment under HRS § 89-9(a) (Supp. 2015) and the duty to

consult under HRS § 89-9(c) (2012),15 (3) constituted "bad

faith," and (4) constituted prohibited labor practices under HRS

§ 89-13(a)(1), (5), (7), and (8) (2012).16

15 HRS § 89-9 provides, in relevant part:

HRS § 89-9 Scope of negotiations; consultation. (a) The employer and the exclusive representative shall meet at reasonable times, . . . and shall negotiate in good faith with respect to wages, hours, the amounts of contributions by the State and respective counties to the Hawaii employer- union health benefits trust fund to the extent allowed in subsection (e), and other terms and conditions of employment which are subject to collective bargaining and which are to be embodied in a written agreement as specified in section 89-10, but such obligation does not compel either party to agree to a proposal or make a concession.

. . . .

(c) Except as otherwise provided in this chapter, all matters affecting employee relations, including those that are, or may be, the subject of a rule adopted by the employer or any director, shall be subject to consultation with the exclusive representatives of the employees concerned. The employer shall make every reasonable effort to consult with exclusive representatives and consider their input, along with the input of other affected parties, prior to effecting changes in any major policy affecting employee relations. 16 HRS § 89-13 (2012) provides, in relevant part:

HRS § 89-13 Prohibited practices; evidence of bad faith. (a) It shall be a prohibited practice for a public employer or its designated representative wilfully to:

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

(5) Refuse to bargain collectively in good faith with the exclusive representative as required in section 89-9;

(7) Refuse or fail to comply with any provision of this chapter; [or] (continued...) 13 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On April 11, 2016, HFD filed an Answer to the

Complaint, denying all legal conclusions set forth therein,

asserting a variety of defenses,17 and requesting dismissal of

the Complaint as well as attorneys' fees and costs.

On April 15, 2016, HFFA filed a Motion for

Interlocutory Relief seeking to enjoin, restrain, and prohibit

HFD from "further unilateral modification and violation of the

[CBA], and further violations of [HRS Chapter 89], pending the

issuance of a final determination on the instant [Complaint]."

Attached thereto, HFFA submitted, inter alia, Declarations of

Thomas Reppuhn and Irene L.A. Pu#uohau, along with exhibits

depicting alleged safety issues regarding the RIT program. HFD

opposed the motion.

The Board held evidentiary hearings on May 11-12, 16,

and 18-19, 2016. Six witnesses were called and examined by both

parties and HLRB: Chief Neves; AC Lawton; AC Bratakos; Captain

Reppuhn; President Lee; and Captain Condlin.

On June 21, 2016, the Board entered Decision 482,

finding for HFD and dismissing HFFA's Complaint. The Board

(...continued) (8) Violate the terms of a collective bargaining agreement[.] 17 HFD's Answer asserted the following defenses: (1) the Complaint failed to state a claim upon which relief can be granted; (2) HLRB lacked subject matter jurisdiction to hear the Complaint; (3) HFFA was precluded from relief by the equitable doctrines of waiver, acquiescence, election, untimeliness, estoppel, unclean hands and laches; (4) HFFA was precluded from relief based on its failure to exhaust mandatory and available contractual remedies; and (5) HFFA failed to establish a violation of HRS Chapter 89 and/or the CBA.

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framed the question presented as follows: "Did [HFD] commit a

'prohibited practice' by adopting and implementing a program to

train fire fighters to rescue trapped or disoriented fire

fighters without negotiating or consulting with the [HFFA]?" The

Board concluded that HFD's adoption of the training program did

not constitute a prohibited practice.

Decision 482 contained extensive FOFs regarding, inter

alia, the CBA, the nature and necessity of RIT training, HFD's

attempts to engage the Union in a working group to develop and

implement the training, the Union's safety concerns regarding the

training, and the corresponding HIOSH Complaint and HFD's

corrective actions.

Based on its FOFs, the Board found and concluded: (a) The RIT Program is not specialized training, but instead is standard training for OPS personnel. The RIT Program is subject to the consultation requirement, and not the negotiation or mutual consent requirement. First, the CBA provides in CBA Section 48.B that HFD may require training as long as the fire fighters are compensated for working their days off. There is no requirement for mutual consent or negotiation. Second, and more important, HFFA treated the RIT Program as a subject of consultation and not negotiation. Finally, and most importantly, HFFA failed in its burden of showing, factually and legally, that the RIT Program was subject to the negotiation requirement.

(b) On January 7, 2016, HFD invited HFFA "to form a working group for the [RIT Program]." As outlined above, HFFA did not accept HFD's invitation to discuss the RIT Program at its inception. Subsequently, HFD did, in fact, request consultation in its January 27, 2016 letter to HFFA. However, rather than engaging in consultation over the implementation of the RIT Program, HFFA changed tactics and requested consultation on the issue of working groups. Thus, although HFD attempted to engage HFFA in discussions over the RIT Program in January 2016, HFFA did not consult and engaged in efforts to stop implementation of the RIT Program.

Moreover, the Board finds that HFD's repeated efforts to have HFFA participate in the RIT Program working group, even though not called "consultation," amounted to a request

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to engage in meaningful discussions or dialog regarding implementation of the RIT Program. In substance, if not form, HFD asked HFFA to be involved in the formulation of the procedures and protocols for the implementation of the RIT Program. For reasons not clear to the Board, HFFA refused to participate. Therefore, in substance, HFD did, in good faith, initiate the consultation process . HFFA, by engaging in efforts to question the legitimacy of the working group concept, was undermining the very purpose of the consultation requirement -- to have the parties meaningfully discuss issues to avoid disputes. For the Board to rule otherwise and to accept the position taken by HFFA (i.e., the use of a working group did not amount to consultation) would undermine the utility of the consultation process by "elevating form over substance," and the Board refuses to do so.

