Si-nor, Inc. v. Director, Dept. of Labor

202 P.3d 596

120 Haw. 135

SI-NOR, INC., Appellant-Appellant, v. DIRECTOR, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, State of Hawai'i, Appellee/Agency-Appellee. Director, Department of Labor and Industrial Relations, Complainant/Appellant-Appellee, v. Si-Nor, Inc., Respondent/Appellee-Appellant, and Hawai'i Labor Relations Board, Appellee-Appellee.

No. 27304.

Intermediate Court of Appeals of Hawai`i.

February 26, 2009.

Preston A. Gima, Honolulu, on the briefs, for Appellant-Appellant.

Frances E.H. Lum, J. Gerard Lam, Deputy Attorneys General, Dept. of Attorney General, State of Hawai`i, on the briefs, for Appellee/Agency-Appellee.

NAKAMURA, Presiding Judge, and LEONARD, J.; and FUJISE, J., Concurring and Dissenting Separately.

Opinion of the Court by NAKAMURA, J.

In this secondary appeal, Si-Nor, Inc. (Si-Nor) appeals from the April 20, 2005, Final Judgment entered in Civil Nos. 04-1-1844 and 04-1-1847 in favor of the Director of the Department of Labor and Industrial Relations (Director). The Circuit Court of the First Circuit (circuit court)¹ ruled that it lacked jurisdiction to hear the consolidated appeals because the Hawai'i Labor Relations Board (HLRB), which issued the underlying decision, lacked jurisdiction to hear the case.² The circuit court concluded that the HLRB lacked jurisdiction because Si-Nor did not file a notice contesting the citation issued by the Director in a timely manner.

We hold that the circuit court erred in dismissing the consolidated appeals for lack of jurisdiction. Si-Nor submitted a notice of contest by facsimile transmission which was received by the Director one day before the filing deadline. The next day, Si-Nor mailed an original notice of contest before the expiration of the deadline which apparently was not received by the Director. Si-Nor subsequently mailed a substitute notice of contest which was received by the Director one week after the deadline. We conclude that although Si-Nor's submission of the notice of contest by facsimile transmission did not constitute a timely filing, Si-Nor satisfied the filing requirement by mailing an original notice of contest before the filing deadline. Thus, the HLRB and in turn the circuit court had jurisdiction over this case.

I. BACKGROUND

A. Facts

On October 4, 2002, Charles K. Ke-a filed a workplace violence complaint with the Hawai'i Occupational Safety and Health Division (HIOSH) of the Department of Labor and Industrial Relations (DLIR) against Si-Nor, a refuse collection and recycling company incorporated in California. On October 9, 2002, Hervier Messier (Messier), a HIOSH compliance officer, conducted an inspection at Si-Nor's work site, described as a base-yard or parking lot, located in Kapolei, Hawai'i. During the inspection, Messier met with Si-Nor's employee, Ryan Hamili (Hamili), and requested documents from Si-Nor through Hamili.

Hamili was Si-Nor's senior project manager in Hawai'i, and he identified himself as Si-Nor's local company representative. Though Hamili was not considered part of management by Si-Nor,³ Hamili was designated as a supervisor and was responsible for all aspects of operations, which included hiring, training, scheduling, verifying time sheets, handling any problems employees encountered, disciplining, terminating, receiving complaints from customers, and ensuring the performance of Si-Nor's contracts. Hamili's position was Si-Nor's highest ranking position in Hawai'i. Hamili reported directly to Si-Nor's President, Silus Ugorji, and Si-Nor's Vice-President, Anthony Uwakwe (Uwakwe), who were both based on the mainland.

In the course of the inspection, Messier purportedly asked Hamili for Si-Nor's mailing address. Hamili responded by giving Messier Hamili's Wahiawa, Hawai'i home address. Hamili had no definitive recollection with regard to Messier's request⁴ but agreed that if he gave Messier a local address, it was Hamili's home address. It appears that Si-Nor did not have a business office in Hawai'i. Si-Nor corresponded with Hamili via his home address or the "FedEx" office. For example, Si-Nor mailed employee paychecks to Hamili's home for Hamili to distribute to its local employees.

During the investigation, Messier asked Hamili for documents from Si-Nor and Hamili referred Messier to Uwakwe. Uwakwe indicated to Messier that Uwakwe would send certain of the requested documents by mail to Hamili. When the documents Messier requested were not produced, HIOSH issued an administrative subpoena for the documents which was served on Hamili. In response to the subpoena, Hamili delivered two of the five subpoenaed items to HIOSH.

On November 15, 2002, the Director, through HIOSH, issued a Citation and Notification of Penalty (Citation) to Si-Nor for safety violations. The Citation was mailed to Hamili's home address by certified mail. According to Hamili, his girlfriend, Desiree Rilveria (Rilveria), signed the return receipt and gave the Citation to Hamili. The return receipt reflects that delivery was made on November 16, 2002. Hamili packaged the Citation for delivery to Uwakwe and gave the package to his co-worker, Chad Pasquin, to send via FedEx. However, Hamili later learned that the package was not actually sent out for some time. Uwakwe received the Citation on December 5, 2002.

Uwakwe, who was trained as a lawyer in his birth-country Nigeria, testified that, "After I read [the Citation], I looked at the deadline because the thing had been [sic] almost expired." Uwakwe immediately faxed a letter to HIOSH notifying HIOSH that Si-Nor was contesting the Citation. It is undisputed that HIOSH received Uwakwe's letter through facsimile transmission on December 5, 2002. HIOSH called Si-Nor's office in California and left a message acknowledging receipt of the facsimile notice of contest, but instructing Si-Nor to send the original notice of contest by mail, postmarked no later than midnight on December 6, 2002.

In the morning on December 6, 2002, Uwakwe played the telephone message from HIOSH. On the same day, after calling HIOSH to confirm the message, Uwakwe "put the original copy of the fax I had sent in an envelope and sent it out by mail to HIOSH." Specifically, Uwakwe placed the envelope in Si-Nor's "outgoing mailbox," located outside his office near the receptionist's desk, and when he left for lunch at about 12:15, the outgoing mailbox was empty and the incoming mail had arrived. This signified to Uwakwe that the "mailman" had come and taken the HIOSH envelope. For reasons unknown, the HIOSH staff could not find the notice of contest Uwakwe said he mailed.

On December 12, 2002, Si-Nor's Hawai'i attorney faxed and mailed another letter contesting the Citation to HIOSH. The letter stated, "Please consider this notification that Si-Nor, Inc. intends to dispute and will contest the Citation and/or any other citations and notifications of penalty issued by your office against Si-Nor within the last thirty (30) days." HIOSH received the original of this letter by mail on December 13, 2002.

B. HLRB Proceedings

On February 25, 2003, HIOSH notified Si-Nor's counsel that HIOSH was transmitting Si-Nor's "untimely" notice of contest to the HLRB. HIOSH transmitted the case and related documents to the HLRB. On May 27, 2003, the Director filed a "Motion to Dismiss for Untimely Notice of Contest" (Motion to Dismiss). The Director argued that Si-Nor failed to timely file a notice of contest because a facsimile-notice is not allowed under Hawaii Revised Statutes (HRS) § 396-11(a) (1993)⁵ or any administrative rule.

On June 13, 2003, Si-Nor filed a memorandum in opposition to the Motion to Dismiss. Si-Nor argued that: 1) the facsimile transmission received by the Director on December 5, 2002, satisfied the statutory requirements of HRS § 396-11(a), and that the administrative rules have unreasonably expanded the statute's requirements for contesting a citation by requiring that the Director be served with an "original" notice of contest; 2) "filing" is clerical in nature and that a notice of contest cannot be rejected because of its form; 3) service of the Citation on Hamili, who was not an officer, director, or person authorized to represent Si-Nor, was improper and violated Si-Nor's due process rights, and Si-Nor was not properly notified of the Citation until Uwakwe received the Citation on December 5, 2002; and 4) the Director could not prove that Si-Nor received the Citation on November 16, 2002.

After a hearing on July 14, 2003, the HLRB denied the Director's Motion to Dismiss. On September 3, 2003, the Director filed a motion for reconsideration of the Director's previously filed Motion to Dismiss. In the motion for reconsideration, the Director questioned Si-Nor's claim that Si-Nor had mailed an original notice of contest to HIOSH on December 6, 2002. The Director also argued that in order to satisfy the filing requirement set forth in HRS § 396-11(a), an employer's mailed notice of contest must be actually delivered to and received by the Director. The Director contended that Si-Nor's failure to prove that the Director actually received an original notice of contest from Si-Nor that was postmarked by the twenty-day statutory deadline meant that the HLRB lacked jurisdiction to hear Si-Nor's challenge to the Citation.

At a hearing on September 25, 2003, the HLRB heard testimony from Uwakwe regarding his actions in sending a notice of contest to HIOSH. During cross-examination by the Director's counsel, Uwakwe testified as follows:

Q: Earlier you had said when you got the contest you faxed out—when you got the citation, you faxed out the citation [sic] the same day because the deadline had already—was very close, either that day or the following day, correct?

A: Yes.

Q: So, in other words, you had used whatever date of delivery that you were using and counted 20 days from there, right?

A: I was counting from the day it was supposedly delivered to Si-Nor.

Q: You...