International Association of Machinists and Aerospace Workers, District Lodge 141 v. Hawaiian Airlines

Filing 40

ORDER GRANTING PLAINTIFF'S 26 MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S 28 MOTION FOR SUMMARY JUDGMENT: "On the basis of the foregoing, Plaintiffs Motion for Summary Judgment, filed October 11, 2011, is HEREBY GRANTED. Defendant's Motion for Summary Judgment, filed October 11, 2011, is HEREBY DENIED. The Court REMANDS the matter to the Arbitrator for clarification and interpretation of the Original Award in a manner consistent with this Order. The Clerk is DI RECTED to enter judgment in favor of Plaintiff on the Complaint and Counterclaim. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on January 25, 2012. (bbb, )CERTIFICATE OF SERVICEParticipant s registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, DISTRICT LODGE 141,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
HAWAIIAN AIRLINES,
)
)
Defendant.
_____________________________ )

CIVIL NO. 11-00271 LEK-KSC

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court are two motions for summary judgment:
(1) Plaintiff International Association of Machinists and
Aerospace Workers, District Lodge 141’s (“Plaintiff” or “IAM”)
Motion for Summary Judgment (“Plaintiff’s Motion”), filed
October 11, 2011 [dkt. no. 26]; and (2) Defendant Hawaiian
Airlines’ (“Defendant” or “HAL”) Motion for Summary Judgment,
filed October 11, 2011 (“Defendant’s Motion”) [dkt. no. 28].

The

parties filed their memoranda in opposition on December 27, 2011
and their replies on January 10, 2012.
hearing on January 18, 2011.

These matters came on for

Appearing on behalf of Plaintiff

were Ira L. Gottlieb, Esq., and Stefan M. Reinke, Esq., and
appearing on behalf of Defendant was William Ota, Esq.

After

careful consideration of the motions, supporting and opposing
memoranda, and the arguments of counsel, Plaintiff’s Motion is

HEREBY GRANTED, and Defendant’s Motion is HEREBY DENIED for the
reasons set forth below.
BACKGROUND
Plaintiff filed its Complaint to Vacate Clarification
of Arbitration Decision (“Complaint”) on April 25, 2011, seeking
to vacate a March 16, 2011 arbitration award pursuant to the
Railway Labor Act, 45 U.S.C. 151, et seq. (“RLA” or “the Act”),
and the Fifth Amendment to the United States Constitution.
[Complaint at ¶ 1.]

Plaintiff and Defendant are parties to a

collective bargaining agreement (“CBA”); the arbitration award
was rendered pursuant to the grievance and arbitration provision
of the CBA.

[Id. at ¶ 4.]

On October 9, 2008, the parties participated in an
arbitration regarding the termination of IAM member Brad
Asuncion, a part-time ramp service employee of Defendant from
2002 to November 2007.

The Complaint states that Mr. Asuncion

voluntarily reported a substance abuse problem and signed a
rehabilitation agreement with Defendant, but, shortly after
signing it, Defendant accused Mr. Asuncion of violating the terms
of the agreement, and discharged him.

Per the parties’

agreement, Arbitrator Lou Chang (“the Arbitrator”) presided as a
single arbitrator in lieu of the System Board of Adjustment
provided for in the CBA.

The Complaint states that the

Arbitrator had jurisdiction to determine the following issues

2

submitted to him by the parties: (1) was the termination
discipline imposed upon Mr. Asuncion in accordance with the CBA
or applicable agreements between the parties; and (2) if not,
what is the appropriate remedy?

[Id. at ¶¶ 5-6.]

The Arbitrator issued a decision and award dated
January 12, 2009 (“Original Award”), ordering that Mr. Asuncion
be “promptly reinstated,” and that he must “successfully pass a
Return to Duty drug test and sign a Return to Duty Agreement and
shall be subject to unannounced follow-up drug testing for up to
60 months from the date of his return duty.”

[Id. at ¶ 7.]

According to Plaintiff, the Original Award did not contain a
specific deadline for the reinstatement process or any other
precondition.

The Original Award stated that the Arbitrator

retained jurisdiction “to address issues relating to the
interpretation and implementation of this Decision.”

[Id.]

Plaintiff alleges that Mr. Asuncion passed his return
to duty drug test and signed a Return to Duty Agreement, but
encountered obstacles in retaining a security clearance due to
medical reasons.

[Id. at ¶¶ 8-9.]

Defendant instructed

Mr. Asuncion to contact labor relations by February 27, 2009,
otherwise it would determine that he had abandoned his job.
Plaintiff alleges that Mr. Asuncion contacted Defendant’s
management several times during February and March of 2009,
informing them of his medical issues and providing a doctor’s

3

note clearing him for work by March 20, 2009.

Defendant

initiated a conference call with the Arbitrator regarding
Mr. Asuncion’s failure to return to work, in which Defendant’s
representative and a “member of the Union’s negotiating committee
who was not involved with the October 9, 2009 arbitration and was
not authorized by the Union or the [CBA] to participate in
arbitration, were present.”

[Id. at ¶¶ 10-11.]

On April 2, 2009, the Arbitrator issued a Supplemental
Arbitrator’s Decision, which altered the Original Award by
stating that Defendant was no longer obligated to reinstate
Mr. Asuncion, because he had not returned to work or diligently
pursued reinstatement (“Supplemental Decision”).

