This appeal addresses whether tripartite arbitration must be ordered to resolve disputes involving two unions claiming that their employees are entitled to various temporary work assignments. Petitioner-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO Union (UPW) appeals from the Circuit Court of the First Circuit’s (Circuit Court) Final Judgment filed June 29, 2007.
The Circuit Court denied UPW’s request to compel a consolidated three-way, or tripartite, arbitration. On appeal, UPW contends that the Circuit Court erred by: (1) misconstruing well-established precedent favoring three-way or tripartite arbitration of jurisdictional claims; (2) misinterpreting and
I. BACKGROUND
UPW and Respondent-Appellee Hawaii Government Employees Association, AFSCME, Local 152, AFL-CIO Union (HGEA) represent different bargaining units of state employees. UPW is the exclusive bargaining representative of blue collar non-supervisory state employees in bargaining unit 1, as set forth in HRS § 89-6(a)(l). HGEA is the exclusive bargaining representative of blue-collar supervisory state employees in bargaining unit 2, as set forth in HRS § 89-6(a)(2). Both unions’ collective bargaining agreements contain broad arbitration provisions, including grievance procedures.
The underlying disputes concern temporary work assignments. Temporary work assignments arise when an employee is absent due to sickness, injury, annual leave, training, or other reasons. The state employer selects another employee to temporarily fill the vacant position. Such assignments provide valuable on-the-job training and may lead to promotional opportunities. Both UPW and HGEA allege their employees are entitled to temporary assignments of bargaining unit 2 supervisory positions.
A.UPW Grievance: Hunter Arbitration Award
On June 27, 1996, UPW filed a grievance on behalf of a bargaining unit 1 employee, William Kapuwai. The grievance alleged that the state Department of Transportation (DOT) violated past policy and practice by granting an HGEA employee temporary assignments of the Highway Maintenance Supervisor F-2-05 position (no. 01235), a bargaining unit 2 position in the Windward Landscaping Crew. UPW alleged that, historically, the DOT had granted temporary assignments of F-l and F-2 supervisory positions to non-supervisory employees in its bargaining unit. Following bipartite arbitration, Arbitrator Keith Hunter issued an award in UPWs favor. He determined that the DOT was bound, pursuant to its past practice and collective bargaining agreement, to grant temporary assignments of the F-2-05 supervisory position to UPW employees. The Circuit Court later confirmed the award.
B. Petition for Declaratory Ruling from HLRB
On October 20, 1997, the State filed a petition for a declaratory ruling with the Hawaii Labor Relations Board (HLRB). The State sought a determination regarding the policy of granting bargaining unit 2 positions to UPW employees without first considering whether HGEA employees wei’e available. Specifically, the State sought to finally resolve whether such a policy is inconsistent with its management rights under HRS §§ 89-6, 89-9(d), and 89-13. HGEA and the counties of Honolulu, Hawaii, Kauai, and Maui intervened in the proceeding. However, the HLRB dismissed the petition, finding there was “no actual controversy between the parties at this stage.” HGEA appealed the dismissal to the Circuit Court, which determined the dispute was not moot and remanded it for further proceedings. The Hawaii Supreme Court affirmed that result. Lingle v. Haw. Gov’t Emps. Ass’n, Local 152,
C. HGEA Grievance: Uesato Arbitration Award
On December 30, 2003, HGEA filed a grievance against the DOT on behalf of a bargaining unit 2 employee, Rodney Kekaua-lua. The grievance disputed temporary assignments of the Highway Construction & Maintenance Supervisor II Fl-10 position
D. UPW’s Class Action Grievance; Motion to Compel Consolidated Arbitration
On January 30, 2007, UPW filed a class action grievance alleging continued violations of the DOT’s past policy and practice of offering temporary assignments of F-l and F-2 supervisory positions to UPW employees. In the grievance, UPW referenced the “longstanding multi-party controversy” over temporary assignments.
