# Appendix — Caldeira v. County of Kauai

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1485%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 817

## Text

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»9f Judge Fong’s Decision,

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three things,

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have befo

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which I hi

not said previously, in addition to my
€ motion.

The first is that the effect of your
Decision, about two weeks ago, is to cause
a lawsuit which has been pending in
Federal Court for over two years to be
dismissed now without trial.

A second thing I’d like to point out
is that the basis for your Decision is
that the HPERB administrative proceeding
which Mr. Caldeira filed over two years
ago kad tolling the one year period of
limitation and I have included in some
caes in my newest affidavit to show Your
Honor that nothing has happened in the
HPERB case at all. That is to to say,
after Motions to Dismiss were filed HPERB
had a hearing and Mr. Caldeira attended
pro se.

HPERB took those motions under
advisement, has never ruled, there has

never been a decision and, of course,

there’s been no trial in the HPERB

Complaint. The case has simply been
dormant until just very recently, a series
of motions filed in that case as well.

I make this point to show that it
seems to- me to say that the HPERB
proceeding is a reason for tolling the one
year period, which the County would
otherwise have to comply with, is giving
far too much significance to a proceeding
that has never gone anywhere.

The third point is that to use or
advance a tolling a litigant usually comes
to court showing some equity in its
position. This is where the County is.
And it says that -- use a statute -- we’re
moving to confirm under the statute, the
one year period. We waited two years to
file a Motion for Confirmation. But, it’s
okay because we have a right to toll that

one year period.

Well, usually a litigant who says
that shows that he ifs entitled to take
advantage, say, of the discovery rule
where he didn’t know he was going to sue,
didn’t know he had a cause of action.
Like the sponge the doctor leaves in a
patient’s stomach. He doesn’t know about
it, the period of runs.

Four, the litigant can’t show he has
some excuse why he didn’t comply with the
Statute of Limitation, or the litigant
shows that he was prevented from filing on
time by some sort of disability like, for
instance, being a minor, or being out of
state, or being absent.

Well, here the County has not offered
any excuse at all for not complying with
the one year period and, of course, it was
not legally prevented from moving for
confirmation right away. It could have if
it wanted to. Instead, it doesn’t do

that. There is the HPERB proceeding,

10

there is Mr. Caldeira’s Federal Court
lawsuit. Two years go by; the parties are

engaged in serious litigation in the

Federal Court case. Much discovery is
done. We get down to a month before trial
and suddenly there’s a Motion for

Confirmation.

I don’t think there’s any equity in
the County’s position and I hope that Your
Honor will reconsider that in connection
With my motion.

THE COURT: All right. Mr. Perry,
will you go first?

MR. PERRY: Yes.

THE COURT: Speak loudly so they can
hear.

MR. PERRY: The --

MR. SMITH: Hello? I cannot hear
Warren.
MR. PERRY: Okay. I’ll try right

over here.

THE COURT: Can you hear him now?

11

——e—————SS —~——————t

MR. SMITH: Yes.
€ MR. PERRY: Mr. Smith 1s arguing,
basically, to the fact of the underlying
justification for the confirming of the

Arbitration award, and what he’s arguing

as to Judge Fong’s actions because of the

confirmation, it basically ~~ all he’s
saying is that Judge Fong followed the law
in ruling on the effect of the
confirmation of the Arbitration award.

As far as the tolling of the Statute
of Limitations, I don’t have any problem,
and as far as equities 8°» his argument
that the County of Kaual should have
equities involved in that, l think I’ll
use Mr. Smith’s own argument that he
submitted in his Memo in Opposition that

the whole purpose of the Arbitration

proceeding was to have finality- And what

with Mr. Caldeira’s seeking relief from

the Arbitration award at HPERB ana in the

Federal District Court, we are not getting

12

that finality that should have been gotten

& because of the Arbitration hearing.
The tolling of the Statute of
Limitations, I think, is justified based
on arguments which I and the attorney for

the Union submitted, and I leave it up to

MR. SMITH: I’m sorry; you’re fading
away.

MR. PERRY: And I leave it to the
Judge after that.

THE COURT: Mr. Khim?

MR. KHIM: Thank you, Your Honor.
Can everyone hear me okay?

THE COURT: Yes.

MR. SMITH: Yes, Your Honor, I can.

MR. KHIM: Okay. Basically, I would
just like to briefly go over my argument
that I submitted in my Memorandum in
Opposition and Motion to Vacate. I trust

the Court ahs received a copy of that.

13

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acts done in furtherance of a

conspiracy by defendant caused

the plaintiff’s injury. id.

Furthermore, the causation

requirement of sections 1983 and

1985 is not merely cause in

fact, but proximate cause or

legal causation. Id,

Order at 5.

The Court stated in its Order that
the discharge was caused by the
insubordination of the plaintiff in the
face of a valid work order, as found by
the arbitrator and confirmed by the state
court. The Court was bound to accept this
causal connection under Mack. To the
extent the Court’s tangential superceding
cause analysis was misleading, it
restricts attention to its central and
salient conclusion that the alleged

wrongdoing of the defendants’ was neither

the cause in fact nor the proximate cause

of plaintiff Caldeira’s harm. See Order
at 6.
D. Court’s Treatment of Plaintiff’s

Circumstantial Evidence

Plaintiff Caldeira seizes on the

Court’s use of the phrase post hoc ergo

propter hoc as a means to question its

reasoning regarding its evaluation of the
plaintiff’s circumstantial evidence of a
conspiracy between defendants HGEA and
County to deprive him of his
constitutional rights. To the extent that
the Court was unclear, it restates its
position regarding the plaintiff’s
circumstantial evidence.

Plaintiff Caldeira stats that "this
Court erred in ruling that Caldeira’s
circumstantial evidence of conspiracy is
insufficient because it proceeds from post
hoc rationalization." See Memorandum at
3. Plaintiff Caldeira misunderstands and
mischaracterizes the Court’s reasoning and
finding. The Court found that under the
standards for summary judgment as
enunciated by the Ninth Circuit, see,

e.g., Commodity Futures Trading Comm’n v.

Savage, 611 F.2d 270, 282 (9th Cir. 1979),

T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th

Cir. 1987) (citing Celotex Corp. vv.

Catrett, 106 S. Ct. 2548, 2553 [1986]),

and Eisenberg v. Insurance Co. of North

America, 815 F.2d 1285, 1289 (9th Cir.

1987) (citing Anderson v. Liberty Lobby,

Inc., 106 S. Ct. 2505, 2512 [1986]), that
plaintiff had failed to meet its burden to
defeat the defendant’s motion for summary
judgment.

The secondary reference to post hoc

ergo propter hoc was in the manner of

characterization and was not part of its
reasoning or conclusion. What the Court
meant by this reference was simply that
the plaintiff apparently wished the Court
to draw the inference, unsupported byany
direct evidence or any circumstantial
evidence that would convince a fair-minded

jury to find in his favor, that because he

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order. Such is not a dismissal on merits
as the court has’ otherwise specified
grounds for dismissal. This is an example
of a dismissal “not provided for in Rule
41" but which was for a specified reason
not going to the merits of the claim;
thus, it is a dismissal not on the merits.

Lohman v. Gen. Am. Life Ins. Co., 478 F.2d

719, 721-723 (8th Cir. 1973), cert. den.
414 U.S. 857, 38 L.Ed.2d 107, 94 S.Ct. 162
(1973).

Since the full faith and credit
doctrine requires that judgments entered
in federal or State courts be given effect
by other courts, dismissal of an action in
federal court, which, by the operation of
Rule 41(b) is an adjudication on the
merits, is res judicata in an action on

the same claim in State court. Peros v.

Ciade Nav Mar Netumar, 349 N.Y.S.2d 926,

927 (N.Y. Civ. Ct. 1973): Curry vy. Eqducos

Preschool, Inc., 580 P.2d 222, 223 (Utah

36

1978).

