Plaintiff-appellant/cross-appellee Nicanor E. Casumpang, Jr. and defendant-appellee/cross-appellant International Longshore and Warehouse Union, Local 142 [hereinafter, the union or ILWU], respectively, appeal and cross-appeal from the District Court of the Second Circuit's (1) July 19, 2001 findings of fact (FOFs), conclusions of law (COLs), and Order dismissing (1) Casumpang's complaint in assumpsit for unused vacation pay against ILWU and (2) ILWU's counterclaim to enforce a fine issued by ILWU's Judicial Panel against Casumpang. On appeal, Casumpang contends that the district court erred in dismissing his complaint inasmuch as (1) the court's finding that ILWU had no policies permitting payment for unused vacation was clearly erroneous and (2) the court's conclusion that the definition of "wages" in Hawai‘i Revised Statutes (HRS) § 388-1 (1993) did not include payment for unused vacation constituted an error of law. As discussed more fully in Section III.A., infra, we hold that the district court did not err in dismissing Casumpang's complaint because (1) the policy allegedly allowing the payment of unused vacation was not introduced at trial and (2) "wages," as defined in HRS § 388-1, does not include vacation pay.
In its cross appeal, ILWU contends that the district court erred in dismissing its counterclaim based on its conclusion that it was not obligated to enforce a fine levied by the Judicial Panel against Casumpang. Specifically, ILWU avers that the district court's conclusion was based on an erroneous determination that the union's constitution did not permit the Judicial Panel to impose fines on its members or officers for violating the provisions of the ILWU constitution. For the reasons discussed in Section III.B., infra, we hold that, contrary to the district court's conclusions, the ILWU constitution and bylaws permitted the imposition of a fine against Casumpang. We agree with the district court's determination that the fine was reasonable.
Accordingly, we affirm the district court's dismissal of Casumpang's claim and vacate its dismissal of ILWU's counterclaim. We remand this case to the district court with instructions to enter judgment in favor of ILWU and against Casumpang in the amount of $7,636.
I. BACKGROUND
During the 1980's, Casumpang became a member of ILWU by virtue of his employment as an electrician with the Hawaiian Commercial Sugar Company, whose employees were represented by ILWU. On or about February 3, 1993, Casumpang was employed as a full-time official, i.e., division representative, of the ILWU Local 142. In late 1994, Casumpang was elected to serve a three-year term, from January 2, 1995 to December 31, 1997, as an ILWU business agent. Business agents are full-time union officers who are responsible for negotiating collective bargaining agreements, processing grievances, and providing various educational, training, and membership services for members.
A. Casumpang's Claim
The position description for business agents provided for an annual salary of $42,780 per year plus personal, automobile, and travel allowances, resulting in a total annual compensation of $50,050.12. Additionally, the position description provided for, inter alia, "4 weeks of vacation after one year of service."
Although Casumpang's term of office was scheduled to terminate on December 31, 1997, ILWU extended his employment until January 19, 1998, pending the outcome of a contested union election, in which Casumpang was a candidate, and the results of internal disciplinary proceedings that were initiated against him. Casumpang's last day of work as a business agent was January 17, 1998, and he was officially separated from employment with ILWU on January 19, 1998.
On March 20, 1998, Casumpang submitted a written request for twenty-four days of unused vacation leave that he failed to use prior to his separation from the union. ILWU's secretary-treasurer denied this request on the ground that Casumpang was no longer an employee of ILWU. On April 27, 1998, Casumpang filed a complaint with the enforcement division of the Department of Labor and Industrial Relations (DLIR) for unpaid "wages" under HRS Chapter 388. However, on May 19, 1998, the DLIR informed Casumpang that he was exempt from the DLIR's services under HRS § 388-11(b) (Supp. 1999) due to his status as a union business agent. (2) Casumpang did not appeal the DLIR's decision.
On October 13, 1998, Casumpang filed a complaint in the district court against ILWU for $5,688.24, the amount he claimed ILWU was contractually obligated to compensate him for his twenty-four days of unused vacation. On July 12, 1999, the district court dismissed Casumpang's complaint for lack of subject matter jurisdiction. Casumpang appealed the dismissal, and this court reversed and remanded the case in Casumpang v. ILWU Local 142, 94 Hawai‘i 330, 13 P.3d 1235 (2000). Following a bench trial on June 25, 2001, the district court entered FOFs, COLs, and an Order, dismissing Casumpang's complaint on July 19, 2001. Therein, the district court concluded:
Conclusions of Law
. . . .