On February 15, 2007, UPW filed with the Circuit Court a motion to compel consolidated tripartite arbitration between UPW, HGEA, and the DOT. HGEA and the DOT both opposed the motion asserting, inter alia, that the HLRB was the proper forum for resolving the dispute. On June 1, 2007, the Circuit Court denied the motion on the ground that “there are no separate arbitration proceedings to consolidate.” Judgment was entered on June 29, 2007. UPW filed a timely notice of appeal on June 29, 2007 and an amended notice of appeal on July 2, 2007.
II. POINTS OF ERROR
UPW raises the following points of error on appeal:
(1)The Circuit Court erred by misinterpreting and misapplying HRS § 658A-10;
(2) The Circuit Court erred by failing to refer the dispute, which UPW charactered as a dispute over arbitrability, to an arbitrator;
(3) The Circuit Court erred by misconstruing federal case law favoring tripartite arbitration of jurisdictional claims; and
(4) The Circuit Court abused its discretion by failing to order tripartite arbitration where there are conflicting bipartite arbitration awards.
III. APPLICABLE STANDARDS OF REVIEW
A trial court’s decision whether or not to compel arbitration is a question of law. Koolau Radiology, Inc. v. Queen’s Med. Ctr.,
The decision to consolidate arbitration proceedings is discretionary. HRS § 658A-10(a) (2001) (“[T]he court may order consolidation ... ”) (emphasis added); see Baseden v. State,
As a threshold matter, both HGEA and the DOT contend that this court lacks jurisdiction over the appeal. HRS § 658A-28(a)(1) (2001) expressly authorizes appeal from orders “denying a motion to compel arbitration.” However, the appellees argue that UPW’s motion was essentially a motion to consolidate, which is not immediately ap-pealable.
HRS § 658A-7 (2001) governs motions to compel arbitration. UPW’s motion to compel consolidated arbitration was made pursuant to that section, among others. HGEA admits it was not engaged in arbitration proceedings at the time of the motion. Indeed, it argues that a court cannot order consolidated arbitration unless there are multiple pending arbitrations. Consolidation is therefore contingent upon the court first compelling arbitration. Because HGEA had no arbitration pending, the core purpose of UPW’s motion was to compel arbitration. That it sought a particular form of arbitration—consolidated tripartite arbitration— does not disturb the substance of the motion. We reject the assertion that the order was solely a denial of a motion for consolidation.
A. Denial of Consolidation
UPW argues that the Circuit Court erred by interpreting HRS § 658A-10 to require separate, pending arbitration proceedings. It maintains that consolidation is appropriate, even absent pending arbitrations, where there are separate agreements to arbitrate among the parties. We disagree.
Prior to Hawaii’s enactment of the Uniform Arbitration Act, our courts lacked authority to consolidate separate arbitration proceedings where the parties’ agreements were silent as to consolidation. See, e.g., Bateman Constr., Inc. v. Haitsuka Bros., Ltd.,
Consolidation of separate arbitration proceedings.
(a) Except as otherwise provided in subsection (c), upon motion of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if:
(1) There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person;
(2) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;
(3) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings; and
(4) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.
(b) The court may order consolidation of separate arbitration proceedings as to some claims and allow other claims to be resolved in separate arbitration proceedings.
(c) The court may not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.
UPW argues that the disjunctive “or” in subsection (a)(1) authorizes consolidation where there are separate agreements to arbitrate
HRS § 658A-10 authorizes consolidation of separate arbitration proceedings when certain conditions are met. Those conditions are designed to enable consolidation when there is an adequate nexus and closely-related issues between multiple proceedings. Thus, HRS § 658A-10(a)(l) sets forth a necessary, but not sufficient, condition. Where there are no separate proceedings to consolidate, a fundamental prerequisite is not met, and this provision is inapplicable.
