Designates the BOE, the regents of the UOH, the mayor of each county (for county employees), the governor (for state employees), the chief justice for judiciary employees, and the directors of the Hawaii health systems corporation, as public employers for purposes of collective bargaining. Includes chapter on privatization of goods and services.

A BILL FOR AN ACT

Part I

SECTION 1. Section 89-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) For the purpose of negotiations, the public employer of an appropriate bargaining unit shall mean [the governor or the governor's designated representatives of not less than three together with not more than two members of] the board of education in the case of units (5) and (6)[, the governor or the governor's designated representatives of not less than three together with not more than two members of]; the board of regents of the University of Hawaii in the case of units (7) and (8)[, and the governor or the governor's designated representatives together with the mayors of all the counties or their designated representatives]; and the mayor of each county or the mayor's designated representative for county employees, the governor or the governor's designated representative for state employees, the chief justice or the chief justice's designated representative for judiciary employees, and the board of directors of the Hawaii health systems corporation for employees of the corporation, in the case of the remaining units. [The designated employer representatives for units (5), (6), (7), and (8) shall each have one vote and in the case of the remaining units, the governor shall be entitled to four votes and the mayor of each county shall each have one vote, which may be assigned to their designated representatives. Any decision to be reached by the applicable employer group shall be on the basis of simple majority.]"

SECTION 2. Section 96 of Act 253, Session Laws of Hawaii 2000, is amended by amending subsection (d) of section 89-6, Hawaii Revised Statutes, to read as follows:

"(d) For the purpose of negotiating a collective bargaining agreement, the public employer of an appropriate bargaining unit shall mean [the governor together with the following employers:

Any decision to be reached by the applicable employer group shall be on the basis of simple majority, except when a bargaining unit includes county employees from more than one county. In such case, the simple majority shall include at least one county.]:

Part II

SECTION 3. Section 89-9, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) The employer and the exclusive representative shall meet at reasonable times, including meetings in advance of the employer's budget-making process, and shall negotiate in good faith with respect to wages, hours, the number of incremental and longevity steps and movement between steps within the salary range, the amounts of contributions by the State and respective counties to the Hawaii public employees health fund to the extent allowed in subsection (e), and other terms and conditions of employment which are subject to negotiations under this chapter and which are to be embodied in a written agreement, or any question arising thereunder, but such obligation does not compel either party to agree to a proposal or make a concession; provided that [the]:

2. By amending subsection (d) to read:

"(d) Excluded from the subjects of negotiations are matters of classification and reclassification, benefits of but not contributions to the Hawaii public employees health fund, retirement benefits except as provided in section 88-8(h), and the salary ranges now provided by law; provided that the number of incremental and longevity steps, the amount of wages to be paid in each range and step, and movement between steps within the salary range shall be negotiable. The employer and the exclusive representative shall not agree to any proposal which would be inconsistent with merit principles or the principle of equal pay for equal work pursuant to sections 76-1, 76-2, 77-31, and 77-33, or which would interfere with the rights of a public employer to (1) direct employees; (2) determine qualification, standards for work, the nature and contents of examinations, hire, promote, transfer, assign, and retain employees in positions and suspend, demote, discharge, or take other disciplinary action against employees for proper cause; (3) relieve an employee from duties because of lack of work or other legitimate reason; (4) maintain efficiency of government operations; (5) determine methods, means, and personnel by which the employer's operations are to be conducted; and take such actions as may be necessary to carry out the missions of the employer in cases of emergencies; provided that the employer and the exclusive representative may negotiate procedures governing the promotion and transfer of employees to positions within a bargaining unit, procedures governing the suspension, demotion, discharge or other disciplinary actions taken against employees, and procedures governing the layoff of employees; provided further that violations of the procedures so negotiated may be the subject of a grievance process agreed to by the employer and the exclusive representative.

Excluded from the subjects of future negotiations are matters relating to wages, overtime, pension, health insurance, vacation, sick leave, and other cost items and benefits for employees hired before July 1, 2001, if these matters were excluded from negotiations on June 30, 2001."

SECTION 4. Section 98 of Act 253, Session Laws of Hawaii 2000, is amended as follows:

1. By amending subsection (a) of section 89-9, Hawaii Revised Statutes, to read:

"(a) The employer and the exclusive representative shall meet at reasonable times, including meetings sufficiently in advance of the April 16 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 public employees health 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]:

2. By amending subsection (d) of section 89-9, Hawaii Revised Statutes, to read:

"(d) Excluded from the subjects of negotiations are matters of classification, reclassification, benefits of but not contributions to the Hawaii public employees health fund, recruitment, examination, initial pricing, and retirement benefits except as provided in section 88-8(h). The employer and the exclusive representative 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:

The employer and the exclusive representative may negotiate procedures governing the promotion and transfer of employees to positions within a bargaining unit; the suspension, demotion, discharge, or other disciplinary actions taken against employees within the bargaining unit; and the layoff of employees within the bargaining unit. Violations of the procedures so negotiated may be subject to the grievance procedure in the collective bargaining agreement.

Excluded from the subjects of future negotiations are matters relating to wages, overtime, pension, health insurance, vacation, sick leave, and other cost items and benefits for employees hired before July 1, 2001, if these matters were excluded from negotiations on June 30, 2001."

Part III

SECTION 5. Chapter 89, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§89- Public hearings; tentative collective bargaining agreements. Every employer shall conduct public hearings on tentative collective bargaining agreements not less than seven days prior to the presentation of the agreements to their employees for ratification. The public hearings shall be conducted in accordance with chapter 91."