3. Casumpang has "fashioned his claim for relief as one in assumpsit for $5,688.24 allegedly owed him by the union as vacation pay." Casumpang v. ILWU Local 142, 9[4] Hawai‘i 330, 335, 13 P.3d 1235 (2000).
4. A claim for assumpsit is a common law form of action which allows for the recovery of damages for non-performance of a contract, either express or implied, written or verbal. Helfand v. Gerson, 105 F.3d 530 (9th Cir. 1997); Forbes v. Hawaii Culinary Corp., 85 Hawai‘i 501, 507-08, 946 P.2d 609 (App. 1997); Shulz v. Honsador, 67 Haw. 433, 435, 690 P.2d 279, 281 (1984).
5. It has long been recognized under Hawai‘i law that an employee is not entitled to "pay" for vacation benefits which are unused during the period of employment, unless there is an express policy (or contractual obligation) to the contrary. Lim v. Motor Supply, Ltd., 45 Haw. 111, 122, 365 P.2d 38, 44-45, reh'g denied, 45 Haw. 198, 364 P.2d 38 (1961). Other state courts have also held that absent a contract which requires an employer to pay for unused vacation at the time of separation or termination, an employer is not obligated to pay for such a claim as "wages." Kafka v. State of Illinois, 1982 WL 43377 (Ill. Ct. Cl. 1982) (finding under terms of employment discharged employee not entitled to pay in lieu of unused vacation); New Mexico State Labor & Indus. Comm'n v. Tolman v. Deming Nat'l Bank, 634 P.2d 695 (N.M. 1981) (finding employer's failure to pay out resigning employee's unused vacation pay was not contrary to public policy); Phillips v. Memphis Furniture Mfg. Co., 573 S.W.2d 493 (Tenn. App. 1978) (finding that a vacation with pay contemplates employment at the time of the vacation); see also 53 Am.Jur.2d Master and Servant § 80 (1970) (finding any right to pay in lieu of vacation is dependant on terms of the employment).
6. Section 388-1, HRS, does not specifically include within the definition of "wages" unused vacation leave following separation or termination from employment.
7. In this case since Casumpang has failed to establish any proof that ILWU Local 142 has a written or oral policy, house rule, convention resolution or practice which affords to its employees the right to convert unused vacation leave benefits at the time of separation or termination from employment into "pay," he fails to state a claim for relief in "assumpsit" or a claim for unpaid wages under chapter 388, HRS.
Casumpang subsequently filed his notice of appeal, which, although premature, was deemed timely filed on September 21, 2001. (3)
On August 27, 2001, Casumpang filed a motion for relief under Rule 60(b) of the District Court Rules of Civil Procedure (DCRCP) (4) from the July 19, 2001 order on the ground that ILWU failed to produce at trial a 1997 vacation policy that would afford him compensation. The district court granted the motion on October 19, 2001. (5) Subsequently, Casumpang moved to dismiss this appeal and ILWU's cross appeal, discussed infra, for lack of jurisdiction, arguing that the July 19, 2001 order is no longer final and appealable because of the October 19, 2001 order granting him relief. This court denied Casumpang's motion to dismiss on December 5, 2001.
B. ILWU's Counterclaim
On April 2, 1996, members of ILWU filed written charges against Casumpang for allegedly violating Article II, section 1 of ILWU's Constitution (6) by engaging in electrical contractor work while serving as a full-time union official. (7) Article II, section 1 provides in pertinent part that "[e]lected and appointed full-time officials of the [union], while on the [union] payroll, shall not be permitted to hold any other gainful position unless authorized by the Executive Committee with the approval of the Local Executive Board." The intent and purpose of Article II, section 1 is4. The parties stipulated that Brother Casumpang while engaged in a gainful position did not comply with Article II, section 1 of the ILWU Local 142 Constitution; he did not have authorization by the Local Executive Committee with the approval of the Local Executive Board.
5. The parties stipulate that Brother Casumpang did not act intentionally to violate Article II, Section 1 of the Constitution when he was engaged in a gainful position; however, his ignorance does not excuse that he was in fact guilty of violating Article II, Section 1 of the Constitution when he held a gainful position while employed as a full-time elected official of the Union.
