Petition for Writ of Certiorari — Valerie Asato, Petitioner v. Hawaii Government Employees Association, et al.

Supreme Court briefOct 16, 2025

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No. 25In the

Supreme Court of the United States

VALERIE ASATO,

Petitioner,

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION AND DEPARTMENT

OF EDUCATION, STATE OF HAWAII,

Respondents.

On Petition for a Writ of Certiorari to the

Intermediate Court of A ppeals of the State of Hawaii

PETITION FOR A WRIT OF CERTIORARI

Shawn A. Luiz

Counsel of Record

733 Bishop Street

Suite 1280

Honolulu, HI 96813

(808) 538-0500

attorneyluiz@gmail.com

Counsel for Petitioner

120719

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

W hether the Hawaii Government Employees

Association (“HGEA”) breached its duty of fair

representation under federal and state labor law by

engaging in arbitrary, discriminatory, retaliatory, and

bad-faith conduct during the grievance and arbitration

process, including hostile actions against Petitioner

for filing a prior prohibited practice complaint.

W hether the State of Hawaii Depar tment of

Education (“DOE”) violated the Fourth Amendment

to the United States Constitution and Article I,

Section 7 of the Hawaii Constitution by relying on

evidence obtained through an unconstitutional and

unauthorized search of Petitioner’s work computer

to justify her termination.

Whether the Hawaii Labor Relations Board, the

Circuit Court of the First Circuit, and the Intermediate

Court of Appeals erred in dismissing Petitioner’s

claims without addressing the constitutional violations

and procedural errors central to this case, as required

by Haw. Rev. Stat. § 91-14(g)(1).

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner:

Valerie Asato, a former Office Assistant III employed by

the Department of Education, State of Hawaii.

Respondents:

Hawaii Government Employees Association (HGEA),

the exclusive bargaining representative for Bargaining

Unit 3 employees.

Department of Education, State of Hawaii (DOE), the

petitioner’s former employer.

iii

RELATED CASES

The following proceedings are directly related to this case:

Supreme Court of the State of Hawaii. Order

Rejecting Application for Writ of Certiorari to the

Intermediate Court of Appeals of the State of Hawaii,

dated July 18, 2025. The order is unreported and is

reproduced in the Appendix at Appendix F.

Intermediate Court of Appeals of the State of

Hawaii. Memorandum Opinion, dated February 14,

2025, affirming the judgment of the Circuit Court of

the First Circuit. The opinion is unpublished and is

reproduced in the Appendix at Appendix A.

Intermediate Court of Appeals of the State of

Hawaii. Judgment on Appeal, dated March 18, 2025.

The judgment is reproduced in the Appendix at

Appendix B.

Circuit Court of the First Circuit, State of Hawaii.

Findings of Fact, Conclusions of Law, and Order

Denying Appellant Valerie Asato’s Agency Appeal,

dated April 18, 2022. The order is reproduced in the

Appendix at Appendix C.

Circuit Court of the First Circuit, State of Hawaii.

Final Judgment, dated May 13, 2022. The judgment

is reproduced in the Appendix at Appendix D.

Hawaii Labor Relations Board. Findings of Fact,

Conclusions of Law, Decision and Order, dated May

5, 2021. The decision is reproduced in the Appendix

at Appendix E.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES TO THE PROCEEDINGS . . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . 2

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . 4

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . 5

REA S ONS W H Y T H E QU EST IONS

PRESENTED ARE IMPORTANT . . . . . . . . . . . . 5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 7

Table of Contents

Page

Factual Background . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 8

REASONS FOR GRANTING THE WRIT . . . . . . . . . 10

The DOE’s Reliance on Evidence from an

Unconstitutional Search Presents a Critical

Fourth Amendment Question of National

Importance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. The Lower Courts’ Refusal to Address the

Constitutional Claims Conflicts with Statutory

Mandates and Due Process Principles . . . . . . . 12

III. HGEA’s Conduct Breached Its Duty of Fair

Representation Under Federal Labor Law

Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

IV. The Questions Presented Have Broad

National Significance . . . . . . . . . . . . . . . . . . . . 15

This Case Presents an Important Question

Warranting Supreme Court Review . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OPINION

OF THE INTERMEDIATE COURT OF

APPEALS OF THE STATE OF HAWAI’I,

FILED FEBRUARY 14, 2025 . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — JUDGMENT ON APPEAL

OF THE INTERMEDIATE COURT OF

APPEALS OF THE STATE OF HAWAI‘I,

FILED MARCH 18, 2025 . . . . . . . . . . . . . . . . . . . . 26a

A PPENDI X C — FINDING S OF FACT,

CONCLUSIONS OF LAW, AND ORDER OF

THE CIRCUIT COURT OF THE FIRST

CIRCUIT STATE OF HAWAII, FILED

JUNE 4, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28a

APPENDIX D — FINAL JUDGMENT OF THE

CIRCUIT COURT OF THE FIRST CIRCUIT,

STATE OF HAWAII, FILED MAY 13, 2022 . . . . 36a

APPENDIX E — FINDINGS OF FACT OF

THE STATE OF HAWAI‘I, HAWAI‘I LABOR

RELATIONS BOARD, FILED JUNE 4, 2021 . . 38a

APPENDIX F — ORDER OF THE SUPREME

COURT OF THE STATE OF HAWAI’I,

FILED JULY 18, 2025 . . . . . . . . . . . . . . . . . . . . . . . 57a

APPENDIX G — ADDENDUM . . . . . . . . . . . . . . . . . 59a

vii

TABLE OF CITED AUTHORITIES

Page

Cases

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Gillard v. Schmidt,

579 F.2d 825 (3d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . 11

Hines v. Anchor Motor Freight,

424 U.S. 554 (1976) . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 13

Katz v. United States,

389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Margetta v. Pam Pam Corp.,

501 F.2d 179 (9th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . 9

O’Connor v. Ortega,

480 U.S. 709 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Robesky v. Qantas Empire Airways, Ltd.,

573 F.2d 1082 (9th Cir. 1978) . . . . . . . . . . . . . . . . . 7, 13

Ruzicka v. General Motors Corp.,

523 F.2d 306 (6th Cir. 1975) . . . . . . . . . . . . . . . . . . . . 13

United States v. Blok,

88 U.S. App. D.C. 326, 188 F.2d 1019 (1951) . . . . . . . 11

United States v. Speights,

557 F.2d 362 (3d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . 11

viii

Cited Authorities

Page

Vaca v. Sipes,

386 U.S. 171 (1967) . . . . . . . . . . . . . . . . . . . . 6, 9, 13, 14

Constitutional Provisions

Haw. Const. Art. I, Section 7 . . . . . . . . . . . . . . . . 2, 5, 8, 9

U.S. Const. amend. IV . . . . . . . . . . . . . . 2, 4-6, 8-12, 14-16

Statutes and Rules

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Haw. Rev. Stat. § 89-13(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 4

Haw. Rev. Stat. § 91-14(g)(1) . . . . . . . . . . . . . . . . 3, 5, 9, 12

Sup. Ct. R. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PETITION FOR A WRIT OF CERTIORARI

Petitioner Valerie Asato (“Asato”), Complainant

before the State of Hawaii Labor Relations Board,

Plaintiff-Appellant before the Circuit Court of the First

Circuit of the State of Hawaii, Complainant-Appellant/

Appellant before the Intermediate Court of Appeals of the

State of Hawaii, and Petitioner/Complainant-Appellant/

Appellant, before the Supreme Court of the State of

Hawaii, respectfully submits this petition for a Writ of

Certiorari seeking review of the judgment rendered by

the Supreme Court of the State of Hawaii in the present

matter.

OPINIONS BELOW

The order of the Supreme Court of the State of

Hawaii rejecting petitioner’s application for a writ of

certiorari to the Intermediate Court of Appeals, entered

on July 18, 2025, is unreported and reproduced in the

Appendix at Appendix F. The memorandum opinion of

the Intermediate Court of Appeals of the State of Hawaii,

entered on February 14, 2025, affirming the judgment

of the Circuit Court of the First Circuit, is unpublished

and reproduced in the Appendix at Appendix A. The

judgment of the Intermediate Court of Appeals of the

State of Hawaii, entered on March 18, 2025, is reproduced

in the Appendix at Appendix B. The Findings of Fact,

Conclusions of Law, and Order Denying Appellant

Valerie Asato’s Agency Appeal of the Circuit Court of the

First Circuit, entered on April 18, 2022, is reproduced

in the Appendix at Appendix C. The final judgment of

the Circuit Court of the First Circuit, entered on May

13, 2022, is reproduced in the Appendix at Appendix D.

The Findings of Fact, Conclusions of Law, Decision and

Order, of the Hawaii Labor Relations Board, dated May

5, 2021, is reproduced in the Appendix at Appendix E.

JURISDICTION

On July 18, 2025, the Supreme Court of the State of

Hawaii entered its order denying Petitioner’s Application

for a Writ of Certiorari to the Intermediate Court of

Appeals of the State of Hawaii. Submission of the Petition

to the Supreme Court will be considered timely if filed no

later than October 16, 2025. The jurisdiction of this Court

is properly invoked pursuant to 28 U.S.C. Section 1257(a)

and Supreme Court Rule 13.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

1. Fourth Amendment to the United States

Constitution

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.”

2. Article I, Section 7 of the Hawaii Constitution:

“The right of the people to be secure in

their persons, houses, papers and effects

against unreasonable searches, seizures and

invasions of privacy shall not be violated; and

no warrants shall issue but upon probable

cause, supported by oath or affirmation, and

particularly describing the place to be searched

and the persons or things to be seized or the

communications sought to be intercepted.”

3. Hawaii Revised Statutes 91-14(g)(1):

§91-14 Judicial review of contested cases. (a)

Any person aggrieved by a final decision and

order in a contested case or by a preliminary

ruling of the nature that deferral of review

pending entry of a subsequent final decision

would deprive appellant of adequate relief is

entitled to judicial review thereof under this

chapter; but nothing in this section shall be

deemed to prevent resort to other means

of review, redress, relief, or trial de novo,

including the right of trial by jury, provided

by law. Notwithstanding any other provision of

this chapter to the contrary, for the purposes of

this section, the term “person aggrieved” shall

include an agency that is a party to a contested

case proceeding before that agency or another

agency…

…(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;

4. Haw. Rev. Stat. § 89-13(b)(1)

§89-13 Prohibited practices; evidence of bad faith....

…(b) It shall be a prohibited practice for a public

employee or for an employee organization or its

designated agent wilfully to:

(1) Interfere, restrain, or coerce any employee

in the exercise of any right guaranteed under

this chapter; …

PRELIMINARY STATEMENT

This case presents fundamental constitutional and

statutory questions about the scope of public employees’

rights, the limits of governmental authority in workplace

investigations, and the duty of labor organizations to fairly

represent their members.

The courts below failed to address the unconstitutional

search that precipitated Petitioner’s termination,

disregarded clear evidence of union misconduct,

and declined to apply the mandatory judicial review

standards required by state law. These failures erode

core Fourth Amendment protections, undermine the

integrity of the collective bargaining process, and, if

left unreviewed, will leave millions of public employees

vulnerable to similar deprivations of their constitutional

and statutory rights.

QUESTIONS PRESENTED

1. Whether the Hawaii Government Employees

A ssociation (“HGEA”) breached its duty of fai r

representation under federal and state labor law by

engaging in arbitrary, discriminatory, retaliatory, and

bad-faith conduct during the grievance and arbitration

process, including hostile actions against Petitioner for

filing a prior prohibited practice complaint.

2. Whether the State of Hawaii Department of

Education (“DOE”) violated the Fourth Amendment to

the United States Constitution and Article I, Section 7 of

the Hawaii Constitution by relying on evidence obtained

through an unconstitutional and unauthorized search of

Petitioner’s work computer to justify her termination.

3. Whether the Hawaii Labor Relations Board, the

Circuit Court of the First Circuit, and the Intermediate

Court of Appeals erred in dismissing Petitioner’s claims

without addressing the constitutional violations and

procedural errors central to this case, as required by

Haw. Rev. Stat. § 91-14(g)(1).