Plaintiff

challenged the Supplemental Decision in this district court
(Civil No. 09-00275 DAE-BMK), and United States District Judge
David Alan Ezra vacated the award by written order issued on
November 9, 2010 (“11/9/10 Order”)1.

The 11/9/10 Order remanded

to the Arbitrator for clarification and interpretation of the
Original Award, and stated that, thereafter, Defendant could take
any new employment action it deemed appropriate, and Plaintiff
and Mr. Asuncion could institute a new grievance.
appealed the 11/9/10 Order to the Ninth Circuit.

Defendant
[Id. at ¶¶ 13-

15.]

1

The 11/9/10 Order is available at 2010 WL 4688809.
4

In a March 16, 2011 “Clarification Decision,” the
Arbitrator added new language to the decision portion of the
Original Award regarding whether Mr. Asuncion was “promptly
reinstated” and implemented a retroactive 21-day deadline for his
compliance.

Plaintiff alleges that the Clarification Decision is

contrary to law and should be vacated.

[Id. at ¶¶ 19-20.]

Defendant filed a Counterclaim to Confirm Clarification of
Arbitration Decision on May 26, 2001.
I.

Plaintiffs’ Motion
Plaintiff seeks summary judgment to vacate the

Clarification Decision on the grounds that the Arbitrator: (1)
did not draw the retroactive 21-day deadline for return from the
CBA, the parties’ submissions, past practice or agreements, or
the arbitral record, but instead dispensed his “own brand of
industrial justice”; and (2) exceeded his authority under the CBA
in clarifying the Original Award by “changing the rules of the
game mid-play,” and violating due process.
Plntf.’s Mot. at 26.]

[Mem. in Supp. of

It asks the Court to reinstate

Mr. Asuncion, or alternatively, to remand the matter to a
different arbitrator.

[Id. at 34.]

Plaintiff first argues that the Arbitrator overstepped
his authority because the retroactive 21-day deadline had no
basis in the CBA, the arbitral record, or the parties’ past
practice.

It claims he invented the remedy out of whole cloth,

5

and, because the award does not draw its essence from the CBA,
this Court must vacate the Clarification Decision.
28.]

[Id. at 27-

Here, the CBA limits the Arbitrator’s authority as follows:
The jurisdiction of the Board shall not extend to
proposed changes in rules, basic rates of
compensation or working conditions covered by this
Agreement or any amendments thereto. This Board
shall not have jurisdiction or power to add to or
subtract from this Agreement or any amendments
thereto or any agreement between the parties.

[Id. at 29 (quoting JE2 at 540).]

Plaintiff argues that the

Arbitrator added a new condition of employment applicable to the
grievant, Mr. Asuncion.

Further, it argues that the retroactive

deadline was harsh, illogical, and absurd; it is unfair to demand
that the parties should be held to a specific deadline known to
no one at that time.

Plaintiff argues that the Arbitrator,

therefore, meted out his own brand of industrial justice, and the
Clarification Decision must be vacated.

[Id. at 30-31.]

Next, Plaintiff argues that the Arbitrator deprived it
of due process by changing the rules in the middle of the game.
That is, more than two years after the initial arbitration
hearing, the Arbitrator inserted the new rule that Mr. Asuncion
had to have figured out how to finish the reinstatement process
within 21 days of the award.

Plaintiff contends that courts have

held that an arbitration award may be overturned where

2

The parties submitted one set of Joint Exhibits (“JE”), to
which both cite in their respective pleadings. [Dkt. nos. 2325.]
6

“procedural irregularities” result in fundamental unfairness.
[Id. (citing cases).]
A.

Defendant’s Memorandum in Opposition
Defendant argues in its opposition that the

Clarification Decision should stand, and that Plaintiff is asking
the Court to set aside the Clarification Decision of the
Arbitrator’s Original Award, and to interject the Court’s own
judgment into a dispute governed by the RLA.

It argues that the

Clarification Decision is entitled to the same considerable
deference afforded all labor arbitration awards, and urges the
Court not to “judicialize” the arbitration process.

[Mem. in

Opp. to Pltf.’s Mot. at 1-2.]
Defendant first argues that the Arbitrator had a
sufficient basis to clarify and interpret the Original Award in
the manner he did, and that the Clarification Decision is
consistent with the residual jurisdiction afforded labor
arbitrators under federal law.

It argues that, while the common

law functus officio doctrine precludes arbitrators from
reconsidering final arbitration awards because they lose
jurisdiction over a dispute once they have fully and completely
decided the submitted dispute, the doctrine is less strictly
applied in labor arbitrations than in commercial disputes.

[Id.

at 19 (citing Glass, Molders, Pottery, Plastics and Allied
Workers Int’l Union Local 182 v. Excelsior Foundry Co., 56 F.3d

7

844 (7th Cir. 1995)).]

Further, Defendant argues it is

well-accepted that courts may, when presented with an arbitration
award that is ambiguous or incomplete, order the matter
resubmitted to the arbitrator for interpretation, clarification,
or fleshing out, and that this is consistent with the courts’
reluctance to second-guess or to substitute their own judgment
for that of an arbitrator presiding over a labor grievance.
at 20.]

[Id.

According to Defendant, Mr. Asuncion’s failure to

promptly avail himself of the opportunity to return to work
presented a contingency similar to those outlined in the
Excelsior Foundry case, and permitted the Arbitrator to clarify
and interpret his decision to address the contingency.