Having now considered the facts as stipulated above, the Trial Committee makes the following determination of guilt and fixing of remedy:
1. Brother Casumpang is guilty of violating Article II, Section 1 of the ILWU Local 142 Constitution.
2. As of April 18, 1996, Brother Casumpang shall cease and desist from his activity as an electrical contractor;
3. That prior to engaging in any
future "gainful position" as an electrical contractor, Brother
Casumpang shall seek and secure prior authorization from the Local
Executive Committee [(LEC)]
and approval from the Local Executive Board [(LEB)]pursuant to Article
II, Section 1 of the Constitution.[ (9)]
Id.
On January 7, 1998, members of ILWU again filed written charges against Casumpang, alleging, inter alia, that Casumpang had violated Article II, section 1 of the union's constitution as well as the Trial Committee's cease and desist order. Specifically, the charges alleged that Casumpang had continued to engage in electrical contracting duties on ten separate occasions since May 6, 1996. (10) On the same day, Casumpang was provided written notice of the charges and that a hearing and trial before ILWU's Judicial Panel (11) was scheduled for January 16, 1998.
During Casumpang's trial, all parties were afforded a full and fair opportunity to call their own witnesses, cross examine opposing witnesses, and present documentary and other evidence. At no time during the hearing did any party challenge any of the five members of the Judicial Panel on grounds of bias or prejudice.
On January 17, 1998, the
Judicial Panel entered a written decision and order pursuant to section
27.10 of the union's constitution. (12) According to the order,
the Judicial Panel determined that Casumpang knowingly and deliberately
violated Article II, section 1 of ILWU's constitution as well as the
Trial Committee's
April 16, 1996 cease and desist order on nine of the ten separate
occasions. (13)
The Judicial Panel found that Casumpang's 1996 general excise tax
returns
showed $7,636 in income from "contracting" activities. The Judicial
Panel also found that Casumpang's sole proprietorship, Sea Breeze
Electric, reported
gross receipts of $16,760.60 for 1995 and 1996. As such, the Judicial
Panel issued the following "punishment and order:"
1. Effective June 14, 1996[,] Casumpang is suspended as a member in good standing of ILWU Local 142 for a period of (9) consecutive years.
2. During the period of his suspension as a member in good standing of ILWU Local 142 (a period of 9 years)[,] Casumpang shall neither be eligible for nomination nor serve as an officer of ILWU Local 142 or as an officer or steward of any of the units of ILWU Local 142.
3. Effective January 7, 1998, Casumpang shall receive no further compensation as a business agent and Casumpang is hereby ordered to turn in all union office keys and all papers and property of the union on January 19, 1998 at 12:00 noon to the Secretary Treasurer of the union, or his designee.
4. Effective the date of this Decision and Order and continuing up to June 14, 2005[,] Casumpang shall not be permitted to serve in any appointed full-time position in ILWU Local 142.
5. Within 60 days of the date of this Decision and Order Casumpang shall pay a fine of $7,636 to ILWU Local 142.
(Emphasis added.)
On January 23, 1998,
Casumpang filed an appeal from the decision and order of the Judicial
Panel to the LEB. After a hearing on March 19, 1998, the LEB
affirmed the Judicial Panel's January 17, 1998 order. On April 18,
1998, Casumpang declined to pay the fine imposed by the Judicial Panel
and filed an appeal
to the International Union. The appeal was denied on July 1, 1998 for
failure to exhaust ILWU Local 142 remedies and for untimeliness.
9. A labor organization has significant latitude in interpreting and applying its constitution and by-laws to its members and the Court defers to the interpretation and application of Article II, Section I of the ILWU Local 142 to Casumpang in connection with his suspension as an officer and member of the union by decision and order of the Judicial Panel dated January 17, 1998 and the decision and order of the Local Executive Board dated March 19, 1998, for violations of the union constitution on and after April 16, 1999 by Casumpang while serving as a business agent. See Fulk v. United Transportation Union, 160 F.3d 405 ([7th Cir.] 1998) (court defers to union's interpretation of its own constitution so long as the interpretation is not unreasonable); Akins v. Zeneca[,] Inc., 62 F.3d 1417 ([6th Cir.] 1995) (the court must "defer to union's interpretation of its own constitution," provided it is not unreasonable); Al[len] v. United Transportation Union, 964 F.2d 818 ([8th Cir.] 1992) (absent bad faith, we will defer to the union's interpretation of its own constitution).