(c) HFD did not violate its obligation to consult with HFFA. Consultation does not require the agreement of the parties. As stated by the Board in In the matter of HGEA, AFSCME, Local 152, AFL-CIO, Complainant, and Linda Lingle, et al., Respondents, Decision 468 (June 13, 2007) at p. 9 (adopting the position taken in, and quoting from, Hawaii Nurses Association, 2 HPERB 218 (1979)):

"Matters of consultation do not require a resolution of differences. 'All that is required is that the employer inform the exclusive representative of the new or modified policy and that a dialogue as to the merits and disadvantages of the new or proposed policy or policy change take place.' Cites omitted."

The Board, then confirmed its adoption of the test articulated in Decision No. 394, Hawaii Government Employees Association, AFSCME, Local 152, AFL-CIO, VI HLRB 1 (1978). Decision No. 394 requires management to comply with the following factors:

"(1) [N]otice to the union, (2) on proposed personnel practices and policies of a major, substantial and critical nature, other than those requiring negotiations, (3) in reasonable completeness and detail, (4) requesting the opinion, advice or input of the Union thereto, (5) listening to, comparing views and deliberating together thereon (i.e., 'meaningful dialog'), and (6) without requirement of either side to concede or agreement on any differences or conflicts arising or resulting from such consultation."

Here, HFD, in fact, complied with the Decision 394 factors because:

(1) HFFA was notified (orally and in writing) in January 2016 that, as part of its new training program, HFD was contemplating the adoption of the RIT Program to better equip OPS personnel to engage in fire fighter rescue. This was early in the process. In addition, HFD proposed the formation and use of the RIT working group to foster discussions over the RIT Program. While the RIT working

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group was not intended to supplant consultation, it was the start -- it was an opportunity to identify those issues which required either consultation or negotiation and then begin the appropriate process.

Furthermore, on March 11, 2016, when Captain Reppuhn advised AC Lawton that he had serious safety concerns regarding the RIT Program, HFFA did not disclose those concerns to HFD, HFFA did not discuss those concerns with HFD, and was, as of March 15, 2016, already preparing to file the HIOSH complaint. If any party did not engage in consultation, it would have been HFFA.

(2) While not subject to the negotiation requirement, the RIT Program involved proposed training which was "major, substantial and critical" to the safety of OPS personnel.

(3) Since the RIT Program was in its infancy, HFD provided as much material as it could to HFFA. In addition, HFFA and its members were well aware of the RIT Program because of the initiation of the "train-the-trainer" program initiated and completed in October or December 2015. Thus, in its response to various inquiries from HFFA and by initiating the "train-the-trainer" program, HFD provided HFFA with available information with reasonable detail and completeness.

(4) By proposing the RIT working group, HFD was "requesting the opinion, advice or input of" HFFA. Again, in substance, HFD was inviting HFFA to participate meaningfully in the process of finalizing the implementation of the RIT Program.

(5) There was no "meaningful dialog" because HFFA, rather than engaging in discussions, sought to delay or otherwise prevent the initiation of discussions.

(6) Finally, HFD never stated that the RIT working group required that either side needed to agree. HFD understood that consultation meant exactly that, i.e., seeking the input from HFFA on a crucially important safety program.

Based on the foregoing, the Board finds that HFD fulfilled its obligation to consult with HFFA over the RIT Program implementation.

(d) HFFA failed to provide any factual basis for a finding that HFD violated the CBA. Other than point to [President] Lee's testimony that there may be:

"potential violations of Section 1. Recognition, consult, negotiate; Section 4. Management Rights, Respondents abuse their management rights; Section 6. Prior Rights, Benefits and Perquisites, because according to the Special Notice, the training can impact where you are assigned; Section 12. Promotions, because failing to attend or participate in the full two days of the training could impact a promotion, or future promotional opportunity; Section

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14. Duties, because the RIT training changes the duties of a firefighter; Section 20. Hours of Work, because Respondents are compelling employees to come in or work on their scheduled days off; Section 21. Overtime, clearly may be impacted; Section 30. Meals, because the Special Notice requires employees to bring in their own lunch; when it should be provided by the Employer; Section 39. Safety and Health, because of the misinterpretation by Scott Lawton; Section 43. Equipment, could be impacted based on the employees being provided the proper safety equipment during the RIT training; Section 14. Employer Required Training, because Respondents are misinterpreting what an employer-required training is. (Italics added.)"

There are no facts to support a showing that there was an actual violation of the CBA by HFD. Further, as addressed above in detail, although the RIT Program was mandatory, it was not "pass/fail" (as was the Maui training) and was participatory only. The RIT Program was part of OPS personnel regular training and was not a new minimum requirement. Finally, all of the issues raised by [President] Lee could have been discussed in detail in the working group suggested by HFD in January 7, 2016. Thus, the Board finds that there is simply no violation of the CBA.