REASONS WHY THE QUESTIONS

PRESENTED ARE IMPORTANT

This case presents an urgent need for clarification of

two recurring issues: The scope of the Fourth Amendment

and the duty of fair representation under state and federal

labor laws.

The lower courts failed to address Petitioner’s

Fourth Amendment claim, asserting that the Hawaii

Labor Relations Board lacked jurisdiction to consider

constitutional issues. This raises a critical question about

the ability of state administrative bodies to adjudicate

constitutional claims arising in the context of labor

disputes.

The DOE relied on evidence obtained through an

unconstitutional search of Petitioner’s work computer to

justify her termination. Under the Fourth Amendment,

a search conducted without a warrant is presumptively

unreasonable unless it falls within a recognized exception.

In this case:

• Petitioner’s coworkers accessed her computer

without her consent or authority and while

Petitioner was absent from work that day.

• The DOE ratified this unconstitutional search

by using the unlawfully obtained evidence in its

termination decision.

The exclusionary rule, which ser ves to deter

constitutional violations, must apply to employment

termination proceedings to ensure that evidence obtained

through unconstitutional means is inadmissible.

Moreover, lower courts and administrative bodies

continue to improperly apply the holding in Vaca v. Sipes,

386 U.S. 171 (1967) and Hines v. Anchor Motor Freight,

424 U.S. 554 (1976), in active cases throughout the

country, making it virtually impossible for an employee

to prove a breach of the duty of fair representation

despite sufficient evidence in the record supporting

perfunctory and arbitrary actions of unions in processing

union members’ meritorious union grievances. The

courts and administrative agency below improperly

applied the standard for evaluating a union’s duty of

fair representation. The Ninth Circuit has held that a

unions conduct is arbitrary when it lacks a rational basis

and prejudices the employee’s interests. See Robesky v.

Qantas Empire Airways, Ltd., 573 F.2d 1082, (9th Cir.

1978).

STATEMENT OF THE CASE

Factual Background

Employment and Termination.

Petitioner Valerie Asato was employed as an Office

Assistant III at Farrington High School under the State of

Hawaii Department of Education (“DOE”). On August 16,

2012, without her knowledge or consent, and while she was

absent from the workplace, coworkers accessed her work

computer and discovered private email communications.

Relying on this unlawfully obtained evidence, DOE

terminated Petitioner’s employment on December 28,

2012.

Unconstitutional Search and Use of Illegally Obtained

Evidence.

The coworkers had neither actual nor apparent

authority to access Petitioner’s computer. The DOE

subsequently ratified this unconstitutional intrusion by

relying on the evidence obtained to justify termination,

an action presumptively unreasonable under the Fourth

Amendment and Article I, Section 7 of the Hawaii

Constitution.

Grievance and Arbitration.

Petitioner, a member of HGEA, filed a grievance under

the collective bargaining agreement (“CBA”). HGEA’s

representation was marked by hostility, retaliation, and

neglect. Its appointed attorney, Peter Trask, demeaned

Petitioner, made threats (“I’ll tear your ass apart on the

stand”), belittled her case, and failed to raise fundamental

constitutional objections. The arbitrator ultimately upheld

DOE’s termination decision in December 2018.

Prohibited Practice Complaints.

Petitioner filed two prohibited practice complaints

with the Hawaii Labor Relations Board (“HLRB”),

alleging HGEA breached its duty of fair representation

and DOE violated her constitutional rights. The HLRB

dismissed the complaints. The Circuit Court and the

Intermediate Court of Appeals affirmed, and the Hawaii

Supreme Court denied discretionary review on July 18,

2025.

SUMMARY OF ARGUMENT

This case presents urgent and recurring constitutional

and statutory questions that demand this Court’s review.

At its core, the State of Hawaii terminated Petitioner’s

employment based on evidence obtained through an

unauthorized, warrantless search of her workplace

computer, a clear violation of the Fourth Amendment and

Article I, Section 7 of the Hawaii Constitution. Instead

of addressing this foundational constitutional question,

state administrative bodies and courts refused even to

consider it, holding that they lacked jurisdiction. This

abdication of judicial responsibility directly conflicts with

Haw. Rev. Stat. § 91-14(g)(1), which mandates review

of administrative actions that violate constitutional

provisions.

Equally troubling, the union charged with representing

Petitioner, the Hawaii Government Employees Association

(HGEA), breached its duty of fair representation through

conduct that was arbitrary, retaliatory, and in bad

faith. HGEA’s appointed counsel demeaned Petitioner,

undermined her case, failed to raise critical constitutional

defenses, and exhibited open hostility toward her for

asserting her rights. The courts below failed to apply

this Court’s binding precedents, including Vaca v. Sipes,

386 U.S. 171 (1967), and Hines v. Anchor Motor Freight,

424 U.S. 554 (1976), which make clear that such conduct

violates the statutory duty of fair representation. See also

Margetta v. Pam Pam Corp., 501 F. 2d 179, 180 (9th Cir.

1974): “To us, it makes little difference whether the union

subverts the arbitration process by refusing to proceed

as in Vaca or follows the arbitration trial to the end, but

in so doing subverts the arbitration process by failing to

fairly represent the employee. In neither case, does the

employee receive fair representation.”

These errors are not confined to the facts of this

case. They implicate questions of nationwide significance

regarding the balance between employee privacy and

government power in the digital workplace, the role of

state agencies and courts in safeguarding constitutional

rights, and the extent of union accountability under federal

and state labor law. If left unreviewed, the decisions below

will embolden public employers to rely on illegally obtained

evidence, allow unions to escape scrutiny for retaliatory

conduct, and deprive employees of the judicial protection

that both the Constitution and state law guarantee.

This Court’s intervention is necessary to resolve these

conflicts, vindicate fundamental constitutional protections,

and reaffirm the principles of fairness, due process, and

accountability that lie at the heart of both the Fourth

Amendment and the duty of fair representation.

REASONS FOR GRANTING THE WRIT

This case squarely presents fundamental constitutional

and statutory issues of exceptional national importance

that have been left unresolved by the lower courts. It

involves the government’s reliance on illegally obtained

evidence to terminate a public employee, the abdication of

judicial responsibility to review constitutional violations as

required by state law, and the erosion of the duty of fair

representation owed by unions to their members. Each of

these issues independently warrants this Court’s review.

Taken together, they reveal a systemic breakdown in

the protections designed to safeguard individual liberty,

workplace privacy, and collective bargaining integrity.

The decision below permits state employers to

circumvent the Fourth Amendment by adopting the fruits

of unauthorized private searches, empowers unions to

retaliate against their own members without meaningful

accountability, and allows state courts to sidestep their

statutory duty to review agency actions that violate

constitutional rights. If left uncorrected, these rulings

will set a dangerous precedent with sweeping implications

for public employees, constitutional governance, and labor

relations nationwide. Supreme Court review is essential

to restore the proper balance between governmental

power and individual rights and to reaffirm the bedrock

constitutional principles at stake.

The DOE’s Reliance on Evidence from an

Unconstitutional Search Presents a Critical Fourth

Amendment Question of National Importance.

The Fourth A mendment’s prohibition against

unreasonable searches and seizures is a cornerstone of

American liberty. This Court has repeatedly held that

warrantless searches are presumptively unreasonable

absent a recognized exception. Katz v. United States, 389

U.S. 347 (1967); O’Connor v. Ortega, 480 U.S. 709, 719

(1987)(“On the basis of this undisputed evidence, we accept

the conclusion of the Court of Appeals that Dr. Ortega had

a reasonable expectation of privacy at least in his desk and

file cabinets[]”), citing Gillard v. Schmidt, 579 F.2d 825,

829 (3rd Cir. 1978); United States v. Speights, 557 F.2d

362 (3rd Cir. 1977); United States v. Blok, 88 U. S. App.

D. C. 326, 188 F.2d 1019 (1951).

Here, Petitioner’s coworkers conducted a private

search without authority and while Petitioner was absent

from the workplace, and the DOE, a state actor, adopted

and relied upon the fruits of that unlawful search to

terminate her. This case implicates a question of national

importance: whether public employers may constitutionally

sanction employees based on unlawfully obtained evidence

from private parties acting without authority.

The decision below effectively sanctions government

ratification of unconstitutional conduct and erodes

established privacy protections in the digital workplace.

Review is urgently needed to reaffirm that public

employers cannot circumvent constitutional constraints

by exploiting the misconduct of private actors.

II. The Lower Cour ts’ Refusal to Address the

Constitutional Claims Conflicts with Statutory

Mandates and Due Process Principles.

Haw. Rev. Stat. § 91-14(g)(1) requires courts

reviewing agency actions to reverse or modify decisions

that violate constitutional provisions. Despite this clear

statutory directive, every tribunal below, the HLRB,

Circuit Court, and ICA, refused to address the central

Fourth Amendment issue to this case, claiming lack of

jurisdiction. This abdication of judicial responsibility

conflicts with fundamental due process principles and the

plain text of the statute.

This abdication of judicial responsibility conflicts

with fundamental due process principles and the plain

text of the statute. Such avoidance creates a dangerous

precedent: constitutional violations in administrative

proceedings could go unremedied simply because an

agency declines to adjudicate them. This Court’s review is

necessary to restore the proper balance of judicial review

and ensure that state courts do not insulate constitutional

violations from scrutiny.

The refusal of state administrative bodies and courts

to address constitutional violations despite statutory

mandates creates a systemic problem that undermines

the rule of law. This case presents an urgent need for

clarification regarding the ability of state administrative

bodies to adjudicate constitutional claims arising in the

context of labor disputes.

III. HGEA’s Conduct Breached Its Duty of Fair

Representation Under Federal Labor Law

Precedents.

A union breaches its duty of fair representation when

its conduct toward a member is arbitrary, discriminatory,

or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967);

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976).

HGEA’s conduct meets this standard in every respect.

Its counsel demeaned and threatened Petitioner, sabotaged

her confidence, ignored critical constitutional defenses,

and processed her grievance in a perfunctory manner.

Such conduct, far from being a mere error in judgment,

reflects reckless disregard for Petitioner’s rights, conduct

courts have consistently held to be arbitrary. Robesky v.

Qantas Empire Airways, Ltd., 573 F.2d 1082 (9th Cir.

1978); Ruzicka v. General Motors Corp., 523 F.2d 306

(6th Cir. 1975).

HGEA’s conduct during the arbitration process

demonstrat es a clea r breach of its duty of fa i r

representation. Attorney Peter Trask’s demeaning

comments to Asato, including statements undermining her

case and personal attacks, constitute arbitrary conduct

that lacks any rational basis.

Arbitrary conduct is not limited to intentional

misconduct. Acts of omission by union officials may

be arbitrary if they reflect “reckless disregard for

the rights of the individual employee” and “severely

prejudice the injured employee”. Trask’s failure to raise

critical constitutional arguments, particularly the Fourth

Amendment violation, despite their clear relevance to

Asato’s defense, demonstrates such reckless disregard.

The lower courts’ cursory treatment of these claims

conflicts with Vaca and its progeny, effectively insulating

unions from accountability for hostile and retaliatory

behavior. Review is warranted to reaffirm that union

representation must be faithful, competent, and free from

discrimination or retaliation.

The failure to adequately prepare for arbitration

and the hostile treatment of Asato during the process

prejudiced her ability to present her case effectively.

This conduct falls well below the minimum standards of

fairness required under the duty of fair representation.

The record demonstrates that HGEA’s conduct toward

Petitioner was arbitrary, discriminatory, and in bad

faith. HGEA’s appointed attorney demeaned Petitioner,

made threats against her, belittled her case, and failed

to raise fundamental constitutional objections during the

arbitration process. This conduct falls squarely within the

prohibited categories established by federal precedent.

The union’s hostile actions against Petitioner for

filing a prior prohibited practice complaint constitute

retaliatory conduct that violates the statutory obligation

to serve the interests of all members without hostility

or discrimination. 14 Penn Plaza LLC v. Pyett, 556

U.S. 247 (2009). Such conduct demonstrates a failure to

exercise discretion with complete good faith and honesty,

constituting arbitrary conduct prohibited under federal

labor law.

The lower courts’ cursory treatment of the duty

of fair representation claims conflicts with established

federal precedent and effectively insulates unions from

accountability for hostile and retaliatory behavior. This

misapplication of federal labor law standards creates

uncertainty for employees and unions nationwide.