10. The Court concludes, however, that absent a specific reference in the union constitution which authorizes the imposition of a "fine" by the Judicial Panel, it will not enforce the $7,636 fine imposed on January 17, 1998 by the Judicial Panel.
On July 27, 2001, ILWU
moved to amend the July 19, 2001 order pursuant to DCRCP Rule 52 (1996). (14) The district court granted the
motion and amended
its order on September 21, 2001 to include a finding that ILWU's fine,
although unenforceable, was reasonable. (15)
ILWU filed its timely notice of cross appeal
from the July 19, 2001 order dismissing its counterclaim on August 23,
2001. II. STANDARDS OF REVIEW A. Findings of Fact and Conclusions
of Law
In this jurisdiction, a trial court's [findings of fact (FOFs)] are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed.
A [conclusion of law (COL)] is not binding upon an appellate court and is freely reviewable for its correctness. This court ordinarily reviews COLs under the right/wrong standard. Thus, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned. However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependant upon the facts and circumstances of each individual case.
Allstate Ins. Co. v. Ponce,
105 Hawai‘i 445, 453, 99 P.3d 96, 104 (2004) (citations, quotation
marks, and brackets omitted).
B. Statutory Interpretation
"Questions of statutory
interpretation are questions of law to be reviewed de novo under the right/wrong
standard." Guth v. Freeland,
96 Hawai‘i 147, 149-50,
28 P.3d 982, 984-85 (2001) (citations omitted).
C. Interpretation of a Contract
"As a general rule, the
construction and legal effect to be given a contract is a question of
law freely reviewable by an appellate court." See Cho Mark Oriental
Food, Ltd. v. K & K Int'l, 73 Haw. 509, 519, 836 P.2d 1057,
1063 (1992) (citing Stewart
v. Brennan, 7 Haw. App. 136, 142, 748 P.2d 816, 821 (1988)
(citations omitted)). III. DISCUSSION A. Dismissal of Casumpang's Complaint 1. Express Policy Casumpang contends that
the district court erred in dismissing his complaint inasmuch as the
court's finding that ILWU had "no written or oral policy, house
rule, or convention resolution which affords an employee the right to
convert unused vacation leave benefits at the time of separation or
termination from
employment into 'pay,'" FOF no. 12, was clearly erroneous.
Specifically, Casumpang asserts that the policies adopted at ILWU's
September 1997 Convention
[hereinafter, convention policies] expressly provided for such payment.
HRS § 641-2
(1993) provides in pertinent part that "[e]very appeal should be taken
on the record and no new evidence shall be introduced in the supreme
court." This court cannot, therefore, consider "matters outside the
record which could not have been considered by the trial court at the
time its judgment was
rendered." City & County
of Honolulu v. Toyama, 61 Haw. 156, 158 n.1, 598 P.2d 168, 171
n.1 (1979); see also Pickering v. State, 57 Haw.
405, 409, 557
P.2d 125, 128 (1976). Jurisdiction lies in this court while an appeal
is pending, and a motion under Rule 60(b) may be made in the circuit
court without a
remand of the case. See
Life of the Land v. Ariyoshi,
57 Haw. 249, 252, 553 P.2d 464, 466 (1976). However, "[i]n the event
that the circuit court determines
that the motion should be granted, it should so certify and a motion to
remand should be made in this court." Id. In the instant case,
Casumpang failed to present the convention policies to the district
court during trial or at any time before the court issued its July 19,
2001
order dismissing his complaint. Rather, Casumpang presented the
convention policies in support of his DCRCP Rule 60(b) motion to the
district court on
August 27, 2001. The district court granted the motion on October 19,
2001, despite the fact that Casumpang had already filed his notice of
appeal and without
a motion for remand in this court. Thus, as previously noted, see supra note 5, the Rule
60(b) motion and the order granting it have no effect on this appeal.