Defendant

argues that the Clarification Decision is consistent with the
residual jurisdiction prescribed by law.

[Id. at 22.]

Second, Defendant argues that the Clarification
Decision does not exceed the parameters of the residual
jurisdiction recognized by Judge Ezra in his 11/9/10 Order.
Defendant states that Judge Ezra ruled that the Arbitrator had
exceeded his authority by “determin[ing] a post-Decision matter
of job abandonment or failure to satisfy conditions for
reinstatement.”

[Id. at 23 (quoting JE at 61).]

According to

Defendant, the Clarification Decision expressly acknowledges the
constraints the 11/9/10 Order imposed on the Arbitrator, and made
clear that the Arbitrator did not, in issuing the Clarification

8

Decision, make any determination as to job abandonment or
forfeiture, and did not intend or purport to reconsider or
reverse the Original Award.

[Id. (citing JE at 870).]

To the

contrary argues Defendant, the Arbitrator simply adhered to the
Plaintiff’s request that he “elaborate on his instruction to
‘promptly reinstate’ Mr. Asuncion.”

[Id. (quoting JE at 722).]

Finally, Defendant argues that the Clarification
Decision did not alter the rules of the game mid-play, as
suggested by Plaintiff.

Nor did it deprive Mr. Asuncion of due

process and/or the opportunity to return to work at HAL, where,
on several occasions, Defendant expressed to Mr. Asuncion and to
the Plaintiff its frustrations regarding Mr. Asuncion’s delay
in completing the reinstatement process.

Defendant argues that

neither Plaintiff nor Mr. Asuncion took meaningful action in
response to these communications, or to Defendant’s invocation of
the Arbitrator’s residual jurisdiction, or to the Arbitrator’s
March 2009 invitation to submit supplemental briefing.
30.]

[Id. at

It maintains that, on remand, Plaintiff had, and exercised,

the right to thoroughly brief the clarification of the Original
Award.

The Arbitrator did not alter any procedural rules, but

allowed the parties all of the “process” requested and otherwise
due; the fact that the Arbitrator ultimately did not clarify the
Decision in a manner favorable to Mr. Asuncion does not
mean that the rules were changed mid-play.

9

[Id. at 31.]

B.

Plaintiff’s Reply
In its reply, Plaintiff argues that the Arbitrator

violated principles of functus officio by issuing the
Supplemental Decision and Clarification Decision.

It argues that

there is no legal or logical basis for the 21-day retroactive
deadline.

Further, it argues that the Original Award became part

of the CBA, and had to be honored as such.
Mot. at 2-4.]

[Reply to Pltf.’s

According to Plaintiff, the 21-day deadline, if

announced in January 2009, would have been part of the parties’
“essential contract,” but under the circumstances, the Arbitrator
unilaterally declared “a new winner and loser in the case, just
as he had in his vacated ‘Supplemental Decision.’”

[Id. at 5.]

Plaintiff insists setting a retroactive deadline
violated due process and the CBA.

At the time of the Original

Award in January 2009, no party, including Defendant, thought
Mr. Asuncion had only 21 days to finish the reinstatement tasks;
indeed, no one was aware of any specific deadline by which
Mr. Asuncion had to return or else lose his reinstatement rights.
Plaintiff argues that the Clarification Decision amounts to
fundamental unfairness, and should be vacated.
II.

[Id. at 9-11.]

Defendant’s Motion
Defendant moves for summary judgment in its favor as to

Plaintiff’s Complaint and its own Counterclaim.
of Def.’s Mot. at 1.]

[Mem. in Supp.

Defendant argues that Mr. Asuncion was not
10

fully responsive to Defendant’s reinstatement efforts, and failed
to obtain the security clearance he needed to return to work at
the Honolulu International Airport.

Defendant provides the

following procedural background, which occurred following the
Original Award:
•

•

•

•

The January 12, 2009 Original Award sustained the grievance
and stated that Mr. Asuncion “shall be promptly reinstated
with no loss of seniority or other benefits[.]” The award
also provided for back pay and required Mr. Asuncion to pass
a return to duty drug test, sign a return to duty agreement,
and submit to unannounced testing for sixty months, and
expressly provided that “[t]he Arbitrator further retains
jurisdiction to address issues relating to the
interpretation and implementation of this Decision.” [Id.
at 5 (quoting JE at 312).]
On January 15, 2009, Defendant’s human resources executive,
Janis Bumgarner, attempted to contact Mr. Asuncion at each
of the telephone numbers – one on the island of Hawai‘i and
one on the island of Oahu – he had on file with HAL.
Ms. Bumgarner was not able to reach Mr. Asuncion at either
of these telephone numbers. The following day, Friday,
January 16, 2009, Ms. Bumgarner informed Robert Winner, an
IAM official, and the Arbitrator during a telephone
conference call that she had not been able to contact
Mr. Asuncion at either of his known telephone numbers.
Mr. Winner indicated that the IAM would attempt to locate
Mr. Asuncion. [Id. at 6 (citing JE at 316-21).]
On Monday, January 19, 2009, Defendant sent a letter via
certified mail to Mr. Asuncion’s last known residential
address. In this letter, copies of which were transmitted
to Mr. Winner and the Arbitrator, Ms. Bumgarner informed
Asuncion of the award and asked Mr. Asuncion to contact her
immediately so they could begin the process of returning him
to work. Ms. Bumgarner noted that “[t]here are conditions
to [his] reinstatement as well as forms to complete and
security clearances that must be successfully completed
prior to [his] reemployment.” [Id. (quoting JE at 374).]
On January 22, 2009, Mr. Asuncion telephoned HAL and was
instructed to submit to a return to duty drug test within
twenty-four hours, which he did. The following day, Friday,
January 23, 2009, Ms. Bumgarner telephoned Mr. Asuncion and
arranged for a face-to-face meeting to be conducted the
following Monday. On Monday, January 26, 2009, Mr. Asuncion
11