Applying FRCP Rule 41(b) to the case
at bar, it would appear that Judge Fong’s
decision was on the merits and, therefore,
has res judicata effect. (That the FRCP
applies herein is clear. Moore’s Federal
Practice Par. 0.410[1] states: "When
successive actions span jurisdictional
lines, the full faith and credit statute
requires that the extent of preclusion of
the judgment is governed by the law of the
jurisdiction that rendered it.") The
decision did not specify that it was not
an adjudication on the merits. Neither
was the dismissal for lack of
jurisdiction, improper venue, or failure
to join a party such as would cause it to
be not on the merits under Rule 41(b).
Fong does not specify other grounds for
dismissal which would prompt the
conclusion that the dismissal was not an

adjudication on merits. While he does

37

mention the full faith and credit clause

in his decision, this is only the grounds
for accepting the validity of
Complainant’s dismissal as determined in
the arbitration, and is not the basis for
the dismissal of the federal case as a
whole. Citation of the full faith and
credit clause is thus not a- reason
"otherwise specified" for dismissal which
would make the dismissal an adjudication
not on the merits. Fong, im fact,
explicitly states "the court approaches
the disposition of the defense’s motion
[for summary judgment] in terms of the
alleged 12 ’episodes.’” (Federal
decision, >: o) This amounts to a
declaration that the federal decision is,
in fact, on the merits.

Thus, it appears that the Board is
precluded through res judicata effect of
the federal decision from considering

Complainant’s claims before the Board.

38

For a prior judgment to bar an action
on the basis of res judicata, the prior
judgment must have been rendered by a
court of competent jurisdiction, there
must have been a final judgment on the

merits, and the same cause of action must

be involved in both cases. Hall v. Tower
Land & Invest. Co., supra, 512 F.2d at
483. These three criteria appear to be

met, in regards to the federal proceeding:
the federal district court exercised
competent jurisdiction, the order issued
amounts to a final judgment on the merits,
and the same cause of action is involved
in both the federal case and the complaint
before the Board.

The standards for res judicata are

alternately stated in Hall v. State of

Hawaii, Haw.App. (No. 11992,
May 26, 1988), @a case with facts
paralleling those herein. In Hall, the

Hawaii Court of Appeals affirmed an order

39

dismissing Hall’s amended complaint. The

amended complaint charged inter alia, that

Hall’s denial of admission to law school
for the 1984 and 1985 admission years
violated the U.S. and Hawaii Constitutions
and federal and state statutory and common
law. Hall had previously filed a U.S.
Pistrict Court snit alleging
unconstitutional and unlawful denial of
admission in the 1984 admission year.
This previous suit requested substantially
the same relief as that requested in the
case in question. Defendant’s motion for
summary judgment in federal district court
was granted. The Ninth Circuit affirmed
the judgment. Thereafter, defendants in
the case in question filed a Motion to
Dismiss Or In the Alternative for Summary
Judgment which was granted and Hall
entered the appeal in question. Id. pp.
3-5. The Hawaii Court of Appeals denied

the appeal.

40

In holding the first case precluded
€ the second case, the Court discussed the
principles of res judicata:

The principles governing
the instant case are stated in
Silver v. Queen’s Hospital, 63
Haw. 430, 629 P.2d 1116 (1983),
in which the supreme court
affirmed a summary § judgment
against the plaintiff on the
grounds that under the doctrine
of res judicata a dismissal of
the plaintiff’s prior federal
suit barred the state action.

The doctrine of res
jJudicata essentially provides
that "[t]Jhe judgment of a court
of competent jurisdiction is a
bar to a new action in any court
between the same parties or
their privies concerning the
same subject matter, and
precludes the relitigation, not
only of the issues which were
actually litigated in the first
action, but also of all grounds
of claim or defense which might
have been properly litigated in
the first action but were not
litigated or decided." Estate
Bernice P. Bishop, 36 Haw. 403,
416 (1943). In the application
of the doctrine, three basic
questions must ordinarily be
answered in the affirmative:
(1) Was the issue decided in the
prior action identical with the
issue presented in the present

action? (2) Was there a final
& judgment on the merits in the
prior action? (3) Was the party

41

against whom the doctrine is
asserted a party or in privity
with a party to the previous
adjudication? Morneau v. Stark
Enterprises Ltd., 56 Haw. 420,
424, 339 P.2d 472, 475 (i975).

An aspect of res judicata
which is often determinative is

collateral estoppel “which
precludes the relitigation of a
fact or issue which was

previously determined ina prior
suit on a different claim
between the same parties or
their privies. .. -« [It] also
precludes relitigation of facts
or issue previously determined
when it is raised defensively by
one not a party in a prior suit
against one who was a party in
that suit and who himself raised
and litigated the fact or issue.
Ellis v. Crockett, 51 Haw. 45,
55-56, 451 P.2d 814, 822
(1969)." Id., 63 Haw. at 435-
436, 629 P.2d at 1121 (footnote
added).

The res judicata effect of
a final federal court judgment
applies to all state claims
which could have been raised
under pendent jurisdiction. A
plaintiff cannot maintain a
second action in state court on
the same transaction in which he
attempts to advance a state law
theory earlier omitted in a
federal action. Woods
Exploration & Pro. Co. T.
Aluminum Co. of Amer., 438 F.2d
1286 (5th Cir. 1971); cert. den,
404 U.S. 1047 (1972); McCann v.
Whitney, [25 N.Y.S.2d 354 (Sup.

42

Ct. 1941)]; Brady v. Trans World
Airlines, Inc., 274 A.2d 146
(Del. Super. Ct. 1971), aff'd.
282 A.2d 620 (Del. 1971). Only
where it is clear that a federal
court would have refrained from
exercising pendent jurisdiction
over the state claims, such as
where a Jurisdictional bar
operates, or where the federal
court has exercised its
discretion not to hear then,
will those state claims not be
barred in a subsequent state
court suit. Pope _ v. City of
Atlanta, 240 Ga. 177, 240 S.E.2d
241 (1977); aff’d on reh. 242
Ga. 331, 249 S.E.2d 16 (1978);
cert. den. 440 U.S. 936 (1979).
Id., 63 Haw. at 437-438, 629
P.2d at 1122-1123 {Footnote
omitted]. Id., pp. 8-9.

The three criteria stated in Hall v.

State, supra, are met herein: the issues

are identical, there hasbeen (final
judgment on the merits, and the party
against whom res judicata is asserted was
a party in the previous proceeding.

In regard to the "same cause of
action" requirement, it is to be noted
that the amended complaint transfers in
toto all claims put before the federal

District Court, in the form of 12 episodes

43

considered by Fong in his’ decision.

Moore’s Federal Practice states:

Thus,

Generally, it has been held

that the “cause of action," or
"claim," as it is referred to in
the Restatement (Second), is

bound by the injury for which
relief is demanded, and not by
the legal theory on which the
person asserting the claim
relies. .

The claim or cause of
action is not bounded, then, by
the source of the legal
obligation, by the relief that
is sought, or by the evidentiary
facts. » »

The present trend is
undoubtedly in the direction of
requiring that a plaintiff
present in one suit all the
claims for relief that he may
have arising out of the same

transaction or occurrence. The
Restatement (Second) defines a
"claim" for res judicata

purposes to include all rights
of the plaintiff to remedies
against the defendant arising
out of the same transaction or

"series of connected
transactions". Moore’s Federal
Practice, par. 0.410{1], pp.
350, 354, 359-360. {Emphasis
added. ]

while Complainant advances a

different theory before the Board,

44

i.@.,

prohibited practices under Section 89-13,

HRS, than that put before the federal
district court, be Oe allegations of
Federal Civil Rights Violations, res
jJudicata applies as the same transaction
in the form of the alleged 12 episodes, is
involved. The Hawaii Court of Appeals is

in accord, as Hall Vv, State, supra,

provides:

The supreme court § found
that the claims in Silver were
the same in both the federal and
the state case, the plaintiff
having alleged in both cases
that the defendants engaged in
a conspiracy spanning ten years
to unlawfully deprive him of his
right to practice medicine.
Additionaliy, the supreme court
held that the fact that the
state case included the state
statutory claims not included in
the federal case did not relieve
the plaintiff of the res
judicata effect of the federal
judgment. Both complaints were
aimed at the same conspiracy and
the state statutory claims were
merely “alternate theories or
claims arising from a_ single
injury[{,]" and should have been
raised in a single action.
Silver, 63 Haw. at 437, 629 P.2d
at 1122. With Silver’s holding
in mind, we examine the claims
and issues in this case. Hall

45

v. State, supra, Civ. No. 86-

1646, p. 9.

However, Complainant has a stronger
case in arguing that the Kauai Circuit
Court’s confirmation of the arbitration
award and the denial of the motion for
consideration thereof have no res judicata
effect. The prohibited practice in which
Complainant claims a conspiracy was, in
fact, not before the arbitrator. Neither
were Episodes 1 through 10 before the
arbitrator. However, it should be noted
that at p. 16, ff, of the arbitration
decision, the arbitrator notes that the
prior disciplinary record of Complainant
was placed into evidence and thus it must
be presumed to have been consi: ered in the
decision.