Because the convention policies were not considered by the district
court at the time judgment was rendered, nor was it properly introduced
into the record, this
court cannot consider them. Accordingly, we affirm the trial court's
finding that ILWU did not have an express policy permitting payment for
unused vacation. 2. HRS
§ 388-3 Casumpang next contends
that the district court erred in dismissing his complaint inasmuch as
the court improperly concluded that payment for unused
vacation is not included within the definition of "wages" as defined by
HRS § 388-1. "[W]here the statutory
language is plain and unambiguous, our sole duty is to give effect to
its plain and obvious meaning." Schefke v. Reliable Collection
Agency, Ltd., 96 Hawai‘i 408, 424, 32 P.3d 52, 68 (2001)
(quoting State v. Kalama,
94 Hawai‘i 60, 64, 8 P.3d 1224, 1228 (2000) (internal quotation marks
and
citation omitted)). In doing so, this court has noted that:
Korean Buddhist Dae Won Sa Temple
of Hawai‘i v. Sullivan, 87 Hawai‘i 217, 229-30, 953 P.2d 1315,
1327-28 (1998) (quoting Gray
v. Admin. Dir. of the
Court, 84 Hawai‘i 138, 148, 931 P.2d 580, 590 (1997)). HRS
§ 388-3 (1993) provides in pertinent part that, "[w]henever
an employer discharges an employee
either with or without cause, the employer shall pay the employee's wages in full at the time
of discharge[.]" (Emphasis added.) Under HRS § 388-1, "wages"
are defined as
Nowhere in HRS
§ 388-3 or in the definition quoted above is "vacation pay"
mentioned. However, examining other sections of chapter 388 may aid in
determining the definition of "wages" inasmuch as "[l]aws in pari materia, or upon the same
subject matter, shall be construed with reference to each other." HRS
§ 1-16 (1993); Zator
v. State Farm Mut. Auto Ins. Co., 69 Haw. 594, 597, 752 P.2d
1073, 1075 (1988). In so doing, we are mindful that "[o]ne provision
of a comprehensive statute should be read in the context of the other
provisions of that statute and in the light of the general legislative
scheme." Yamaguchi v.
State Farm Mut. Auto. Ins. Co., 706 F.2d 940, 948 n.11 (9th Cir.
1983) (citing Hudson v.
Uwekoolani, 65 Haw. 468, 471, 653 P.2d 783, 786 (1982) (per
curiam); State v. Kaneakua,
61 Haw. 136, 140, 597 P.2d 590, 592 (1979); Pacific Ins. Co. v. Oregon Auto.
Ins. Co., 53 Haw. 208, 212, 490 P.2d 899, 902
(1971)). And, if possible, a statute should be construed in such a way
that no word is void, superfluous or insignificant in light of the
presumption that "words
used in two or more sections of [the same] statute are presumed to be
used in the same sense throughout the statute[.]" Yamaguchi, 706 F.2d at 947
(citing
Rodrigues v. State, 52
Haw. 156, 168, 472 P.2d 509, 518 (1970); In re City & County of
Honolulu Corp. Counsel, 54 Haw. 356, 373, 507 P.2d 169, 178
(1973)).
In examining chapter
388, we note that HRS § 388-4 states: "Where an employee dies
leaving any wages, vacation,
or sick leave pay due to the employee, the
employer shall . . . pay the wages, vacation, or sick leave pay
[to the surviving spouse or adult child]." (Emphases added.) "Vacation"
and "sick leave" pay are
mentioned separately elsewhere in the chapter, and "wages" alone is
mentioned throughout the remaining provisions. Therefore, in construing
HRS § 388-3 in
the context of the entire statute and HRS § 388-4 in
particular, it appears that the legislature intended "wages" to be
distinct from "vacation pay." Moreover,
there is nothing to indicate that the legislature intended to include
"vacation pay" under "wages," and thereby supersede the common law.
The common law rule
regarding payment for unused vacation was stated in Lim v. Motor Supply, Ltd.,
45 Haw. 111, 364 P.2d 38, reh'g
denied, 45 Haw. 198,
364 P.2d 38 (1961), wherein this court held that, absent an express
agreement or uniform custom, an employee is not entitled to payment for
unused vacation
following separation from employment. Id. at 121-22, 364 P.2d at
44. Two years later, HRS chapter 388 was enacted. Conspicuously absent
from the
definition of "wages" in HRS 388-1 is any reference to "vacation pay,"
which we believe indicates the legislature's intent to leave the common
law intact. See
Burns Int'l Sec. Serv., Inc.
v. Dep't of Transp., 66 Haw. 607, 611, 671 P.2d 446, 449 (1983)
(noting that the common law will be followed where it does not
appear that the legislature's purpose is to supersede such law).