•

•

•

appeared in person and signed a return to duty agreement.
During this meeting, Ms. Bumgarner instructed Mr. Asuncion
to apply for the security badge required for his resumed
employment, and gave him a check for the back pay specified
in the award. According to Defendant, aside from preparing
the initial paperwork, it does not have any role in the
Department of Transportation’s security clearance process,
and is not permitted to check with the agency on the status
of an individual’s application for clearance. [Id. at 6-7
(citing JE at 322-32).]
On February 5, 2009, HAL telephoned Mr. Asuncion and left a
telephone message reminding him of his need to obtain
security clearance and instructing him to contact an
administrator to make arrangements for obtaining his
uniforms. Several days later, on February 9, 2009, a woman
who identified herself as Mr. Asuncion’s mother telephoned
the HAL and stated that Mr. Asuncion had a cold and could
not go to the office. HAL told the woman to have
Mr. Asuncion come in the following day if possible, and to
telephone HAL if he was not feeling well enough to come in.
After failing to hear from Mr. Asuncion for several days,
Ms. Bumgarner e-mailed Mr. Winner and the Arbitrator on
February 13, 2009, and informed them that Mr. Asuncion had
not followed through on obtaining security clearance and his
uniforms. Five days later, on February 18, 2009,
Ms. Bumgarner sent Mr. Asuncion a certified letter in which
she again instructed him to contact HAL as soon as possible
to continue the process of returning to work. Ms. Bumgarner
sent a follow-up letter the next day specifically directing
Mr. Asuncion to telephone her by that Friday, February 27,
2009. [Id. at 7-8 (citing JE at 333-41, 377).]
On February 24, 2009, Mr. Asuncion telephoned Ms. Bumgarner
and stated that he had been ill and that his uncle had
passed away. Ms. Bumgarner told him that he could not be
out of touch, and that HAL expected him to continue
processing the security clearance that would enable him to
return to work. Mr. Asuncion stated that he would check on
his security badge and would also apply for his custom seals
the following Monday, March 2, 2009. Ms. Bumgarner again
instructed Mr. Asuncion that he needed to remain in touch
with the Company, and told him to personally contact her if
he was not able to follow through on March 2. [Id. at 8
(citing JE at 342-45, 378, 388).]
On March 2, 2009, Mr. Asuncion left Ms. Bumgarner a
telephone message in which he indicated that he could be
reached at a new telephone number. Later that day,
Ms. Bumgarner twice attempted to reach Mr. Asuncion at that
telephone number, but was not able to reach him. The
12

following day, she again attempted to contact Mr. Asuncion
at the new number, and left a message asking him to return
the call. Ms. Bumgarner did not hear back from Mr. Asuncion
until March 5, 2009, when he returned her telephone calls
and indicated that his badge had not been processed because
he needed to provide another fingerprint sample.
Mr. Asuncion also informed Ms. Bumgarner that he had medical
problems requiring a biopsy. [Id. at 8-9 (citing JE at
346).] On the same date, Ms. Bumgarner e-mailed Mr. Winner
and the Arbitrator, stating:
I am very uncomfortable with the lack of
contact and progress in our efforts to return
Brad Asuncion to work at Hawaiian Airlines. The
decision was issued in mid-January and I have
chronicled our attempts to reach him and of his
failure to follow through.
I am seeking advice from our in-house
counsel, Mark Arimoto. I am also aware that
Lou Chang’s decision addressed his retaining
jurisdiction over issues relating to the
implementation of his decision.
Ms. [Kelly] Bryant [of Dispute Prevention &
Resolution] suggested a conference call and I am
open to that.
[Id. at 9 (quoting JE at 389, 350-52).]
•

•

On March 9, 2009, Mr. Asuncion went to the HAL offices and
left Ms. Bumgarner a doctor’s note and a program from his
uncle’s funeral service. He did not, however, go to the
nearby Department of Transportation office to complete the
processing of his application for security clearance. [Id.
at 10 (citing JE at 360).]
By March 30, 2009, Mr. Asuncion still had not completed the
process of renewing his security clearance, but did go to
the HAL offices to drop off a note from a doctor he was
seeing on the Big Island. Ms. Bumgarner transmitted a copy
of this note to Plaintiff and the Arbitrator later that day.
[Id. at 11 (citing JE at 361, 370, 398).]
With respect to the remanded arbitration proceedings,

Defendant notes that the Arbitrator clearly stated in the
Clarification Decision that:

13

Given the constraints set forth by such
decision of the Court, the Arbitrator will
hereby clarify the Arbitrator’s Decision
dated January 12, 2009 without determining a
post-Decision matter of job abandonment or
failure to satisfy conditions for
reinstatement. The Arbitrator affirms and
confirms that the Arbitrator is not intending
or purporting to reconsider or reverse the
substance of the Arbitrator’s Decision dated
January 12, 2009. As a clarification of the
Arbitrator’s Decision dated January 12, 2009,
this clarification is also not intended to be
a supplemental arbitration decision or award
pursuant to the Arbitrator’s retention of
jurisdiction.
JE 870.
Arbitrator Chang then clarified the Decision
by indicating, inter alia, that:
The term “properly reinstated” shall mean
that the Employer shall take all steps and
actions necessary to offer and make available
to Grievant an opportunity to be reinstated
to Grievant’s former employment position
commencing no later than twenty one (21)
calendar days from January 12, 2009, the date
of this Decision . . . The Grievant shall
take all steps and actions necessary to
undergo and pass a drug screen test and to
qualify himself to resume employment at a
Department of Transportation secured airport
facility and to accept the Employer’s offer
and opportunity afforded to Grievant to be
reinstated to Grievant’s former employment
position within no later than twenty one (21)
calendar days from January 12, 2009, the date
of this Decision.
Grievant shall be entitled to back pay from
February 1, 2008 until the date of the
Employer’s offering and making available to
Grievant an opportunity to be reinstated to
Grievant’s former employment position less
any income earned or other replacement income
received by Grievant during such period of
14

time.
JE 871.
[Id. at 18-19.]
Defendant first argues that the Arbitrator had
sufficient jurisdiction to clarify and interpret the Original
Award, including that provision that Mr. Asuncion be “promptly
reinstated.”

It asserts that, both before and after the 2009

proceeding, the Arbitrator had sufficient jurisdiction, and
assuming, arguendo, that there is some dispute as to whether such
jurisdiction existed prior to Judge Ezra’s 11/9/10 Order, it is
clear that the Arbitrator was afforded such jurisdiction in the
remanded proceedings.

[Id. at 20-23.]

Second, Defendant argues that the Clarification
Decision is within the bounds of the residual jurisdiction
recognized in the 11/9/10 Order.

According to Defendant, the

Arbitrator did not make any determination as to job abandonment
or forfeiture, and did not intend or purport to reconsider or
reverse the original decision.

Rather, he issued a clarification

“elaborat[ing] on his instruction to ‘promptly reinstate’
Mr. Asuncion,” and that, under the circumstances, the Arbitrator
contemplated and awarded a “prompt” reinstatement.

In light of

Mr. Asuncion’s failure to work toward his prompt reinstatement,
Defendant argues that it was appropriate for the Arbitrator to
clarify the requirement that reinstatement be prompt.

15

[Id. at

24-25.]

Defendant asserts that the fact that the deadlines set

forth in the Clarification Decision have already expired does
not, in light of Mr. Asuncion’s conduct, render the Clarification
Decision improper.

Likewise, it argues that, the mere fact that

the ultimate result of the Clarification Decision – i.e.,
Mr. Asuncion no longer having an enforceable right to demand
reinstatement – is similar to the situation that would have
existed under the Supplemental Decision does not invalidate the
Clarification Decision.

[Id. at 26-27.]

Third, Defendant argues, as it did in its opposition to
Plaintiff’s Motion, that the Clarification Decision does not
impermissibly alter the rules of the game mid-play.

[Id. at 28-

29.]
Fourth, Defendant asserts that Plaintiff’s request for
additional back pay is unreasonable.

Mr. Asuncion received a

check for back pay in January 2009, when his reinstatement
appeared imminent; the Clarification Decision indicates that back
pay be calculated and issued at the time HAL made reinstatement
available to Mr. Asuncion.

Defendant argues that it would be

unfair to allow Mr. Asuncion to accrue back pay while remaining
off duty through no fault of Defendant’s.

It maintains that it

was Mr. Asuncion’s fault, and not its own, that he was not
reinstated shorted after he received his back pay check.
30-32.]

16

[Id. at

A.

Plaintiff’s Memorandum in Opposition
In its opposition, Plaintiff again argues that the

Clarification Decision must be vacated because the Arbitrator
denied Mr. Asuncion due process in violation of the RLA and CBA.
It argues that, where the Original Award left the key term
“prompt reinstatement” undefined, it is inequitable to
retroactively impose a 21-day definition that none of the parties
believed applied, and which was impossible for Mr. Asuncion to
comply with from the moment it was announced.

[Mem. in Opp. to

Defendant’s Mot. at 2.]
Plaintiff emphasizes that the CBA does not define how
much time it should take a reinstated grievant to return to
active duty.

Further, the Clarification Decision did not make

Mr. Asuncion’s security clearance a requirement for
reinstatement.

According to Plaintiff, Mr. Asuncion applied for

his security clearance on January 26, 2009, and was told it would
take 30 days for his security badge to be issued, and which
exceeded the 21-day retroactive deadline.

It argues that neither

the Original Award nor the Return to Duty agreement include such
a deadline or refer to security clearance requirements or
procedures.

[Id. at 6-7 (citing JE 495-96, 640-51, 736-37).]

According to Plaintiff, Mr. Asuncion was continually in
contact with HAL, but that the carrier “continued to position
itself to deny Mr. Asuncion reinstatement, though not even HAL

17

moved toward reinstatement obstruction within 21 days of the
original award.”

