NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-AUG-2026
08:07 AM
Dkt. 100 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
IN THE MATTER OF STEPHANIE C. STUCKY,
Complainant-Appellant/Appellant, v.
WILFRED OKABE, President, Hawai i State Teachers Association;
WILBERT HOLCK, UniServ, Hawai i State Teachers Association; ERIN NAGAMINE, Maui UniServ, Hawai i State Teachers Association; DAVID FORREST, O ahu UniServ, Hawai i State Teachers Association;
and HAWAI I STATE TEACHERS ASSOCIATION,
Respondents-Appellees/Appellees, and
HAWAI I LABOR RELATIONS BOARD,
Agency-Appellee/Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and McCullen, JJ.)
Complainant-Appellant/Appellant Stephanie C. Stucky
(Stucky) appeals from the June 21, 2024 Final Judgment (Judgment)
entered in the Circuit Court of the Second Circuit (Circuit
Court).1 Stucky raises two points of error, contending that the
Circuit Court: (1) clearly erred in entering findings of fact
(FOFs) 59 and 62, because Stucky proved her case by a
preponderance of the evidence that her termination from
employment was without just and proper cause and in retaliation
1
The Honorable Kelsey T. Kawano presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
for protected activity; and (2) erred in entering conclusions of
law (COLs) 25-32 based on essentially the same reasons, and
therefore, Stucky contends that the Circuit Court erred in
affirming her administrative appeal from Agency-Appellee/Appellee
Hawai i Labor Relations Board (Board).
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Stucky's
points of error as follows.
Prior to her termination, Stucky was employed by the
Department of Education, State of Hawai i (DOE) as a teacher and
member of Respondent-Appellee/Appellee Hawai i State Teachers
Association (HSTA). HSTA is and was an employee organization and
Stucky's exclusive bargaining representative, as defined in
Hawaii Revised Statutes (HRS) § 89-2 (2012).2 After receiving an
"unsatisfactory rating" from her employer, Stucky was discharged.
In accordance with the operative collective bargaining agreement
(CBA), HSTA filed a grievance on Stucky's behalf, contesting her
discharge, which the DOE denied. HSTA then requested
arbitration, and the parties selected Frank Yap, Jr. to serve as
the arbitrator. Yap entered a decision and award sustaining
Stucky's termination (Yap Award). Stucky then requested that
HSTA file a motion to vacate the Yap Award. After considering
her request, and the likelihood of success of such a motion, HSTA
declined.
2
HRS § 89-2 provides, in relevant part: "'Exclusive representative' means the employee organization certified by the board under [HRS] 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."
2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Stucky then filed a prohibited practice complaint with
the Board, alleging that HSTA, its President, and its UniServ
directors (together, HSTA Parties) committed prohibited practices
as defined in HRS § 89-13(b)(3), (4), and (5) (2012). 3 On
September 20, 2016, HSTA moved for a decision against Stucky for
failing to meet her burden of proof at the conclusion of her
case-in-chief. On June 30, 2021, 4 the Board issued its Findings
of Fact, Conclusions of Law, Decision and Order denying the
complaint, and finding that Stucky "did not carry her burden of
proof" that HSTA Parties violated HRS § 89-13(b)(3)-(5). Stucky
appealed to the Circuit Court, which affirmed. This appeal
followed.
We construe Stucky's arguments on appeal as follows. 5
Stucky maintains that at arbitration, she objected to Principal
3
HRS § 89-13(b) provides, in relevant part:
(b) It shall be a prohibited practice for a public
employee or for an employee organization or its designated
agent wilfully to:
(3) Refuse to participate in good faith in the
mediation and arbitration procedures set forth
in section 89-11;
(4) Refuse or fail to comply with any provision of
this chapter; or
(5) Violate the terms of a collective bargaining
agreement.
4
None of the parties explain why the Board took nearly five years to enter its decision and order.