IV. The Questions Presented Have Broad National

Significance.

This case transcends a single employment dispute.

It concerns the constitutional rights of millions of public

employees, the limits of governmental surveillance and

search in the digital age, and the fundamental obligations

of labor organizations.

Left undisturbed, the decisions below will embolden

public employers to exploit unlawfully obtained evidence,

weaken judicial oversight of constitutional violations,

and lower the standards of union accountability. Only

this Court’s intervention can ensure that constitutional

protections remain robust in the modern workplace and

that unions remain faithful stewards of their members’

rights.

The decisions below undermine fundamental Fourth

Amendment protections, misapply federal labor law

standards, and create dangerous precedents that threaten

the constitutional rights of public employees nationwide.

The government’s reliance on unlawfully obtained

evidence, combined with a union’s breach of its duty of fair

representation and the judiciary’s refusal to address clear

constitutional violations, represents a systemic failure that

demands this Court’s intervention.

V. This Case Presents an Important Question

Warranting Supreme Court Review.

This case raises questions of exceptional importance.

The lower court’s rulings undermine the validity of the

Fourth Amendment in Government Employee cases,

misapplies this Court’s precedent and creates uncertainty

for employees and unions alike. Only this Court can

provide the clarity necessary to ensure unform application

of the law nationwide.

T h i s c a se present s cr it ic a l quest ions about

constitutional protections in public employment and union

accountability that warrant this Court’s review.

CONCLUSION

This case presents far more than a dispute over

one employee’s termination. It strikes at the heart of

fundamental constitutional protections and exposes

dangerous gaps in the legal framework meant to

safeguard them. The government’s reliance on unlawfully

obtained evidence, the judiciary’s refusal to address clear

constitutional violations, and a union’s betrayal of its

duty of fair representation together represent a systemic

failure that undermines the rule of law, chills the exercise

of constitutional rights, and threatens the integrity of

collective bargaining nationwide.

If left undisturbed, the decisions below will embolden

public employers to bypass constitutional constraints,

allow unions to act with impunity against their own

members, and signal to lower courts that they may

sidestep their duty to review violations of the most basic

constitutional guarantees. This Court’s intervention is

essential to restore the proper limits of government power,

vindicate individual rights, and reaffirm the constitutional

principles that protect every American worker.

For these reasons, Petitioner respectfully requests

that this Court grant the petition for a writ of certiorari,

vacate the judgment of the Supreme Court of the State

of Hawaii, and remand the case for further proceedings

consistent with this Court’s decision.

Respectfully submitted,

Shawn A. Luiz

Counsel of Record

733 Bishop Street

Suite 1280

Honolulu, HI 96813

(808) 538-0500

attorneyluiz@gmail.com

Counsel for Petitioner

October 16, 2025

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OPINION

OF THE INTERMEDIATE COURT OF

APPEALS OF THE STATE OF HAWAI’I,

FILED FEBRUARY 14, 2025 . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — JUDGMENT ON APPEAL

OF THE INTERMEDIATE COURT OF

APPEALS OF THE STATE OF HAWAI‘I,

FILED MARCH 18, 2025 . . . . . . . . . . . . . . . . . . . . 26a

A PPENDI X C — FINDING S OF FACT,

CONCLUSIONS OF LAW, AND ORDER OF

THE CIRCUIT COURT OF THE FIRST

CIRCUIT STATE OF HAWAII, FILED

JUNE 4, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28a

APPENDIX D — FINAL JUDGMENT OF THE

CIRCUIT COURT OF THE FIRST CIRCUIT,

STATE OF HAWAII, FILED MAY 13, 2022 . . . . 36a

APPENDIX E — FINDINGS OF FACT OF

THE STATE OF HAWAI‘I, HAWAI‘I LABOR

RELATIONS BOARD, FILED JUNE 4, 2021 . . 38a

APPENDIX F — ORDER OF THE SUPREME

COURT OF THE STATE OF HAWAI’I,

FILED JULY 18, 2025 . . . . . . . . . . . . . . . . . . . . . . . 57a

APPENDIX G — ADDENDUM . . . . . . . . . . . . . . . . . 59a

Appendix A

APPENDIX A — MEMORANDUM

OPINION OF

THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI’I,

FILED FEBRUARY 14, 2025

INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI’I

NO. CAAP-22-0000339

IN THE MATTER OF VALERIE ASATO,

Complainant-Appellant/Appellant,

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION AND DEPARTMENT OF

EDUCATION, STATE OF HAWAI’I,

Respondents-Appellees/Appellees.

APPEAL FROM THE CIRCUIT COURT

OF THE FIRST CIRCUIT

(CIVIL NO. 1CCV-21-0000736)

Filed February 14, 2025

MEMORANDUM OPINION

Complainant-Appellant-Appellant Valerie Asato

(Asato) appeals from the May 13, 2022 Final Judgment

(Judgment), entered by the Circuit Court of the First

Appendix A

Circuit (Circuit Court).1 Asato also challenges the April

18, 2022 Findings of Fact, Conclusions of Law, and Order

Denying [Asato’s] Agency Appeal, Filed on June 4, 2021

(Order Denying Agency Appeal).

BACKGROUND

Asato was a member of Hawaii Government Employees

Association (HGEA), Bargaining Unit (BU) 03. The initial

grievance underlying this appeal concerned Asato’s

termination from her employment by the State of Hawai’i,

Department of Education (DOE), as an Office Assistant

III at Farrington High School. On August 16, 2012, Asato’s

coworkers discovered emails on Asato’s work computer

containing discriminatory remarks about her coworkers

based on race and sexual orientation, as well as comments

wishing death on other employees and a student. On

August 20, 2012, an administrative investigation was

initiated. On December 17, 2012, upon the conclusion of

the investigation, Asato was notified that she would be

discharged from her position.

On January 14, 2013, HGEA filed with the Hawai’i

Labor Relations Board (the Board or HLRB) a Step

1 Grievance pursuant to the grievance procedure set

forth in Article 11 of the BU 03 Collective Bargaining

Agreement (CBA).2 HGEA challenged Asato’s termination

1. The Honorable James H. Ashford presided.

2. Article 11(G) of the CBA provides:

G. Step 3. Arbitration. If the grievance is not

resolved at Step 2 and the Union desires to proceed

Appendix A

with arbitration, it shall serve written notice on

the Employer or the Employer’s representative of

its desire to arbitrate within ten (10) working days

after receipt of the Employer’s decision at Step 2.

Representatives of the parties shall attempt to select

an Arbitrator immediately thereafter. If agreement

on an Arbitrator is not reached within ten (10) working

days after the notice for arbitration is submitted,

either party may request the [HLRB] to submit a

list of five (5) Arbitrators. Selection of an Arbitrator

shall be made by each party alternately deleting one

(1) name at a time from the list. The first party to

delete a name shall be determined by lot. The person

whose name remains on the list shall be designated

the Arbitrator. No grievance may be arbitrated unless

it involves an alleged violation of a specific term or

provision of the Agreement.

If the Employer disputes the arbitrability of

any grievance, the Arbitrator shall first determine

whether the Arbitrator has jurisdiction to act; and if

the Arbitrator finds that the Arbitrator has no such

power, the grievance shall be referred back to the

parties without decision or recommendation on its

merits.

The Arbitrator shall render an award in writing no

later than thirty (30) calendar days after the conclusion

of the hearings or if oral hearings are waived then

thirty (30) calendar days from the date statements

and proofs were submitted to the Arbitrator. The

decision of the Arbitrator shall be final and binding

upon the Union, its members, the Employees involved

in the grievance and the Employer. There shall be no

appeal from the Arbitrator’s decision by either party,

if such decision is within the scope of the Arbitrator’s

authority as described below:

Appendix A

as a violation of Articles 3 (Maintenance of Rights and

Benefits), 4 (Personnel Policy Changes), 8 (Discipline),

and 17 (Personal Rights and Representation) of the Unit

03 CBA. On February 12, 2013, HGEA presented a Step

2 Grievance challenging Asato’s termination. On June 30,

2015, a Step 2 meeting was conducted, and on September

24, 2015, the DOE denied the Step 2 Grievance. On

October 14, 2015, the union filed a Notice to Arbitrate.

On July 6, 2017, Asato filed a Prohibited Practice

Complaint (2017 PPC) against HGEA alleging “dereliction

1. The Arbitrator shall not have the power to add

to, subtract from, disregard, alter, or modify any of

the terms of this Agreement.

2. The Arbitrator’s power shall be limited to

deciding whether the Employer has violated any of

the terms of this Agreement.

3. The Arbitrator shall not consider any alleged

violations or charges other than those presented in

Step 2.

4. In any case of suspension or discharge where

the Arbitrator finds such suspension or discharge

was improper, the Arbitrator may set aside, reduce

or modify the action taken by the Employer. If the

penalty is set aside, reduced or otherwise changed,

the Arbitrator may award back pay to compensate

the Employee, wholly or partially, for any wages lost

because of the penalty.

The fees of the Arbitrator, the cost of transcription,

and other necessary general costs, shall be shared

equally by the Employer and the Union. Each party

will pay the cost of presenting its own case and the

cost of any transcript that it requests.

Appendix A

of duty” because four-and-a-half-years had passed since

her termination, and her grievance had not yet gone to

arbitration. On July 19, 2017, HGEA notified Asato that it

was withdrawing the Notice of Intent to Arbitrate. Asato

then amended the 2017 PPC. On May 2, 2018, the parties

reached a settlement wherein HGEA agreed to arbitrate

Asato’s grievance and Asato agreed to a stipulated

dismissal of the 2017 PPC.

HGEA took Asato’s grievance to arbitration and

selected Peter Trask, Esq. (Trask) to serve as its attorney

for arbitration. On December 10, 2018, Trask met with

Asato and Sanford Chun (Chun), the HGEA executive

assistant for field services, to prepare for the arbitration.

The disciplinary grievance went to arbitration in

December of 2018. Trask drove Asato to and from the

arbitration proceedings. During these car rides, Trask

made comments to Asato, inter alia: (1) that her previous

HGEA agent was “lazy” and did things “half-assed;” (2)

that sometimes the union “does stupid things,” and Trask

has to clean up the union’s mess; (3) questioning Asato

on whether she was continuing to pay union dues during

the arbitration; (4) that if the case had been brought to

Trask six years ago, he would have rejected the case and

recommended no arbitration based on the merits; (5) that

the chances of winning were low; (6) that Trask was not

Asato’s private attorney; (7) that he would not answer

Asato’s legal questions on what can she do in actions

unrelated to the arbitration; and (8) that she should not

give him scenarios or ask general questions unrelated to

the arbitration. Asato later asserted that she found these

comments to be “demeaning” and “belittling.”

Appendix A

The DOE called eleven witnesses, including Asato.

Four of DOE’s exhibits and twenty-five of HGEA’s

exhibits were received into evidence for consideration by

the arbitrator. Trask did not make an argument brought

to his attention by Asato regarding a possible violation

of Fourth Amendment protections against unreasonable

searches and seizures.

At the conclusion of the arbitration proceedings, the

arbitrator stated:

I want to thank counsel for the parties at

this time, Miriam on behalf of the Employer,

and [Trask] on behalf of the Union and [Asato],

and my gratitude is based upon the civility that

you both exercised throughout the hearing, and

the hard work that you’ve done in preparing

exhibits, all of which benefit the Arbitrator in

understanding the positions and presentations

of each party.

The arbitrator issued the June 21, 2019 Arbitrator

Decision and Award (Arbitrator Decision). The Arbitrator

Decision stated:

The parties were afforded a full and fair

opportunity to present evidence and examine

witnesses at the hearing, and to submit written

arguments after the hearing. The Arbitrator

commends Mr. Trask and Ms. Loui for their

superior representation of their respective

clients.

Appendix A

The arbitrator found and concluded that (1) DOE

did not violate the terms of the CBA when it terminated

Asato and (2) Asato was terminated for proper cause.

Accordingly, the arbitrator dismissed the grievance and

sustained Asato’s termination.

On July 9, 2019, HGEA sent the Arbitrator Decision

to Asato. HGEA did not move to vacate the Arbitrator

Decision.