Complainant also is correct in his
argument that Hirano’s judgment confirming)
the arbitration decision was issued
subsequent to the filing of the prohibited

practice complaint with this Board.

46

However, though the judgment of the Kauai
Circuit court was issued subsequent to the
filing before this Board, it was issued
previous to this Board’s final
determination on the complaint filed with
the Board. Thus, the Kauai Circuit
Court’s judgment is a prior determination
in terms of a final adjudication. This
issue, however, warrants no determination
in light of the apparent res judicata
effect of the federal decision.

The issues Complainant wishes to
relitigate before the Board received a
full hearing in federal court, precluding
him from relitigating what are essentially
the same issues before the Board, and
subjecting Respondents to a further

burdensome need for defense.

IV. CONCLUSION

The standard for a motion for summary

judgment has been met, as all issues of

47

fact were presented, addressed and passed
on in federal court. Since matters

outside the pleadings are considered

herein, summary judgment rather’ than
dismissal is appropriate. Hall v. State,
Supra, p. 7. This is appropriate even

though Kauai County entered a Motion for
Dismissal, as when matters outside the
pleadings are considered, the motion to
dismiss becomes one for summary judgment.

a Vv. Aw. GS Haw. 210, 212, 626 P.2d 173,

176, aff’d. on recon., 63 Haw. 263, 626

P.2d 181 (1981); Towse v. State, 64 Haw.

624, 628, 647 P.2d 696 (1982). Summary
judgment is granted for both Respondents
to the instant action.

DATED: Honolulu, HI, Nov. 1, 1988.

HAWAII LABOR RELATIONS BOARD

MACK H. HAMADA, Chairperson

JAMES R. CARRAS, Board Member

GERALD K. MACHIDA, Board Member

48

RONALD R. CALDEIRA and TONY T. KUNIMURA,
Mayor of the County of Kauai and

HAWATI GOVERNMENT EMPLOYEES
ASSOCIATION, AFSCME, LOCAL 152, AFL-
CIO

CASE NOS.: CE-03-97, CU-03-50

ORDER NO. 714
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Copies sent to:

Robert A. Smith, Esq.

Charles K.Y. Khim, Esq.

Warren C.R. Perry, Second Deputy County
Attorney

Joyce Najita, IRC

49

EXHIBIT L

Honolulu, Hawaii
December 22, 1988

Ms. Cathy Catterson

Chief Clerk

United States Court of Appeals
for the Ninth Circuit

P.O. Box 547

San Francisco, California 94101

Re: Ronald Caldeira v. County
of Kauai et al., Docket
No. 8/-2959

Dear Ms. Catterson:

This letter is a joint
letter to the Ninth Circuit,
submitted by all counsel in-
volved in the above appeal,
which was argued on Friday,
November 18, at 8:30 a.m. Ha-
waii, before a Ninth Circuit
panel consisting of Judges O'-
Scannlain, Chambers, and
Trott,. There has been a fac-
tual development in the case
which is not part of the re-
cord on appeal but which must,
all counsel agree, be brought
to the attention of the
court,

_ The case involves the
question whether plaintiff-ap-
pellant Ronald Caldeira can
maintain a section 1983 and
section 1985(3) Civil Rights
action with respect to his
discharge from employment by

EXHIBIT L

Ms Cathy Catterson
December 2, 1988
Page -2-

defendant-appellee County of
Kauai, State of Hawaii, when
he took his discharge to arbi-
tration, the arbitrator. sus-
tained the discharge, and the
arbitration decision was con-
firmed by a judge of the Hawa-
ii State court system. The
District Court held, among
other things, that on _ these
facts, Caldeira's section 1983
action was precluded and gran-
ted summary judgment in favor
of defendants.

The record on appeal shows
that Caldeira, im addition to
taking his discharge to arbi-
tration, also filed a "prohi-
bited practice" (unfair labor
practice) complaint with Haw-
aii's Public Employee _ Rela-
tions Board, since re-named
the Hawaii Labor’ Relations
Board, over his discharge and
the subsequent arbitration.
Caldeira claimed, among other
things, that his labor union,
defendant-appellee Hawaii Go-
vernment Employees Association
(HGEA), had not’ represented
him fairly during the arbitra-
tion, and that his former enm-
ployer had unfairly discharged
him.

What the record on appeal
does not show is that on No-
vember 1, 1988, a few weeks
before oral argument of the
appeal, the Hawaii Labor Rela-
tions Board decided

Ms Cathy Catterson
December 2, 1988
Page -3-

Caldeira's prohibited practice
complaint adversely to Cal-
deira, granting motions by the
County and the Union for sun-
mary judgment. A true copy of
that decision is enclosed with
this letter. Caldeira will
not be seeking review of that
decision in the Hawaii state
court system or elsewhere.

All counsel in the case
are in agreement that this de-
cision must be considered by
the Court in ruling on the
preclusion issue, in light of
the United States Supreme
Court's decision in Universit
of Tennessee v. Elliot, £7
Usde (00, 9% bse BO. £6 639,
100. §. Ce. 3220 (i966). . The
United States Supreme Court
there held that even unreview-
ed state administrative deci-
sions had preclusive effect on
section 1983 actions, although
not on Title VII actions, sta-
ting:

Accordingly, we hold that
when a state agency "act-
ing in a judicial capacity
resolves disputed is-
sues of, fact properly be-
fore it which the parties
have had an adequate op-
portunity to litigate,"
Utah
Construction & Mining, su-
pra, 384 U.S., at 422, 86
S. Ct., at 1560, federal
courts must give

Ms Cathy Catterson
December 2, 1988
Page -4-

the agency's factfinding
the same preclusive effect
to which it would be enti-
tled in the State's courts.

106 S. Ct., supra, at 3227.

Moreover , the Ninth Cir-
cuit in Plaine v. McCabe, 790
F. 2d 782 (3tm Cir. 1986)
adopted the holding in Elliot
that an unreviewed administra-
tive agency's decision is en-
titled to res judicata effect
under the Full Faith and Cre-
dit Statute.

The parties did not bring
to the panel's attention at
the time of oral argument the
fact that the Hawaii Labor Re-
lations Board had ruled on No-
vember 1. Nor did the parties
cite the panel to the Elliot
decision either during oral
argument or in any of the
briefs.

In the circumstances, the
parties jointly apprise the
Court of these developments by
means of this letter, and ask
the Court for guidance as to
how the Court wishes the par-
ties to proceed. Although the
parties will of course have
differing views as to the in-
pact of the Hawaii Labor Rela-
tions Board decision on the
appeal, and as to the meaning
and reach of Elliot, they are
in agreement that the

Ms Cathy Catterson
December 2, 1988
Page -5-

Court must know of the devel-
Opments set forth in this let-
ter.

Yours very truly,
s/ Robert A. Smith

Attorney for Ronald Caldeira
Plaintiff-Appellant

s/ Charles K. Y. Khim
Attorney for HGEA
Defendant-Appellant

s/ Warren C. R. Perry
Attorney for County of Kauai
Defendant-Appellee

EXHIBIT M

8921A
Of Counsel:

Law Offices of

ROBERT A. SMITH 1561-0
ATTORNEY AT LAW

A LAW CORPORATION

Suite 1908, Century Square
1188 Bishop Street

Honolulu, Hawaii 96813
Telephone No. (808) 523-6411

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT
COURT

FOR THE DISTRICT OF HAWAII

RONALD CALDEIRA CIV. 85-0869
PLAINTIFF'S
TRIAL MEMO-
RANDUM PART
I (THE FACTS)

Plaintiff

V.

eee eee eee eee eee

COUNTY OF KAUAI EXHIBIT A;
et. al. CERTIFICATE
OF SERVICE
Defendants

PLAINTIFF'S TRIAL MEMORANDUM
PART I (THE FACTS)

Preliminary Statement

This trial memorandum sets
EXHIBIT M

forth the evidentiary basis for
Plaintiff RonaldL/ Caldeira's
theory of the case--that the
Union, well knowing the
intention of County officials
to railroad Plaintiff out a
job, acquiesced in the plan and
conspiracy rather than fight
it. The evidence will show
that the Union, well-knowing
the County's intentions,
crossed over the line from

passive acquiescence into

1/ The parties refer to
each other by first names and
will undoubtedly testify in
that manner. Accordingly, this
memorandum will do likewise.
Thus Plaintiff Ronald Caldeira
will be referred to as
"Ronald", Defendant County of
Kauai will be referred to as
"County"; and Defendant Hawaii
Government Employees
Association will be referred to
as "the Union".

