REPORT TITLE:
Pub Emp; Collective Bargaining


DESCRIPTION:
Restructures the Unit 7 employer negotiating team, expands the
scope of contract negotiations, allows expired contracts to
remain in effect pending negotiations, makes mediation voluntary
and eliminates the "good faith" requirement for the declaration
of an impasse for certain public employee contracts.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2398
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO COLLECTIVE BARGAINING. 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The purpose of this Act is to promote the more
 
 2 efficient negotiation of public employee contracts by broadening
 
 3 the scope of public employee contract negotiations, streamlining
 
 4 collective bargaining procedures, and clarifying the status of
 
 5 collective bargaining agreements pending renewal negotiations.
 
 6      SECTION 2.  Section 88-8, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "[[]§88-8[]]  University of Hawaii optional retirement
 
 9 system.(a)  Notwithstanding any other law to the contrary, the
 
10 board of regents may establish without regard to the public
 
11 notice or public hearing requirements of chapter 91, a retirement
 
12 system separate from the state employees' retirement system to
 
13 provide retirement allowances and other benefits for University
 
14 of Hawaii employees who are:
 
15      (1)  Members of bargaining unit (7); or
 
16      (2)  Other employees of the University of Hawaii or the
 
17           community college system who are excluded from
 
18           bargaining unit (7) pursuant to chapter 89.
 

 
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 1      (b)  The general administration and the responsibility for
 
 2 the proper operation of the optional retirement system of the
 
 3 University of Hawaii shall be vested in the board of regents.
 
 4 The board of regents may manage the optional retirement system
 
 5 within the University of Hawaii or contract for the management of
 
 6 the optional retirement system.
 
 7      (c)  The board of regents may establish vesting periods for
 
 8 the members of the optional retirement system of the University
 
 9 of Hawaii that are different from those established in this
 
10 chapter.
 
11      (d)  The board of regents may establish retirement
 
12 allowances and other benefits for the optional retirement system
 
13 of the University of Hawaii.
 
14      (e)  The employer's share of the cost of the optional
 
15 retirement plan of the optional retirement system of the
 
16 University of Hawaii shall not exceed the equivalent amount for
 
17 any other group covered by this chapter.
 
18      (f)  Any member of the state employees' retirement system
 
19 when the optional retirement system of the University of Hawaii
 
20 is established who is also:
 
21      (1)  A member of bargaining unit (7); or
 
22      (2)  Other employees of the University of Hawaii or the
 
23           community college system who are excluded from
 

 
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 1           bargaining unit (7) pursuant to chapter 89,
 
 2 shall remain a member of the state employees' retirement system
 
 3 unless the person elects in writing on a form prescribed by the
 
 4 board of regents to terminate the person's membership.  The form
 
 5 shall be submitted to the state employees' retirement system no
 
 6 later than ninety days after the establishment of the optional
 
 7 retirement system of the University of Hawaii.
 
 8      (g)  Any person hired after the establishment of the
 
 9 optional retirement system of the University of Hawaii who is:
 
10      (1)  A member of bargaining unit (7); or
 
11      (2)  Other employees of the University of Hawaii or the
 
12           community college system who are excluded from
 
13           bargaining unit (7) pursuant to chapter 89,
 
14 shall elect to be a member of the state employees' retirement
 
15 system or the optional retirement system of the University of
 
16 Hawaii.  Upon an election the person may not transfer from one
 
17 system to the other.
 
18      [(h)  Notwithstanding any other law to the contrary,
 
19 retirement benefits for the optional retirement system of the
 
20 University of Hawaii shall be a subject of collective bargaining
 
21 negotiations for bargaining unit (7).]"
 
22      SECTION 3.  Section 89-6, Hawaii Revised Statutes, is
 
23 amended by amending subsection (b) to read as follows:
 

 
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 1      "(b)  For the purpose of negotiations, the public employer
 
 2 of an appropriate bargaining unit shall mean the governor or the
 
 3 governor's designated representatives of not less than three
 
 4 together with not more than two members of the board of education
 
 5 in the case of units (5) and (6), five members of the board of
 
 6 regents in the case of unit 7, the governor or the governor's
 
 7 designated representatives of not less than three together with
 
 8 not more than two members of the board of regents of the
 
 9 University of Hawaii in the case of [units (7) and] unit (8), and
 
10 the governor or the governor's designated representatives
 
11 together with the mayors of all the counties or their designated
 
12 representatives in the case of the remaining units.  The
 
13 designated employer representatives for units (5), (6), [(7),]
 
14 and (8) shall each have one vote and in the case of the remaining
 
15 units, the governor shall be entitled to four votes and the mayor
 
16 of each county shall each have one vote, which may be assigned to
 
17 their designated representatives.  Any decision to be reached by
 
18 the applicable employer group shall be on the basis of simple
 
19 majority."
 