[Id. at 8.]

It states that, prior to when

Ms. Bumgarner contacted the Arbitrator’s dispute resolution
service in March 2009 to complain that Mr. Asuncion was still not
back to work, HAL did not indicate to Plaintiff or Mr. Asuncion
that it believed it had fulfilled its obligation to reinstate
Mr. Asuncion, or that it would attempt to elicit such a ruling
form the Arbitrator in a supplemental ruling.

B.

[Id. at 9-10.]

Defendant’s Reply
In its reply, Defendant maintains that the

Clarification Decision did not reconsider or reverse the merits
of the Original Award, nor did it adjudicate the merits of any
post-Original Award dispute.

It argues that the following facts

are undisputed: (1) the Arbitrator had jurisdiction to craft and
define an appropriate remedy for the grievance; (2) the remedy
set forth in the Original Award called for Mr. Asuncion’s
“prompt” reinstatement; (3) Judge Ezra, in the 2009 action, made
clear that arbitrators retain authority to clarify and interpret
their awarded remedies; (4) Judge Ezra vacated the Supplemental
Decision because he believed that the Arbitrator had improperly
ruled upon a post-decision matter beyond the scope of the
grievance, and had improperly ruled that Mr. Asuncion lost his
right to reinstatement based on this adjudication; (5) Judge Ezra

18

contemplated and approved of clarifications establishing
deadlines that have already passed; (6) the Arbitrator had
authority to clarify and interpret the provision that
Mr. Asuncion be “promptly” reinstated; (7) in the Clarification
Decision, the Arbitrator expressly acknowledged and adhered to
Judge Ezra’s instruction that he refrain from ruling upon
Mr. Asuncion’s post-decision conduct; and (8) the Clarification
Decision expressly indicates that it is not a reconsideration or
reversal of the Original Award, and is not, in fact, a
supplemental award of any sort.

[Reply to Defendant’s Motion at

1-2.]
Defendant rejects the characterization of the 21-day
deadline for reinstatement as “retroactive.”

Defendant states

that, although Plaintiff characterizes it as “retroactive,” the
Clarification Decision simply interprets and clarifies the
remedies contemplated in the Original Award, and is not a
supplemental award imposing or ordering anything retroactively.
Defendant acknowledges that the Clarification Decision does not
give Mr. Asuncion a prospective opportunity for relief, but
argues nonetheless that the absence of a prospective remedy does
not make the Clarification Decision “retroactive.”

Rather, it

argues that Plaintiff is really objecting to the fact that the
Clarification Decision does not give Mr. Asuncion another
prospective opportunity for reinstatement.

19

[Id. at 4.]

With respect to Plaintiff’s argument regarding the CBA,
Defendant states that the Original Award clearly draws its
essence from the CBA and that a 21-day deadline for reinstatement
would have been proper had it been expressly stated in the
Original Award.

That is, if the Clarification Award’s language

had been included in the Original Award, it would have drawn its
essence from the CBA.

It argues that there is nothing to suggest

that a deadline becomes extra-contractual when it is referenced
in a clarification or interpretation of an award.

Further,

Defendant argues that, at the time of the Original Award, the
Arbitrator had little reason to believe that Mr. Asuncion would
not promptly avail himself of reinstatement, or that, if some
barrier to reinstatement should arise, it would be deemed beyond
the scope of the residual jurisdiction that he expressly reserved
in the Original Award.

It asserts that there is no reason to

believe that the Arbitrator contemplated any type of indefinite
tolling of the time frame for Mr. Asuncion’s reinstatement.

[Id.

at 5-7.]
DISCUSSION
Pursuant to 45 U.S.C. § 153, the findings and order of
the Adjustment Board shall be conclusive on the parties, except
for: (1) failure of the Adjustment Board to comply with the
requirements of the RLA; (2) failure of the order to conform, or
confine itself, to matters within the scope of the Adjustment

20

Board’s jurisdiction; or (3) fraud or corruption by a member of
the Adjustment Board making the order.

Union Pac. R. Co. v. Bhd.

of Locomotive Eng’rs, 130 S. Ct. 584, 592–93 (2009).

The Ninth

Circuit has also found that “a constitutional challenge
constitutes an independent ground, in addition to the three
expressly stated in section 153 First (q), upon which a federal
court has jurisdiction to review decisions of a system adjustment
board.”

Edelman v. W. Airlines, Inc., 892 F.2d 839, 847 (9th

Cir. 1989).
limited.

Accordingly, review of an arbitration award is

“Plenary review of the merits of an arbitration award

would undermine the federal policy of settling labor disputes by
arbitration.”

McClatchy Newspapers v. Cent. Valley Typographical

Union No. 46, 686 F.2d 731, 733 (9th Cir. 1982) (citing United
Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S.
593, 596 (1960)).

Nevertheless, a court may determine whether

the parties “‘agree(d) to give the arbitrator the power to make
the award he made,’ and whether the award drew its essence from
the agreement submitted for arbitration.”