active conspiracy, joining with
County officials to bring about
Ronald's discharge.
The case breaks down into
12 different episodes, each one
of which involve a separate
"move'’ put on Ronald by County
officials to build up a record
against him of alleged
misfeasance. The Union was not
involved in the first two
episodes but became involved
with the third episode.
(1) THE DEVELOPING
CONFLICT BETWEEN ISAAC
HOOKANO AND RONALD
(NOVEMBER 1978-OCTOBER
1979).
Plaintiff Ronald Caldeira,
who was born on May 4, 1956 in
Lihue, of Portugese ancestry,

was employed by the County on

January 13, 1978 as lifeguard

(Recreation Assistant IL)
(1 ]2/ at a salary of $788.00

per month. He was assigned to

2/ During discovery,
Plaintiff's counsel assembled a
documents file consisting of
documents from Plaintiff's own
files together with documents
from the Union's files and the
County's files, obtained
through requests for production
of documents. During
depositions on Kauai in March
1986, Plaintiff delivered to
both the Union and the County
an integrated set of the
documents, all in chronological
order, from the beginning of
Plaintiff's employment through
the end. These documents were
all page numbered with a
numbering machine, numbering
798 pages in all. In deposi-
tions, the parties have uti-
lized, not separate exhibit
numbers to demark these docu-
ments, but rather the machine-
numbered pages of the set of
documents supplied by Plain-
tiff. The citations herein
follow the same reference sys-
tem. That is, unless otherwise
indicated, the bracketed page
numbers refer, not to exhibit
numbers, but rather to the
machine-numbered numbered pages
on these documents. The docu-
ments have been submitted to

the Kapaa Pool.2/ The first
nine months of Ronald's employ-
ment were uneventful; and on
July 27, 1978, Ronald received
a "satisfactory" Job Perfor-
mance Report (''JPR'') from the
County [12.1].

On November 18, 1978, an
event ocurred which resulted in
huge conflict between Ronald
and his immediate supervisor,
Defendant Isaac Hookano (nick-
named 'Liko'', and hereinafter

referred to by that name). On

2/ CONT'D the Court in a
formal submission filed
concurrently herewith. For the
convenience of the Court, the
specific documents referred to
in this memorandum are attached
hereto,

3/ There are two other pools
on Kauai, the Waimea Pool and
the Kekaha Pool. Ronald never
worked at either of those pools.

that date, Liko gave Ronald a
letter [13] admonishing him to
take better care of the bath-
rooms at Kapaa pool. Scott
Yatsuoka, a part-time lifeguard
hired on a contractual basis,
came on duty after Ronald's
shift was over or on Ronald's
days off and had cleaned the
bathrooms. Liko's letter to
Ronald praised Scott's perfor-
mance as an example which Ron-
ald should follow. Liko, for
signature on the letter, wrote
in Scott's name, his name, and
the names of all other life-
guards "and all the staff."' He
left the letter at the pool for
Ronald to read. It is Liko's
testimony that Scott got to the
letter before Ronald received

it and added a P.S. reading

acti ig: ig ey

"stay hot!" and then a P.S.S.

reading: ‘purn over, spread
your legs, and Kiss It good

, Paeamein © 2 Pe & - is Liko's
testimony that he did not know
about these postscripts until
Defendant Ray Emura ("Ray"),
Acting Kauai Division Chief of
the Union and Ronald's business
agent and union representative,
called him about it. Liko's
testimony is, further, that
thereafter both he and Scott
apologized to Ronald.

The letter, however,
encermously insulting as it was,
left a lasting impression on
Ronald. It resulted in huge
conflict between Ronald and
Liko in which County manage-
ment, through Defendants Wilson

Miyashiro and Gordon Shibao,

sided with Liko against

Ronald.4/ This conflict
flowered into many disputes
over how well Ronald was doing
his job, as noted in Ronald's
08/05/79 letter to Liko [31]
which itemizes Ronald's
never-ending request for
supplies. This growing
conflict led up to Ronald's
first reprimand letters
(08/30/79 from Wilson [39-46]
and 10/4/79 from Liko [56-60])
criticizing the condition of

the pool. From this point on,

4/ Defendant Wilson Miya-
shiro ("Wilson") was Director of
Recreation, Department of Pub-
lic Works, for the County of
Kauai,and was Liko's immediate
Supervisor. Defendant Gordon
H. Shibao ("Gordon") was Super-
intendent of Parks & Recreation,
Department of Public Works, for
the County of Kauai, and
Wilson's immediate supervisor. ~~

the County constantly accused
Ronald of never taking care of
the pool, the surrounding lawn,
and the bathrooms, which the
County claimed were chronically
in a deteriorated condition.
Just as constantly, Ronald's
reply to this accusation was
that he was not furnished with
sufficient or adequate supplies
with which to take care of the
pool, its lawn, and its
bathrooms. In proof of this,
Ronald will offer in evidence
his monthly reports, which are
forms that Ronald was to turn
into the County each month, on
which Ronald listed the
equipment and supplies he
needed for proper maintenance
of the pool, lawn, and
bathrooms. For example,
Ronald's September 1979 monthly
activity report requested soda
ash, reagent 2, rake, hoe,
razor blades, Decalite, a
wrench, pliers, tools, block (a
large scouring block), and a
weeder, and also requested that
the lawn-mower be fixed

[46.1]. Ronald will offer
expert testimony that if the
County chronically failed to
supply these tools and
materials, then it was not
possible for Ronald to keep the
pool, lawn, and bathrooms in
well-maintained condition.

On April 17, 1979, midway
along in the evolution of this
conflict, Liko gave Ronald a
"not quite satisfactory" JPR
[16.1]. The JPR also reflects

that the County approved a
raise in pay from $788 .00 per
month to $824.00 per month. At
year end, on December 24, 1979,
Liko upgraded Ronald's JPR to
"satisfactory" despite the
earlier reprimand letters

[97]. Ronald's salary was
continued at $824.00 per month.

(2) THE WATER SAFETY ''SET
UP'"' (JANUARY-MAY 1980).

The County, through Gordon,
then engaged in an obvious
scheme and artifice to impeach
Ronald's credentials as a
lifeguard, viewing this as
possibly a way to sustain
disciplinary action against
Ronald. This episode started
when Wilson and Gordon
requested Ed Webb of American
National Red Cross to conduct a
pool check of Ronald's life
Saving skills. This is
reflected in Ed Webb's letter

to Ronald of 1/28/80 [106-107].

1)

Webb thereafter asked Ronald to
hold up on teaching life saving
classes until his skills could
be checked [102-104]. Ronald
justified his skills and passed

the test [109-116].

///

(3) THE TWO-DAY SUSPENSION
OVER TIME SHEETS (JUNE
1980).

In a 12/5/79 memo [89-90],
Liko gave Ronald three working
days in which to turn in his
time sheets. Yet on 4/21/80,
Liko requested that Gordon
suspend Ronald for three
working days because Liko had
told Ronald on April 15 to turn

in his time sheet that day and

Ronald had refused [126]. Liko
retracted this disciplinary

request in a 04/25/80 memo to

stin

Gordon admitting that he had
over-reacted [127]. In June,
however, Liko, Gordon and
Wilson went back to the same
theme. Liko appealed to Wilson
for help [131] on June 6; and
on June 9, Wilson appealed to
Defendant Henry Morita
("Morita''), who as County
Engineer was Gordon's
supervisor and head of the
Department of Public Works,
advising Morita that on June 3,
Gordon had told Ronald to
submit his time sheet by 9:00
a.m. the next day, an
instruction which Ronald
refused, thereby committing
insubordination. Wilson
therefore asked Morita to
impose a 3-day suspension

[137-138]. Gordon joined in

o1l2-

this request on June 13
[139-140] in a memo to Morita
approved by Clay Kagawa, Deputy
County Engineer, dated June 13
[139-140]. Morita on June 16
imposed a 2-day suspension on
Ronald for failure to turn in
time sheets as ordered on June
3 [144].