20      SECTION 4.  Section 89-9, Hawaii Revised Statutes, is
 
21 amended as follows:
 
22      1.  By amending subsection (a) to read:
 
23      "(a)  The employer and the exclusive representative shall
 

 
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 1 meet at reasonable times, including meetings in advance of the
 
 2 employer's budget-making process, and shall negotiate in good
 
 3 faith with respect to wages, hours, retirement benefits, the
 
 4 Hawaii public employees health fund, the number of incremental
 
 5 and longevity steps and movement between steps within the salary
 
 6 range[, the amounts of contributions by the State and respective
 
 7 counties to the Hawaii public employees health fund to the extent
 
 8 allowed in subsection (e)], and other terms and conditions of
 
 9 employment which are subject to negotiations under this chapter
 
10 and which are to be embodied in a written agreement, or any
 
11 question arising thereunder, but such obligation does not compel
 
12 either party to agree to a proposal or make a concession;
 
13 provided that the parties may not negotiate with respect to cost
 
14 items as defined by section 89-2 for the biennium 1999 to 2001,
 
15 and the cost items of employees in bargaining units under section
 
16 89-6 in effect on June 30, 1999, shall remain in effect until
 
17 July 1, 2001."
 
18      2.  By amending subsection (d) to read:
 
19      "(d)  Excluded from the subjects of negotiations are matters
 
20 of classification and reclassification[, benefits of but not
 
21 contributions to the Hawaii public employees health fund,
 
22 retirement benefits except as provided in section 88-8(h), and
 
23 the salary ranges now provided by law; provided that the number
 

 
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 1 of incremental and longevity steps, the amount of wages to be
 
 2 paid in each range and step, and movement between steps within
 
 3 the salary range shall be negotiable].  The employer and the
 
 4 exclusive representative shall not agree to any proposal which
 
 5 would be inconsistent with merit principles or the principle of
 
 6 equal pay for equal work pursuant to sections 76-1, 76-2, 77-31,
 
 7 and 77-33, or which would interfere with the rights of a public
 
 8 employer to (1) direct employees; (2) determine qualification,
 
 9 standards for work, the nature and contents of examinations, and
 
10 hire[, promote, transfer, assign, and retain] employees [in
 
11 positions and suspend, demote, discharge, or take other
 
12 disciplinary action against employees for proper cause]; (3)
 
13 relieve an employee from duties because of lack of work or other
 
14 legitimate reason; (4) maintain efficiency of government
 
15 operations; (5) determine methods, means, and personnel by which
 
16 the employer's operations are to be conducted; and take such
 
17 actions as may be necessary to carry out the missions of the
 
18 employer in cases of emergencies[; provided that the employer and
 
19 the exclusive representative may negotiate procedures governing
 
20 the promotion and transfer of employees to positions within a
 
21 bargaining unit, procedures governing the suspension, demotion,
 
22 discharge or other disciplinary actions taken against employees,
 
23 and procedures governing the layoff of employees; provided
 

 
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 1 further that violations of the procedures so negotiated may be
 
 2 the subject of a grievance process agreed to by the employer and
 
 3 the exclusive representative."
 
 4      SECTION 5.  Section 89-10, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (c) to read as follows:
 
 6      "(c)  Because effective and orderly operations of government
 
 7 are essential to the public, it is declared to be in the public
 
 8 interest that in the course of collective bargaining, the public
 
 9 employer and the exclusive representative for each bargaining
 
10 unit shall by mutual agreement include provisions in the
 
11 collective bargaining agreement for that bargaining unit for an
 
12 expiration date which will be on June 30th of an odd-numbered
 
13 year.
 
14      If the parties fail to reach an agreement on the terms and
 
15 conditions of a renewal collective bargaining agreement prior to
 
16 the adjournment of the legislature in the year in which the
 
17 collective bargaining agreement expires, the terms and conditions
 
18 of the collective bargaining agreement in effect when the
 
19 legislature adjourns shall be in effect until a renewed
 
20 collective bargaining agreement has been reached; provided that
 
21 if the board determines that either party has bargained in bad
 
22 faith, there shall be no extension of the collective bargaining
 
23 agreement past its expiration date. 
 

 
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 1      The parties may include provisions for the reopening date
 
 2 during the term of a collective bargaining agreement, provided
 
 3 that such provisions shall not allow for the reopening of cost
 
 4 items as defined in section 89-2."
 
 5      SECTION 6.  Section 89-11, Hawaii Revised Statutes, is
 
 6 amended as follows:
 
 7      1.  By amending subsection (b) to read:
 
 8      "(b)  A public employer shall have the power to enter into
 
 9 written agreement with the exclusive representative of an
 
10 appropriate bargaining unit setting forth an impasse procedure
 
11 culminating in a final and binding decision, to be invoked in the
 
12 event of an impasse over the terms of an initial or renewed
 
13 agreement.  In the absence of such a procedure, either party may
 
14 request the assistance of the board by submitting to the board
 
15 and to the other party to the dispute a clear, concise statement
 
16 of each issue on which an impasse has been reached [together with
 
17 a certificate as to the good faith of the statement and the
 
18 contents therein].  The board, on its own motion, may determine
 
19 that an impasse exists on any matter in a dispute.  If the board
 
20 determines on its own motion that an impasse exists, it may
 
21 render assistance by notifying both parties to the dispute of its
 
22 intent.
 
23      The board shall render assistance to resolve the impasse
 

 
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 1 according to the following schedule:
 
 2      (1)  Mediation.  [Assist] If requested to by either party,
 
 3           assist the parties involved in a voluntary resolution
 
 4           of the impasse by appointing a mediator or mediators,
 
 5           representative of the public, from a list of qualified
 
 6           persons maintained by the board, within three days
 
 7           after the date of the impasse, which shall be deemed to
 
 8           be the day on which notification is received or a
 
 9           determination is made that an impasse exists.
 
10      (2)  Fact-finding.  If the dispute continues fifteen days
 
11           after the date of the impasse, the board shall appoint,
 
12           within three days, a fact-finding board of not more
 
13           than three members, representative of the public, from
 
14           a list of qualified persons maintained by the board.
 
15           The fact-finding board, [shall,] in addition to powers
 
16           delegated to it by the board, shall have the power to
 
17           make recommendations for the resolution of the dispute.
 
18           The fact-finding board, acting by a majority of its
 
19           members, shall transmit its findings of fact and any
 
20           recommendations for the resolution of the dispute to
 
21           both parties within ten days after its appointment.  If
 
22           the dispute remains unresolved five days after the
 
23           transmittal of the findings of fact and any
 

 
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 1           recommendations, the board shall publish the findings
 
 2           of fact and any recommendations for public information
 
 3           if the dispute is not referred to final and binding
 
 4           arbitration.
 
 5      (3)  Arbitration.  If the dispute continues thirty days
 
 6           after the date of the impasse, the parties may mutually
 
 7           agree to submit the remaining differences to
 
 8           arbitration, which shall result in a final and binding
 
 9           decision.  The arbitration panel shall consist of three
 
10           arbitrators, one selected by each party, and the third
 
11           and impartial arbitrator selected by the other two
 
12           arbitrators.  If either party fails to select an
 
13           arbitrator or for any reason there is a delay in the
 
14           naming of an arbitrator, or if the arbitrators fail to
 
15           select a neutral arbitrator within the time prescribed
 
16           by the board, the board shall appoint the arbitrator or
 
17           arbitrators necessary to complete the panel, which
 
18           shall act with the same force and effect as if the
 
19           panel had been selected by the parties as described
 
20           above.  The arbitration panel shall take whatever
 
21           actions necessary, including but not limited to
 
22           inquiries, investigations, hearings, issuance of
 
23           subpoenas, and administering oaths, in accordance with
 

 
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 1           procedures prescribed by the board to resolve the
 
 2           impasse.  If the dispute remains unresolved within
 
 3           fifty days after the date of the impasse, the
 
 4           arbitration panel shall transmit its findings and its
 
 5           final and binding decision on the dispute to both
 
 6           parties.  The parties shall enter into an agreement or
 
 7           take whatever action is necessary to carry out and
 
 8           effectuate the decision.  All items requiring any
 
 9           moneys for implementation shall be subject to
 
10           appropriations by the appropriate legislative bodies,
 
11           and the employer shall submit all such items agreed to
 
12           in the course of negotiations within ten days to the
 
13           appropriate legislative bodies.
 
14 The time frame prescribed in the foregoing schedule may be
 
15 altered by mutual agreement of the parties, subject to the
 
16 approval of the board.
 
17      The costs for [mediation and] fact-finding shall be borne by
 
18 the board.  All other costs, including that of a neutral
 
19 arbitrator, shall be borne equally by the parties involved in the
 
20 dispute[.], except that the cost of a neutral mediator shall be
 
21 incurred by the party requesting mediation."
 
22      2.  By amending subsection (d) to read:
 
23      "(d)  If a dispute between a public employer and the
 

 
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 1 exclusive representative of appropriate bargaining unit (2),
 
 2 supervisory employees in blue collar positions; appropriate
 
 3 bargaining unit (3), nonsupervisory employees in white collar
 
 4 positions; appropriate bargaining unit (4), supervisory employees
 
 5 in white collar positions; appropriate bargaining unit (6),
 
 6 educational officers and other personnel of the department of
 
 7 education under the same salary schedule; appropriate bargaining
 
 8 unit (8), personnel of the University of Hawaii and the community
 
 9 college system, other than faculty; optional appropriate
 
10 bargaining unit (9), registered professional nurses; optional
 
11 appropriate bargaining unit (10), institutional, health, and
 
12 correctional workers; optional appropriate bargaining unit (11),
 
13 firefighters; optional appropriate bargaining unit (12), police
 
14 officers; or optional appropriate bargaining unit (13),
 
15 professional and scientific employees, other than registered
 
16 professional nurses, exists over the terms of an initial or
 
17 renewed agreement more than ninety working days after written
 
18 notification by either party to initiate negotiations, either
 
19 party may give written notice to the board that an impasse exists
 
20 and the board shall assist in the voluntary resolution of the
 
21 impasse by appointing a mediator within three days after the date
 
22 of impasse.  If the dispute continues to exist fifteen working
 
23 days after the date of impasse, the dispute shall be submitted to
 

 
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 1 arbitration proceedings as provided herein.
 
 2      The board shall immediately determine whether the parties to
 
 3 the dispute have mutually agreed upon an arbitration procedure
 
 4 and whether the parties have agreed upon a person or persons whom
 
 5 the parties desire to be appointed as the arbitrator or as a
 
 6 panel of arbitrators, as the case may be.
 
 7      If the board determines that an arbitration procedure
 
 8 mutually agreed upon by the parties will result in a final and
 
 9 binding decision, and that an arbitrator or arbitration panel has
 
10 been mutually agreed upon, it shall appoint such arbitrator or
 
11 arbitration panel and permit the parties to proceed with the
 
12 arbitration procedure mutually agreed upon.
 
13      If, after eighteen working days from the date of impasse,
 
14 the parties have not mutually agreed upon an arbitration
 
15 procedure and an arbitrator or arbitration panel, the board shall
 
16 immediately notify the employer and the exclusive representative
 
17 that the issues in dispute shall be submitted to a three-member
 
18 arbitration panel who shall follow the arbitration procedure
 
19 provided herein.
 
20      Within twenty-one working days from the date of impasse, two
 
21 members of the arbitration panel shall be selected by the
 
22 parties; one shall be selected by the employer and one shall be
 
23 selected by the exclusive representative.  The impartial third
 

 
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 1 member of the arbitration panel shall be selected by the two
 
 2 previously selected panel members and shall chair the arbitration
 
 3 panel.
 
 4      In the event that the two previously selected arbitration
 
 5 panel members fail to select an impartial third arbitrator within
 
 6 twenty-four working days from the date of impasse, the board
 
 7 shall request the American Arbitration Association, or its
 
 8 successor in function, to furnish a list of five qualified
 
 9 arbitrators from which the impartial arbitrator shall be
 
10 selected.  Within five calendar days after receipt of such list,
 
11 the parties shall alternately strike names therefrom until a
 
12 single name is left, who shall be immediately appointed by the
 
13 board as the impartial arbitrator and chairperson of the
 
14 arbitration panel.
 
15      Upon the selection and appointment of the arbitration panel,
 
16 each party shall submit to the panel, in writing, with copy to
 
17 the other party, a final offer which shall include all provisions
 
18 in any existing collective bargaining agreement not being
 
19 modified, all provisions already agreed to in negotiations, and
 
20 all further provisions other than those relating to contributions
 
21 by the State and respective counties to the Hawaii public
 
22 employees health fund which each party is proposing for inclusion
 
23 in the final agreement.
 

 
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 1      Within twenty calendar days of its appointment, the
 
 2 arbitration panel shall commence a hearing at which time the
 
 3 parties may submit either in writing or through oral testimony,
 
 4 all information or data supporting their respective final offers.
 
 5 Nothing in this section shall be construed to prohibit the
 
 6 parties from reaching a voluntary settlement on the unresolved
 
 7 issues, with or without the assistance of a mediator, at any time
 
 8 prior to the conclusion of the hearing conducted by the
 
 9 arbitration panel.
 