5
Stucky's argument does not address the challenged FOFs and COLs identified in her points of error. See Hawai i Rules of Appellate Procedure Rule 28(b)(7) ("Points not argued may be deemed waived"); Hussey v. Say, 139 Hawai i 181, 191, 384 P.3d 1282, 1292 (2016) (holding that the appellate court is "not obliged to address matters for which the appellants have failed to present discernible arguments"); see, e.g., Interest of KJ-I, No. CAAP-XX-XXXXXXX, 2021 WL 3855772, at *5 n.3 (Haw. App. Aug. 30, 2021) (SDO) ("We decline to address the individual FOFs and COLs Mother challenges as she fails to present argument on each."). Accordingly, our review is limited to what is addressed in her arguments.
3
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Catherine Kilborn (Kilborn) rating her because Stucky had filed
grievances against Kilborn and her predecessor. Stucky believed
Kilborn would be biased. HSTA argued that Kilborn was
retaliating against Stucky for her prior protected activity, but
Stucky argues that the arbitrator "downplayed the evidence of
retaliation." Stucky points to HSTA's duty to represent her in
good faith and to not allow the DOE to retaliate against her for
pursuing grievances and argues that HSTA breached that duty by
declining to file a motion to set aside the Yap Award. Stucky
argues that HSTA's decision not to do so was arbitrary, as it
"failed to adequately consider Stucky's arguments and the
potential grounds for vacating the award under HRS [§] 658A-23."
Stucky further argues that the Board erred in relying solely on
the absence of HSTA's bad faith conduct, as arbitrary conduct
also constitutes a breach. Stucky argues that she established a
prima facie case for pretextual termination, which shifted the
burden to the DOE and HSTA failed to set forth any evidence that
Stucky was terminated for good cause. Stucky also maintains that
the Board erred in concluding Stucky could not prevail in a
"hybrid" claim under Poe v. Haw. Lab. Rels. Bd., 105 Hawai i 97,
94 P.3d 652 (2004). Stucky argues that the Board was bound by
the Yap Award, in which the arbitrator determined the DOE did not
violate the CBA because the Board's approach is inconsistent with
the principle that hybrid claims are inextricably linked.
Finally, although acknowledging that she was given notice and an
opportunity to be heard, Stucky submits that the Board's delay in
ruling on the motion undermined the fairness of the process.
4
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
"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), an agency's
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). The appellate court answers
"questions of constitutional law by exercising [its] own
independent judgment based on the facts of the case . . . under
the 'right/wrong' standard." City & Cnty. of Honolulu v.
Sherman, 110 Hawai i 39, 49, 129 P.3d 542, 552 (2006).
In Poe, the Hawai i Supreme Court held that
an employee who is prevented from exhausting the remedies
provided by the collective bargaining agreement may,
nevertheless, bring an action against his or her employer.
Under federal precedent, such 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.
105 Hawai i at 102, 94 P.3d at 657 (citation omitted). Here,
arbitration is the last step identified in the grievance process,
contained in Article V of the CBA. Unlike in Poe, HSTA demanded
arbitration on Stucky's behalf, but did not prevail. Thus,
Stucky was not prevented from exhausting the remedies provided by
the CBA, which was a key issue in Poe. However, we need not
5
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
reach whether or how the Poe "hybrid" analysis would apply
because, as discussed below, Stucky fails to show that HSTA
breached a duty of fair representation in declining to move to
set aside the Yap Award. See, e.g., Asato v. Haw. Gov't Emps.
Ass'n, No. CAAP-XX-XXXXXXX, 2025 WL 502738, *1, *7-8 (Haw. App.
Feb. 14, 2025) (mem. op.) (concluding that the union did not
breach its duty of fair representation in deciding not to move to
vacate an arbitration award against the employee), cert.
rejected, No. SCWC-XX-XXXXXXX, 2025 WL 2017493 (Haw. Jul. 18,
2025), cert. denied, 146 S.Ct. 1486 (2026).
A union breaches its duty of fair representation when
its conduct towards a member of a collective bargaining unit is
arbitrary, discriminatory, or in bad faith. Poe, 105 Hawai i at
104, 94 P.3d at 659. "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). Here, we
construe Stucky's arguments as contending that the Board erred in
concluding that HSTA did not act arbitrarily or in bad faith.