(e) There are no facts showing that HFD acted wilfully, which is a required element to prove a prohibited practice pursuant to HRS Chapter 89. Although there was much evidence regarding the circumstances surrounding the implementation of the RIT Program, there was no evidence to show that HFD consciously, knowingly, and deliberately intended to violate the provisions of HRS Chapter 89 or the CBA. In fact, the whole intent of adopting and implementing the RIT Program was to adequately train OPS personnel in rapid intervention team techniques, procedures and equipment to save lives and prevent serious injuries -- to help HFFA's members when they become trapped or disoriented while fighting a fire. This was prompted by, among other things, Chief Neves losing a fire fighter, national efforts to improve fire fighter safety, the implementation of rapid intervention team training by Maui and Hawaii Counties (without, apparently, objection by HFFA) and the Hawaii based Federal Fire Fighters and the need to train fire fighters in an operation required by HFD Policy -- rapid intervention teams. In other words, OPS personnel need to be properly and continuously trained because worker safety in an inherently dangerous profession is a constant concern. Thus, to make its rapid intervention teams effective in emergency situations was HFD's motivation for training all OPS personnel and HFD's motivation to adopt and implement the RIT Program, and HFFA provided no evidence to the contrary.

(f) With respect to HFFA's request for injunctive relief, the Board finds that:

(1) The Board, based on the foregoing, finds and holds that HFFA does not prevail on the merits. Thus, since

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HFFA cannot prevail on the merits, it is not entitled to injunctive relief, whether preliminary or permanent.

(2) Further, there has been no showing of irreparable harm. There are no worker safety issues extant with respect to the HFD's Charles H. Thurston Fire Training Center where the RIT training is conducted. There is no showing that the OPS personnel, who must meet certain minimum fitness and training requirements separate and apart from the RIT Program, would be subject to any unreasonable risk of harm.

(3) Finally, it is clear that the public interest overwhelmingly tips in favor of HFD. The purpose of the RIT Program is to train HFD's OPS personnel (the personnel actually fighting fires and who are the most at risk) in rescue techniques and preparation to rescue their fellow fire fighters. The purpose of the RIT Program is not to set different or additional minimum qualifications but to prepare HFD's personnel to save fire fighters who get into trouble, i.e., to prevent or minimize the risk of line-of- duty deaths and serious injuries.

HFFA was given the opportunity to comment upon and actually be involved in developing protocols for the implementation of the RIT Program through the RIT working group. HFFA failed to cooperate and collaborate with HFD. It cannot now be heard to complain.

(Emphasis added; footnotes omitted; format altered).

The Board entered, inter alia, the following COLs:

(a) The adoption and implementation of the RIT Program, and the mandatory training required to implement the RIT Program, are not topics subject to mandatory bargaining. This is because:

(1) The CBA does not require negotiation over employer required training so long as overtime is paid when training occurs on employees' days off. HFFA could not identify any provision which required negotiations over required training.

(2) Pursuant to HRS § 89-9(d), by requiring OPS personnel to attend required training sessions (with the payment of overtime), HFD was exercising its management rights. HFD retained the right to direct its employees, maintain efficiency and productivity, and determine the means, methods and personnel by which its operations were to be conducted. Clearly, the adoption of the RIT Program and its implementation through the mandatory RIT Program training for OPS personnel was the exercise of a management right (i.e., directing HFD's OPS personnel to attend training, maintaining the efficiency of its personnel in rescue operation and determining how rescue operations were to be conducted and how its personnel were to be trained in rescue techniques).

(b) The adoption and implementation of the RIT Program was, however, subject to the "consultation"

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requirement. As outlined in detail above, HFD did not violate its obligation to consult with HFFA. In fact, the Board found that HFD attempted, early on, to engage (through, for example, the proposed RIT working group) HFFA in meaningful dialog or discussions regarding the RIT Program. However, HFFA was not willing to participate, listen and have meaningful dialog with HFD over the RIT Program.

(c) Based on the foregoing, the Board concludes that HFD, in implementing the RIT Program did not violate its obligations under the CBA or HRS Chapter 89. There was simply no showing of any violation by HFD.

(d) Further, there was no showing the HFD acted wilfully. . . .

(Footnotes omitted; format altered).

Having determined that HFFA failed to establish by a

preponderance of the evidence that HFD committed a prohibited

practice, the Board concluded that HFFA was not entitled to any

of the requested relief and dismissed the Complaint in its

entirety. With respect to the RIT training program, the Board

ordered the parties to "engage in meet and confer" via the

working group, and that future disputes regarding the RIT program

were to be handled via the grievance process set forth in the

CBA.

On July 12, 2016, approximately three weeks after entry

of Decision 482, HFFA filed a motion for reconsideration pursuant

to HRCP Rule 59(e), arguing that the Board misconstrued and

misapplied HRS § 89-9(a) and (d) (2012 and Supp. 2015) (Motion

for Reconsideration). On July 22, 2016, the Board summarily

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denied the Motion for Reconsideration as untimely under HRCP Rule

59(e).18

C. Appeal to the Circuit Court

HFFA appealed from Decision 482 to the Circuit Court,

claiming that the substantial rights of BU 11 employees were

prejudiced by the decision and seeking reversal and modification

on the grounds that the decision was made: (1) in violation of constitutional and statutory provisions, (2) in excess of statutory authority or jurisdiction of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantive evidence on the whole record, and/or (6) arbitrary, capricious, and characterized by abuse of discretion and a clearly unwarranted exercise of discretion.

After briefing was complete, the Circuit Court heard

oral argument on September 21, 2017. At the close of oral

argument, the Circuit Court concluded that there was substantial

evidence in the record to support the FOFs and COLs contained in

Decision 482. The court affirmed Decision 482 and entered the

Order Affirming Decision, denying and dismissing HFFA's appeal

with prejudice. On November 7, 2017, the court entered Final

Judgment in favor of the City and the Agency.

On November 13, 2017, HFFA filed its notice of appeal

to this court.