Therefore, in reading HRS § 388-3 in the context of the
entire statute and in light of the
common law, we hold that the district court did not err in concluding
that payment for unused vacation upon separation from employment does
not constitute
"wages" under the plain meaning of HRS § 388-1. Accordingly,
we affirm the district court's dismissal of Casumpang's complaint for
failure to state a claim.
B. Dismissal of ILWU's Counterclaim
ILWU asserts that the
district court improperly concluded that it was not obligated to
enforce the fine levied against Casumpang by the Judicial Panel
inasmuch
as the district court's conclusion was based on its erroneous
determination that the union's constitution did not permit the Judicial
Panel to impose fines on its
members or officers for violating the constitution's provisions. As
such, ILWU requests that this court vacate the district court's
dismissal of its counterclaim
and, upon remand, require the court to enforce the fine.
1. The District
Court's Finding that the ILWU Constitution did not Permit the Judicial
Panel to Impose Fines
ILWU contends that the
district court erred by refusing to defer to the Judicial Panel's good
faith and reasonable interpretation of the union's constitution and
bylaws. It is well established that
Martinez v. Parado, 35 Haw.
149, 153 (1939) (citation and quotation marks omitted) (emphases
added). However, "[c]ourts are reluctant to substitute their
judgment for that of union officials in the interpretation of the
union's constitution, and will interfere only where the official's
interpretation is not fair or
reasonable." Stelling v.
Int'l Bhd. of Elec. Workers, 587 F.2d 1379, 1388 (9th Cir. 1978)
(quoting Vestal v. Hoffa,
451 F.2d 706, 709 (6th Cir. 1971)); see also
Busch v. Givens, 627
F.2d 978, 981 (9th Cir. 1980); Gordon v. Laborers' Int'l Union,
490 F.2d 133, 137 (10th Cir. 1973).
As previously indicated,
Casumpang was charged with multiple violations of the April 16, 1996
cease and desist order, issued as a result of Casumpang's
violation of Article II, section 1 of the ILWU's constitution. The
ILWU's constitution refers specifically to "fines" in sections 25.01, (17) 26.01, (18)
and 26.02. (19) None of the remaining
sections of the constitution specifically single out "fines" or
establish the manner in which they may be imposed. Rather, section
27.10.3, which is the only section authorizing the imposition of
punishment, provides the Judicial Panel with the general power to "fix
punishment" when it
finds an officer or member guilty of violating any section of the
constitution.
According to Black's Law
Dictionary (6th ed. 1990), a "fine" is "a pecuniary punishment or
penalty[.]" Additionally, section 3 of ILWU's bylaws states that
"[a]ny member refusing to obey the Constitution may be fined, suspended
or expelled as the [union] may determine. Any member refusing to obey
the
Bylaws . . . and orders of the Local may be fined,
suspended or expelled[.]" Thus, inasmuch as: (1) ILWU's constitution
refers to fines; (2) a fine constitutes
punishment; (3) the Judicial Panel had the authority to "fix
punishment"; and (4) the bylaws expressly authorize the imposition of a
fine for refusing to obey the
Constitution, Bylaws, or orders, the Judicial Panel's determination
that it had the authority to impose fines under the union constitution
and bylaws was fair and
reasonable. Therefore, the district court erred by interfering with the
Judicial Panel's interpretation of the ILWU constitution and bylaws.
Accordingly, we
hold that the district court's conclusion that ILWU's constitution did
not permit the Judicial Panel to impose fines was clearly erroneous.
2.
Enforcement of the Fine Assessed by the Judicial Panel Against Casumpang
Given that the Judicial
Panel was authorized to impose fines under ILWU's constitution, we now
turn to the question whether the district court was obligated to
enforce the fine assessed by the Judicial Panel against Casumpang.