UPW cites to a number of cases for the proposition that “[c]ourts have found consolidation consistent with state laws advancing the use of arbitration in the context of multiparty disputes.” However, all of those cases involved multiple pending arbitrations. New England Energy Inc. v. Keystone Shipping Co.,
We therefore conclude that the Circuit Court did not err in declining to order consolidated arbitration.
B. Tripartite Arbitration Arguments
UPW contends that the Circuit Court erred in failing to compel tripartite arbitration, arguing that the Circuit Court improperly ignored the body of federal case law concerning tripartite arbitration for this type of labor dispute. We conclude, however, that the Circuit Court did not err in declining to compel arbitration at the request of a nonsig-natory to the relevant arbitration agreement and in the wake of confirmed bipartite arbitration awards.
1. Applicable Hawai'i Law
UPW urges us to apply federal common law regarding tripartite arbitration. That
HRS Chapter 658A provides a statutory mechanism for compelling arbitration. Under HRS § 658A-7,
When faced with a motion to compel arbitration, the court must generally inquire into: (1) whether there is a valid agreement to arbitrate; and (2) whether the dispute falls within the scope of that agreement. Koolau Radiology, Inc.,
UPW argues that whether it may compel arbitration between HGEA and the DOT is a question of arbitrability, properly reserved for the arbitrator under both agreements. This argument confuses two separate issues. One is a question of arbitrability, ie., whether the underlying dispute falls within the scope of HGEA’s arbitration agreement. See Univ. of Haw. Prof'l Assembly v. Univ. of Haw.,
Although public policy favors arbitration as a means of resolving disputes,
Generally, parties who are not signatories to an arbitration agreement may not compel the signatories to arbitrate. Sher,
First, when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. Second, when the signatory to the contract containing a[n] arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.
Luke,
Moreover, even if we view the situation in the reverse—as UPW seeking to compel HGEA, a nonsignatory, to arbitrate under UPWs agreement—we reach the same result. Though the court in Luke did not address possible exceptions to that rule, it pointed to a Second Circuit case recognizing five exceptions under which a court may bind nonsignatories to arbitration agreements. Id. at 248 n. 11,
Under applicable Hawai'i law, the Circuit Court did not err in refusing to compel tripartite arbitration.
2. Federal Case Law
UPW does not point to any state courts that have adopted the federal approach, and we have discovered none. Moreover, as discussed above, the Uniform Arbitration Act provides ample mechanisms for compelling tripartite arbitration via consolidation when separate proceedings are pending. HRS §§ 658A-7, 658A-10. There is no gap in relevant state law that would require resort to federal common law. See Price v. Obayashi Haw. Corp.,
Federal courts have generally adopted a favorable approach toward tripartite arbitration of jurisdictional disputes between labor unions. “Jurisdictional disputes” arise when two or more unions each claim to be entitled, under their respective collective bargaining agreements, to the same work. Carey v. Westinghouse Elec. Corp.,
A second purpose of tripartite arbitration is to finally resolve disputes that would otherwise remain perpetually mired in a jurisdictional no man’s land. See Transp.-Commc’n Emps. Union v. Union Pac. R.R. Co.,
Finally, the federal case law on which UPW relies simply does not support compelling tripartite arbitration in this case. The United States Supreme Court laid the framework for tripartite arbitration in Union Pacific. There, a telegraphers’ union referred its grievance over a jurisdictional dispute to the Railroad Adjustment Board for arbitration pursuant to the Railway Labor Act.
The Railway Adjustment Board derived its authority from a statutory mandate to “provide for the prompt and orderly settlement of all disputes.” Id. at 162,
In the instant case, the arbitrator does not enjoy such broad authority to finally settle all disputes. Rather, both agreements limit the arbitrator’s authority to settling disputes under each respective agreement. The prece-dential value of Union Pacific is therefore slim. See Louisiana-Pac. Corp. v. Int’l Bhd. of Elec. Workers Local Union 2294,
Union Pacific paved the way for a trend in federal common law favoring tripartite arbitration of jurisdictional disputes. See, e.g., U.S. Postal Serv. v. Am. Postal Workers Union,
In determining when tripartite arbitration is appropriate, federal courts have weighed two key concerns: preserving the finality of bipartite arbitration awards and honoring the parties’ arbitration agreements.