On October 4, 2019, Asato filed a second Prohibited

Practices Complaint (2019 PPC) against the HGEA and

the DOE. Asato asserted that HGEA violated Hawaii

Revised Statutes (HRS) § 89–13(b)(1), (4), and (5) (2012)

by treating Asato with contempt and retaliating against

her for bringing her prior 2017 PPC against HGEA. Asato

alleged that HGEA subverted the arbitration process,

i.e., “threw the fight,” in bad faith. Asato pointed to

her treatment during the arbitration preparation, the

arbitration result, HGEA’s failure to move to set aside the

arbitration, and Trask’s comments made to her during

the car rides and from the arbitration proceedings. Asato

alleged an HRS § 89–13(a)(8) claim against the DOE for

willful and wrongful discharge without good cause. Asato

sought reinstatement, backpay, and interest from the DOE

and consequential damages from HGEA.

The Board held an evidentiary hearing on the 2019

PPC on November 13, 2019, and November 20, 2019.

Asato called five witnesses, including herself, Trask,

Chun, and Calvin Nomiyama (Nomiyama), who was the

superintendent who terminated Asato and one of DOE’s

Appendix A

witnesses in the arbitration. During the 2019 PPC hearing,

Nomiyama did not remember Trask’s name or recall the

questions asked of him during the arbitration. Nomiyama

explained that he did not know Trask’s name because

Trask did not introduce himself before cross-examining

Nomiyama. Asato’s counsel attempted to have Nomiyama

identify Trask’s photograph, but HGEA’s counsel objected.

Nomiyama was later excused without identifying Trask’s

photo.

Chun testified in direct examination that he “didn’t

see anything out of the ordinary” in the interactions

between Trask and Asato during the December 10, 2018

arbitration preparation meeting. On cross-examination,

Chun further testified he had sat in numerous arbitrations

in his 30-plus years and that there was nothing unusual

about Asato’s representation.

Asato testified regarding her interactions with Trask,

notably including his statements during their car rides to

and from arbitration.

Regarding HGEA’s failure to move to vacate the

arbitration award, Trask testified that there was no

grounds for vacating an arbitration award. Trask further

testified that if he had filed a frivolous motion to vacate

the arbitration award, he could have “exposed [his] client

to fees, along with going to the ODC [himself].”

Regarding the decision to not call witnesses at the

arbitration, Trask explained:

Appendix A

We always consider witnesses. The problem

is, at the arbitration stage just about everything

has been decided by the Union already. An

action is taken, a grievant has filed, then go

through Step 1, Step 2, wherever it is, a lot of

information has exchanged and disclosed and it

is almost in concrete by the time I get the case.

So while I may have considered if there was no

tangential reason or relationship to the file and

HGEA didn’t notice anybody, I might be hard

pressed to call a new witness, but I consider it.

Regarding Trask’s comments to Asato, Trask

explained that he was attempting to use the car rides to

prepare Asato for cross-examination:

Okay. These rides became imperative for

my preparation in that Ms. Asato was in denial.

When I asked her, there are 14 months of DOE

e-mails that are racist, in my opinion, too, how

is she going to answer all of those in crossexamination, because I was very worried about

cross-examination.

Arbitrators love to hear from the grievant,

and the exposure is, is once I put them on,

they’re now subject to cross-examination,

and that part I’m not in control of. So I was

constantly worried how she would answer if

someone went through the 14, 16 months of

e-mails one by one, what would be her answer.

10a

Appendix A

And her answers to me, and the many times

I tried that, was to talk about something else,

a distraction. Can I file suit against them, can

I sue them for this, can I sue them -- constant

denial, deviation from what I -- so I probably

told her you ought to get a law degree, go learn

it, go learn this stuff, I’m not your private

attorney for that.

Regarding the decision to forego making a Fourth

Amendment constitutional argument, Trask stated, “I

considered it, but this is not the place to raise -- a grievance

arbitration before an arbitrator’s not the place to raise an

issue of constitutionality.” Trask further explained that

he did not brief the Fourth Amendment issue because

“the grievance defines my issues, the grievance. I cannot

modify the grievance six years after it’s been filed.”

On November 20, 2019, Asato rested her case-inchief. HGEA moved for a directed verdict; Asato filed an

opposition. On May 5, 2021, the Board filed its Decision

No. 504 Findings of Fact, Conclusions of Law, Decision

and Order (Decision No. 504), which granted HGEA’s

motion based on “Asato’s failure to meet her burden of

proof after the conclusion of her case-in-chief.”

On June 4, 2021, Asato appealed Decision No. 504 to

the Circuit Court. After briefing, the Circuit Court held

oral arguments on December 17, 2021. On April 18, 2022,

the Circuit Court entered the Order Denying Agency

Appeal. The Circuit Court made Findings of Fact (FOFs),

including now challenged FOFs:

11a

Appendix A

24. Ms. Asato raised a Fourth Amendment

issue. The Board has no jurisdiction to render

a decision on constitutional issues. Further,

constitutional analyses are unnecessary for the

Board to decide the statutory issues presented

by prohibited practice complaints.

25. The Board properly dismissed Ms.

Asato’s HRS § 89–13(a)(8) claim against DOE

prior to a hearing on the merits, because the

Board lacked jurisdiction.

The Circuit Court’s challenged Conclusions of Law

(COLs) are as follows:

8. Ms. Asato was terminated for proper

cause in accordance with the Unit 3 CBA.

9. Following a hearing on the merits, the

Board properly dismissed Ms. Asato’s HRS

§ 89–13(a)(8) claim against DOE for lack of

standing.

10. The Board was not required to address

Ms. Asato’s constitutional claims because the

Board lacked jurisdiction.

11. The Board properly dismissed Ms.

Asato’s HRS § 89–13(b)(5) claim because HGEA

did not breach its duty of fair representation.

12a

Appendix A

12. The Board properly dismissed Ms.

Asato’s HRS § 89–13(b)(1) claim because HGEA

did not breach its duty of fair representation.

13. The Board properly dismissed Ms.

Asato’s HRS § 89 –13(b)(1) claim because

HGEA’s conduct toward her was not arbitrary,

discriminatory, or in bad faith.

14. The Board correctly granted HGEA’s

motion for a directed verdict because Ms. Asato

failed to meet her burden.

15. Ms. Asato failed to meet her burden of

proving a willful violation of HRS § 89–13(a)

(8) as to DOE.

16. Ms. Asato failed to meet her burden of

proving a willful violation of HRS §§ 89–13(b)

(1) and (5) as to HGEA.

On May 13, 2022, the Circuit Court entered the

Judgment. On May 17, 2022, Asato filed a Notice of Appeal.

II. POINTS OF ERROR

Asato asserts three points of error in this appeal,

contending that the Circuit Court erred in: (1) affirming

Decision No. 504 because the Board incorrectly granted

HGEA’s Motion for Directed Verdict; (2) entering FOFs

24 and 25;3 and (3) entering COLs 8 to 16, inclusive.

3. A circuit court reviewing an agency’s final decision and

order “does not make findings of fact; it determines whether the

13a

Appendix A

III. APPLICABLE STANDARD OF REVIEW

“Review of a decision made by [a] circuit court upon

its review of an agency’s decision is a secondary appeal.

The standard of review is one in which this court must

determine whether the circuit court was right or wrong

in its decision, applying the standards set forth in HRS

§ 91–14(g) [1993] to the agency’s decision.” Flores v. Bd. of

Land & Nat. Res., 143 Hawai’i 114, 120, 424 P.3d 469, 475

(2018) (citing Paul’s Elec. Serv., Inc. v. Befitel, 104 Hawai’i

412, 416, 91 P.3d 494, 498 (2004) (brackets in original)).

Pursuant to HRS § 91–14(g) (Supp. 2023),4 an agency’s

agency’s findings of fact were clearly erroneous in view of the

reliable, probative, and substantial evidence in the record.” Sierra

Club v. Bd. of Land & Nat. Res., 154 Hawai’i 264, 284, 550 P.3d

230, 250 (App. 2024), cert. granted, SCWC-22-0000516, 2024 Haw.

LEXIS 108, 2024 WL 3378462 (Haw. July 11, 2024) (citing HRS

§ 91–14(g)(5); Diamond v. Dobbin, 132 Hawai’i 9, 24, 319 P.3d 1017,

1032 (2014)). However, the Circuit Court’s FOFs here are limited

to describing the procedural facts of the Board proceedings.

Accordingly, any such error is harmless. Hawai’i Rules of Civil

Procedure Rule 61.

4. HRS § 91–14(g) provides:

§ 91–14 Judicial review of contested cases.

....

(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:

14a

Appendix A

conclusions of law are reviewed de novo, while under HRS

§ 91–14(g)(5), an agency’s factual findings are reviewed

for clear error. Paul’s Elec. Serv., 104 Hawai’i at 420, 91

P.3d at 502 (internal citation omitted).

IV. DISCUSSION5

Asato’s HRS § 89–13(b)(5) Claim

HRS § 89–13(b)(5) provides: “It shall be a prohibited

practice for . . . an employee organization or its designated

agent wilfully to . . . [v]iolate the terms of a collective

bargaining agreement.” Asato’s claims against HGEA

centered around the preparation and conduct of the

grievance arbitration. Article 11(G) of the CBA provides

for Step 3 Arbitration of the HGEA grievance procedure.

The Board dismissed Asato’s HRS § 89–13(b)(5) claim

(1) In violation of constitutional or statutory

provisions;

(2) In excess of the 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 substantial evidence on the whole

record;

(6) Arbitrary, or capricious, or characterized by

abuse of discretion or clearly unwarranted exercise

of discretion.

5. The Argument section of Asato’s opening brief only loosely

follows her points of error.

15a

Appendix A

because (1) Article 11(G) procedures “are not procedures

that involve employees, as arbitration is a matter between

the union and the employer,” and (2) “there is nothing in

Article 11 that speaks to discrimination or retaliation.”

Asato does not challenge either of the Board’s reasons for

dismissal, but rather asserts that the Board should not

have dismissed her HRS § 89–13(b)(5) because the Board

acknowledged HGEA’s duty of fair representation.

Article 11 of the CBA itself does not address or provide

HGEA’s duty of fair representation. Accordingly, Asato’s

arguments regarding HGEA’s alleged breach of the duty

of fair representation fall under her HRS § 89–13(b)(1)

claim, not her HRS § 89–13(b)(5) claim, and are addressed

below.

B. Asato’s HRS § 89–13(b)(1) Claim

HRS § 89–13(b)(1) provides: “It shall be a prohibited

practice for a public employee or for an employee

organization or its designated agent wilfully to . . .

[i]nterfere, restrain, or coerce any employee in the

exercise of any right guaranteed under this chapter[.]”

Asato framed her HRS § 89–13(b)(1) claim primarily as

a breach of the duty of fair representation claim, and the

Board conducted its analysis accordingly.

The Hawai’i Supreme Court has held:

[A]n employee who is prevented from

exhausting his or her contractual remedies

may bring an action against an employer for

16a

Appendix A

breach of a collective bargaining agreement

“provided the employee can prove that the union

as bargaining agent breached its duty of fair

representation in its handling of the employee’s

grievance.” Vaca v. Sipes, 386 U.S. 171 at 186,

87 S. Ct. 903, 17 L. Ed. 2d 842 (1967).

A union breaches its duty of good faith when

its conduct towards a member of a collective

bargaining unit is arbitrary, discriminatory,

or in bad faith. Marquez v. Screen Actors

Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142

L.Ed.2d 242 (1998); DelCostello v. Int’l Bhd.

Of Teamsters, 462 U.S. at 164; Vaca, 386 U.S.

at 190.

Poe v. Haw. Labor Rels. Bd., 105 Hawai’i 97, 103–04, 94

P.3d 652, 658–59 (2004) (cleaned up).

The Board adopted the Ninth Circuit’s two-step

analysis for its breach of the duty of fair representation

analysis.6 In Moore v. Bechtel Power Corp., the Ninth

Circuit held:

Unions have broad discretion to act in

what they perceive to be their members’ best

interests. This court has construed the unfair

representation doctrine in a manner designed

6. The supreme court has stated, “[t]his court has used federal

precedent to guide its interpretation of state public employment

law.” Poe, 105 Hawai’i at 101, 94 P.3d at 656.