10      Within thirty calendar days after the conclusion of the
 
11 hearing, a majority of the arbitration panel shall issue a final
 
12 and binding decision.
 
13      In reaching a decision, the arbitration panel shall give
 
14 weight to the factors listed below and shall include in a written
 
15 opinion an explanation of how the factors were taken into account
 
16 in reaching the decision:
 
17      (1)  The lawful authority of the employer.
 
18      (2)  Stipulations of the parties.
 
19      (3)  The interests and welfare of the public.
 
20      (4)  The financial ability of the employer to meet these
 
21           costs.
 
22      (5)  The present and future general economic condition of
 
23           the counties and the State.
 

 
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 1      (6)  Comparison of wages, hours, retirement and health
 
 2           benefits, and conditions of employment of the employees
 
 3           involved in the arbitration proceeding with the wages,
 
 4           hours, retirement and health benefits, and conditions
 
 5           of employment of other persons performing similar
 
 6           services, and of other state and county employees in
 
 7           Hawaii.
 
 8      (7)  The average consumer prices for goods or services,
 
 9           commonly known as the cost of living.
 
10      (8)  The overall compensation presently received by the
 
11           employees, including direct wage compensation,
 
12           vacation, holidays and excused time, insurance and
 
13           pensions, medical and hospitalization benefits, the
 
14           continuity and stability of employment, and all other
 
15           benefits received.
 
16      (9)  Changes in any of the foregoing circumstances during
 
17           the pendency of the arbitration proceedings.
 
18     (10)  Such other factors, not confined to the foregoing,
 
19           which are normally or traditionally taken into
 
20           consideration in the determination of wages, hours,
 
21           retirement and health benefits, and conditions of
 
22           employment through voluntary collective bargaining,
 
23           mediation, fact-finding, arbitration, or otherwise
 

 
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 1           between the parties, in the public service or in
 
 2           private employment.
 
 3      The decision of the arbitration panel shall be final and
 
 4 binding upon the parties on all provisions submitted to the
 
 5 arbitration panel.  [If the parties have reached agreement with
 
 6 respect to the amounts of contributions by the State and counties
 
 7 to the Hawaii public employees health fund by the tenth working
 
 8 day after the arbitration panel issues its decision, the final
 
 9 and binding agreement of the parties on all provisions shall
 
10 consist of the panel's decision and the amounts of contributions
 
11 agreed to by the parties.  If the parties have not reached
 
12 agreement with respect to the amounts of contributions by the
 
13 State and counties to the Hawaii public employees health fund by
 
14 the close of business on the tenth working day after the
 
15 arbitration panel issues its decision, the parties shall have
 
16 five days to submit their respective recommendations for such
 
17 contributions to the legislature, if it is in session, and if the
 
18 legislature is not in session, the parties shall submit their
 
19 respective recommendations for such contributions to the
 
20 legislature during the next session of the legislature.  In such
 
21 event, the final and binding agreement of the parties on all
 
22 provisions shall consist of the panel's decision and the amounts
 
23 of contributions established by the legislature by enactment,
 

 
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 1 after the legislature has considered the recommendations for such
 
 2 contributions by the parties.  It is strictly understood that no
 
 3 member of a bargaining unit subject to this subsection shall be
 
 4 allowed to participate in a strike on the issue of the amounts of
 
 5 contributions by the State and counties to the Hawaii public
 
 6 employees health fund.]  The parties shall take whatever action
 
 7 is necessary to carry out and effectuate the final and binding
 
 8 agreement.  The parties [may], at any time and by mutual
 
 9 agreement, may amend or modify the panel's decision.
 
10      Agreements reached pursuant to the decision of an
 
11 arbitration panel [and the amounts of contributions by the State
 
12 and counties to the Hawaii public employees health fund, as
 
13 provided herein,] shall not be subject to ratification by the
 
14 employees concerned.  All items requiring any moneys for
 
15 implementation shall be subject to appropriations by the
 
16 appropriate legislative bodies and the employer shall submit all
 
17 such items within ten days after the date on which the agreement
 
18 is entered into as provided herein, to the appropriate
 
19 legislative bodies.
 
20      The costs for mediation shall be borne by the board.  All
 
21 other costs incurred by either party in complying with these
 
22 provisions, including the costs of its selected member on the
 
23 arbitration panel, shall be borne by the party incurring them,
 

 
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 1 except that all costs and expenses of the impartial arbitrator
 
 2 shall be borne equally by the parties." 
 
 3      SECTION 7.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 8.  This Act shall take effect upon its approval.
 
 6 
 
 7 
 
 8                       INTRODUCED BY:  ___________________________