The federal circuit courts are divided over whether they may compel tripartite arbitration despite the existence of bipartite arbitration awards. A primary purpose of compelling tripartite arbitration is to avoid the inefficiencies and potential inconsistencies of duplicate proceedings. See Kroger II,
UPW hinges its argument on the factors articulated in Emery. There, the issue on appeal was whether the district court had abused its discretion in denying the employer’s request to compel tripartite arbitration. Emery,
This approach is by no means widely adopted. We have found no cases outside the Second Circuit expressly adopting the Emery balancing test. Nonetheless, even if we were to apply it in this case, we would find no reason to disturb the Circuit Court’s discretion. The arbitration provisions at issue do not provide for jurisdictional disputes, and HGEA’s agreement outlines grievance procedures that were not invoked. The awards were not entirely inconsistent, and the prospective relief was limited so as to avoid placing the DOT in an impossible position. Moreover, the parties could have anticipated the dispute and contracted around it.
The Tenth Circuit addressed the issue of bipartite awards in T.I.M.E.-DC. In that case, competing unions obtained conflicting arbitration awards regarding the same work
The Sixth Circuit considered the weight of bipartite awards in a set of cases involving the same employer. It held that “[b]efore tripartite arbitration may be ordered, the parties involved first must have a duty to engage in separate bipartite arbitration over the subject matter involved.” United Indus. Workers v. Kroger Co.,
In Kroger II, the Sixth Circuit declined to rest its decision simply on the existence of bipartite awards. Kroger II,
UPW relies particularly on Office & Prof'l Emps. Int’l Union v. Sear-Land Serv., Inc.,
A few months later, the Fifth Circuit addressed the Texas order, squarely facing the issue that the Second Circuit had sidestepped. Sea-Land Serv., Inc.,
The Ninth Circuit also preserved the binding character of arbitration awards in Louisiana-Pacific. There, two unions obtained conflicting arbitration awards granting each back-pay for the same work assignment.
Here, as in Louisiana-Pacific and Sea-Land, the parties’ bargained-for expectations surrounding the finality of arbitration awards mitigate against compelling tripartite arbitration. Both unions obtained confirmation of them arbitration awards, converting them into enforceable judgments. See Mikelson v. United Servs. Auto. Ass’n,
A related concern surrounds upholding the grievance procedures embodied in the unions’ collective bargaining agreements. A number of courts have held that tripartite arbitration may not be compelled absent a “contractual nexus,” ie., a contractual duty to engage in a bipartite arbitration over the matter. Kroger I,
In Kroger II, Retail Union filed a grievance and obtained an award in its favor. Kroger II,
The Ninth Circuit took an arguably narrower approach to the “contractual nexus” requirement in U.S. Postal Serv.,
Here, no grievance is pending between HGEA and the DOT. Unlike the arbitration awards in Kroger II, which were not confirmed, both awards were confirmed in this ease. As in Kroger I, HGEA did not seek to invoke its arbitration agreement with regard to UPW’s class grievance. The contractual nexus was lacking, and tripartite arbitration was not appropriate.
Moreover, in Kroger II, the arbitration awards were fundamentally inconsistent: each mandated assignment of the same work to different unions.
Accordingly, we reject UPW’s argument that the Circuit Court erred in failing to apply the federal common law in this ease.
V. CONCLUSION
For these reasons, we conclude that the Circuit Court did not err in denying UPW’s motion to compel tripartite arbitration. We affirm the Circuit Court’s June 29, 2007 Judgment.
Notes
. The Honorable Bert I. Ayabe presided.
. The appellees further argue that the order was not appealable because it was not a “final judgment" pursuant to HRS §§ 658A-28(a)(6) or 658A-25(a). However, § 658A-28(a) provides appeals from orders denying a motion to compel arbitration or from final judgments entered pursuant to that chapter. The order need not satisfy both criteria to be appealable.
. The commentary to section 10 of the Uniform Arbitration Act confirms this interpretation. Comment 5 notes that “[w]hether consolidation is ordered or denied, the arbitrations will likely continue—either separately or in a consolidated proceeding.” Unif. Arb. Act, § 10, comment 5. As a result, appeal is not available as it would merely "delay the arbitration process.” Id. If this section contemplated initiating a new consolidated proceeding where none existed before, the fundamental character of the provision, including its appealability, arguably would be altered. The commentary further notes that under subsection (a)(4), undue delay or hardship may result "where, for example, one or more separate arbitration proceedings have already progressed to the hearing stage.” Id. at comment 3. The provision does not contemplate consolidating proceedings after they have already been concluded.
In addition, the language of subsection (a)(1) regarding "agreements to arbitrate” was intended to cover separate arbitration proceedings involving third-party beneficiaries or guaranties that incorporate the arbitration provisions of the underlying contract. Id. at comment 4. In such cases, third-party beneficiaries or signatories to guaranties may invoke the appropriate arbitration agreement. Id.; see, e.g., Compania Espanola de Petroleos, S.A. v. Nereus Shipping, S.A., 527 F.2d 966 (2d Cir.1975).
. HRS § 658A-7 provides:
Motion to compel or stay arbitration, (a) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:
(1) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and
(2) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.
(b) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.
(c) If the court finds that there is no enforceable agreement, it shall not, pursuant to subsection (a) or (b), order the parties to arbitrate.
(d) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
(e)If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section shall be made in that court. Otherwise a motion under this section shall be made in any court as provided in section 658A-27.
(f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.
(g) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severa-ble, the court may limit the stay to that claim.
. UPW’s collective bargaining agreement provides:
In the event the Employer disputes the arbi-trability of a grievance the Arbitrator shall determine whether the grievance is arbitrable prior to or after hearing the merits of the grievance. If the Arbitrator decides tire grievance is not arbitrable, the grievance shall be referred back to the parties without decision or recommendation on its merits.
Similarly, HGEA's collective bargaining agreement provides:
If the Employer disputes the arbitrability of any grievance, the Arbitrator shall first determine whether the Arbitrator has jurisdiction to act; and if the Arbitrator finds that the Arbitrator has no such power, the grievance shall be referred back to the parties without decision or recommendation on its merits.
. UPW also highlights three previous awards concerning temporary assignments of bargaining unit 2 positions to UPW employees. However, these also are not in strict conflict as they resolved disputes over different positions in different units. The King award concerned the Bridge Maintenance Supervisor F1—11 position, no. 22788, in the Bridge Maintenance Subunit on O'ahu. The Woo award concerned the General Maintenance and Repair Supervisor position in the Grounds & General Services Subunit of the Maintenance Section of the Airports Division. Finally, the Bryan award concerned the lead vehicle repair supervisor position in the Automotive Equipment Services Division of the City & County Public Works Department. Each award limited prospective relief to the positions at issue.
. Indeed, they may still do so, as the HLRB ordered the parties to engage in collective bargaining.
. The court in Kroger II also expressed dissatisfaction with the Ninth Circuit's reasoning in Louisiana-Pacific.
Kroger II's criticism misses the mark. The Ninth Circuit did not take the position that tripartite arbitration is only available when specific contractual provisions allow it. Nor is that position a necessary step in the Ninth Circuit's logic. Rather, it merely recognized that where the agreements do not specifically provide for tripartite arbitration, the parties may, during the pen-dency of separate proceedings, seek a court order of consolidation under applicable federal law. Louisiana-Pacific Corp.,