17a

Appendix A

to protect that discretion. In our application

of this doctrine, we ask first whether the act

in question involved the union’s judgment, or

whether it was “procedural or ministerial.” If

it is a union’s judgment that is in question, as

it is in this case, the plaintiff may prevail only

if the union’s conduct was discriminatory or

in bad faith. Arbitrariness alone would not be

enough. Only when the challenged conduct was

procedural or ministerial does arbitrariness

become controlling.

840 F.2d 634, 636 (9th Cir. 1988) (citations omitted).

“Whether a union acted arbitrarily, discriminatorily

or in bad faith requires a separate analysis, because each

of these requirements represents a distinct and separate

obligation.” Simo v. Union of Needletrades, Indus. &

Textile Emps., 322 F.3d 602, 617 (9th Cir. 2003) (citation

omitted).

Asato argues that HGEA’s conduct was arbitrary

because HGEA lacked a rational basis to treat her with

contempt as it proceeded through the arbitration process;

and that HGEA subverted the arbitration process, acting

in bad faith by “throwing the fight.”

The Ninth Circuit has discussed examples of when

a union acts arbitrarily, including when a union fails to:

(1) disclose to an employee its decision not to

submit her grievance to arbitration when the

18a

Appendix A

employee was attempting to determine whether

to accept or reject a settlement offer from her

employer; (2) file a timely grievance after it

had decided that the grievance was meritorious

and should be filed; (3) consider individually

the grievances of particular employees where

the factual and legal differences among them

were significant; or (4) permit employees to

explain the events which led to their discharge

before deciding not to submit their grievances

to arbitration.

Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985)

(cleaned up). A union does not act in an arbitrary manner

when the union’s challenged conduct involves the union’s

judgment as to how best to handle a grievance. Id. A

union’s conduct is not arbitrary simply because it erred

“in evaluating the merits of a grievance, in interpreting

particular provisions of a collective bargaining agreement,

or in presenting the grievance at an arbitration hearing.”

Id.

Here, the Board determined that HGEA’s challenged

conduct did not “fall under the umbrella of procedural or

ministerial actions” because “[t]he way that a union chooses

to approach an arbitration is a matter of judgment.” On

appeal, Asato does not dispute the Board’s conclusion that

the challenged conduct was not procedural or ministerial

but rather involved the union’s judgment. Asato merely

reasserts that HGEA’s conduct was arbitrary because it

lacked a rational basis for treating Asato with contempt, it

subverted the arbitration process, and it retaliated against

19a

Appendix A

Asato. However, if a union’s judgment is in question,

“[a]rbitrariness alone would not be enough” for a plaintiff

to prevail in their breach of duty of fair representation

claim. See Moore, 840 F.2d at 636. Rather, “the plaintiff

may prevail only if the union’s conduct was discriminatory

or in bad faith.” Id. Accordingly, the Board did not render

a separate determination as to whether HGEA’s conduct

was arbitrary. Instead, the Board stated that it would

address the substance of Asato’s claim in its discussion

of HGEA’s alleged bad faith.

Asato also argues that she was entitled to nondiscriminatory/non-retaliatory union representation.

Discriminatory conduct can be established by “substantial

evidence of discrimination that is intentional, severe, and

unrelated to legitimate union objectives.” Amalgamated

Ass’n of St., Elec. Ry. & Motor Coach Emp. of Am. v.

Lockridge, 403 U.S. 274, 301, 91 S. Ct. 1909, 29 L. Ed.

2d 473 (1971). A union’s discrimination on the basis of

union membership can serve as the basis for a breach of

the duty of fair representation claim. Simo, 322 F.3d at

619. A union’s discriminatory conduct may be established

with evidence that the union sought to grant benefits to

some members of the bargaining unit that it denied to

others, treated similarly situated individuals differently,

or sought to punish workers who brought a lawsuit against

the union. Id.

Here, the Board determined that Asato had not

presented any evidence demonstrating discrimination on

the part of HGEA, noting that Asato did not specifically

allege any discrimination on the part of HGEA beyond

20a

Appendix A

asserting that she was entitled to “non-discriminatory/

non-retaliatory union representation.” Similarly, on appeal,

Asato restates her entitlement to non-discriminatory/nonretaliatory union representation and provides the legal

standard for discriminatory conduct, but Asato points to

no evidence and makes no specific arguments supporting

her assertion of discriminatory conduct. We cannot

conclude that the Board clearly erred in determining that

Asato failed to demonstrate discrimination.

In addition, Asato argues that the Board erred in

not finding that HGEA acted in bad faith by retaliating

against her for exercising her collective bargaining rights.

“To establish that the union’s exercise of judgment

was in bad faith, the plaintiff must show ‘substantial

evidence of fraud, deceitful action or dishonest conduct.’”

Beck v. United Food & Com. Workers Union, Loc. 99,

506 F.3d 874, 880 (9th Cir. 2007) (quoting Lockridge, 403

U.S. at 299). “[M]ere negligence and erroneous judgment

calls cannot, by themselves, support an inference of bad

faith.” Demetris v. Transp. Workers Union of Am., AFLCIO, 862 F.3d 799, 808 (9th Cir. 2017) (citation omitted).

Courts should afford substantial deference to the union’s

decisions regarding whether and to what extent to pursue

a particular grievance. Dutrisac v. Caterpillar Tractor

Co., 749 F.2d 1270, 1273 (9th Cir. 1983). A disagreement

between a union and an employee over a grievance does

not alone constitute evidence of bad faith, even when the

union is ultimately shown to be mistaken. Moore, 840

F.2d at 637.

21a

Appendix A

Here, the Board found that Asato had not proven

that HGEA’s judgment calls show substantial evidence

of fraud, deceit, or dishonest conduct. On appeal, Asato

argues that the Board erred in this finding because she

had presented sufficient facts to prove that HGEA acted

in bad faith in the exercise of its judgment. Asato points

to the result of the arbitration and HGEA’s failure to

move or set aside the arbitration award as evidence that

HGEA retaliated against her in bad faith. Asato cites

to no authority supporting the proposition that the loss

of a grievance arbitration constitutes bad faith and she

fails to identify any grounds on which HGEA should have

moved to vacate the arbitration award. We conclude this

argument is without merit.

Asato also argues that Trask’s decision not to call

witnesses at the arbitration hearing is evidence of bad

faith. However, in light of Trask’s testimony concerning

his rationale, and other actions in preparation for and

conduct of the arbitration hearing, we cannot conclude

that the Board clearly erred in rejecting this argument.

In addition, Asato argues that the Board should

have found that she received a sham hearing because

Nomiyama, one of the DOE’s witnesses in the arbitration,

did not recognize Trask, remember Trask’s name, or

recall questions asked during arbitration. This argument

is without merit.

Finally, Asato argues that Trask’s comments to her

during arbitration preparation was evidence of bad faith

because Trask treated her with contempt. However,

22a

Appendix A

the Board expressly addressed this issue, stating, “[s]

ometimes, parties may fall short of the level the Board

would expect or hope for; however, falling short of that

level of decorum and civility is not enough to sustain a

breach of the duty of fair representation.” The Board

further reasoned:

Trask’s conduct during the preparation

for the arbitration while, perhaps, not the

most civil, was not dishonest and did not show

evidence of fraud or deceit. Some of Trask’s

answers to Asato and positions that Trask took

may have been disappointing or frustrating to

Asato. However, that does not mean that his

conduct rose to the level of a breach of the duty

of fair representation.

We conclude that the evidence supported the Board’s

finding that Trask’s comments did not establish fraud or

deceit, rising to the level of a breach of the duty of fair

representation. Therefore, we further conclude the Board

did not clearly err in rejecting Asato’s claim that HGEA

acted in bad faith.

Asato’s Constitutional Claims

Asato argues, variously, that her contention that her

Fourth Amendments rights were violated should have

been determined by the Board. These arguments are

without merit. The supreme court has expressly held that

the Board lacks jurisdiction to consider constitutional

issues. See Hawaii Gov’t Emps. Ass’n v. Lingle, 124

Hawai’i 197, 207, 239 P.3d 1, 11 (2010).

23a

Appendix A

Asato’s Other Arguments

Asato challenges the Circuit Court’s FOFs 24 and

25, and COLs 8 to 16. Most of Asato’s arguments are

addressed above and will not be repeated here.

Asato further argues that she met her burden of

proving that she was not terminated for proper cause

in accordance with the BU 03 CBA. However, the

determination that Asato was terminated for proper cause

was made in the Arbitrator Decision, which is not properly

before us in this appeal.

Asato also argues that she met her burden of proving

that the Board improperly dismissed her HRS § 89–13(a)(8)7

claim against the DOE because she did not lack standing

and the Board did not lack jurisdiction. The supreme court

has explained that when a union has breached its duty

of fair representation, an employee may bring an action

against their employer:

[S]uch an action consists of two separate claims: (1)

a claim against the employer alleging a breach

of the collective bargaining agreement and (2) a

claim against the union for breach of the duty of

fair representation. DelCostello, 462 U.S. at 164.

[T]he two claims are inextricably

interdependent. To prevail against

7. HRS § 89–13(a)(8) provides, “It shall be a prohibited

practice for a public employer or its designated representative

wilfully to . . . [v]iolate the terms of a collective bargaining

agreement[.]”

24a

Appendix A

either the company or the Union,

employee-plaintiffs must not only show

that their discharge was contrary to

the contract but must also carry the

burden of demonstrating breach of

duty by the Union. The employee may,

if he chooses, sue one defendant and

not the other; but the case he must

prove is the same whether he sues one,

the other, or both.

Id. at 164–65; see also DiGuilio v. Rhode

Island Bhd. of Corr. Officers, 819 A.2d 1271,

1273 (R.I. 2003) (without a showing that the

union breached its duty of fair representation,

the employee does not have any standing

to contest the merits of his contract claim

against the employer in court).

Poe, 105 Hawai’i at 102, 94 P.3d at 657 (emphasis added)

(cleaned up).

Here, the Board concluded that because it determined

that Asato did not prove HGEA’s breach of its duty of fair

representation, she lacked standing to pursue her claim

against the DOE. As discussed above, the Board did not

err in its determination that Asato failed to establish

that HGEA breached its duty of fair representation.

Accordingly, the Board did not err in concluding that

Asato could not further prosecute her HRS § 89–13(a)(8)

claim against the DOE. See Poe, 105 Hawai’i at 102, 94

P.3d at 657. Therefore, the Circuit Court did not err in

affirming the Board’s dismissal of Asato’s claim against

the DOE.

25a

Appendix A

V. CONCLUSION

For these reasons, the Circuit Court’s May 13, 2022

Judgment is affirmed.

DATED: Honolulu, Hawai’i, February 14, 2025.

/s/ Katherine G. Leonard

Acting Chief Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

26a

Appendix B ON APPEAL OF

APPENDIX B — JUDGMENT

THE INTERMEDIATE COURT OF APPEALS OF

THE STATE OF HAWAI‘I, FILED MARCH 18, 2025

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

CAAP-22-0000339

IN THE MATTER OF VALERIE ASATO,

Complainant-Appellant/Appellant,

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION AND DEPARTMENT OF

EDUCATION, STATE OF HAWAI‘I,

Respondents-Appellees/Appellees

APPEAL FROM THE CIRCUIT COURT

OF THE FIRST CIRCUIT

(CIVIL NO. 1CCV-21-0000736)

JUDGMENT ON APPEAL

(By: Leonard, Acting Chief Judge, for the court)1

Pursuant to the Memorandum Opinion of the

Intermediate Court of Appeals entered on February 14,

2025, the Circuit Court of the First Circuit’s May 13, 2022

1. Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.

27a

Appendix B

Final Judgment is affirmed. Judgment is hereby entered

in this appeal.

DATED: Honolulu, Hawai‘i, March 18, 2025.

FOR THE COURT:

/s/ Katherine G. Leonard

Acting Chief Judge

28a

APPENDIX CAppendix

— FINDINGS

OF FACT,

CONCLUSIONS OF LAW, AND ORDER OF THE

CIRCUIT COURT OF THE FIRST CIRCUIT STATE

OF HAWAII, FILED JUNE 4, 2021

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

CIVIL No. 1CCV-21-0000736 (Agency Appeal)

CASE NOS. 20-CU-06-379, 20-CE-06-940

IN THE MATTER OF VALERIE ASATO,

Complainant-Appellant,

vs.