II. POINTS OF ERROR

HFFA raises four points of error on appeal, contending

that the Circuit Court was wrong when it: (1) affirmed the

18 HFFA does not challenge this ruling.

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Board's findings and conclusions that the training of fire

fighters affecting their safety, health, and other terms of

employment were not mandatory subjects of bargaining; (2)

affirmed Decision 482 despite the City's unilateral changes to

existing terms of employment which constitute a refusal to

bargain in good faith under HRS § 89-9(a); (3) disregarded the

Union's contention that the Board erred as a matter of law over

the City's circumvention of the Union as the exclusive bargaining

agent of fire fighters; and (4) affirmed Decision No. 482 based

on the management rights clause in HRS § 89-9(d)(7), contrary to

the Constitution and legislative amendments.

III. APPLICABLE STANDARDS OF REVIEW

Our review of a circuit court decision on an appeal

from an administrative agency determination is a secondary

appeal; we must determine whether the circuit court was right or

wrong in its decision, applying the standards set forth in HRS

§ 91-14(g) (2012 and Supp. 2019) to the agency's decision.

Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d

469, 475 (2018).

HRS § 91-14 provides in relevant part: (g) Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

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(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

"Under HRS § 91-14(g), conclusions of law are

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

regarding procedural defects under subsection (3); findings of

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

under subsection (6)." Flores, 143 Hawai#i at 121, 424 P.3d at

476 (citations omitted). The Hawai#i Supreme Court has stated: An agency's conclusions of law are reviewed de novo, while an agency's factual findings are reviewed for clear error. A conclusion of law that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case.

As a general matter, a finding of fact or a mixed determination of law and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Del Monte Fresh Produce (Haw.), Inc. v. Int'l Longshore &

Warehouse Union, Local 142, 128 Hawai#i 289, 302, 287 P.3d 190,

203 (2012) (Del Monte II) (citation omitted).

Additionally, our review is tempered by the "principle

that the agency's decision carries a presumption of validity and

appellant has the heavy burden of making a convincing showing

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that the decision is invalid because it is unjust and

unreasonable in its consequences." Konno v. Cty. of Haw., 85

Hawai#i 61, 77, 937 P.2d 397, 413 (1997) (citation omitted).

"Where both mixed questions of fact and law are presented,

deference will be given to the agency's expertise and experience

in the particular field and the court should not substitute its

own judgment for that of the agency." Dole Hawaii Div.-Castle &

Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118

(1990) (citation omitted).

"Statutory interpretation is a question of law

reviewable de novo." Del Monte Fresh Produce (Haw.), Inc. v.

Int'l Longshore & Warehouse Union, Local 142, 112 Hawai#i 489,

499, 146 P.3d 1066, 1076 (2006) (Del Monte I) (citation and

internal quotation marks omitted). Statutory construction is

grounded in the following principles: First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

When there is ambiguity in a statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law.

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State v. Abihai, 146 Hawai#i 398, 406, 463 P.3d 1055, 1063 (2020)

(citation omitted).

In addition, it is a "'well established rule of

statutory construction that, where an administrative agency is

charged with the responsibility of carrying out the mandate of a

statute which contains words of broad and indefinite meaning,

courts accord persuasive weight to administrative construction

and follow the same, unless the construction is palpably

erroneous.'" Del Monte I, 112 Hawai#i at 501 n.17, 146 P.3d at

1078 n.17 (citation omitted).

IV. DISCUSSION

The pivotal issue here concerns whether HFD had a duty

to bargain with HFFA prior to implementation of the RIT training

program. HFFA contends that the Board was incorrect to conclude

that the adoption and implementation of the RIT training program

were not topics subject to mandatory bargaining. HFFA also

contends that the Board erred in concluding that HFD was

exercising its protected management rights in implementing the

program. Accordingly, HFFA maintains that the Circuit Court was

wrong to affirm the Board's denial and dismissal of HFFA's

Complaint.

Conversely, HFD submits that the Circuit Court's Order

Affirming HLRB must be affirmed because: (1) the HLRB did not commit clear error when it found that Employer did not have a duty to negotiate over RIT training, (2) the Board's application of the management rights doctrine under [HRS] § 89-9(d) was not clearly erroneous,

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(3) the Board properly found that Employer satisfied its duty to consult, (4) HFFA failed to claim before the Board that Employer committed a prohibited practice when it solicited, trained, and used BU 11 members as trainers for RIT training without prior negotiation or consultation, (5) HFFA failed to prove that any violation of [HRS] Ch. 89 was willful, (6) the Union's appeal is moot, and (7) none of HFFA's other arguments have legal or factual merit.

A. Mootness

At the outset, we consider HFD's argument that the

instant appeal must be dismissed as moot given that the RIT

training is completed, leaving no "live" case and controversy for

this court to decide. "It is axiomatic that mootness is an issue

of subject matter jurisdiction." In re Thomas H. Gentry

Revocable Tr., 138 Hawai#i 158, 168, 378 P.3d 874, 884 (2016)

(internal quotation marks and citation omitted). A case is moot where the question to be determined is abstract and does not rest on existing facts or rights. Thus, the mootness doctrine is properly invoked where "events . . . have so affected the relations between the parties that the two conditions for justiciability relevant on appeal—adverse interest and effective remedy—have been compromised."

In re Thomas, 73 Haw. 223, 226, 832 P.2d 253, 254 (1992)

The supreme court has held that an agency's

"[u]nchallenged findings are binding on appeal." Poe v. HLRB, 97

Hawai#i 528, 536, 40 P.3d 930, 938 (2002). Here, HLRB found that

"the initial training held pursuant to the RIT Program would be

followed by 'refresher' sessions." HLRB also found that the RIT

training was part of a larger scheme of ongoing training.