Id. (quoting United

Steelworkers of America v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582 (1960) (alteration in original)); see also Haw.
Teamsters & Allied Workers Union, Local 996 v. United Parcel
Serv., 241 F.3d 1177, 1180 (9th Cir. 2001) (“Our review of labor
arbitration awards is, however, extremely deferential because
courts do not sit to hear claims of factual or legal error by an

21

arbitrator as an appellate court does in reviewing decisions of
lower courts.” (internal citations and quotations omitted)).
An arbitration award is entitled to great
deference “[b]ecause the parties have contracted
to have disputes settled by an arbitrator chosen
by them rather than by a judge, [and] it is the
arbitrator’s view of the facts and of the meaning
of the contract that they have agreed to accept.”
United Paperworkers Int’l Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 37-38, 108 S. Ct. 364, 98 L.
Ed. 2d 286 (1987).
“As long as the award ‘draws its essence’
from the contract, meaning that on its face it is
a plausible interpretation of the contract, then
the courts must enforce it.” Sheet Metal Workers’
Int’l Ass’n Local Union No. 359 v. Madison Indus.,
Inc. of Ariz., 84 F.3d 1186, 1190 (9th Cir. 1996).
See also Sunshine Mining Co. v. United
Steelworkers of Am., AFL-CIO, CLC, 823 F.2d 1289,
1293 (9th Cir. 1987). In other words, this
court’s “task is to determine whether the
arbitrator interpreted the collective bargaining
agreement, not whether he did so correctly.” Haw.
Teamsters, 241 F.3d at 1178. See also Major
League Baseball Players Ass’n v. Garvey, 532 U.S.
504, 509, 121 S. Ct. 1724, 149 L. Ed. 2d 740
(2001) (per curiam) (“Courts are not authorized to
review the arbitrator’s decision on the merits
despite allegations that the decision rests on
factual errors or misinterprets the parties’
agreement. . . . [I]f an arbitrator is even
arguably construing or applying the contract . . .
the fact that a court is convinced he committed
serious error does not suffice to overturn his
decision.” (internal quotations and citations
omitted)).
The Ninth Circuit has recognized only three
narrow exceptions to the general rule of deferring
to an arbitrator’s decision: 1) when the
arbitrator’s award does not draw its essence from
the CBA; 2) when the arbitrator exceeds the
boundaries of the issues submitted to him; and 3)
when the award is contrary to public policy.
United Food & Commercial Workers Int’l Union,
22

Local 588 v. Foster Poultry Farms, 74 F.3d 169,
173 (9th Cir. 1995).
McCabe Hamilton & Renny Co., Ltd. v. Int’l Longshore & Warehouse
Union, Local 142, AFL-CIO, 624 F. Supp. 2d 1236, 1243-44 (D.
Hawai‘i 2008).
As a preliminary matter, the parties agree that the
Arbitrator had the authority on remand to clarify the undefined
term “prompt reinstatement” used in the Original Award.

As the

Seventh Circuit stated in Excelsior Foundry, and as recognized by
Judge Ezra in his 11/9/10 Order, “[a]n award that fails to
address a contingency that has arisen after the award was made is
incomplete; alternatively, it is unclear; either way, it is
within an exception to the [functus officio] doctrine.”

Glass,

Molders, Pottery, Plastics & Allied Workers Intern. Union,
AFL–CIO, CLC, Local 182B v. Excelsior Foundry Co.,

56 F.3d 844,

847 (7th Cir. 1995).
Further, at the hearing on the motions, the parties
agreed that the Arbitrator would have had the authority to
include the 21-day deadline in the Original Award; that is, the
“clarification” would have been proper if it were set forth in
the Original Award.

The parties dispute, however, whether the

21-day deadline could be set forth in the Clarification Decision
in the first instance, with no opportunity for Mr. Asuncion to
satisfy a deadline that had already lapsed.

23

In Excelsior Foundry, the Seventh Circuit approved the
arbitrator’s authority to issue a clarification where the
original decision included a 60-day deadline, and, upon
clarification, the arbitrator decided that the 60 days began to
run from the date he issued the clarification.

In that case, an

employee failed to complete a drug-rehabilitation program, and as
a result was fired.

The arbitrator ordered the employer to

reinstate the employee “without backpay or fringe benefits, if he
completes a company medically approved rehabilitation program
within 60 days from the rendition of this award.”

Id. at 845.

The award was issued on May 6, 1993, so the 60 days ran out on
July 5, but the award did not say who would pay for the 30-day
rehabilitation program.

On May 24, the union asked the

arbitrator to clarify the award with respect to who should pay.
On June 2, in response to this request, the arbitrator stated
that he had not intended for the company to pay.

The employee

enrolled in and paid for the program, but did not complete it
until July 27, more than 60 days after the arbitrator’s award had
been rendered.

Shortly before the employee completed the

program, his union representative called the arbitrator to ask
when the 60–day period for the completion of the rehabilitation
program had started to run.

On July 30, the arbitrator wrote the

parties that it had started to run on June 2, the date of his
letter clarifying the award (rather than May 6, the date of the

24

award), which meant that the employee had completed the program
within the deadline.

The employer, however, refused to reinstate

the employee, so the union brought suit to enforce the
arbitrator’s award and thus compel reinstatement.

The district

court granted summary judgment for the employer on the ground
that the arbitrator’s action in extending the period for
completion of the drug-rehabilitation program was forbidden by
the doctrine of functus officio.

Id. at 846.

The Seventh

Circuit overruled, finding that “[t]he present case is within the
clarification-completion exception (or exceptions) to functus
officio.”

Id. at 848.