Wilson's June 9 memo to
Morita requesting the 3-day
suspension was sent to the
Union; so as least from this
day forward, the Union was on
notice of the move to impose
the 3-day suspension [137].
Ronald had also learned of it,
even earlier than that, and on
the morning of June 8 contacted
the HGEA office. Both Ray and
Ray's immediate superior,

Defendant Clarence M. Takashima

-13-

(nicknamed "Gadget" and
hereafter referred to by that
name), Kauai Division Chief of
the Union, were gone; and on
that day, June 8, Ronald filed
a formal protest over lack of
Union representation, believing
that he was facing a 13-day
suspension [135]. This marks
the first date on which the
Union failed to act on Ronald's

behalf. The Union never

grieved the suspension. 2/
(4) THE ABORTED FIVE-DAY
SUSPENSION (JUNE-JULY

1980).

2/ In answer to the
request for admissions, the
Union states that, while it
filed no written grievance, it
did file a verbal grievance.
The collective bargaining
agreement between the Union and
the County does not recognize a
verbal grievance, and therefore
there was no grievance at all.

me

Ronald normally worked from
9:00 a.m. to 5:00 p.m. On
6/25/80, Ronald was presented
with a work schedule change
advancing his starting and
stopping times by one hour from
8:00 a.m. to 4:00 p.m. [153].
Ronald, by this time suspicious
of anything which the County
requested him to sign, refused
to do so. However, although he
refused to sign, he did change
his workday to the new hours
and thus left work at 4:00
p.m. When Liko discovered that
Ronald had left the pool at
4:00 p.m. (without signing the
change form), Liko reported the
incident to Wilson and Gordon,
requesting that they discipline
Ronald for leaving his assigned

station without authorization!

ates

[163] Wilson and Gordon
thereupon memo'd Morita
recommending a 5-day suspension
on this ridiculously technical
rap [164]. Lillian Takeguchi
("Lillian") a County secretary
for Wilson or Gordon ,2/
drafted a 5-day suspension
letter on July 11 [165] which
Gordon initialled that day and
Herbert Doi ("Doi"), County
Personnel Director, reviewed
and approved on July 16 [165].
However, Morita on July 22
cancelled the letter, although
done in final form [175],

because (he felt) there had

been no official notice to

6/ Lillian Takeguchi
used her initials ("lit") on
letters or memoranda which she
typed.

-16-

Ronald changing his working
hours [176]. While Doi thought
it was not necessary to get
Ronald's signature on the work
change form, Morita decided
that the "problem" might be
better handled if Ronald were
placed directly under Wilson's
supervision and not Liko's
[176]. By this time Wilson had
utterly taken Liko's side, as
witness his attempt to get the
Kauai police department to
change its police report on
Ronald's complaint that Liko
had threatened him [158-160].
Thus the 5-day suspension
over the change in working
hours was cancelled and never
went into effect. But Gadget
was notified by the County that

the 5-day suspension was in the

-lJ-

works when he was given a copy
of the draft 5-day suspension
letter or otherwise learned of
it. (The HGEA is shown as
being copied on both the July
11 draft letter [165] and the
July 18 final form letter
[175]). For in Ronald's memo
to Gadget of July 18 [172], he
recites that he saw Gadget on
July 16 when he requested a
grievance on the 2-day
Suspension, and that Gadget at
that time informed Ronald of
the 5-day suspension in the
works and laughed and said "I
am going to sit back and laugh
when you get fired." [172].
Thus, the Union not only
did not grieve the 2-day
suspension but did not grieve

the threatened 5-day

~S e

suspension.// Even though

the 5-day suspension was later
aborted by Morita, still the
Union knew of it and knew, at
this point, that Liko, Wilson
and Gordon, were involved in a
plot to get Ronald fired. The
Union thus knew that the
threatened 5-day suspension was
a part of this plot and should
have grieved it even though it
was cancelled. Instead, the
Union welcomed it, Gadget thus
demonstrating his complicity in

the plot.

7/ In answer to the
request for admissions, the
Union claims to have filed a
written grievance over Liko's
threat of bodily harm and over
the threatened 5-day
suspension; but there is
nothing in writing in the
documents that supports this
claim.

-19-

(5) THE JPR RATING OF
"UNSATISFACTORY"
(JANUARY 1981).

On 1/12/81 Ronald was given
an "unsatisfactory" JPR
[194-196]. With this
"unsatisfactory" JPR, Wilson
commenced the next move on
Ronald, this time recommending
a 5-day suspension for various
assorted acts of misfeasance
and nonfeasance [198-200]. The
HGEA got a copy of this letter
[Id.]. Ronald, in his 3/12/81
memo to Ray, requested a
grievance over the JPR and over
two other matters as well
[211-212]. Ray, in his reply
letter of 3/24/81, addressed
the two other matters but not
the JPR [215]; and the Union

never did grieve the JPR.

n2O-

(6) UNION ACQUIESCENCE IN
THE TEN DAY SUSPENSION
(MAY-SEPTEMBER 1981).

On 2/23/81, the pool was

closed for major repairs to fil-
tration system. Then Ronald was
on sick leave for one month
(from 3/30/81 to 5/2/81), when
he went to Honolulu for eye
treatment .2/ The pool did not
reopen until he returned after
May 2 and was thus closed dur-
ing March and April. On
Ronald's return, the County
launched a major effort to dis-
cipline Ronald for all of the
ills of the pool, an effort

resulting in a tremendous flood

of "documentation", pool proce-

8/ Ronald was in a car
crash in 1971 when he was
fifteen, which left him blind
in the left eye [9].

i.

dure memos, diagrams, and
instructions on water chemistry
[see 216-265 ]2/ Gordon's
05/06/81 memo to Wilson [224],
directing him to proceed
against Caldeira and make
recommendations and
justifications and supply
documented backup, was then
followed by Wilson's 05/12/81
six page memo to Morita
detailing events of the first
two weeks in May [231-236].
While the Union did not get
copies of these two memos, it
did get copies of much of the

detailed memos which thereafter

9/ The Kapaa pool was
some 20 years old. Two years
later its filtration and
chlorination system was
completely replaced, one of its
real problems thus being old
age [592, 594, 641, 743, 744].

So

emanated in the effort to
"document" Ronald's
transgressions. Thus the Union
was sent copies of Wilson's
memo to Ronald of 05/13/81 to
submit a detailed report on the
terrible pool condition of
05/5/81 [239]; Ronald's
response [240]; Wilson's
05/15/81 memo to Ronald
branding Ronald's reports as
unsatisfactory and requiring
more reports [242-243];
Ronald's answer [247-252]; and
his supplemental report on
daily activities [252].
Wilson's (and Gordon's) memo of
5/15/81 [242-243] in particular
blamed Ronald for causing the
pool to look like a "cesspool"
and for deliberately sabotaging

the pool--'"doing things

ttn

deliberately so the pool must
be closed.'"' This memo
threatened Ronald with
dismissal if he failed to
supply the reports Wilson was
demanding; and in all Ronald
was being subjected to
incredible pressure and
harrassment, with his job
clearly in danger. The Union
cannot have been under any
doubt as to the effort being
mounted against Ronald here,

On 05/18/81, Wilson and
Gordon wrote Morita
recommending a 10-day
suspension [253-256]. Ronald
grieved against Wilson by
letter of 05/31/81 (three
grievances in all) [275-276].
The grievances were most

serious, as Ronald was

=2b4-

complaining that two days
earlier Wilson had filed a
complaint with the police
against Ronald for harrassment,
and that the police were
looking for him [see 305];
also, Ronald charged that he
had not received sufficient
on-the-job training at the
Kapaa pool and that Wilson was
attempting to hold him to the
knowledge of an engineer and
not simply a lifeguard in his
accountability for the
condition of the pool. The
Union did not process these
grievances, and Ray told Ronald
that he would have to proceed
on his own! Later Ronald was
denied a hearing on these
grievances because of improper

procedure [289].

«0h.

The move against Ronald
continued unabated; and on
06/05/81 Morita imposed a
10-day suspension, also
threatening dismissal
[282-283]. The Union was
copied. Ronald then grieved to
Ray, requesting arbitration if
he was suspended [284].