Considering that neither party challenges these findings -- which

are supported by HFD testimony during evidentiary hearings before

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the Board -- and that HFFA sought injunctive and declaratory

relief to prevent both the completed training as well as future

planned trainings, we conclude that relations between the parties

have not been so affected as to eliminate the requisite adverse

interest and effective remedy necessary for justiciability of

HFFA's claims. See In re Thomas, 73 Haw. at 225-26, 832 P.2d at

254; see also State v. Nakanelua, 134 Hawai#i 489, 502, 345 P.3d

155, 168 (2015). Thus, we conclude that the case is not moot.

B. Duty to Negotiate

HFFA argues that the Circuit Court erred in affirming

Decision 482 because the Board erred in concluding that HFD did

not have a duty to negotiate over its implementation of the RIT

program. Specifically, HFFA contends that "RIT training vitally

affected multiple terms and condition of employment of fire

fighters and therefore constituted mandatory subjects of

collective bargaining under [HRS § 89-9(a)]." In addition, HFFA

maintains that "the Board used the wrong standard to determine

what subject matters required bargaining by looking solely to the

[CBA] and [HRS § 89-9(d)] to determine the scope of bargaining."

HFFA's arguments are unpersuasive.

The Complaint alleged, inter alia, violations of HRS

§ 89-13(a)(1), (5), (7) and (8). In pertinent part, HRS § 89-

13(a)(1) prohibits wilful interference with the right to

collective bargaining under HRS Chapter 89. HRS § 89-13(a)(5)

makes it a prohibited labor practice for a public employer to

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"[r]efuse to bargain collectively in good faith with the

exclusive representative as required in section 89-9." HRS § 89-

13(a)(7) constitutes a general prohibition on wilful refusal or

failure to comply with the provisions of Chapter 89, while HRS

§ 89-13(a)(8) proscribes wilful violation of the terms of a CBA.

Concerning the duty to negotiate, HRS § 89-9(a)

requires public employers to negotiate in good faith with respect to wages, hours, the amounts of contributions by the State and respective counties to the Hawaii employer-union health benefits trust fund to the extent allowed in subsection (e), and other terms and conditions of employment which are subject to collective bargaining and which are to be embodied in a written agreement as specified in section 89-10[.]

HRS § 89-9(c) states: Except as otherwise provided in this chapter, all matters affecting employee relations, including those that are, or may be, the subject of a rule adopted by the employer or any director, shall be subject to consultation with the exclusive representatives of the employees concerned. The employer shall make every reasonable effort to consult with exclusive representatives and consider their input, along with the input of other affected parties, prior to effecting changes in any major policy affecting employee relations.

HRS § 89-9(d),19 however, provides certain "management

rights," which are intended to avoid interference through

collective bargaining with certain employer's functions. See,

e.g., State of Haw. Org. of Police Officers ex rel. Rodrigues v.

Cty. of Kaua#i, 135 Hawai#i 456, 466, 353 P.3d 998, 1008 (2015).

The management rights doctrine establishes that mandatory

19 We note that subsequent to the filing of the Complaint, HRS § 89-9(d) was amended to more specifically state that an employer may not invoke its management rights to preclude negotiations over "the implementation of management decisions that affect terms and conditions of employment that are subject to collective bargaining." 2018 Haw. Sess. Laws Act 10, Section § 1 at 37-38.

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collective bargaining may not "interfere with the rights and

obligations of the employer to," inter alia:

(1) Direct employees;

(2) Determine qualifications, standards for work, and the nature and contents of examinations;

(3) Hire, promote, transfer, assign, and retain employees in positions;

(6) Maintain efficiency and productivity, including maximizing the use of advanced technology, in government operations; [and]

(7) Determine methods, means, and personnel by which the employer's operations are to be conducted[.]

HRS § 89-9(d)(1)-(3) and (6)-(7).

Notwithstanding these management rights, it is well-

settled that an employer may not make a change to wages, hours,

or other terms and conditions of employment without first sitting

down at the negotiating table. See, e.g., Univ. of Haw. Prof'l

Assembly v. Tomasu, 79 Hawai#i 154, 159-61, 900 P.2d 161, 166-68

(1995). In any case, the charging party -- in this case HFFA --

has the burdens of proof and persuasion, both by a preponderance

of the evidence, to establish the alleged violation of HRS § 89-

9. See HRS § 91-10(5) (2012); Hawai#i Administrative Rules (HAR)

§ 12-42-8(g)(16).

Our supreme court has explained: [HRS §§] 89–9(a), (c) and (d) must be considered in relationship to each other in determining the scope of bargaining. For if Section 89–9(a) were considered disjunctively, on the one hand, all matters affecting the terms and conditions of employment would be referred to the bargaining table, regardless of employer rights. On the other hand, Section 89–9(d), viewed in isolation, would preclude nearly every matter affecting terms and conditions of employment from the scope of bargaining. . . .

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Bearing in mind that the Legislature intended Chapter 89 to be a positive piece of legislation establishing guidelines for joint-decision making . . . we are of the opinion that all matters affecting wages, hours and working conditions are negotiable and bargainable, subject only to the limitations set forth in Section 89–9(d) .