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION AND DEPARTMENT OF

EDUCATION, STATE OF HAWAII,

Respondents-Appellees.

Filed June 4, 2021

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND ORDER DENYING APPELLANT

VALERIE ASATO’S AGENCY APPEAL

Hearing

Date: December 17, 2021

Time: 1:30 p.m.

Judge: Honorable James H. Ashford

29a

Appendix C

R e sp ondent -A pp el le e STAT E OF H AWA II,

DEPARTMENT OF EDUCATION (“DOE”), by and

through its attorneys, Holly T. Shikada, Attorney General,

State of Hawaii, and Deputy Attorneys General James

E. Halvorson and Miriam P. Loui, hereby submits the

Findings of Fact, Conclusions of Law, and Order Denying

Appeal, pursuant to the Court’s order denying appeal, on

December 17, 2021.

FINDINGS OF FACT

1. To the extent that any of these Findings of Fact

are Conclusions of Law, they are to be so construed.

2. DOE employed Complainant-Appellant Valerie

Asato (“Ms. Asato”) as an Office Assistant III until her

termination on December 28, 2012.

3. DOE was an “employer” within the meaning of

Hawaii Revised Statutes (“HRS”) § 89-2.

4. Ms. Asato was an “employee” within the meaning

of HRS § 89-2.

Ms. Asato was a member of BU 3.

6. Respondent-Appellee Hawaii Government

Employees Association (“HGEA”) was the exclusive

representative for bargaining unit 3 (“BU 3”) within the

meaning of HRS § 89- 2.

7. HRS § 89-6(a)(3) defines BU 3 as “Nonsupervisory

employees in white collar positions.”

30a

Appendix C

8. DOE and HGEA were parties to the Unit 3

Contract (“BU 3 CBA”).

9. On January 14, 2013, HGEA filed a step 1

grievance challenging Ms. Asato’s termination as a

violation of Articles 3 (Maintenance of Rights and

Benefits), 4 (Personnel Policy Changes, 8 (Discipline), and

17 (Personal Rights and Representation).

10. Article 8 – Discipline provides in relevant part

that “Regular employees shall not be disciplined without

proper cause.”

11. On February 12, 2013, HGEA filed a step 2

grievance challenging Ms. Asato’s termination. A step 2

hearing was conducted on June 30, 2015. On September

4, 2015, DOE denied the step 2 grievance.

12. On October 14, 2015, HGEA filed a Notice of

Intent to Arbitrate Ms. Asato’s grievance.

13. On July 6, 2017, Ms. Asato filed a prohibited

practices complaint with the Hawaii Labor Relations

Board (“Board”) in Board Case No. 17-CU-03-352 (“352”).

14. On July 19, 2017, HGEA notified Ms. Asato that

HGEA was withdrawing its Notice of Intent to Arbitrate

with respect to her grievance.

15. Ms. Asato amended her prohibited practices

complaint in 352; however, the parties thereafter reached

a settlement whereby HGEA agreed to arbitrate Ms.

31a

Appendix C

Asato’s grievance. On May 2, 2018, HGEA and Ms. Asato

stipulated to dismiss her complaint in 352.

16. HGEA took Asato’s grievance to arbitration,

where Peter Trask, Esq. (“Trask”) represented HGEA.

Following the arbitration, Asato claimed that HGEA

“threw the fight” in bad faith due to Trask’s treatment

of Asato during arbitration preparation, the arbitration

result, and HGEA’s failure to move aside the arbitration.

Mr. Trask took the position that HGEA was his client, not

Ms. Asato. During arbitration, Mr. Trask made comments

that Ms. Asato found inappropriate.

17. On June 21, 2019, the arbitrator issued his 81-page

decision, stating in relevant part that the “parties were

afforded a full and fair opportunity to present evidence and

examine witnesses at the hearing, and to submit written

arguments after the hearing. The arbitrator commends

Mr. Trask and Ms. Loui for their superior representation

of their respective clients.” In the end, the arbitrator found

that DOE did not violate Articles 3, 4, 8, or 17 of the Unit

3 CBA when it terminated Ms. Asato effective December

28, 2012 and Ms. Asato was terminated for proper cause.

As a result, the arbitrator dismissed the grievance and

sustained Ms. Asato’s termination.

18. On July 9, 2019, HGEA sent the arbitrator’s

decision to Ms. Asato.

19. On October 4, 2019, Ms. Asato filed a prohibited

practices complaint in Case Nos. 19-CU-03-375 and 19CE-03-934.

32a

Appendix C

20. The 90-day period began on July 11, 2019, when

Ms. Asato received the arbitrator’s decision.

21. July 11, 2019 marks the beginning of the period

when Ms. Asato knew or should have known that her rights

were allegedly violated.

22. Ms. Asato’s allegation that HGEA’s July 19, 2017

letter constituted a prohibited practice in violation of HRS

§ 89-13(b)(1), was not timely.

23. July 19, 2017 falls outside of the relevant time

period.

24. Ms. Asato raised a Fourth Amendment issue.

The Board has no jurisdiction to render a decision on

constitutional issues. Further, constitutional analyses are

unnecessary for the Board to decide the statutory issues

presented by prohibited practice complaints.

25. The Board properly dismissed Ms. Asato’s HRS

§ 13(a)(8) claim against DOE prior to a hearing on the

merits, because the Board lacked jurisdiction.

CONCLUSIONS OF LAW

1. To the extent that any of these Conclusions of Law

are Findings of Fact, they are to be so construed.

2. With respect to the appeal of an administrative

decision, HRS § 91-14(g) (Supp. 2019) provides that upon

review of the record, the court may affirm the decision of

33a

Appendix C

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: in violation

of constitutional or statutory provisions; in excess of the

statutory authority or jurisdiction of the agency; made

upon unlawful procedure; affected by other error of law;

clearly erroneous in view of the reliable, probative, and

substantial evidence on the whole record; or arbitrary,

or capricious, or characterized by abuse of discretion or

clearly unwarranted exercise of discretion.

3. A circuit court’s review of an administrative order

is “qualified by the principle that the agency’s decision

carries a presumption of validity and appellant has the

heavy burden of making a convincing showing that the

decision is invalid because it is unjust and unreasonable

in its consequences.” Konno v. County of Kauai, 85 Hawaii

61, 77, 937 P.2d 397, 413 (1997).

4. The Board lacked jurisdiction to vacate the

arbitrator’s decision.

5. The arbitration decision was final and binding on

Ms. Asato.

CBA.

Ms. Asato was bound by the terms of the Unit 3

7. Ms. Asato lacked standing to challenge the

arbitration decision because she was not party to the

Unit 3 CBA.

34a

Appendix C

8. Ms. Asato was terminated for proper cause in

accordance with the Unit 3 CBA.

9. Following a hearing on the merits, the Board

properly dismissed Ms. Asato’s HRS § 13(a)(8) claim

against DOE for lack of standing.

10. The Board was not required to address Ms.

Asato’s constitutional claims because the Board lacked

jurisdiction.

11. The Board properly dismissed Ms. Asato’s HRS

§ 89-13(b)(5) claim because HGEA did not breach its duty

of fair representation.

12. The Board properly dismissed Ms. Asato’s HRS

§ 89-13(b)(1) claim because HGEA did not breach its duty

of fair representation.

13. The Board properly dismissed Ms. Asato’s HRS

§ 89-13(b)(1) claim because HGEA’s conduct toward her

was not arbitrary, discriminatory, or in bad faith.

14. The Board correctly granted HGEA’s motion

for a directed verdict because Ms. Asato failed to meet

her burden.

15. Ms. Asato failed to meet her burden of proving

a willful violation of HRS § 89- 13(a)(8) as to DOE.

16. Ms. Asato failed to meet her burden of proving a

willful violation of HRS §§ 89- 13(b)(1) and (5) as to HGEA.

35a

Appendix C

ORDER

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that Appellant Valerie Asato’s Agency Appeal,

filed on June 4, 2021, is denied. IT IS SO ORDERED.

DATED: Honolulu, Hawaii, April 18, 2022.

/s/ James H. Ashford

JUDGE OF THE

ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

/s/

SHAWN A. LUIZ

Attorney for Appellant

VALERIE ASATO

36a

Appendix

APPENDIX D — FINAL

JUDGMENT

OF THE

CIRCUIT COURT OF THE FIRST CIRCUIT,

STATE OF HAWAII, FILED MAY 13, 2022

IN THE CIRCUIT COURT

OF THE FIRST CIRCUIT

STATE OF HAWAII

CIVIL No. 1CCV-21-0000736

(Agency Appeal)

CASE NOS. 20-CU-06-379

20-CE-06-940

IN THE MATTER OF VALERIE ASATO,

Complainant-Appellant,

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION AND DEPARTMENT OF

EDUCATION, STATE OF HAWAII,

Respondents-Appellees.

Filed May 13, 2022

FINAL JUDGMENT

Pursuant to the Findings of Fact, Conclusions of

Law, and Order Denying Complainant-Appellant Valerie

Asato’s Agency Appeal, filed on June 4, 2021, and Rules

58 and 72 of the Hawaii Rules of Civil Procedure,

37a

Appendix D

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED:

That final judgment is hereby entered in favor of

Respondents-Appellees HAWAII GOVERNMENT

EMPLOYEES ASSOCIATION and DEPARTMENT OF

EDUCATION, STATE OF HAWAII.

This Final Judgment is entered as to all claims

asserted by Complainant-Appellant. Any remaining

claims are dismissed with prejudice. There are no

remaining claims or parties.

DATED: Honolulu, Hawaii, May 13, 2022

/s/ James H. Ashford

JUDGE OF THE ABOVEENTITLED COURT

38a

Appendix

E OF FACT OF

APPENDIX E —

FINDINGS

THE STATE OF HAWAI‘I, HAWAI‘I LABOR

RELATIONS BOARD, FILED JUNE 4, 2021

STATE OF HAWAI‘I

HAWAI‘I LABOR RELATIONS BOARD

CASE NO(S). 19-CU-03-375

19-CE-03-934

DECISION NO. 504

IN THE MATTER OF VALERIE ASATO,

Complainant(s),

and

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION; AND DEPARTMENT OF

EDUCATION, STATE OF HAWAI‘I,

Respondent(s).

Filed June 4, 2021

FINDINGS OF FACT, CONCLUSIONS OF LAW,

DECISION AND ORDER

1. Introduction and Statement of the Case

Complainant VALERIE ASATO (Complainant or

Asato) filed a prohibited practice complaint (Complaint)

with the Hawai‘i Labor Relations Board (Board), alleging

Respondents HAWAII GOVERNMENT EMPLOYEES

39a

Appendix E

ASSOCIATION (HGEA) and DEPARTMENT OF

EDUCATION, State of Hawai‘i (DOE and, collectively

with HGEA, Respondents) committed prohibited practices

against her.

Asato’s Complaint stems from a prior case, Board

Case No. 17-CU-03-352, which the parties settled.

After settling the case, HGEA took Asato’s grievance to

arbitration, where Peter Trask, Esq. (Trask) represented

HGEA. The arbitrator determined that the DOE did

not violate the collective bargaining agreement when

it terminated Asato and that DOE had proper cause to

terminate Asato.

Asato’s claims in this case arise from Trask’s behavior

before and during the arbitration. Asato argues that

HGEA “threw the fight” in bad faith due to Trask’s

treatment of Asato during arbitration preparation, the

arbitration result, and HGEA’s failure to move to set aside

the arbitration.

After hearing but not ruling on a Motion to Dismiss

or in the Alternative, Motion for Summary Disposition

(MTD), the Board held hearings on the merits (HOMs) on

November 13 and 20, 2019. Asato called several witnesses,

including both Asato and Trask. On the second day of the

HOMs, Asato rested her case-in-chief. HGEA then moved

for a directed verdict, and the Board gave Asato time to

submit her opposition in writing, which she did.

Based on the full record and for the reasons set

forth below, the Board GRANTS the HGEA’s Motion for

40a

Appendix E

Directed Verdict, finding that Asato failed to carry the

burden of proof necessary to sustain the Complaint. Based

on the granting of the Motion for Directed Verdict, the

Board dismisses the MTD as moot.