The Union was prodded into
activity by Ronald's 06/08/81
letter to Defendant John E.K.
Akana ("Akana''), the Union's
Deputy Executive Director,
filing an internal protest with
the Union over lack of proper
Union representation. In
response, Akana assured Ronald
that the Union would fight his
suspension [292]. Gadget then,
on 06/18/81, wrote a three page

letter rebutting Morita's 06/05

«o26-

letter point by point,
protesting the suspension, and
asking that it be rescinded
[293-295]. On 06/19/81, Morita
kept in place one day of
suspension (for 06/17/81) but
deferred the other nine days
[302]. Earlier, on 06/12/81,
however, Gadget met with Gordon
and Morita. They agreed that
Liko would be put back in place
as Ronald's supervisor! [303].
This was not only Union
acquiescence in the move to
oust Ronald; it marked a
certain point ’by which time (at

least) the Union joined the

conspiracy.

The grievance over Ronald's
suspension then proceeded up
the various steps of the

grievance procedure [307]. The

a a Pn

Step 2 meeting was held on
07/01/81; and Morita wrote
Gadget on 07/08/81 of a
proposed disposition involving
reduction of the 10-day
suspension to five days and
certain other assurances and
stipulations [323-324]. Gadget
requested Step 3 [326].
Following a meeting with Mayor
(and Defendant) Eduardo E.
Maiapit ("Malapit") on 07/20
[327], Malapit agreed with the
previous management disposition
but amended it to defer the
additional five days of
suspension until 06/30/82
provided Ronald complied with
the various conditions and
requirements--in the main to
obtain a "satisfactory" JPR

[323]. The stipulations and

-28.

& conditions required that the
County furnish
...-all necessary
supplies, tools, and
equipment,..so that
the employee can
adequately service,
maintain, and operate
the Kapaa swimming
pool to acceptable
standards.
Ljee le
Ronald protested Malapit's
decision and requested
arbitration [334]. Ray,
however, refused, saying that
arbitration was not available
[335]. As the Union had thus
abandoned Ronald at this point,
Ronald then by himself tried to
have a Step 4 hearing with the
Mayor and then go to
arbitration [337-338]. In his
letter of 08/11/81 to Defendant

Charles "Chester" Kunitake

€ ("Kunitake"), Contracts Officer

a0Qu

e of the Union, Ray advised that
the Mayor's disposition
reflected an "agreement"
between the Mayor and the Union
which gave Ronald "a break"
[339]. On 08/27/81, Gadget
wrote to the Mayor,
acknowledging that the Mayor's

disposition was accepted by the

Union. Gadget said:
...the HGEA accepts
the provisions set
forth in [your]
letter. The decision
is equitable and it is
Our sincere desire to
uphold the
understanding we have
jointly reached.

Here, then, the Union chose
to accept a compromise rather
than do what the grievant
wished, even though that
compromise left a 5-day
suspension on his record.

e The Union's abandonment of

-30-

Ronald had a fatal effect on
Ronald's attempt to take his
suspension to arbitration.
Ronald wrote to the Hawaii
Public Employment Relations
Board ("'HPERB"'), now re-named
the Hawaii Labor Relations
Board, requesting the names of
five arbitrators [342]; and
HPERB submitted five names
[346]. On 09/17/81, however,
Ronald was advised by a deputy
county attorney that the County
would not go to arbitration
because only the Union (and not
Ronald) could do so and that
Union had agreed to the
County's grievance disposition
at Step 3 [359].

The Union's complicity in
the conspiracy is made even

clearer by a meeting held on

atte

9/3/81, at which Gordon,
Wilson, Liko, Ronald, and
Gadget were present. Minutes
for the meeting were
transcribed and initialed
("lit") by Lillian Takeguchi
[354-355]. Liko was now back
in the chain of command, and
the battle continued unabated,
with Ronald filing more
grievances, this time over the
unavailability of a lawn mower
to do the mowing [349-352].
After the formal part of the
meeting concluded, Gadget met
informally with Morita and
Gordon. Again Lillian took
minutes or notes. As her notes
reflect, Gadget said that the
Union's position with Ronald

was that he had no grievances;

and Gadget recommended to the

ee

County that it respond to

Ronald that there would be no

further hearings held on his

grievances, and that Ronald was

"on his own,"

The Union may claim that
Ronald's grievances were petty,
but any such claim misses the
central point: Ronald was
under siege. A disciplinary
record, necessary under the
theory of progressive
discipline to sustain a
discharge, was inexorably
building. Yet the Union agreed
to a 5-day suspension and
advised the County that it was
abandoning Ronald, telling the
County that the County should
not honor his grievances by

giving him hearings!

a ee

(7) THE SUMP PUMP
"INCOMPETENCE" CHARGE
(OCTOBER-NOVEMBER
1981).

On the heels of the 10-day
suspension, Wilson, continuing
his efforts to document Ronald's
misfeasance, issued a lengthy
memorandum concerning an inci-
dent involving the Sump pump on
10/17/81, and the backup of
water in the pump, leading to
poor water clarity and parti-
cles in the pool, and requiring
repair of the filtration system
[404-406]. In the course of the
fallout over the 10/17 incident,
Ronald was blamed for using too
much soda ash and failing to
follow diagnostic procedures to
determine proper pH. A pool

shutdown was necessary to re-

solve the problems. On 10/20

Sh.

Gadget grieved over Wilson's
charge that Ronald caused the
problem [410]. Wilson's memo-
randa of 10/21 [411-413], 10/26
[415], 10/29 [418-421], 10/31
[422-423], and 11/01 [426] all
faulted Ronald for various
transgressions in following
proper pool procedure, whether
chemical or mechanical. On
10/31,Wilson visited the pool.
on four separate occasions to
make sure that Ronald was
complying with minute orders
which Wilson had given him, the
net effect of which was to place
Ronald under surveillance and
subject him to harrassment. On
11/9, Wilson memo'd Morita
indicating that events of the
last two weeks demonstrated

Ronald's incompetence [427].

a | es

In response to the Union's
grievance, a meeting was held
on 11/10 between Ronald, Gadget,
Ray, Gordon, Liko, and Wilson
[see 429]. The purpose was to
discuss Ronald's charge that
Wilson had accused him of incon-
petence. Wilson's memorandum
to Morita stated that at the
meeting this grievance was
"resolved whereby no such
accusation was made." [429].

The Union may claim that it
thus went to bat for Ronald,
filing a formal grievance and
then "resolving" the grievance
by winning a concession from
Wilson that he never accused
Ronald of incompetence. But
Wilson's memorandum was merely
one to his superior, Henry

Morita. There needed to be a

Sh

formal retraction in a commu-
nication from the County to the
Union or to Ronald, expunging
the accusation from Ronald's
personnel file. There is no
such document in Ronald's file,
nor was it purged. And so the
Union never remedied the wrong.
(8) THE “NEAR-DROWNING"”
INCIDENT AND THE
20-DAY SUSPENSION
(NOVEMBER-DECEMBER
1981).
On November ll, 1981, an
incident ocurred at Kapaa Pool
0/

of alleged *near-drowning® 22

On this date, a four~year-old

10/ The facts and
evidence set forth concerning
this incident are taken from
the published HPERB decision in
Caldeira v. Malapit, et. al.,
Case Nos. CE-03-80 and
CU-03-45, Decision No. 196, 3
HPERB 523 (1984). A true copy
of this decision is attached as
Exhibit A.

«37a

boy, Ryan Paik, had a swimming
lesson and remained in the
water after the lesson was
over. According to his mother,
Sharon Paik, he began
struggling to stay above
water. When she looked to
Ronald for help, Ronald had not
noticed and was too far away;
so she jumped into the pool to
help her son, later claiming
that he had "almost drowned."

Following a report of this
incident to Gordon, Gordon
talked to Paik, and Wilson
talked to Paik. Liko
interviewed Ronald and Dennis
Baretto, an adult present in
the pool at the time of the
incident. Wilson came to the
conclusion that a

"near-drowning" had occurred of

atin

which Ronald had been
oblivious, this amounting to a
dereliction of duty [3 HPERB
523, 529].

Thereafter, Ronald was
summoned to Gordon's office on
December 29, 1981, to discuss
the incident. Gadget
accompanied Ronald but told
Ronald, just before entering
Gordon's office, that Ronald
was “on his own" and that
Gadget “could not help" him.
[Id., 530]. After the meeting,
Morita, on January 13, 1982,
notified Ronald that he would
be suspended for 20 days for
"negligence and dereliction to
duty" [Id., 530]. The letter
also warned Ronald that further
insubordination or dereliction

of duty would result in

-39-

dismissal,

Gadget then called for an
informal step grievance
hearing, which took place on
January 18, 1982, at which time

the County produced its
evidence (investigative reports
and documents) [Id., 531].
After the informal step
meeting, Ronald told Gadget to
grieve the suspension further;
but Gadget said that he would
not do so and that Ronald would
have to grieve on his own [Id.,
531]. The next day, January
19, 1982, Gadget and Ray
recommended to Ronald that he
not contest the discipline,
agree to demotion, or allow the
Union to negotiate a reduction
in suspension [Id., 531). The

Union accepted the County's

-40-

evidence as true without
independent investigation [Id.,
531-2]. Gadget did not
personally interview any
witnesses [Id., 531].

On January 19, 1982, Ronald
wrote to Morita protesting the
20-day suspension [451-452
(HPERB, pp. 531-2)]. Gadget,
by letter of 01/28/82 to
Ronald, formally advised that
the Union was not assisting him
in grieving the 20-day
suspension [452-454 (HPERB, pp.
533-4)]. Ronald, upon receipt
of this letter, went to
Honolulu and hired legal
counsel on February 4 or 5,
1982 [HPERB, p. 535]. Acting
upon the advice of counsel,
Ronald then requested an

extension of time to file a

kis

formal grievance, which the
County denied, and then
requested Step 2 and Step 3
hearings, which the County
denied [HPERB, pp. 536-7].
Ronald's counsel then wrote
both the Mayor and the Union,
requesting arbitration; but on
April 21, 1982, Defendant Davis
Yogi ("Yogi"), the Union's
Contracts Specialist, replied
by letter that the Union would
not pursue arbitration [HPERB,
p. 537).

Thereupon, on July 21,
1982, Ronald, through counsel,
filed a complaint with HPERB
alleging that both the Union
and the County had engaged in
"prohibited" (unfair) labor
practices--the County by

improperly disciplining him and

a

then refusing to process his
grievance and the Union by
failing to provide him with
adequate representation [HPERB,
p. 524]. Hearings were held on
Kauai on April 28 and June 21,
1983, at which HPERB took oral
testimony and received written
evidence [HPERB, p. 525]. On
August 17, 1984, HPERB rendered

its decision. Caldeira v.

Malapit, et. al., Case Nos.

CE-03-80 and CU-03-45, Decision
No. 196, 3 HPERB 523 (1984).
HPERB found that the Union
had abandoned Ronald and failed
to provide him with adequate
representation in that, among
other things, the Union had
failed to make an independent
investigation of witnesses'

accounts of the "near-drowning"'

etn

incident, recommending that
Ronald acquiesce in the 20-day
suspension [HPERB, pp.
538-543]. HPERB also ruled
that the Union had further
breached its duty of fair
representation owing to Ronald
by failing to advise him of
applicable dates and deadlines
governing the filing of
grievances [HPERB, pp.
543-546]. HPERB was required
to dismiss the "prohibited
practices" charge against the
Union because it was not timely
filed within 90 days of the
occurrence under H.R.S. §89-14
and H.R.S. §377-9(1) [HPERB,
pp. 546-548]. However, HPERB
went on to find that the County
had violated H.R.S.

§89-13(a) (8), which makes

whi

violation of the terms of a
collective barganing agreement
a "prohibited practice", by
refusing to process Ronald's
grievance over the 20-day
suspension [HPERB, pp.
548-551]. HPERB therefore
ordered the County to afford
Ronald access to the grievance
procedure at Step I [HPERB, p.
552]. HPERB further ordered
that if the grievance remained
unresolved through Step III,
the Union, if so requested by
Ronald, should take the case to
arbitration and "take into full
consideration the findings and
conclusions in this decision in
considering this request,"

[HPERB, p. 552].

shSe

(9) THE NEXT
"UNSATISFACTORY' JPR
(JULY 1982).

A condition of the "deal"
worked out between the Union
and the Mayor was that Ronald
receive a "satisfactory" JPR.
When it came out on 01/14/82,
it was "not quite satisfactory"
[444-445]. Ronald grieved it
on 04/01/82 [469]. A month
later, he also grieved against
Liko for not delivering
supplies for several months
[477]. Then on 07/13/82 he
grieved against Wilson
concerning alleged lack of
permission to run Red Cross
classes [481]. On 07/29/82
Wilson recommended a 4-day
suspension to Morita over the
"not quite satisfactory" JPR

[484]. That is, the

hh.

recommendation was that the
additional 4-days, previously
held in abeyance per the
Mayor's 07/29/81 letter, now be
imposed, Gordon signing ap-
proval [484]. On 8/5/82 Ronald
filed two more grievances, one
over the fact that the Mayor's
deferred date of 06/30/82 had
long since passed [327-332].

On 08/09/82 Ronald grieved the
failure of the County to give
him supplies as requested in
his monthly reports and as pro-
mised to him in the "deal" with
the Mayor [see 321-324,
329-332]. Following a meeting
held 08/25/82 between Ronald,
Ray, Gordon, Wilson, Liko, and
Morita concerning the additi-
onal 4-days of suspension [488],

Morita, on 08/27/82, imposed the

wh Ta

extra 4-days, suspending Ronald
from 09/12 through 09/15 [493].
Following a Step 1 meeting
[498, 501],Ray informed Ronald
that no Step 2 grievance would
be pursued and that the imposi-
tion of the additional 4 days
was valid, accepting the word of
Gordon and Wilson that Ronald
had received all supplies
[503-505]. Thus the Union again
abandoned Ronald and did not
pursue this grievance or the
others which Ronald was filing.
(10) OUSTER OF RONALD FROM
KAPAA POOL (TAKEOVER
BY PHi{LIP KEKAHU AND
DEMOTION OF RONALD TO
YARDMAN) [MARCH 1983
ON].
In January 1983 Defendant
Philip Kekahu ("Philip") and
David Kagawa were assigned as

lifeguards to Kapaa Pool [578].

-48-

Their names begin to appear on"
station daily logs in March
[540-544, 550-551]. In May,
the pool was closed for
renovation, while new pumps
were installed. On 5/19/83,
Ronald wrote to Mayor Defendant
Jessie K. Manlapit
("Manlapit'), then the Union's
Kauai Division Chief (Gadget
having retired), protesting
that Philip had now become his
boss in furtherance of the
continuing effort to get him
fired [560]. The basis for
this protest was that Liko, by
giving preferential assignments
of work to Philip, had made him
Ronald's boss. Thus, when the
pool was closed for renovation
and the installation of new

pumps, Philip was given the new

~-49-

pump manual to take home and
study, whereas Ronald was not;
Philip had effectively taken
over the pool. On 06/09/83,
Manlapit responded that Philip
yas not Ronald's boss and that
the Union was not collaborating
with the County in getting
Ronald fired, advising that the
Union would not process these
grievances, and remitting

Ronald to his internal Union

’' remedies if he was dissatisfied

with the Union's representation
[564-566]. Thus on 07/18/83,
Manlapit wrote Ronald that his
internal appeal to the Union to
file a Step I grievance was
denied, and that the grievance
file would be "marked closed"
[584].

Manlapit's response

«SO.

obviously ignored the larger
picture: Philip was being
eased into Kapaa pool and
Ronald was being eased out.
And in the weeks and months
which followed, as set forth in
the final episode, Philip's
position as lifeguard
responsible for Kapaa pool was
consolidated and Ronald's
ouster was complete--he was
demoted to yardman. This
should have been obvious to the
Union (and of course it was
obvious). So the Union should
have fought it tooth and nail.
Instead, the Union again
abandoned Ronald, refusing to
grieve. And again there is a
central piece of evidence
concerning the Union's knowing

collaboration with the County

=5l-

in Ronald's ouster:

Manlaplit's memo to Ronald,
which was sent to Ray and Higa,
was also sent to Liko (a member
of supervision) and appears in

the County's files! Any

dispute between Ronald and the
Union as to whether the Union
would or would not process his
grievances was just that--a
dispute between Ronald and his
Union. It was none of the
County's business to know. Yet
obviously the Union felt it
important to let the County
know that it was playing ball
and refusing to help Ronald and
to give the County confirmatory
evidence of that fact.