United Pub. Workers, Local 646 v. Hanneman, 106 Hawai#i 359, 364,

105 P.3d 236, 241 (2005) (quoting Tomasu, 79 Hawai#i at 161, 900

P.2d at 168). In that connection, the United States Supreme

Court has held that the essential inquiry in determining the

scope of mandatory collective bargaining -- ordinarily limited to

"issues that settle an aspect of the relationship between the

employer and employees" -- is whether an employer's action

"vitally affects the 'terms and conditions' of [the bargaining

unit's] employment." Allied Chem. & Alkali Workers of America,

Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404

U.S. 157, 178-79 (1971).

While the first thing to be considered in interpreting

whether a term or condition of employment has been changed is the

plain language of the CBA, "past interpretations and

applications, and past practices, as part of the common law of

the shop, may be considered." See Gealon v. Keala, 60 Haw. 513,

521, 591 P.2d 621, 626 (1979) (citing, inter alia, United

Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574,

578-79 (1960) ("The [CBA] states the rights and duties of the

parties. It is more than a contract; it is a generalized code to

govern a myriad of cases which the draftsmen cannot wholly

anticipate.")).

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Here, the Board determined that the RIT training

program was a "standard training" within the terms and conditions

of the BU 11 CBA and that, to the extent that the program may

have an impact on hours, HFD was exercising its management rights

under HRS § 89-9(d)(1), (6), and (7). Relying on Section 48-B of

the CBA, which expressly contemplates "Employer-Required

Training" and states that "time spent by Employees who are

required by the Employer to attend training sessions on their

days off shall be considered as time worked," the Board found

that "HFD may require training as long as the fire fighters are

compensated for working their days off. There is no requirement

for mutual consent or negotiation." The Board thus concluded

that HFD complied with its obligations under HRS Chapter 89 and

the CBA in implementing the RIT training program.20

On appeal to this court, HFFA does not challenge the

Board's interpretation of Section 48-B or any of the Board's

FOFs, but rather invokes the unilateral change doctrine to argue

that HFD "made multiple changes to [other] existing terms and

conditions of employment without first giving notice and

conferring in good faith with HFFA." In particular, HFFA claims

that the RIT program effected four unilateral changes to terms

20 Although the Board concluded that the training was not subject to mandatory bargaining, it found that HFD had a duty to consult with HFFA under Section 1.B of the CBA, which tracks HRS § 89-9(c) and mandates consultation over "all matters affecting employee relations." The Board determined that HFFA treated the RIT training program as within the consultation requirement, not the negotiation requirement, and that "HFD did, in fact, initiate and fulfill its duty to consult."

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and conditions of fire fighters' employment: (1) requiring fire

fighters to complete training consisting of "hazardous work

assignments and 'search and rescue squad' type duties" without

providing hazardous duty pay; (2) requiring fire fighters to

attend training on their days off without first notifying and

negotiating with HFFA; (3) requiring fire fighters to bring a

meal to the training; and (4) requiring fire fighters to perform

instructional duties without providing additional pay. For the

reasons that follow, we conclude that this argument is without

merit.

Where, like here, there is a valid CBA in operation

under HRS Chapter 89, an exclusive representative asserting a

violation of an employer's duty to negotiate terms and conditions

of employment must establish by a preponderance of the evidence

that the employer's actions in fact changed said terms and/or

exceeded the bounds of what the parties negotiated. See Tomasu,

79 Hawai#i at 159, 900 P.2d at 166; see also HRS § 91-10(5);

Malahoff v. Saito, 111 Hawai#i 168, 189-91, 140 P.3d 401, 422-24

(2006) (legislative act delaying payment of wages did not invoke

"core subject of collective bargaining").

Upon conclusion of five days of hearings and submission

of pre- and post-hearing briefs, along with myriad pleadings,

declarations, exhibits, notices, and orders, the Board entered

the following pertinent "Factual Conclusions" regarding the

nature of the RIT program: (1) "The RIT program is not

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specialized training, but instead is standard training for OPS

personnel;" (2) "[t]he purpose of the RIT Program is not to set

different or additional minimum qualifications but to prepare

HFD's personnel to save fire fighters who get into trouble;" (3)

such training did not exceed the bounds of the CBA; (4) HFFA

treated the training as a subject of consultation, not

negotiation; (5) "HFFA failed to provide any factual basis for a

finding that HFD violated the CBA;" (6) there was no showing of

continuing worker safety issues or unreasonable risk of harm; and

(7) "there was no evidence to show that HFD consciously,

knowingly, and deliberately intended to violate the provisions of

HRS Chapter 89 or the CBA."

The issue of whether the RIT program constituted such a

material change in the terms and conditions of BU 11 fire

fighters' employment as to give rise to a duty to bargain

reflects a mixed question of fact and law, requiring application

of legal standards to the factual conduct of the parties. See

Del Monte I, 112 Hawai#i at 500, 146 P.3d at 1077 ("[w]hether a

party failed to bargain in good faith is a mixed question of fact

and law, as it consists of the application of the legal standard

. . . to the factual conduct of the parties" (citing, inter alia,

Price v. Zoning Bd. of Appeals, 77 Hawai#i 168, 172, 883 P.2d

629, 633 (1994) (defining mixed questions of law and fact as

conclusions of law that are "dependent upon the facts and

circumstances of the particular case"))); see also Del Monte II,

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128 Hawai#i at 302, 287 P.3d at 203 ("a mixed determination of

law and fact is clearly erroneous when (1) the record lacks

substantial evidence to support the finding or determination, or

(2) despite substantial evidence to support the finding or

determination, the appellate court is left with the definite and

firm conviction that a mistake has been made"). Thus, the

Circuit Court applied the correct standard of review in

determining whether the challenged findings were supported by

substantial evidence and we apply the same standard here.