Unlike the clarification in Excelsior

Foundry, the instant Clarification Decision set forth a deadline
that began to run from the date of the Original Award, and which
had lapsed before the Arbitrator clarified or interpreted that
Original Award.

The distinction is significant.

As to the scope of the Arbitrator’s authority to
clarify and interpret, the Ninth Circuit has found:
While we uphold arbitration awards that are a
plausible interpretation of the collective
bargaining agreement, we will not enforce awards
exceeding the arbitrator’s authority. Arbitrators
have broad powers to fashion appropriate remedies
on submitted issues, but they have no authority to
decide issues not submitted by the parties[.] The
arbitrator properly retained jurisdiction to
decide disputes arising in the administration of
the award. However, that jurisdiction did not
extend to deciding the merits of grievances not
submitted to him.
Hughes Aircraft Co. v. Elec. & Space Technicians, Local 1553, 822
25

F.2d 823, 826–27 (9th Cir.1987) (internal citations omitted).
Here, the Arbitrator exceeded his authority when he
inserted a 21-day deadline for reinstatement, which ran from the
date of the Original Award, rather than from the date of the
Clarification Decision.

While, as all counsel agreed at the

hearing, the Arbitrator has the authority to place a reasonable
deadline for the employee to report back to work, the insertion
of the retroactive deadline had the same practical implication
and effect as the Arbitrator’s Supplemental Decision in which he
made the finding that the employee was not diligent in
cooperating in the process to become reinstated.

Because the

deadline ran from the 2009 Original Award, and because the
employee failed to obtain his security badge and report to work
prior to the Clarification Decision, it was impossible for the
employee to satisfy that deadline.

In essence, the imposition of

the retroactive deadline was simply a restatement of the
Arbitrator’s prior Supplement Decision, which this district court
ruled was impermissible.

That is, in effect, the Clarification

Decision goes beyond interpreting, clarifying, or completing the
Original Award, and instead imposes a new sanction outside of the
scope of the original grievance.
As Judge Ezra found in his 11/9/10 Order:
In his Decision, Arbitrator Chang ordered Asuncion
reinstated and required him to fulfill two
conditions, which it is not argued that he
violated. In his Supplemental Decision,
26

Arbitrator Chang then imposed new discipline on
Asuncion based on what he allegedly failed to do,
which was beyond the scope of the issue before him
and possibly in violation of the CBA’s substantive
and procedural protections. Here, what Asuncion
allegedly failed to do was a new dispute arising
from the application of the award, not an issue
for the arbitrator to decide in interpreting the
award. Arbitrator Chang did not merely clarify as
to the original Decision what was required of HAL
or what was necessarily required of Asuncion as a
condition to reinstatement, instead, he
affirmatively found based on post-Decision events
that Asuncion had forfeited his right to
reinstatement. This was a decision on the merits
of grievances not submitted to him that entailed
fact finding and credibility determinations on the
evidence.
11/9/10 Order, 2010 WL 4688809, at *8-9 (D. Hawai‘i Nov. 9,
2010).

This Court likewise finds that the Arbitrator effectively

went beyond the scope of his authority.

The absolute bar to

Mr. Asuncion’s reinstatement, by way of a 21-day deadline that
expired before it was announced, effectively went beyond
clarification or interpretation, and “imposed new discipline on
Asuncion”.

Even under the deferential standard of review for

arbitration decisions, the Court concludes that the Clarification
Decision cannot stand.
In this Court’s view, a clarification cannot have the
effect of terminating Mr. Asuncion without providing an
opportunity for a fair and reasonable manner of “prompt
reinstatement.”

This is especially so where the Original Award

included only the conditions that Mr. Asuncion pass a return to
duty drug test and sign a Return to Duty agreement, but did not
27

mention other requirements for “prompt reinstatement.”

The

Clarification Decision recognizes that:
In the context of Grievant working at a Department
of Transportation secured airport facility, the
Grievant also had performance and response
obligations to take such actions as are necessary
to obtain the required security badge and access
documentation to work at a secured airport
facility.
[JE at 867-68.]

The Clarification Decision, however, improperly

removed any possibility of compliance with these conditions.
The Court, therefore, HEREBY VACATES the Clarification
Decision, and REMANDS the matter to the Arbitrator for
clarification, specifically as to a reasonable deadline for
“prompt reinstatement,” including time to complete the process of
obtaining the requisite security badge and any other necessary
credentials, and to report back to work.3

This deadline should

be one that is measured from the date of the issuance of the
second clarification decision, as was the case in Excelsior
Foundry, and not from the Original Award.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Summary Judgment, filed October 11, 2011, is HEREBY GRANTED.
Defendant’s Motion for Summary Judgment, filed October 11, 2011,

3

To the extent Plaintiff requests that the Court remand the
matter to a new panel for clarification, that request is DENIED.
Further, the Court makes no ruling regarding the parties’ request
to find that Mr. Asuncion is or is not entitled to additional
backpay.
28

is HEREBY DENIED.

The Court REMANDS the matter to the Arbitrator

for clarification and interpretation of the Original Award in a
manner consistent with this Order.

The Clerk is DIRECTED to

enter judgment in favor of Plaintiff on the Complaint and
Counterclaim.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 25, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
DISTRICT LODGE 141 V. HAWAIIAN AIRLINES; CIVIL NO. 11-00271 LEKKSC; ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

29