2. Background and Findings of Fact

Until December 28, 2012, DOE1 employed Asato2 as

an Office Assistant III, a member of bargaining unit 33

1. DOE is an “employer” or “public employer” within the

definition found in HRS § 89-2, which defines such as:

“Employer” or “public employer” means the governor

in the case of the State, the respective mayors in the

case of the counties, the chief justice of the supreme

court in the case of the judiciary, the board of education

in the case of the department of education, the board

of regents in the case of the University of Hawaii, the

Hawaii health systems corporation board in the case

of the Hawaii health systems corporation, and any

individual who represents one of these employers or

acts in their interest in dealing with public employees.

In the case of the judiciary, the administrative director

of the courts shall be the employer in lieu of the chief

justice for purposes which the chief justice determines

would be prudent or necessary to avoid conflict.

2. In this role, Asato was an “employee” or “public employee”

within the definition found in HRS § 89-2, which defines such as:

“Employee” or “public employee” means any person

employed by a public employer, except elected and

appointed officials and other employees who are

excluded from coverage in section [89-6(f)].

3. HRS § 89-6 defines bargaining unit 3 as “Nonsupervisory

employees in white collar positions”.

41a

Appendix E

(BU 3). Asato’s grievance regarding her termination went

through the Step 1 and Step 2 processes found in the BU

3 collective bargaining agreement (CBA). Nearly three

years after Asato’s termination, in October 2015, HGEA,

the exclusive representative4 for BU 3, filed a Notice of

Intent to Arbitrate Asato’s grievance with DOE.

On July 6, 2017, Asato filed a prohibited practice

complaint with the Board against HGEA in Board Case

No. 17-CU-03-352 (352). On July 19, 2017, HGEA notified

Asato that HGEA was withdrawing its Notice of Intent to

Arbitrate in her case. Asato then amended her prohibited

practice complaint in 352, and the parties reached a

settlement and stipulated to dismiss this case on May 2,

2018.

HGEA proceeded to arbitrate Asato’s grievance

in December of 2018 and selected Trask to serve as its

attorney for the arbitration. During the preparation for

the arbitration, Trask took the position that HGEA was

his client, not Asato, and he made comments that Asato

found inappropriate.

After the conclusion of the arbitration, the arbitrator

4. HRS § 89-2 defines “exclusive representative” as:

“Exclusive representative” means the employee

organization certified by the board under section 89-8

as the collective bargaining agent to represent all

employees in an appropriate bargaining unit without

discrimination and without regard to employee

organization membership.

42a

Appendix E

issued his decision, which HGEA sent to Asato on July

9, 2019. In the decision, the arbitrator found, among

other things, that DOE did not violate the CBA when it

terminated Asato and that DOE terminated Asato for

proper cause.

3. Analysis and Conclusions of Law

3.1. Jurisdiction and Scope of the Case

3.1.1. Timeliness

Although Respondents did not raise the issue of

timeliness in the MTD or the substantive joinders, Asato

brought up the issue herself. Accordingly, the Board will

address its jurisdiction to hear the case in terms of the

timeliness of the matter.

Contrary to Asato’s assertions, the seminal cases

dealing with timeliness in HRS Chapter 89 cases are

those found in Hawai‘i law, not in federal law. Federal

law does not govern HRS Chapter 89 cases, as Hawai‘i

Revised Statutes (HRS) Chapter 89 is a state statute,

not a federal one. Therefore, while federal law may,

occasionally, be instructive to considering prohibited

practice cases, the only cases that are actually relevant

are those which specifically deal with HRS Chapter 89,

those found in decisions issued by Hawai‘i state courts and

by this Board itself.

The HRS and the courts have defined the Board’s

procedural jurisdiction, in part, based on HRS § 377-9.

43a

Appendix E

See, HRS § 89-14; Aio v. Hamada, 66 Haw. 401, 404

n.3, 664 P.2d 727, 729 n.3 (1983) (Aio). These limits are

jurisdictional and provided by statute, neither the Board

nor the parties may waive this ninety-day requirement.

Hikalea v. Department of Environmental Services, City

and County of Honolulu, Case No. CE-01-808, Order No.

3023 at *6 (October 3, 2014).

The Board’s approach to the 90-day timeline has

been to follow the principles that require the Board

to strictly follow the timelines and that, even if the

complainant misses the deadline by a single day, the Board

cannot waive that ninety-day requirement. Fitzgerald

v. Ariyoshi, 3 HPERB 186, 198-199 (1983). The Board

has further followed the principle that this ninety-day

period begins when the complainant knew or should have

known that his rights were being violated. United Public

Workers, AFSCME, Local 646 v. Okimoto, Board Case

No. CE-01-515, Decision No. 443, 6 HLRB 319, 330 (2003).

Asato filed the Complaint on October 4, 2019.

Accordingly, the 90-day period began on July 6, 2019.

Asato received the arbitration decision on July 11,

2019. Her allegations stem from the conduct of HGEA’s

preparation for and at the arbitration. Therefore, the

decision marks the beginning of the period when Asato

knew or should have known that her rights were allegedly

violated. Accordingly, the majority of this case is timely.

However, what is not timely is Asato’s allegation

that HGEA’s July 19, 2017 letter constituted a prohibited

practice in violation of HRS § 89-13(b)(1). There is no

44a

Appendix E

question that July 19, 2017 falls far outside of the relevant

period.

3.1.2. Constitutional Questions

In her filings, among other things, Asato raises a

question regarding the Fourth Amendment of the United

States Constitution. The Board has no jurisdiction to

render a decision on constitutional issues. See, e.g., Hawaii

Gov’t Emp. Ass’n, AFSCME Local 152 v. Lingle, 124

Hawai‘i 197, 207, 239 P.3d 1, 11 (2010) (Lingle). Further,

constitutional analyses are unnecessary for the Board

to decide the statutory issues presented by prohibited

practice complaints. Id. at 207, 239 P.3d at 11.

Accordingly, the Board will not address any of the

constitutional issues raised by Asato.

3.2. Relevant Legal Standards

3.2.1. Motion for Directed Verdict

The Board is permitted to hear motions for directed

verdict, as long as the party opposing the motion is given a

full and fair opportunity to be heard on the motion and the

rules applicable to the Board are not otherwise violated.

Parker v. UPW and PSD, Board Case Nos. 18-CU-10-370;

19-CE-10-923, Decision No. 502, *42 (2021). Asato had

a full and fair opportunity to be heard through filing a

written opposition to the motion within the time allowed

by the Board, which was greater than the amount of time

typically permitted under Hawai‘i Administrative Rules

(HAR) § 12-42-8(g)(3)(C)(iii).

45a

Appendix E

In deciding a motion for directed verdict, the Board

must consider the evidence and the inferences fairly drawn

from the evidence in the light most favorable to the nonmoving party, and the motion cannot be granted unless

there is only one reasonable conclusion as to the proper

judgment. Makino v. County of Hawaii and UPW, Board

Case Nos. CE-01-856, CU-01-332, Decision No. 492, *19

(2017).

3.2.2. Burden of Proof

Under both HRS § 91-10(5) and HAR § 12-42-8(g)

(16), Asato bears the burden of proof. This burden of proof

includes both the burden of producing evidence and the

burden of persuasion and must be met by a preponderance

of the evidence. HRS § 91-10(5). Therefore, for Asato’s

claims to survive a motion for directed verdict, in her

case-in-chief, with the evidence and inferences viewed

in the light most favorable to Asato, she must have

shown that Respondents committed prohibited practices

through evidence and argument. United Public Workers,

AFSCME, Local 646 v. Waihee, Board Case No. CE-01122, Decision No. 309, 4 HLRB 742, 750 (1990).

If, in her case-in-chief, Asato has not presented

sufficient evidence and legal arguments with respect

to an issue, the Board will find that she failed to carry

her burden of proof and dispose of the issue accordingly.

Mamuad v. Nakanelua, Board Case No. CU-10-331, Order

No. 3337F, *25 (2018) (Mamuad).

46a

Appendix E

3.3. HRS § 89-13(b)(4) and (5) Allegations

The Board first dispenses with Asato’s HRS § 8913(b)(4) allegation because she did not plead a statutory

violation independent of HRS § 89-13. The Board has

long held that statutory violations under HRS § 89-13(b)

(4) must specify additional violations of HRS Chapter

89 outside of HRS § 89-13. See Souza v. Honolulu Fire

Department et al., Board Case Nos. CE-11-759, CU-11-293,

Order No. 2759, *13 (2011). Accordingly, the Board must

dismiss Asato’s HRS § 89-13(b)(4) claim.

Next, the Board turns to Asato’s HRS § 89-13(b)

(5) claim. Asato argues that HGEA violated Article 11,

Grievance Procedure, of the CBA because Asato was

entitled to “non-discriminatory/non-retaliatory union

representation”. While the Board does not disagree that

HGEA has a duty to fairly represent all employees in its

bargaining units, none of Asato’s evidence points to HGEA

violating Article 11 against Asato.

Asato’s claims in this case all center around the

preparation for and actual arbitration of her grievance.

Article 11(G), Step 3. Arbitration, provides the procedures

for HGEA to proceed with arbitration. These procedures

are not procedures that involve employees, as arbitration

is a matter between the union and the employer. Further,

there is nothing in Article 11 that speaks to discrimination

or retaliation. Accordingly, the Board must dismiss

Asato’s HRS § 89-13(b)(5) claim.

47a

Appendix E

3.4. The Arbitration of Asato’s Grievance; The Duty

of Fair Representation

Turning to Asato’s surviving claim that HGEA

violated HRS § 89-13(b)(1)5 and breached the duty of fair

representation, the Board considers this claim based on

the evidence presented. As Asato frames her claim that

HGEA violated HRS § 89-13(b)(1) primarily as a breach

of the duty of fair representation; the Board will analyze

the claim accordingly.

As the exclusive bargaining representative for BU 3,

HGEA has a duty to fairly represent all of the employees in

BU 3, both in collective bargaining and in the enforcement

of the resulting CBA. Poe v. Hawaii Labor Relations

Board, 105 Hawai‘i 97, 101, 94 P.3d 652, 656 (2004) (Poe).

However, HGEA must retain the discretion to act in what it

perceives to be their members’ best interest; therefore, the

duty of fair representation must be narrowly construed.

Campos v. University of Hawai‘i at Mānoa et al., Board

Case Nos. 18-CE-07-917; 18-CU-07-362, Order No. 3455A,

5. HRS § 89-13 states in relevant part:

***

(b) It shall be a prohibited practice for a public

employee or for an employee organization or its

designated agent wailfully to:

(1) Interfere, restrain, or coerce any

employee in the exercise of any right

guaranteed under this chapter;

***

48a

Appendix E

at *11 (2019); Tupola v. University of Hawaii Professional

Assembly et al., Board Case Nos. CU-07-330; CE-07-847,

Order No. 3054, at *27 (2015) (Tupola). Accordingly, any

substantive examination of HGEA’s performance must be

deferential. Tupola, at *27.

More specifically, the Board can find a breach of the

duty of fair representation only if HGEA’s conduct towards

Asato was arbitrary, discriminatory, or in bad faith. Poe,

105 Hawai‘i at 104, 94 P.3d at 659. The Board must perform

separate analyses for each of these elements because each

represents a distinct and separate obligation, Tupola, at

*27. To determine which of these three elements apply,

the Board has adopted a two-step analysis, first looking at

whether the alleged union misconduct involved the union’s

judgment or whether it was ‘procedural or ministerial.’

Mamuad, at *31.

Of the three ways that the duty of fair representation

can be violated, arbitrariness applies only if the

alleged misconduct is “procedural or ministerial”. Id.

Arbitrariness is controlling only when the challenged

conduct is procedural or ministerial, and mere negligence

does not rise to the level of arbitrariness. Moore v. Bechtel

Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). For alleged

misconduct to be arbitrary, the act in question must not

require the exercise of judgment; there must be no rational

or proper basis for the union’s conduct; the action must

have been in reckless disregard of the employee’s rights;

and it must prejudice a strong interest of the employee.