1. Safety and Hazard Pay

HFFA contends first that "the training exercises

involved hazardous work assignments and 'search and rescue squad'

type duties" which (1) affected fire fighters' health and safety,

and (2) necessitated a pay increase per Section 44-D of the CBA,

governing pay for Hazardous Duty.21 This argument falls flat.

While there is no dispute that worker safety is a term

and/or condition of employment, as the Board's unchallenged FOF

3(a) states: "[f]ighting fires is an inherently dangerous

activity, and fire fighters must be properly trained in their

jobs to minimize, as much as possible, loss of life or serious

21 Section 44-D provides, in relevant part:

Employees assigned to units that are designated for search and rescue responses which require them to be trained and/or certified beyond that which is required for other members of their class (and such is not recognized in the pricing of their class), shall be paid a hazardous assignment differential of 8.126% of the Employee's regular salary in addition to base pay and applicable differentials and premiums.

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injury." As such, the Board further found in FOF 3(b), and HFFA

does not contest, that fire fighter training is a "continuous

effort" for HFD and a "crucial function to reduce line-of-duty

deaths and injuries." HFFA also raises no argument against the

Board's determinations that RIT training was "crucial . . . for

safety purposes" and that "any time a company is dispatched to a

fire, there is a potential that a fire fighter could be

designated as part of a [RIT] . . . Thus, the necessity [is] to

train all [OPS] personnel in [RIT] techniques."22 To be sure,

the fact that the training was mandatory for all OPS personnel,

as opposed to designated search and rescue personnel trained

beyond the standard for others of their class, supports the

Board's finding that it was not specialized, and cuts against

HFFA's assertion that the Hazardous Pay provision of the CBA

applied.23

Although the Board found that the RIT training program

was HFD's first training course specifically geared to RITs, it

determined that the training effectively implemented an existing

HFD policy stating that "[an] RIT shall be established at every

confirmed building fire and for any other incident where an

extreme life safety hazard exists for responding fire fighters."

As Chief Neves testified, RITs had been a part of HFD policy for

22 HFFA's safety committee representative, Captain Reppuhn, testified: "RIT training is an excellent idea" and addressed a "real situation on the fireground that [fire fighters] need to be able to handle." 23 HFFA President Lee testified on direct examination that hazardous pay was "[p]robably not" a concern for RIT training.

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at least 10 to 15 years, thus its adoption predated the CBA in

effect at the time of this particular training program's

implementation.

The Board concluded, and HFFA does not contest, that

the training's intensity reflects the serious and occasionally

dangerous nature of fire fighting generally, as well as the need

to prepare fire fighters for those situations.

Furthermore, the Board found, and HFFA does not

challenge, that fire fighters could elect to observe the physical

portions of the training and that these "observers" would still

receive a certificate of completion. The Board determined that

although some injuries were recorded, HFD satisfactorily

addressed the concerns raised in the HIOSH Complaint, the closure

of which HFFA did not appeal, and that there were no reports of

serious injury. The Board thus concluded that there were "no

worker safety issues extant" at the facility where RIT training

took place and there was no showing that OPS personnel would be

subject to any unreasonable risk of harm.

In light of the substantial evidence in the record

supporting the Board's findings regarding the nature of fire

fighter safety and training generally, and specifically as

concerning the RIT program, we conclude that the Board did not

clearly err in determining that HFFA failed to establish that OPS

personnel were subject to any unreasonable risk of harm which

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affected the terms and conditions of their employment and which

would have necessitated bargaining and/or hazard pay.

2. Hours

HFFA next contends that RIT training violated the Hours

of Work provision of the CBA by requiring fire fighters to attend

training on their off days.24 This argument is without merit.

As noted above, Section 48-B of the CBA, "Employer-

Required Training," expressly contemplates that HFD may require

training on employees days off and states that "time spent by

Employees who are required by the Employer to attend training

sessions on their days off shall be considered as time worked."

In addition, Section 21-A of CBA, concerning overtime work,

provides: "Overtime work will occur when an Employee performs

service at the direction of or as scheduled by proper authority

(including while attending training sessions required by the

employer)," and includes work "1. in excess of the normal

scheduled work hours on a day or shift; [and] 2. on the

Employee's scheduled day or shift off and there has been no

permanent change in the Employee's work schedule." Here, there

is no evidence that the RIT training program constitutes a

permanent change in schedule, or that HFD does not have authority

24 Section 20 of the CBA, concerning Hours of Work, states:

In the event the fire chief (employer) desires to change a work schedule, the fire chief (employer) shall notify the union (30) days prior to the tentative implementation date of the anticipated change in order to afford the union an opportunity to negotiate with the employer with reference to said change.

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to direct fire fighters to work overtime as contemplated in

Section 21-A.

To the contrary, the Board found and the record

supports that HFD followed an established method in implementing

the RIT program. Like the FGS training which preceded it, RIT

training was mandatory, requiring a "certificate of completion,"

and included a rigorous field training course which involved

overtime scheduling and permitted fire fighters a choice of three

2-day periods, spread over several months, on which to complete

the training. HFFA did not complain or demand negotiation

regarding the FGS training and on appeal does not challenge the

Board's finding that HFD followed the FGS model in implementing

RIT training.

HFFA thus has not met its "heavy burden of making a

convincing showing that the decision is invalid because it is

unjust and unreasonable in its consequences." Konno, 85 Hawai#i

at 77, 937 P.2d at 413. Therefore, we conclude that the Board

did not clearly err in determining that the practice of requiring

fire fighters to complete training on days off did not affect

their hours, and therefore, that practice was not subject to

mandatory bargaining under HRS § 89-9(a), especially in light of

the fact that off-duty training is expressly allowed in the CBA.