The Union did a momentary
about face: On 06/17/83

Manlapit memo'd Liko of a

82.

scheduled 06/20 meeting to hear
Ronald's grievances including
the assignment of Philip as
Ronald's boss [571]. By this
time, the first HPERB hearing
had been held (04/28).
Manlapit's memo to Liko took
the position that Philip's
assignment as Ronald's boss was
a contract violation and was
grievable [571]. And Manlapit
apparently reiterated this
position to Gordon at the 06/20
meeting, as Gordon on 07/12
drafted a memorandum to
Manlapit denying the grievance
as untimely [583]. However,
Manlapit then reversed course;
as noted by Lillian in a
typewritten note appended to
Gordon's draft memorandun,

Manlapit called at 9:25 a.m. on

x te

the next day, 07/13, to advise
that he is "dropping this
grievance" and that Gordon
should not mail out the
grievance denial to him as it
would only "add to confusion,"
[583]. Here again is direct
evidence of the Union's
abandonment and collaboration
with the County.
///
(11) THE FINAL CHAPTER:
THE "CUT-CANE KNIFE"
ORDER LEADING UP TO
DISCHARGE
(SEPTEMBER/ OCTOBER
1983).

In August the pool was shut
down in order that a new
chlorinator could be installed
at great expense and the broken
pump replaced or repaired

[592]. In September, Ronald's

demotion to yardman became

Sin

complete. On 09/16, the new
County Engineer, Defendant
Lawrence Kitamura ("Kitamura"),
ordered Ronald to cut the lawn
with a cut-cane knife [601]!
Ronald grieved [602], and Ray
refused the grievance,

disputing that Kitamura had

given any such order [604].

After this order, the
County made a tremendous
effort, once again, at
documenting Ronald's failure to
perform--this time, showing
that he did not perform
subsequent orders to pull
weeds, clean the bathrooms,
etc., etc. Ronald is "shown
how'' to do these menial tasks.
Ronald is given deadlines.
Computations and calculations

are made as to how many weeds

cake

Ronald should pull per hour and
how many feet of bathroom he
should be able to clean in a
given hour or day. Pictures
are taken, memos are written
documenting these calculations,
and these pictures and
computations are given to the
arbitrator eventually [see 608,
609, 616-617, 618, 619, 620,
621-623, 629, 637-638, 642,
643, 674-675].

These assignments to pull
‘weeds and scour bathrooms
evidence Ronald's complete
demotion. He is no longer a
lifeguard; instead he is
relegated to the status of
gardener and yardman, while the
other lifeguards (including »
Philip and Defendant Sid Kini)

are learning the new filtration

Si

System [see, e.g., 605,

Ronald's memo to Ray requesting
a grievance against Wilson for
ordering him to pull weeds
while assigning Philip and
lifeguard Sid Kini to help with
the new filter system].

On 09/26/83, Wilson gave
Ronald a 3-day suspension for
non-completion of various tasks
and housekeeping activities
(pulling weeds, cutting the
grass, mowing, scrubbing the
pool and shower and washrooms)
[613-614]. After more of the
same, all County officials met
on October 11, 1983, at
Kitamura's office and, with Ray
present as well, determined to
discharge Ronald effective
November 1, 1983. Ronald was

so informed verbally on that

«o5Jo

¢

date [635-636]. Then ve paises
followed up with a letter to
Ronald recapping events,
asserting that Ronald's
"disregard of lawful orders
issued by competent authority
constitutes insubordination,"
and discharging Ronald

effective 11/01/83 [653-658].

(12) THE ARBITRATION.

As the County was building
up the evidence towards
discharge, Ronald, on 10/06/83,
wrote Ray requesting grievances
against Wilson and Gordon over
the 3-day suspension, basically
protesting that he was being

framed [631; see also 632]. On

10/14/83, Ray wrote Ronald that
they 3-day suspension violated

no contract provision and that

a8.

Ronald's grievance was denied
[645]. Ronald then wrote
Defendant Kunitake, the Union's
contracts officer, making an
internal Union appeal of Ray's

grievance denial [647; see also

659, 660, 664, 665, 666, 667,
668, 669]. On 11/22/83,
Defendant Davis K. Yogi
("Yogi"), the Union's contracts
specialist, wrote Gordon
submitting a Step 1 grievance
on the 3-day suspension but
requesting that Wilson hold it
in abeyance until the Union
could study the matter further
[687, 688]. |
On 05/03/84, Yogi wrote
Gordon formally alleging that
the 3-day suspension was a
contract violation [704-707].

Gordon then sustained the 3-day

ata

suspension [718-719], so Yogi
wrote Herbert Doi, Personrel
Director, requesting a Step III
hearing but further requesting
that it be held in abeyance to
await the processing of
Ronald's discharge through the
various grievance steps, so
that the two grievances could
be combined [723-725]. A
hearing on both grievances was
then held before Mayor and
Defendant Tony T. Kunimura
[725-728], who sustained the
discharge by letter of 06/19/84
[729-730]. Thereafter
Defendant Russell Okata,
Executive Director of the
Union, gave notice of intent to
arbitrate [736]. The
arbitration hearing was held on

September 27 and 28, 1984,

-60-

before Arbitrator Stanley Ling,

Esq. On January 15, 1985,
Arbitrator Ling denied both
grievances and sustained the
discharge.

Arbitrator Stanley Ling
ruled that Ronald had been
deliberately dilatory in
performing the menial laborers
tasks assigned him and that
such dawdling was tantamount t
a refusal to obey orders and
thus equivalent to
insubordination, which was
grounds for discharge.
Assuming that Ronald was
deliberately dilatory, the
Union and its counsel, during
arbitration proceedings, never
made any argument to the
arbitrator that because of the

conspiracy against him, Ronald

«61

was entitled to resist

FKitamura's grotesque order to
cut the grass around the pool
with a cut-kane knife and
resist his demotion, and that
since all attempts to properly
grieve over Ronald's situation
had come to naught or were
fore-doomed to failure, Ronald
used the only "remedy"
available to him--passive
resistance. The Union and its
counsel focused only on the
events of September/October
1983 and the orders Ronald was
given in those months, arguing
that Ronald had not been
insubordinate. But this was
only the tip of the iceberg.
The Union and its counsel made
no effort to go into the whole

history of Ronald's employment

62.

relationship with the County in
order to show the preceding ten
incidents and episodes which
had occurred. In short, the
Union and its counsel made no
effort to expose to the
arbitrator the preceding five
years of warfare between
Ronald, the County, and the
Union.

At the time of his
discharge, Ronald was earning
$1,200.00 per month or $14,400
per year [528]. Following his
discharge, Ronald lost his
fringe benefits, including
medical coverage, retirement
benefits, dental coverage, life
insurance, and car insurance
[689, 690, 691, 693, 694),
701]. He was forced to give

up, and retransfer to the

«6%.

County, a lot in the Kawaiahao
Estates Subdivision, which he
could no longer afford
[693-694].

Following HPERB's August
17, 1984 decision on the
"near-drowning" incident, ie
Union (long after Ronald's
discharge) was able to
"bargain" the County into
eliminating all 20 days of the
suspension [742, 747, 748, 749,
ceeea, foe, 798.1, 755). 759,
764, 776, 777, 778, 786, 794,
795, 796, 797, 798]. Although
Ronald, through counsel,
‘requested the Union to seek
expungement from County files
of all defamatory material
concerning the 'near-drowning"
incident, the Union made no

attempt to do; and there has

abe

been no such expungement.
RESPECTFULLY SUBMITTED this
l5th day of September, 1987,

1, Hawaii.

Ss Robert A. Smith

ROBERT A. SMITH,

hte

AFFIDAVIT CF SERVICE BY MAIL

STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )

I, L. Richard Fried, being first
duly sworn, depose on oath and state
that I am a member of the Bar of the
Supreme Court of the United States; and
that on the 2nd day of June, 1989, a
date within the time permitted, I
served copies of the Appendices to
Petition for Writ of Certiorari on
Respondents by causing copies to be
mailed in duly addressed envelopes,
with first class postage prepaid, to
their respective attorneys of record,
as follows:

CHARLES K..Y. KHIM, ESQ.

888 Mililani Street Suite 301

Honalulu, HI 96813

Attorney for Hawaii Government
Employees Association, AFSCME, Local

WARREN C. R. PERRY, ESQ.
Second Deputy County Attorney

County of Kauai

4444 Rice Street Suite 230 At
Kihue, Kauai, HI 96766 JV
Attorney for County of Kauai

LLW
L. RICHARD FRYED,
Suite 1900
Davies Pacific Cefiter
841 Bishop Stree
Honolulu, HI 96813
Tel (808) 524-1433
Attorney for
Ronald Caldeira
Petitioner

iv

Subscribed and sworn to before me
this 2nd day of June, 1989.

Notary Public, State ¢f Haw
My commission sate ela Lb}

8873A

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1485%3A2. Public record. Not legal advice.