Casumpang contends that, in imposing the fine, the Judicial Panel
denied him procedural,
as well as substantive, due process inasmuch as (1) the proceedings
that resulted in his nine-year suspension and $7,636.00 fine were
improper, and (2) the trial
court's determination that he received a "full and fair opportunity to
be heard was in error."
a. due process As previously stated,
where a union seeks to take disciplinary action against a member, it
must first provide the member with due process. See Jackson, 516
P.2d at 532; Jost, 91
Cal. Rptr. at 725. This court has said that "[d]ue process is not a
fixed concept requiring a specific procedural course in every
situation. Rather, due process is flexible and calls for such
procedural protections as the particular situation demands[]" and that
"[t]he basic elements of procedural due
process of law require notice and an opportunity to be heard at a
meaningful time and in a meaningful manner." Troyer v. Adams, 102
Hawai‘i 399, 433-34, 77
P.3d 83, 117-18 (2003) (citations omitted). Further, the
Labor-Management Reporting and Disclosure Act (LMRDA) provides the
means for ensuring due
process such that union members and officers are protected against
discipline that affects their rights as union members.
(20) See Grand Lodge of Int'l Ass'n of
Machinists v. King, 335 F.2d 340 (9th Cir. 1964). LMRDA
§ 411(a)(5) provides:
[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. The written charges must be specific enough to inform the member of the offense allegedly committed.
See Int'l Bhd. of Boilermakers v.
Hardeman, 401 U.S. 233, 235, 245 (1971) (emphasis added). With
respect to LMRDA § 411(a)(5)(C), the court in Hardeman noted:
401 U.S. at 245-46
(emphases added) (some citations and footnotes omitted). See also Charron v. Am. Fed. of State,
County and Mun. Employees Union, 470
F.2d 156, 157 (6th Cir. 1972) ("We are required only to determine
whether there was 'some evidence' offered by the Union to support the
finding of guilt on
some or all of the charges against appellant Charron in the
disciplinary hearing.") (Citing Hardeman, 401 U.S. 233; Lewis v. AFSCME, 407 F.2d
1185 (3rd
Cir. 1969); Burke v. Int'l
Bhd. of Boilermakers, 417 F.2d 1063 (9th Cir. 1969)). In the instant case,
ILWU provided Casumpang with adequate notice when it advised him, in
writing, on January 7, 1998 that charges for "various violations of
the Constitution and violations of a Maui Division Trial Committee
'Determination and Order' dated April 16, 1996," were filed against him.
The notice also
informed him of a scheduled hearing and trial to be held on January 16,
1998 and included a copy of the charges. The written charges,
therefore, constituted
adequate notice to inform Casumpang of the alleged offenses. Second, the requirement
of reasonable time to prepare a defense was also satisfied. The
investigation of Casumpang's activities as an electrical contractor
began two years earlier in 1996 when the first charges were filed
against him for the same violations. Despite the Trial Committee's
cease and desist order,
Casumpang continued his electrical contracting activities. On December
23, 1997, ILWU requested information from Casumpang regarding his
electrical
contracting activities for its "Investigation of Gainful Position";
written charges were filed on January 7, 1998, with a hearing held on
January 16, 1998. Casumpang, who was involved for nearly two years in
an ongoing dispute with the union regarding his electrical contracting
activities and who had been issued
a cease and desist order, had adequate time to prepare a defense to the
charges against him. Finally, Casumpang was
afforded a full and fair hearing. At the trial before the Judicial
Panel, the union and Casumpang each called six witnesses, and both
sides offered exhibits into evidence. The district court found that
"[a]ll parties were afforded a full and fair opportunity to call and to
question witnesses and to
present documentary and other evidence." Moreover, at no time did
Casumpang challenge any of the panel members on grounds of bias or
prejudice, nor did
he request a continuance of the hearing or trial. Thus, we agree with
the district court's finding that Casumpang was afforded a full and
fair hearing. FOF no.
30. Consequently, we hold that the district court did not err in
concluding that Casumpang was provided adequate due process. b. reasonableness of the fine In amending its July 19,
2001 Order, the district court determined that the $7,636 fine imposed
on Casumpang was reasonable. Casumpang contends that the
district court erred in its determination because the fine was
unreasonably high. The United States
Supreme Court has acknowledged the role of the state courts in
determining the reasonableness of union fines, stating that "our review
of
state court cases decided both before and after our decisions in Allis-Chalmers and Scofield reveals that state
courts applying state law are quite willing to
determine whether disciplinary fines are reasonable in amount." NLRB v. Boeing Co., 412
U.S. at 76-77. This court has noted that reasonableness is generally
a question of fact. AMFAC,
Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d
10, 24 (1992). We, therefore, review the district court's
determination that the fine imposed on Casumpang was reasonable for
clear error. In evaluating the reasonableness of a fine imposed by a
union, the court in
Smith stated that:
IV. CONCLUSION
For the foregoing reasons, we affirm in part the district court's July 19, 2001 FOFs, COLs, and Order to the extent that it dismissed Casumpang's claim. In light of our conclusions that the ILWU's fine was permitted by its constitution and bylaws and that due process and reasonableness requirements have been met, we vacate in part the July 19, 2001 Order to the extent that it dismissed ILWU's counterclaim and remand this case to the district court for entry of judgment in favor of ILWU and against Casumpang in the amount of $7,636.00.