3. Meals

HFFA argues that under CBA Section 30-A, employees

working beyond their normal shift are entitled to "a meal after

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two hours." In pertinent part, Section 30-A provides: "When

required to work beyond the normal work shift with less than one

work shift prior notice, an Employee shall be entitled to a meal

after the first two (2) hours and an additional meal at the end

of each five (5) hours of continuous work thereafter." Special

Notice SN-16-044 was issued on March 1, 2016, and informed fire

fighters that they were to schedule their training session by

March 21, 2016, with mandatory training to begin April 4, 2016.

HFFA produced no evidence that two weeks' notice did not meet the

"one work shift" condition for requiring BU 11 employees to bring

a meal for training scheduled during off days. This argument is

without merit.

4. Trainer Wages

Finally, HFFA contends that the 33 RIT trainers "did

not receive additional pay or compensation for their added

duties." The issue of trainer wages was not raised before the

Board, hence the issue is waived. See HRS § 89-14 (2012)

(providing that the Board has exclusive original jurisdiction

over any controversy concerning prohibited practices); HAR § 12-

42-42(a) & (f) (prohibited practice complaint must be filed

within 90 days of the alleged violation; only one complaint shall

issue arising from a single controversy);25 see also Hawai#i Rules

of Appellate Procedure (HRAP) Rule 28(b)(4)(iii) (appellant shall

25 Although a complaint may be amended in the discretion of the Board prior to the issuance of a final order thereon, pursuant to HAR § 12-42-43, the Complaint herein was not amended to allege trainer wages.

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state "where in the record the alleged error was objected to or

the manner in which the alleged error was brought to the

attention of the court or agency" or the point will be

disregarded); Waikiki Resort Hotel, Inc. v. City & Cty. of

Honolulu, 63 Haw. 222, 250, 624 P.2d 1353, 1372 (1981) ("the

general rule that an appellate court will consider only such

questions as were raised and reserved in the lower court applies

on review by courts of administrative determinations so as to

preclude from consideration questions or issues which were not

raised in administrative proceedings.").

C. Circumvention and Direct Dealing

Lastly, the Union contends that the Circuit Court was

wrong to affirm Decision 482 because HFD violated HRS § 89-

13(a)(1) and (7)26 by circumventing HFFA as the exclusive

bargaining representative of fire fighters and engaging in direct

dealing with employees. HFFA argues on appeal that the

solicitation of fire fighters to serve as instructors for the RIT

training program and to participate in the RIT working group

interfered, restrained, and/or coerced employees in their

exercise of the right to collective bargaining.

26 HRS § 89-13(a)(1) makes it a prohibited practice to wilfully "[i]nterfere, restrain, or coerce any employee in the exercise of any right guaranteed under [HRS Chapter 89]" and HRS § 89-13(a)(7) generally prohibits wilful refusal or failure to comply with Chapter 89.

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First, HFFA's argument that the solicitation of fire

fighters to serve as instructors for the RIT program constituted

circumvention and/or direct dealing was not raised in the

Complaint filed with the Board.27 Instead, the Complaint alleged

that the City failed to properly consult and/or negotiate with

the Union when it issued Special Notice SN-16-044, which gave

notice of the RIT training program, and that the implementation

of the mandatory RIT training without proper consultation

constituted prohibited practices. There were no allegations

before the Board of circumvention or direct dealing concerning

the solicitation of instructors. Thus, this argument was waived.

See HRS § 89-14; HAR §§ 12-42-42 & 12-42-43; see also HRAP Rule

28(b)(4); Waikiki Resort Hotel, Inc., 63 Haw. at 250, 624 P.2d at

1372 (1981).

Similarly, HFFA did not allege in the Complaint that

HFD engaged in unlawful circumvention of the Union or direct

dealing with employees when it asked the Union, in the first

instance at a monthly meeting between HFD and HFFA, to

participate in a working group to look at, inter alia, the

curriculum, schedule, equipment, and safety measures for the RIT

training program. Indeed, there was no allegation of

27 As the City pointed out in its answering briefs in both the primary appeal and this secondary appeal, this issue was raised by HFFA for the first time on appeal to the Circuit Court. HFFA does not point to where in the record any allegation of direct dealing or circumvention of the Union was made. We reject HFFA's assertion that the allegations in the Complaint, none of which assert direct dealing or circumvention of the Union, adequately provided notice to the City or raised such issues for determination by the HLRB.

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circumvention of the Union or direct dealing with employees as to

the RIT working group. While HFFA later pointed to HFD's request

that the Union participate in the RIT working group, it did so in

support of its argument that HFD failed to properly negotiate

and/or consult with the Union concerning the RIT training

program. Thus, we conclude that the argument that HFD

circumvented the Union and/or engaged in direct dealings with

employees was not raised before the Board and this argument is

waived.

V. CONCLUSION

For these reasons, we conclude that the Circuit Court

was not wrong to affirm Decision 482. The Circuit Court's

November 7, 2017 Judgment is affirmed.

DATED: Honolulu, Hawai#i, August 31, 2021.

On the briefs: /s/ Lisa M. Ginoza Herbert R. Takahashi, Chief Judge Rebecca L. Covert, (Takahashi and Covert), /s/ Katherine G. Leonard for Complainant-Appellant- Associate Judge Appellant. /s/ Karen T. Nakasone Amanda Furman, Associate Judge Ernest H. Nomura, Gabriele V. Provenza, Deputies Corporation Counsel, City and County of Honolulu, for Respondents-Appellees- Appellees.