IN RE HAWAI'I GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME

November 13, 2007 (No. 27800)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

This case is before us by virtue of our acceptance of a transfer from the Intermediate Court of Appeals (the ICA), Hawai'i Revised Statutes (HRS) § 602-58 (Supp. 2006), filed by Complainant-Appellant-Appellant the Hawai'i Government Employees Association, AFSCME, Local 152, AFL-CIO (HGEA or Appellant).

Appellant appeals from the February 21, 2006 judgment of the first circuit court (the court) affirming the June 30, 2005 decision and order rendered by the HLRB dismissing a prohibited practice complaint (Complaint) filed by HGEA pursuant to HRS §§ 89-13 (Supp. 2006) and 89-14 (1993) against Respondents-Appellees-Appellees, employer and supervisors of affected HGEA members (Respondents or State) and Agency-Appellees-Appellees HLRB, Brian K. Nakamura, Emory J. Springer, and Kathleen Racuya-Markrich, then-members of the HLRB [collectively, HLRB or Board], for removal of election campaign materials from a State bulletin board assigned for "Union Notices."

We hold that the court's February 13, 2006 judgment affirming the June 30, 2005 decision and order rendered by the Board, dismissing HGEA's prohibited practice complaint is affirmed, because (1) there was no constitutional violation of the free speech rights of public employees under the First and Fourteenth Amendments to the United States Constitution or article I, section 4 of the Hawai'i State Constitution, (2) the statutory rights of public employees to engage in "mutual aid or protection," HRS § 89-3 (Supp. 2006), were not violated, (3) the Board did not exceed its jurisdiction by applying the State Ethics Code, HRS § 84-13, in this case, and (4) the Board did not misconstrue the preemption clause of HRS § 89-19 (Supp. 2006). [footnotes omitted]

Concurring Opinion by J. Levinson, with  whom C.J. Moon, joins [pdf].