Id. Further, the way that the grievance is presented at an

arbitration hearing is not an arbitrary decision. Tupola,

at *28.

49a

Appendix E

Decisions as to how to pursue a particular grievance,

including how to present a grievance at the arbitration

stage, are matters of judgment for the union, and unions

are not liable for good faith, non-discriminatory errors of

judgment in making those decisions. Id.

Asato argues that HGEA’s conduct was arbitrary

because HGEA “lack[s] a rational basis to treat the

employee with contempt as it proceeds through the

arbitration process”; and that HGEA subverted the

arbitration process, acting in bad faith by “thr[owing] the

fight.”. Asato does not specifically allege discriminatory

conduct on HGEA’s behalf.

3.4.1. The Arbitrary Element

Asato first argues that “HGEA’s actions lack a rational

basis to treat the employee with contempt as it proceeds

through the arbitration process.”

There is no evidence in the record that HGEA failed

to perform a procedural or ministerial act, and Asato’s

argument does not fall under the umbrella of procedural or

ministerial actions. The Board has previously referenced

the Ninth Circuit’s examples of a union acting arbitrarily,

including where a union failed to:

1) disclose to an employee its decision not to

submit her grievance to arbitration when the

employee was attempting to determine whether

to accept or reject a settlement offer from her

employer; 2) file a timely grievance after it

50a

Appendix E

decided that the grievance was meritorious

and should be filed; 3) consider individually

the grievances of particular employees where

the factual and legal differences among them

were significant; or 4) permit employees to

explain the events which led to their discharge

before deciding not to submit their grievances

to arbitration.

Tupola, at *28.

Asato’s arbitrariness argument resembles none of

these examples. The way that a union chooses to approach

an arbitration is a matter of judgment, not a procedural

or ministerial action. Accordingly, Asato’s claims of a

breach of the duty of fair representation must fail as

to arbitrariness. However, the Board will address the

substance of the claim in its discussion of HGEA’s alleged

bad faith as well, given that the Board must consider

inferences in the light most favorable to Asato.

3.4.2. The Discriminatory Element

Asato does not specifically allege any discrimination

on the part of HGEA. The closest argument that Asato

makes to an argument as to the discriminatory element

is where she argues that she was entitled to “nondiscriminatory/non-retaliatory union representation”.

However, while Asato references the discriminatory

element, she has no clear argument as to on what basis

HGEA discriminated against her.

51a

Appendix E

Discriminatory conduct can be established by

substantial evidence of discrimination that is intentional,

severe, and unrelated to legitimate union objectives.

Mamuad, at *37. The Board has not adopted a strict

standard for discrimination in the context of a breach of

the duty of fair representation, but the Board has noted

that the element of discrimination is not restricted by

impermissible or immutable classifications like race or

other constitutionally protected categories. Tupola, at *33.

In addition to those constitutionally protected categories,

a union cannot discriminate against an employee on the

basis of union membership or if discrimination comes from

prejudice or animus. Id.

However, despite this expanded view of discrimination,

the complainant must demonstrate some evidence of

discrimination for a claim of the breach of the duty of fair

representation to succeed. Tupola, at *33. Evidence that

could be used to demonstrate discrimination may include

proving that the union granted benefits to some members

of the bargaining unit but not to others or treated similarly

situated individuals differently in deciding whether to take

their case to arbitration. Id.

Here, Asato has not presented any such evidence.

Based on the applicable standard and the lack of sufficient

facts or evidence, any claim of discrimination must fail.

3.4.3. The Bad Faith Element

The bad faith element requires the Board to make a

subjective inquiry and requires the complainant to provide

52a

Appendix E

proof that the union acted (or failed to act) due to an

improper motive. Tupola, at *34. Because assertions of the

state of mind required for the claim must be corroborated

by subsidiary facts, and must show substantial evidence

of fraud, deceit, or dishonest conduct. Id.

Because Asato bears the burden of proof, she must

produce evidence of bad faith to prove this element.

Mamuad, at *37-38. The Board is not considering whether

HGEA made the right decision; rather, the Board asks

whether HGEA made its decision rationally and in good

faith. Emura v. Haw. Gov’t Emp. Ass’n, AFSCME, Local

152, CU-03-328, Order No. 3028, at *15-16 (2014).

Asato argues that HGEA subverted the arbitration

process, acting in bad faith by “thr[owing] the fight”.

As evidence, Asato submits that Trask’s actions during

arbitration preparation, the result of arbitration, and the

failure to move to vacate or set aside the arbitration all

add up to HGEA “thr[owing] the fight”.

As previously noted, HGEA’s decision as to how to

pursue a particular grievance, including at arbitration, is a

matter of judgment, and the Board must give HGEA a wide

degree of deference when considering a potential breach

of the duty of fair representation based on a question of

HGEA’s judgment. Tupola, at *28-29. Further, HGEA

has broad discretion in its decision as to how to pursue

an employee’s grievance against the employer. Id., at *28.

The Board expects all parties to act with a level of

decorum and civility in interacting with one another.

53a

Appendix E

Sometimes, parties may fall short of the level the Board

would expect or hope for; however, falling short of that

level of decorum and civility is not enough to sustain a

breach of the duty of fair representation.

The selection of the attorney to represent the union

at an arbitration hearing and the strategy employed at

an arbitration hearing—including decisions about steps

to take after the arbitration decision is issued—are

questions of HGEA’s judgment. Although Asato may have

wanted HGEA to pursue a different strategy or prepare

for the arbitration differently, HGEA has the right to

make judgment calls on these matters. The Board cannot

substitute its judgment for HGEA’s.

Therefore, the Board must consider whether Asato

has presented sufficient facts to prove that HGEA’s

judgment calls show substantial evidence of fraud, deceit,

or dishonest conduct. Based on the record, the Board

cannot find any of these.

Trask’s conduct during the preparation for the

arbitration while, perhaps, not the most civil, was not

dishonest and did not show evidence of fraud or deceit.

Some of Trask’s answers to Asato and positions that Trask

took may have been disappointing or frustrating to Asato.

However, that does not mean that his conduct rose to the

level of a breach of the duty of fair representation6.

6. To the lay person, the following remarks may be offensive,

demeaning, and certainly unbecoming to an attorney and officer

of the court:

54a

Appendix E

HGEA hired Trask to represent HGEA at the

arbitration hearing. While the underlying grievance

involved Asato, the union has the exclusive right to

“Does this have anything to do with the case? I don’t

have time for stupid questions or general questions.

Don’t give me scenarios. I’m not your private attorney.

I work for the union. If you want to learn the law, go to

law school. I’m trying to plan and strategize the case. I

don’t want to give the DOE ammunition for their case.

Only ask me things that are relevant to my case only.”

“Why you sue the union for? You’re stupid to sue the

union. You wanted this arbitration. I know if you lose

this case, you’re going to sue and blame the union,

and when you do, I’m going to tear your ass apart on

the witness stand.”

“Kevin is a fuck up, screw up, wimp. He does things

half-assed. He’s lazy. Well, sometimes the union does

stupid things, and I have to go and clean up their

mess.”

“Do you pay dues? Because this case is going to cost

the union $40,000.00 and even if you get your job back,

I don’t think you could pay it back in dues. You know,

6 years ago, I wouldn’t have even taken your case. If

Sanford brought this case to me, I would have rejected

it right there. I give this case a 30% chance of winning.

Not even that, maybe a 20% chance.”

These remarks are, however, insufficient to support a finding of a

breach of the duty of fair representation in the instant case. The law,

and not sensitive ears or thin skin, must prevail. Still, Respondent’s

counsel may have merely dodged the bullet and should take heed

that these same words may, in other circumstances, be fairly

construed as evidence to find a violation of an employee’s right to

fair representation and/or a prohibited practice.

55a

Appendix E

arbitration under the CBA. This means that, at the

arbitration stage, that grievance belongs to HGEA, not

to Asato. HGEA, not Asato, makes the judgment calls as

to how to proceed at this stage, and even if HGEA made

the “wrong” call, that does not constitute a breach of the

duty of fair representation.

Accordingly, the Board cannot find that HGEA

violated its duty of fair representation to Asato by acting

in bad faith.

3.5. Other Claims

Asato’s remaining HRS § 89-13(a)(8) claim and the

claim of a breach of the duty of fair representation are

inextricably interdependent. Poe, 105 Hawai‘i at 102, 94

P.3d at 657. If Asato does not prove HGEA breached its

duty of fair representation, she lacks standing to pursue

her claim against the employer. Poe, 105 Hawai‘i at 104,

94 P.3d at 659. To put it another way, Asato’s failure to

prove that HGEA breached its duty of fair representation

means that her HRS § 89-13(a)(8) claim against DOE must

also fail. Tupola, at *39

Based on the Board’s findings above, the Board must

also dismiss the HRS § 89-13(a)(8) claim.

4. Order

For all of the foregoing reasons, the Board hereby

grants HGEA’s Motion for Directed Verdict because

56a

Appendix E

of Asato’s failure to meet her burden of proof after the

conclusion of her case-in-chief. This case is closed.

DATED: Honolulu, Hawai‘i,

May 5, 2021

HAWAI‘I LABOR RELATIONS BOARD

/s/ Marcus R. Oshiro

MARCUS R. OSHIRO, Chair

/s/ Sesnita A.D. Moepono

SESNITA A.D. MOEPONO, Member

/s/ J N. Musto

J N. MUSTO, Member

Copies sent to:

Shawn A. Luiz, Esq.

Stacy Moniz, HGEA

James Halvorson, Deputy Attorney General

57a

AppendixOF

F THE SUPREME

APPENDIX F — ORDER

COURT OF THE STATE OF HAWAI’I,

FILED JULY 18, 2025

IN THE SUPREME COURT

OF THE STATE OF HAWAI‘I

SCWC-22-0000339

IN THE MATTER OF VALERIE ASATO,

Petitioner/Complainant-Appellant/Appellant,

vs.

HAWAII GOVERNMENT EMPLOYESS

ASSOSCIATION; AND DEPARTMENT OF

EDUCATION, STATE OF HAWAI‘I,

Respondents/Respondents-Appellees/Appellees.

CERTIORARI TO THE

INTERMEDIATE COURT OF APPEALS

(CAAP-22-0000339; CASE. NO. 1CCV-21-0000736)

ORDER REJECTING APPLICATION

FOR WRIT OF CERTIORARI

(By: Recktenwald, C.J., McKenna, Eddins,

and Ginoza, JJ., and Circuit Judge Castagnetti

in place of Devens, J., recused)

Petitioner Valerie Asato’s Application for Writ of

Certiorari, filed on May 19, 2025, is hereby rejected.

58a

Appendix F

DATED: Honolulu, Hawai‘i, July 18, 2025.

/s/ Mark E. Recktenwald

/s/ Sabrina S. McKenna

/s/ Todd W. Eddins

/s/ Lisa M. Ginoza

/s/ Jeannette H. Castagnetti

59a

Appendix

APPENDIX

G — ADDENDUM

1. Fourth Amendment to the United States

Constitution

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

2. Article I, Section 7 of the Hawaii Constitution:

“The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches,

seizures and invasions of privacy shall not be violated;

and no warrants shall issue but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched and the persons or

things to be seized or the communications sought to be

intercepted.”

3. Hawaii Revised Statutes 91-14(g)(1):

§91-14 Judicial review of contested cases. (a) Any person

aggrieved by a final decision and order in a contested case

or by a preliminary ruling of the nature that deferral of

review pending entry of a subsequent final decision would

deprive appellant of adequate relief is entitled to judicial

review thereof under this chapter; but nothing in this

section shall be deemed to prevent resort to other means

of review, redress, relief, or trial de novo, including the

60a

Appendix G

right of trial by jury, provided by law. Notwithstanding

any other provision of this chapter to the contrary, for

the purposes of this section, the term «person aggrieved»

shall include an agency that is a party to a contested case

proceeding before that agency or another agency…

…(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;

4. Haw. Rev. Stat. § 89-13(b)(1):

§89-13 Prohibited practices; evidence of bad faith… .

…(b) It shall be a prohibited practice for a public employee

or for an employee organization or its designated agent

wilfully to:

(1) Interfere, restrain, or coerce any employee in the

exercise of any right guaranteed under this chapter; …

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.