On the briefs:
1. The Honorable Douglas H. Ige presided over
the matters pertinent to this appeal.
2. HRS § 388-11 provides in pertinent
part:
4. DCRCP Rule 60(b) states in pertinent part:
6. During Casumpang's term of office, ILWU's
constitution was amended. Although there are no material differences
between the former and amended
provisions that apply in the instant case, Casumpang was charged and
adjudicated under provisions of both versions. Thus, for the sake of
clarity, any
references to the former constitution will be cited by its specific
number (e.g., section
2.01); references to the amended constitution will be cited by its
article
and section designation (e.g.,
Article II, section 1). 7. The April 2, 1996 written charges stated, inter alia:
12. On or about February 19, 1996[,] the Titled Officers requested [Casumpang] to provide within five days all business and tax records of his contracting business for the years 1994 to 1995 and to disclose his earnings from said engagements. [Casumpang] failed to provide the requested information to the Titled Officers.
8. The Trial Committee was composed of five
union members in good standing and was responsible for hearing all
charges against union officers and members
for violations of ILWU's constitution and bylaws.
9. On April 22, 1996, Casumpang submitted a
request to the LEC for authorization to "conduct an electrical
contracting business" while employed with the
union; however, on June 4, 1996, the LEC denied his request pursuant to
Article II, Section 1 of the ILWU's constitution.
10. The written charges alleged that:
. . . .
11. Pursuant to section 28.01 of ILWU's
constitution, the Trial Committee was renamed the Judicial Panel.
12. Section 27.10 provides that, following a
trial,
13. The written decision and order of the Judicial Panel contained the following relevant findings of fact (FOF):
8. Casumpang reported receipt of gross revenues as the owner and operator of Sea Breeze Electric for each year commencing in 1994 as follows:
. . . .
22. Casumpang reported receipt of gross revenues as the owner and operator of Sea Breeze Electric for 1996 as follows:
b. It is also noteworthy that
the charging parties [(i.e.,
the union)] have alleged violations by Casumpang for activities after April 18, 1996 [(the
effective date of
the first cease and desist order)].
14. DCRCP Rule 52 provides in pertinent part:
(b) Motion, when to be made. Upon motion of a party made not later than 10 days after entry of judgment, or upon the hearing of a motion hereunder made by any party, the court may . . . make additional findings, and may amend the judgment accordingly[.]
15. We note that, although the order amending
the July 19, 2001 order was entered subsequent to ILWU's notice of
cross-appeal, the district court retained
jurisdiction to amend the July 19, 2001 order inasmuch as ILWU filed
its motion to amend on July 27, 2001, within ten days of the court's
entry of the order. See
supra note 4.
16. The facts are undisputed that ILWU is an
unincorporated labor organization.
17. Section 25.01 provides in pertinent part
that "[t]he income of this [union] shall be derived from dues, fines,
assessments, interests on monies in banks and
other financial institutions, and any other legal source."
18. Section 26.01 provides in pertinent part
that "[a] member who is delinquent two (2) months or more
in . . . fines or assessments shall stand suspended from
all union activities and shall be referred to [union] counsel for
appropriate legal action[.]"
19. Section 26.02 provides in pertinent part
that, "[a] member who is delinquent two (2) months or more in dues,
fines or assessments shall stand suspended
from all union activities and shall be referred to Local counsel for
appropriate legal action upon issuance of a thirty (30) day written
notice of delinquency and
an opportunity to be current."
20. In Snyder v. Freight, Const., General
Drivers, Warehousemen and Helpers, 175 F.3d 680 (9th Cir. 1999),
the court noted that: