Bill Text: HI SB2624 | 2012 | Regular Session | Introduced
Bill Title: Collective bargaining; employee organizations
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-23 - (S) Referred to JDL, WAM. [SB2624 Detail]
Download: Hawaii-2012-SB2624-Introduced.html
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THE SENATE |
S.B. NO. |
2624 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to collective bargaining.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature recognizes that all employees within the State should have the freedom to independently form an employee organization within their appropriate bargaining unit for the purpose of collectively bargaining with their employers. The purpose of this Act is to protect employees' freedom to form employee organizations within an appropriate bargaining unit, and to cease exclusive representation requirements.
SECTION 2. Section 89-1, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The legislature declares that it is the public policy of the State to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government. These policies are best effectuated by:
(1) Recognizing the right of public employees to organize for the purpose of collective bargaining;
(2) Requiring public employers to negotiate with and
enter into written agreements with [exclusive representatives] employee
organizations on matters of wages, hours, and other conditions of
employment, while, at the same time, maintaining the merit principle pursuant
to section 76-1; and
(3) Creating a labor relations board to administer the provisions of chapters 89 and 377."
SECTION 3. Section 89-2, Hawaii Revised Statutes, is amended to read as follows:
"§89-2 Definitions. As used in this chapter:
"Appropriate bargaining unit" means the unit designated to be appropriate for the purpose of collective bargaining pursuant to section 89-6.
"Arbitration" means the procedure whereby parties involved in an impasse submit their differences to a third party, whether a single arbitrator or an arbitration panel, for an arbitration decision. It may include mediation whereby the neutral third party is authorized to assist the parties in a voluntary resolution of the impasse.
"Board" means the Hawaii labor relations board created pursuant to section 89-5.
"Collective
bargaining" means the performance of the mutual obligations of the public
employer and an [exclusive representative] employee
organization to meet at reasonable times, to
confer and negotiate in good faith, and to execute a written agreement with
respect to wages, hours, amounts of contributions by the State and counties to
the Hawaii employer-union health benefits trust fund, and other terms and
conditions of employment, except that by any such obligation neither party
shall be compelled to agree to a proposal or be required to make a
concession. For the purposes of this definition, "wages" includes
the number of incremental and longevity steps, the number of pay ranges, and
the movement between steps within the pay range and between the pay ranges on a
pay schedule under a collective bargaining agreement.
"Cost items" means all items agreed to in the course of collective bargaining that an employer cannot absorb under its customary operating budgetary procedures and that require additional appropriations by its respective legislative body for implementation.
"Day" means a calendar day unless otherwise specified.
"Employee" or "public employee" means any person employed by a public employer, except elected and appointed officials and other employees who are excluded from coverage in section 89-6(f).
"Employee organization" means any organization of any kind in which public employees participate and which exists for the primary purpose of dealing with public employers concerning grievances, labor disputes, wages, hours, amounts of contributions by the State and counties to the Hawaii employer-union health benefit trust fund, and other terms and conditions of employment of public employees. An employee organization is certified by the board under section 89-8 as a collective bargaining agent to represent a group of employees in an appropriate bargaining unit without discrimination and without regard to employee organization membership.
"Employer" or "public employer" means the governor in the case of the State, the respective mayors in the case of the counties, the chief justice of the supreme court in the case of the judiciary, the board of education in the case of the department of education, the board of regents in the case of the University of Hawaii, the Hawaii health systems corporation board in the case of the Hawaii health systems corporation, and any individual who represents one of these employers or acts in their interest in dealing with public employees. In the case of the judiciary, the administrative director of the courts shall be the employer in lieu of the chief justice for purposes which the chief justice determines would be prudent or necessary to avoid conflict.
["Exclusive representative" means
the employee organization certified by the board under 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.]
"Impasse" means failure of a public
employer and an [exclusive representative] employee organization
to achieve agreement in the course of collective bargaining. It includes any
declaration of an impasse under section 89-11.
"Jurisdiction" means the State, the city and county of Honolulu, the county of Hawaii, the county of Maui, the county of Kauai, the judiciary, and the Hawaii health systems corporation.
"Legislative body" means the legislature in the case of the State, including the judiciary, the department of education, the University of Hawaii, and the Hawaii health systems corporation; the city council, in the case of the city and county of Honolulu; and the respective county councils, in the case of the counties of Hawaii, Maui, and Kauai.
"Mediation" means assistance by a
neutral third party to resolve an impasse between the public employer and [the
exclusive representative] an employee organization through
interpretation, suggestion, and advice.
"Strike" means a public employee's refusal, in concerted action with others, to report for duty, or the employee's wilful absence from the employee's position, or the employee's stoppage of work, or the employee's abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment, for the purpose of inducing, influencing, or coercing a change in the conditions, compensation, rights, privileges, or obligations of public employment; and except in the case of absences authorized by public employers, includes such refusal, absence, stoppage, or abstinence by any public employee out of sympathy or support for any other public employee who is on strike or because of the presence of any picket line maintained by any other public employee; provided that, nothing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of employment."
SECTION 4. Section 89-3, Hawaii Revised Statutes, is amended to read as follows:
"§89-3 Rights of employees.
Employees shall have the right of self-organization and the right to form,
join, or assist any employee organization for the purpose of bargaining
collectively through representatives of their own choosing on questions of
wages, hours, and other terms and conditions of employment, and to engage in
lawful, concerted activities for the purpose of collective bargaining or other
mutual aid or protection, free from interference, restraint, or coercion. An
employee shall have the right to refrain from any or all of such activities[,
except for having a payroll deduction equivalent to regular dues remitted to an
exclusive representative as provided in section 89-4]."
SECTION 5. Section 89-6, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:
"(e) In addition to a collective
bargaining agreement under subsection (d), each employer may negotiate,
independently of one another, supplemental agreements that apply to their
respective employees; provided that any supplemental agreement reached between
the employer and the [exclusive representative] employee organization
shall not extend beyond the term of the applicable collective bargaining
agreement and shall not require ratification by employees in the bargaining
unit."
SECTION 6. Section 89-8, Hawaii Revised Statutes, is amended to read as follows:
"§89-8 Recognition and representation;
employee participation. (a) The employee organization which has been
certified by the board as representing [the majority] a group of
employees in an appropriate bargaining unit shall be the [exclusive]
representative of [all the] those employees [in the unit].
As [exclusive] representative, it shall have the right to act for and
negotiate agreements covering [all the] those employees [in
the unit] and shall be responsible for representing the interests of [all
such] those employees without discrimination and without regard to employee
organization membership. Any other provision herein to the contrary
notwithstanding, whenever two or more employee organizations which have been
duly certified by the board as [the exclusive] representatives of
employees in bargaining units merge, combine, or amalgamate or enter into an
agreement for common administration or operation of their affairs, all rights
and duties of such employee organizations as [exclusive] representatives
of employees in such units shall inure to and shall be discharged by the
organization resulting from such merger, combination, amalgamation, or
agreement, either alone or with such employee organizations. [Election by
the employees in the unit involved, and certification] Certification
by the board of such resulting employee organization shall not be required.
(b) An individual employee may present a
grievance at any time to the employee's employer and have the grievance heard
without intervention of an employee organization; provided that the [exclusive]
employee's representative is afforded the opportunity to be present at
such conferences and that any adjustment made shall not be inconsistent with
the terms of an agreement then in effect between the employer and the [exclusive]
representative.
(c) Employee participation in the collective
bargaining process conducted by [the exclusive representative] an employee
organization of the appropriate bargaining unit shall be permitted during
regular working hours without loss of regular salary or wages. The number of
participants from each bargaining unit with over 2,500 members shall be limited
to one member for each five hundred members of the bargaining unit. For bargaining
units with less than 2,500 members, there shall be at least five participants,
one of whom shall reside in each county; provided that there need not be a
participant residing in each county for the bargaining unit established by
section 89-6(a)(8). The bargaining unit shall select the participants from
representative departments, divisions or sections to minimize interference with
the normal operations and service of the departments, divisions or
sections."
SECTION 7. Section 89-8.5, Hawaii Revised Statutes, is amended to read as follows:
"§89-8.5 Negotiating authority;
Hawaii health systems corporation. Notwithstanding any law to the
contrary, including section 89-6(d), the Hawaii health systems corporation or
any of the regional boards, as a sole employer negotiator, may negotiate with
the [exclusive representative] employee organization of any
appropriate bargaining unit and execute memorandums of understanding for
employees under its control to alter any existing or new collective bargaining
agreement on any item or items subject to section 89-9."
SECTION 8. Section 89-9, Hawaii Revised Statutes, is amended to read as follows:
"§89-9 Scope of negotiations;
consultation. (a) The employer and [the exclusive representative] an
employee organization shall meet at reasonable times, including meetings
sufficiently in advance of the February 1 impasse date under section 89-11, and
shall negotiate in good faith with respect to wages, hours, the amounts of
contributions by the State and respective counties to the Hawaii employer-union
health benefits trust fund to the extent allowed in subsection (e), and other
terms and conditions of employment which are subject to collective bargaining
and which are to be embodied in a written agreement as specified in section
89-10, but such obligation does not compel either party to agree to a proposal
or make a concession; provided that the parties may not negotiate with respect
to cost items as defined by section 89-2 for the biennium 1999 to 2001, and the
cost items of employees in bargaining units under section 89-6 in effect on
June 30, 1999, shall remain in effect until July 1, 2001.
(b) The employer or the [exclusive
representative] employee organization desiring to initiate
negotiations shall notify the other party in writing, setting forth the time
and place of the meeting desired and the nature of the business to be
discussed, sufficiently in advance of the meeting.
(c) Except as otherwise provided in this
chapter, all matters affecting employee relations, including those that are, or
may be, the subject of a rule adopted by the employer or any director, shall be
subject to consultation with the [exclusive representatives] employee
organization of the employees concerned. The employer shall make every
reasonable effort to consult with [exclusive representatives] employee
organizations and consider their input, along with the input of other
affected parties, prior to effecting changes in any major policy affecting
employee relations.
(d) Excluded from the subjects of negotiations
are matters of classification, reclassification, benefits of but not
contributions to the Hawaii employer-union health benefits trust fund,
recruitment, examination, initial pricing, and retirement benefits except as
provided in section 88-8(h). The employer and the [exclusive representative]
employee organization shall not agree to any proposal which would be
inconsistent with the merit principle or the principle of equal pay for equal
work pursuant to section 76-1 or which would interfere with the rights and
obligations of a public employer to:
(1) Direct employees;
(2) Determine qualifications, standards for work, and the nature and contents of examinations;
(3) Hire, promote, transfer, assign, and retain employees in positions;
(4) Suspend, demote, discharge, or take other disciplinary action against employees for proper cause;
(5) Relieve an employee from duties because of lack of work or other legitimate reason;
(6) Maintain efficiency and productivity, including maximizing the use of advanced technology, in government operations;
(7) Determine methods, means, and personnel by which the employer's operations are to be conducted; and
(8) Take such actions as may be necessary to carry out the missions of the employer in cases of emergencies.
This subsection shall not be used to invalidate provisions of collective bargaining agreements in effect on and after June 30, 2007, and shall not preclude negotiations over the procedures and criteria on promotions, transfers, assignments, demotions, layoffs, suspensions, terminations, discharges, or other disciplinary actions as a permissive subject of bargaining during collective bargaining negotiations or negotiations over a memorandum of agreement, memorandum of understanding, or other supplemental agreement.
Violations of the procedures and criteria so negotiated may be subject to the grievance procedure in the collective bargaining agreement.
(e) Negotiations relating to contributions to the Hawaii employer-union health benefits trust fund shall be for the purpose of agreeing upon the amounts which the State and counties shall contribute under section 87-4, toward the payment of the costs for a health benefits plan, as defined in section 87-1(8), and group life insurance benefits, and the parties shall not be bound by the amounts contributed under prior agreements; provided that section 89-11 for the resolution of disputes by way of arbitration shall not be available to resolve impasses or disputes relating to the amounts the State and counties shall contribute to the Hawaii employer-union health benefits trust fund.
(f) The repricing of classes within an appropriate bargaining unit may be negotiated as follows:
(1) At the request of the [exclusive
representative] employee organization and at times allowed under the
collective bargaining agreement, the employer shall negotiate the repricing of
classes within the bargaining unit. The negotiated repricing actions that
constitute cost items shall be subject to the requirements in section 89-10;
and
(2) If repricing has not been negotiated under paragraph (1), the employer of each jurisdiction shall ensure establishment of procedures to periodically review, at least once in five years, unless otherwise agreed to by the parties, the repricing of classes within the bargaining unit. The repricing of classes based on the results of the periodic review shall be at the discretion of the employer. Any appropriations required to implement the repricing actions that are made at the employer's discretion shall not be construed as cost items."
SECTION 9. Section 89-10, Hawaii Revised Statutes, is amended to read as follows:
"§89-10 Written agreements;
enforceability; cost items. (a) Any collective bargaining agreement
reached between the employer and [the exclusive representative] an employee
organization shall be subject to ratification by the employees concerned,
except for an agreement reached pursuant to an arbitration decision.
Ratification is not required for other agreements effective during the term of
the collective bargaining agreement, whether a supplemental agreement, an
agreement on reopened items, or a memorandum of agreement, and any agreement to
extend the term of the collective bargaining agreement. The agreement shall be
reduced to writing and executed by both parties. Except for cost items and any
non-cost items that are tied to or bargained against cost items, all provisions
in the agreement that are in conformance with this chapter, including a
grievance procedure and an impasse procedure culminating in an arbitration
decision, shall be valid and enforceable and shall be effective as specified in
the agreement, regardless of the requirements to submit cost items under this
section and section 89-11.
(b) All cost items shall be subject to appropriations by the appropriate legislative bodies. The employer shall submit within ten days of the date on which the agreement is ratified by the employees concerned all cost items contained therein to the appropriate legislative bodies, except that if any cost items require appropriation by the state legislature and it is not in session at the time, the cost items shall be submitted for inclusion in the governor's next operating budget within ten days after the date on which the agreement is ratified. The state legislature or the legislative bodies of the counties acting in concert, as the case may be, may approve or reject the cost items submitted to them, as a whole. If the state legislature or the legislative body of any county rejects any of the cost items submitted to them, all cost items submitted shall be returned to the parties for further bargaining.
(c) Because effective and orderly operations
of government are essential to the public, it is declared to be in the public
interest that in the course of collective bargaining, the public employer and
the [exclusive representative] employee organizations for each
bargaining unit shall by mutual agreement include provisions in the collective
bargaining agreement for that bargaining unit for an expiration date which will
be on June 30th of an odd-numbered year.
The parties may include provisions for reopening during the term of a collective bargaining agreement; provided that cost items as defined in section 89-2 shall be subject to the requirements of this section.
(d) Whenever there is a conflict between the collective bargaining agreement and any of the rules adopted by the employer, including civil service or other personnel policies, standards, and procedures, the terms of the agreement shall prevail; provided that the terms are not inconsistent with section 89-9(d).
Whenever there are provisions in a collective bargaining agreement concerning a matter under chapter 76 or 78 that is negotiable under chapter 89, the terms of the agreement shall prevail; provided that the terms are not inconsistent with section 89-9(d)."
SECTION 10. Section 89-10.55, Hawaii Revised Statutes, is amended to read as follows:
"§89-10.55 Charter school
collective bargaining; bargaining unit; employer; [exclusive
representative.] employee organization. (a) Employees
of charter schools shall be assigned to an appropriate bargaining unit as
specified in section 89-6; provided that if a charter school employee's job
description contains the duties and responsibilities of an employee that could
be assigned to more than one bargaining unit, the duties and responsibilities
that are performed by the employee for the majority of the time, based on the
employee's average workweek, shall be the basis of bargaining unit assignment
for the employee.
(b) For the purpose of negotiating a collective bargaining agreement for charter school employees who are assigned to an appropriate bargaining unit, the employer shall be determined as provided in section 89-6(d).
(c) For the purpose of negotiating a memorandum of agreement or a supplemental agreement that only applies to employees of a charter school, the employer shall mean the local school board, subject to the conditions and requirements contained in the applicable sections of this chapter governing any memorandum of agreement or supplemental agreement.
(d) Negotiations over matters covered by this
section shall be conducted between the employer and [exclusive
representative] employee organization pursuant to this chapter.
Cost items that are appropriated for and approved by the legislature and
contained in a collective bargaining agreement, memorandum of agreement, or
supplemental agreement covering, wholly or partially, employees in charter
schools shall be allocated by the department of budget and finance to the
charter school administrative office for distribution to charter schools.
However, if the charter school administrative office deems it appropriate, the
cost items may be funded from a charter school's existing allocation or other
sources of revenue received by a charter school."
SECTION 11. Section 89-10.8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"[§89-10.8] Resolution
of disputes; grievances. (a) A public employer shall enter into written
agreement with the [exclusive representative] an employee
organization setting forth a grievance procedure culminating in a final and
binding decision, to be invoked in the event of any dispute concerning the
interpretation or application of a written agreement. The grievance procedure
shall be valid and enforceable and shall be consistent with the following:
(1) A dispute over the terms of an initial or renewed agreement shall not constitute a grievance;
(2) No employee in a position exempted from chapter 76, who serves at the pleasure of the appointing authority, shall be allowed to grieve a suspension or discharge unless the collective bargaining agreement specifically provides otherwise; and
(3) With respect to any adverse action resulting from an employee's failure to meet performance requirements of the employee's position, the grievance procedure shall provide that the final and binding decision shall be made by a performance judge as provided in this section."
SECTION 12. Section 89-11, Hawaii Revised Statutes, is amended to read as follows:
"§89-11
Resolution of disputes; impasses.
(a) A public employer and an [exclusive representative] employee
organization may enter, at any time, into a
written agreement setting forth an alternate impasse procedure culminating in
an arbitration decision pursuant to subsection (f), to be invoked in the event
of an impasse over the terms of an initial or renewed agreement. The alternate
impasse procedure shall specify whether the parties desire an arbitrator or
arbitration panel, how the neutral arbitrator is to be selected or the name of
the person whom the parties desire to be appointed as the neutral arbitrator,
and other details regarding the issuance of an arbitration decision. When an
impasse exists, the parties shall notify the board if they have agreed on an
alternate impasse procedure. The board shall permit the parties to proceed
with their procedure and assist at times and to the extent requested by the
parties in their procedure. In the absence of an alternate impasse procedure,
the board shall assist in the resolution of the impasse at times and in the
manner prescribed in subsection (d) or (e), as the case may be. If the parties
subsequently agree on an alternate impasse procedure, the parties shall notify
the board. The board shall immediately discontinue the procedures initiated
pursuant to subsection (d) or (e) and permit the parties to proceed with their
procedure.
(b) An impasse during the term of a collective bargaining agreement on reopened items or items regarding a supplemental agreement shall not be subject to the impasse procedures in this section. The parties may mutually agree on an impasse procedure, but if the procedure culminates in an arbitration decision, the decision shall be pursuant to subsection (f).
(c) An impasse over the terms of an initial or renewed agreement and the date of impasse shall be as follows:
(1) More than ninety days after written notice by either party to initiate negotiations, either party may give written notice to the board that an impasse exists. The date on which the board receives notice shall be the date of impasse; and
(2) If neither party gives written notice of an impasse and there are unresolved issues on January 31 of a year in which the agreement is due to expire, the board shall declare on January 31 that an impasse exists and February 1 shall be the date of impasse.
(d) If an
impasse exists between a public employer and [the exclusive bargaining] an
employee organization
representative of [bargaining unit (1)], nonsupervisory employees in
blue collar positions; [bargaining unit (5),] teachers and other
personnel of the department of education; or [bargaining unit (7),]
faculty of the University of Hawaii and the community college system, the board
shall assist in the resolution of the impasse as follows:
(1) Voluntary mediation. During the first twenty days of the date of impasse, either party may request the board to assist in a voluntary resolution of the impasse by appointing a mediator or mediators, representative of the public from a list of qualified persons maintained by the board;
(2) Mediation. If the impasse continues more than twenty days, the board shall appoint a mediator or mediators representative of the public from a list of qualified persons maintained by the board, to assist the parties in a voluntary resolution of the impasse. The board may compel the parties to attend mediation, reasonable in time and frequency, until the fiftieth day of impasse. Thereafter, mediation shall be elective with the parties, subject to the approval of the board;
(3) Report of the board. The board shall promptly report to the appropriate legislative body or bodies the following circumstances as each occurs:
(A) The date of a tentative agreement and whether the terms thereof are confidential between the parties;
(B) The ratification or failure of ratification of a tentative agreement;
(C) The signing of a tentative agreement;
(D) The terms of a tentative agreement; or
(E) On or about the fiftieth day of impasse, the failure of mediation.
The parties shall provide the board with the requisite information; and
(4) After the fiftieth day of impasse, the parties may resort to such other remedies that are not prohibited by any agreement pending between them, other provisions of this chapter, or any other law.
(e) If an
impasse exists between a public employer and [the exclusive representative]
an employee organization of
[bargaining unit (2),] supervisory employees in blue collar positions; [bargaining
unit (3),] nonsupervisory employees in white collar positions; [bargaining
unit (4),] supervisory employees in white collar positions; [bargaining
unit (6),] educational officers and other personnel of the department of
education under the same salary schedule; [bargaining unit (8),]
personnel of the University of Hawaii and the community college system, other
than faculty; [bargaining unit (9),] registered professional nurses; [bargaining
unit (10),] institutional, health, and correctional workers; [bargaining
unit (11),] firefighters; [bargaining unit (12),] police officers;
or [bargaining unit (13),] professional and scientific employees, the
board shall assist in the resolution of the impasse as follows:
(1) Mediation. During the first twenty days after the date of impasse, the board shall immediately appoint a mediator, representative of the public from a list of qualified persons maintained by the board, to assist the parties in a voluntary resolution of the impasse.
(2) Arbitration. If the impasse continues twenty days after the date of impasse, the board shall immediately notify the employer and the exclusive representative that the impasse shall be submitted to a three-member arbitration panel who shall follow the arbitration procedure provided herein.
(A) Arbitration panel. Two members of the arbitration panel shall be selected by the parties; one shall be selected by the employer and one shall be selected by the exclusive representative. The neutral third member of the arbitration panel, who shall chair the arbitration panel, shall be selected by mutual agreement of the parties. In the event that the parties fail to select the neutral third member of the arbitration panel within thirty days from the date of impasse, the board shall request the American Arbitration Association, or its successor in function, to furnish a list of five qualified arbitrators from which the neutral arbitrator shall be selected. Within five days after receipt of such list, the parties shall alternately strike names from the list until a single name is left, who shall be immediately appointed by the board as the neutral arbitrator and chairperson of the arbitration panel.
(B) Final positions. Upon the selection and appointment of the arbitration panel, each party shall submit to the panel, in writing, with copy to the other party, a final position which shall include all provisions in any existing collective bargaining agreement not being modified, all provisions already agreed to in negotiations, and all further provisions which each party is proposing for inclusion in the final agreement.
(C) Arbitration hearing. Within one hundred twenty days of its appointment, the arbitration panel shall commence a hearing at which time the parties may submit either in writing or through oral testimony, all information or data supporting their respective final positions. The arbitrator, or the chairperson of the arbitration panel together with the other two members, are encouraged to assist the parties in a voluntary resolution of the impasse through mediation, to the extent practicable throughout the entire arbitration period until the date the panel is required to issue its arbitration decision.
(D) Arbitration decision. Within thirty days after the conclusion of the hearing, a majority of the arbitration panel shall reach a decision pursuant to subsection (f) on all provisions that each party proposed in its respective final position for inclusion in the final agreement and transmit a preliminary draft of its decision to the parties. The parties shall review the preliminary draft for completeness, technical correctness, and clarity and may mutually submit to the panel any desired changes or adjustments that shall be incorporated in the final draft of its decision. Within fifteen days after the transmittal of the preliminary draft, a majority of the arbitration panel shall issue the arbitration decision.
(f) An arbitration panel in reaching its decision shall give weight to the following factors and shall include in its written report or decision an explanation of how the factors were taken into account:
(1) The lawful authority of the employer, including the ability of the employer to use special funds only for authorized purposes or under specific circumstances because of limitations imposed by federal or state laws or county ordinances, as the case may be;
(2) Stipulations of the parties;
(3) The interests and welfare of the public;
(4) The financial ability of the employer to meet these costs; provided that the employer's ability to fund cost items shall not be predicated on the premise that the employer may increase or impose new taxes, fees, or charges, or develop other sources of revenues;
(5) The present and future general economic condition of the counties and the State;
(6) Comparison of wages, hours, and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours, and conditions of employment of other persons performing similar services, and of other state and county employees in Hawaii;
(7) The average consumer prices for goods or services, commonly known as the cost of living;
(8) The overall compensation presently received by the employees, including direct wage compensation, vacation, holidays and excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received;
(9) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings; and
(10) Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours, and conditions of employment through voluntary collective bargaining, mediation, arbitration, or otherwise between the parties, in the public service or in private employment.
(g) The decision of the arbitration panel shall be final and binding upon the parties on all provisions submitted to the arbitration panel. If the parties have reached agreement with respect to the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund by the tenth working day after the arbitration panel issues its decision, the final and binding agreement of the parties on all provisions shall consist of the panel's decision and the amounts of contributions agreed to by the parties. If the parties have not reached agreement with respect to the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund by the close of business on the tenth working day after the arbitration panel issues its decision, the parties shall have five days to submit their respective recommendations for such contributions to the legislature, if it is in session, and if the legislature is not in session, the parties shall submit their respective recommendations for such contributions to the legislature during the next session of the legislature. In such event, the final and binding agreement of the parties on all provisions shall consist of the panel's decision and the amounts of contributions established by the legislature by enactment, after the legislature has considered the recommendations for such contributions by the parties. It is strictly understood that no member of a bargaining unit subject to this subsection shall be allowed to participate in a strike on the issue of the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund. The parties shall take whatever action is necessary to carry out and effectuate the final and binding agreement. The parties may, at any time and by mutual agreement, amend or modify the panel's decision.
Agreements reached pursuant to the decision of an arbitration panel and the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund, as provided herein, shall not be subject to ratification by the employees concerned. All items requiring any moneys for implementation shall be subject to appropriations by the appropriate legislative bodies and the employer shall submit all such items within ten days after the date on which the agreement is entered into as provided herein, to the appropriate legislative bodies.
(h) Any time frame provided in an impasse procedure, whether an alternate procedure or the procedures in this section, may be modified by mutual agreement of the parties. In the absence of a mutual agreement to modify time frames, any delay, failure, or refusal by either party to participate in the impasse procedure shall not be permitted to halt or otherwise delay the process, unless the board so orders due to an unforeseeable emergency. The process shall commence or continue as though all parties were participating.
(i) Nothing in this section shall be construed to prohibit the parties from reaching a voluntary settlement on the unresolved issues at any time prior to the issuance of an arbitration decision.
(j) The costs and expenses for mediation provided under subsection (d) or (e) shall be borne by the board. The costs and expenses for any other services performed by neutrals pursuant to mutual agreement of the parties and the costs for a neutral arbitrator shall be borne equally by the parties. All other costs incurred by either party in complying with this section, including the costs of its selected member on the arbitration panel, shall be borne by the party incurring them."
SECTION 13. Section 89-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) It shall be lawful for an employee, who is not prohibited from striking under subsection (a) and who is in the appropriate bargaining unit involved in an impasse, to participate in a strike under the following conditions:
(1) The requirements of section 89-11 relating to the resolution of disputes have been complied with in good faith;
(2) The proceedings for the prevention of any prohibited practices have been exhausted;
(3) The collective bargaining agreement and any extension of the agreement has expired; and
(4) The [exclusive representative] employee
organization has given a ten-day notice of intent to strike, together with
a statement of its position on all remaining issues in dispute, to the employer
and the board.