The Ninth Circuit Court of Appeals 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 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.
6
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
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. "Only when the challenged conduct was
procedural or ministerial does arbitrariness become controlling."
Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988).
Here, HSTA's UniServ directors reviewed Stucky's
request that HSTA move to set aside the Yap Award and recommended
against it. HSTA also retained legal counsel to assess the
likelihood of prevailing on such a motion. Counsel opined that:
Given the narrow confines to which a court will review
an arbitral award and the very limited terms by which
a motion to vacate the award would be successful, even
based on a public policy argument, it is our opinion
that there may be insufficient grounds for vacating
the award.
(Emphasis added).
After HSTA informed Stucky it declined to file a
petition, Stucky filed an Application for Legal Services Program
for the HSTA/DUSHANE Legal Appeal Services Program. HSTA
convened a three-member panel to consider her appeal. After
allowing Stucky to appear and present her arguments, the panel
ultimately declined, explaining that "there is no basis upon
which to grant your appeal for legal services. No reasons were
presented refuting the statutory requirements . . . for vacating
7
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
an arbitration award[.]" On this record, it appears HSTA offered
Stucky multiple opportunities to explain her request, and the
justification therefor, which it considered, including a public
policy argument. The UniServ directors, HSTA's counsel, and the
three-member panel each evaluated the merits of her request.
HTSA ultimately exercised its judgment in declining to pursue
further remedies. Therefore, HSTA did not act arbitrarily.
"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) (citation omitted). "[M]ere negligence and erroneous
judgment calls cannot, by themselves, support an inference of bad
faith." Demetris v. Transp. Workers Union of Am., AFL-CIO, 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
P.2d at 637.
Stucky identifies no evidence of fraud, deceitful
action or dishonest conduct by HSTA in deciding not to move to
set aside the Yap Award. Even if HSTA was wrong in deciding that
a public policy argument would not have succeeded, that is not
enough to infer bad faith.
8
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
As to Stucky's remaining arguments, whether she was
terminated pretextually or for good cause was determined in the
Yap Award, "which is not properly before [the court] in this
appeal." See Asato, 2025 WL 502738, at *8. Stucky points to no
authority that HSTA was obligated to move to vacate the Yap Award
on public policy grounds, based on the argument of pretext.
HSTA's decision whether to pursue such relief is reviewed for a
breach of its duty of fair representation.
As to her due process argument, procedural due process
requires "notice and an opportunity to be heard at a meaningful
time and in a meaningful manner before governmental deprivation
of property interest." Ito v. Inv'rs Equity Life Holding Co.,
135 Hawai i 49, 73, 346 P.3d 118, 142 (2015). Stucky admits she
was given notice and an opportunity to be heard. The Board
announced its decision more than four years after HSTA moved for
a decision. However, Stucky fails to address why the decision
was delayed, whether she opposed or stipulated to the delay, or
how the delay prejudiced her. "Where an appellant makes general
assertions of a due process violation, without further
elaboration or citation to authority, the court cannot reach a
reasoned conclusion, and the due process argument is deemed
waived." Id. at 74, 346 P.3d at 143. Also, an appellant may not
claim a due process violation based on delay where the appellant
was responsible for or agreeable to the delay. In re Doe, 99
Hawai i 522, 542, 57 P.3d 447, 467 (2002). Stucky fails to
demonstrate that the Board violated her due process rights.
9
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
For these reasons, the Circuit Court's June 21, 2024
Judgment is affirmed.
DATED: Honolulu, Hawai i, August 24, 2026.
On the briefs: /s/ Karen T. Nakasone
Chief Judge
Shawn Luiz,
for Complainant-Appellant/ /s/ Katherine G. Leonard Appellant Associate Judge
Keani Alapa /s/ Sonja M.P. McCullen (Alapa & Otake, LLLC), Associate Judge
for Respondents-Appellees/
Appellees
10