Report Title:
Collective Bargaining; Reinstatement to Binding Arbitration
Description:
Reinstates binding arbitration for bargaining units (2), (3), (4), (6), (8), and (13). Defines essential worker and essential position. (SB768 SD1)
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THE SENATE |
S.B. NO. |
768 |
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TWENTY-SECOND LEGISLATURE, 2003 |
S.D. 1 |
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STATE OF HAWAII |
H.D. 1 |
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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. Section 89-2, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:
""Essential employee" means an employee designated by the public employer to fill an essential position.
"Essential position" means any position designated by the board as necessary to be worked to avoid or remove any immediate or present danger to the public health or safety, which position shall be filled by the public employer."
SECTION 2. Section 89-11, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) 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; [bargaining unit (6), educational officers and other personnel of the department of education under the same salary schedule;] or 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; or bargaining unit (13), professional and scientific employees], 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 or 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 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:
(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."
SECTION 3. Section 89-12, Hawaii Revised Statutes, is amended to read as follows:
§89-12 Strikes, rights and prohibitions. (a) It shall be unlawful for any employee to participate in a strike if the employee:
(1) Is not included in the appropriate bargaining unit involved in an impasse; [or]
(2) Is included in the appropriate bargaining unit involved in an impasse that has been referred to arbitration for a decision[.]; or
(3) Is an essential employee, but only when the employee is designated to fill an essential position.
(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 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 with its notice of intent to strike. The board shall immediately release the information on the positions of the parties to the public.
(c) If a strike, which may endanger the health or safety of the public is about to occur or is in progress, the public employer concerned may petition the board for an investigation. If the board finds that there is imminent or present danger to the health or safety of the public, the board shall establish specific requirements that must be complied with and which shall include but not be limited to designation of essential positions and any other requirement it deems necessary in order to avoid or remove any imminent or present danger to the health or safety of the public.
The public employer shall give notice to an essential employee:
(1) By serving or delivering a copy thereof to the essential employee being notified;
(2) By mailing a copy thereof by certified or registered mail, return receipt requested, deliverable to the addressee only, addressed to the essential employee being notified at the essential employee's place of residence; or
(3) If service cannot be effected as set forth in paragraph 1 or 2 above, or if the strike is in progress, by publishing at least once a day for three consecutive days, a copy thereof in the newspaper or a combination of newspapers in order to provide the largest general circulation in the State. After the final publication, it shall be conclusively presumed that the essential employee has received such notice.
After receipt of notice, it shall be the duty of the essential employee to contact the public employer for the essential employee's work assignment.
[(c)](d) If any employee organization or any employee is violating or failing to comply with the requirements of this section, or if there is reasonable cause to believe that an employee organization or an employee will violate or fail to comply with such requirements, the public employer affected shall, forthwith, institute appropriate proceedings in the circuit in which the violation occurs to enjoin the performance of any acts or practices forbidden by this section, or to require the employee organization or employees to comply with the requirements of this section. Jurisdiction to hear and dispose of all actions under this section is conferred upon each circuit court, and each court may issue in compliance with chapter 380, such orders and decrees, by way of injunction, mandatory injunction, or otherwise, as may be appropriate to enforce this section. The right to a jury trial shall not apply to any proceeding brought under this section. "
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.