Part IV

SECTION 6. Section 89-11, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

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

The board shall immediately determine whether the parties to the dispute have mutually agreed upon an arbitration procedure and whether the parties have agreed upon a person or persons whom the parties desire to be appointed as the arbitrator or as a panel of arbitrators, as the case may be.

If the board determines that an arbitration procedure mutually agreed upon by the parties will result in a final and binding decision, and that an arbitrator or arbitration panel has been mutually agreed upon, it shall appoint such arbitrator or arbitration panel and permit the parties to proceed with the arbitration procedure mutually agreed upon.

If, after eighteen working days from the date of impasse, the parties have not mutually agreed upon an arbitration procedure and an arbitrator or arbitration panel, the board shall immediately notify the employer and the exclusive representative that the issues in dispute shall be submitted to a three-member arbitration panel who shall follow the arbitration procedure provided herein.

Within twenty-one working days from the date of impasse, 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 impartial third member of the arbitration panel shall be selected by the two previously selected panel members and shall chair the arbitration panel.

In the event that the two previously selected arbitration panel members fail to select an impartial third arbitrator within twenty-four working 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 impartial arbitrator shall be selected. Within five calendar days after receipt of such list, the parties shall alternately strike names therefrom until a single name is left, who shall be immediately appointed by the board as the impartial arbitrator and chairperson of the arbitration panel.

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 offer 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 other than those relating to contributions by the State and respective counties to the Hawaii public employees health fund which each party is proposing for inclusion in the final agreement.

Within twenty calendar 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 offers. Nothing in this section shall be construed to prohibit the parties from reaching a voluntary settlement on the unresolved issues, with or without the assistance of a mediator, at any time prior to the conclusion of the hearing conducted by the arbitration panel.

Within thirty calendar days after the conclusion of the hearing, a majority of the arbitration panel shall issue a final and binding decision.

In reaching a decision, the arbitration panel shall give weight to the factors listed below and shall include in a written opinion an explanation of how the factors were taken into account in reaching the decision:

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 public employees health 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 public employees health 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 public employees health 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 public employees health 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.

The costs for mediation shall be borne by the board. All other costs incurred by either party in complying with these provisions, including the costs of its selected member on the arbitration panel, shall be borne by the party incurring them, except that all costs and expenses of the impartial arbitrator shall be borne equally by the parties."

SECTION 7. Section 100 of Act 253, Session Laws of Hawaii 2000, is amended by amending subsections (d) and (e) of section 89-11, Hawaii Revised Statutes, to read as follows:

"(d) If an impasse exists between a public employer and the exclusive [bargaining] representative of bargaining unit (1), nonsupervisory employees in blue collar positions; 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 (5), teachers and other personnel of the department of education; [or] bargaining unit (6), educational officers and other personnel of the department of education under the same salary schedule; bargaining unit (7), faculty of the University of Hawaii and the community college system[,]; 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; or bargaining unit (13), professional and scientific employees, the board shall assist in the resolution of the impasse as follows:

(e) If an impasse exists between a public employer and the exclusive representative 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; or 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:

SECTION 8. Chapter 89, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§89- Final and binding arbitration. Notwithstanding any other law to the contrary, the following bargaining units shall not have the right to final and binding arbitration: bargaining unit (1), nonsupervisory employees in blue collar positions; 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 (5), teachers and other personnel of the department of education; bargaining unit (6), educational officers and other personnel of the department of education under the same salary schedule; bargaining unit (7), faculty of the University of Hawaii and the community college system; 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; or bargaining unit (13), professional and scientific employees."

Part V

SECTION 9. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

§ -1 Scope and application. This chapter is intended to preempt and supersede all other state law with regard to determining whether goods, services, or construction, funded by the State or any of its counties, should be provided by the government or private sector. After this determination is made pursuant to this chapter, civil service and procurement laws shall be applied, as appropriate, to implement the determination.

§ -2 Standards for determination. (a) Notwithstanding any law to the contrary, any state or county official in whom appropriate authority is vested by law shall be allowed to contract with a private entity to provide goods, services, or construction to be financed by public funds when there is a reasonable basis to believe that the goods, services, or construction can be provided at lower costs and in equivalent or better quality than that which could be provided by a government entity.

(b) In the determination made pursuant to this section, the state or county official shall consider whether contracting with the private entity will jeopardize the government's ability to provide the goods, services, or construction in the event that the contract becomes unprofitable or impossible for a private entity to perform.

(c) For purposes of this chapter, a "private entity" is any individual, company, or organization that is not an employee or agency within the federal, state, or county government.

(d) Except as provided in this chapter, and notwithstanding any other law to the contrary, nothing, including chapters 46, 76, and 77, and customary or historical past practices, shall be deemed to prevent, restrict, diminish, condition, limit, or otherwise qualify the authority of the State or a county to enter into a contract with a private entity for the provision of goods, services, or construction that were customarily and historically performed by persons or positions in the civil service, or functionally attributed to a government agency or program.

(e) The board of education in the case of bargaining units (5) and (6); the board of regents of the University of Hawaii in the case of bargaining units (7) and (8); the mayor of each county for county employees, the governor for state employees, the chief justice for judiciary employees, and the board of directors of the Hawaii health systems corporation for employees of the corporation, in the case of the remaining bargaining units, shall adopt rules allowing each, individually, to contract with a private entity to provide goods, services, or construction to be financed by public funds when there is a reasonable basis to believe that the goods, services, or construction can be provided at lower costs and in equivalent or better quality than that which could be provided by a government entity.

The rules shall be adopted in accordance with chapter 91."

Part VI

SECTION 10. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect on July 1, 2001.