Within three days of receipt of the notice of
intent to strike, the employer shall submit its position on the remaining
issues in dispute that are included in the statement transmitted by the [exclusive
representative] employee organization with its notice of intent to
strike. The board shall immediately release the information on the positions
of the parties to the public."
SECTION 14. Section 89-13, Hawaii Revised Statutes, is amended to read as follows:
"§89-14 Prohibited practices; evidence of bad faith. (a) It shall be a prohibited practice for a public employer or its designated representative wilfully to:
(1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter;
(2) Dominate, interfere, or assist in the formation, existence, or administration of any employee organization;
(3) Discriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization;
(4) Discharge or otherwise discriminate against an employee because the employee has signed or filed an affidavit, petition, or complaint or given any information or testimony under this chapter, or because the employee has informed, joined, or chosen to be represented by any employee organization;
(5) Refuse to bargain collectively in good faith with
[the exclusive representative] an employee organization as
required in section 89-9;
(6) Refuse to participate in good faith in the mediation and arbitration procedures set forth in section 89-11;
(7) Refuse or fail to comply with any provision of this chapter;
(8) Violate the terms of a collective bargaining agreement;
(9) Replace any nonessential employee for participating in a labor dispute; or
(10) Give employment preference to an individual employed during a labor dispute and whose employment termination date occurs after the end of the dispute, over an employee who exercised the right to join, assist, or engage in lawful collective bargaining or mutual aid or protection through the labor organization involved in the dispute.
(b) It shall be a prohibited practice for a public employee or for an employee organization or its designated agent wilfully to:
(1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter;
(2) Refuse to bargain collectively in good faith with
the public employer[, if it is an exclusive representative, as required in
section 89-9];
(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."
SECTION 15. Section 89-7, Hawaii Revised Statutes, is repealed.
["§89-7 Elections. (a)
Whenever, in accordance with regulations as may be prescribed by the board
pursuant to chapter 91, a petition is filed by an employee organization to
determine whether or by which organization employees desire to be represented
for the purpose of collective bargaining, the board shall conduct an
investigation and may conduct an election where appropriate as specified
herein. A petition to decertify or to change the exclusive bargaining
representative must be supported by fifty per cent of employees in an appropriate
bargaining unit, through verifiable written proof of the names and signatures
of employees. Signatures of employees supporting such a petition must be
obtained within two months of the date of the petition to be valid with the
board. In its investigation of the showing of interest, the board shall afford
all interested parties a contested case hearing.
(b) In any election where none of the
choices on the ballot receives a majority of the votes cast, a runoff election
shall be conducted with the ballot providing for a selection between the two
choices receiving the largest number of valid votes cast in the election. The
board shall certify the election results and the employee organization
receiving a majority of the votes cast shall be certified as the exclusive
representative of all employees in the appropriate bargaining unit for the
purpose of collective bargaining. The employee organization shall remain
certified as the exclusive representative until it is replaced by another
employee organization, decertified, or dissolved.
(c) No election shall be directed by the
board in any appropriate bargaining unit within which (1) a valid election has
been held in the preceding twelve months; or (2) a valid collective bargaining
agreement is in force and effect.
(d) The board shall adopt rules and regulations
consistent with this section governing the conduct of elections to determine
representation, including the time, place, manner of notification, and
reporting the results of elections, and the manner for filing any petition for
an election and decertification election or any petition concerning the results
of an election. No mail ballots shall be permitted by the board except when
for reasonable cause a specific individual would otherwise be unable to cast a
ballot. No names, addresses or information regarding the work location of
employees eligible to vote shall be provided to employee organizations involved
in an election. The board shall have the final determination on any
controversy concerning the eligibility of an employee to vote."]
SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 17. This Act shall take effect upon its approval.
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Report Title:
Collective bargaining; employee organizations
Description:
Repeals exclusive representation requirements and protects employees' freedom to independently form an employee organization within their appropriate bargaining unit for the purpose of collectively bargaining with their employer.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
