Honorable Robert Bunda

President of the Senate

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Labor, to which was referred S.B. No. 536 entitled:

begs leave to report as follows:

The purpose of this measure is to repeal the law that prohibits picketing at the residence or dwelling place of an individual during a labor dispute.

Testimony in support of this measure was submitted by the Hawaii State AFL-CIO, the Hawaii State Teachers Association, the Hawaii Building & Construction Trades Council, and one individual. Testimony in opposition to this measure was submitted by the Department of Labor and Industrial Relations, the Honolulu Police Department, the Hawaii Hotel & Lodging Association, the Maui Hotel Association, and the Hilton Hotels Corporation.

Your Committee finds that the enforcement of chapter 379A, Hawaii Revised Statutes (HRS), is unconstitutional and preempted by the National Labor Relations Act (NLRA). The United States Supreme Court has consistently held that state laws are powerless to restrict a labor union's peaceful picketing activity, because the legality of picketing is decided solely under federal law. The Court held in Garner v. Teamsters, Local 776, 346 U.S. 485 (1953), that the Pennsylvania state court did not have jurisdiction to enjoin or punish peaceful picketing during the course of a labor dispute because its jurisdiction was preempted by the NLRA and that the state law prohibiting such conduct was void as a matter of law.

Your Committee further finds that in Hawaii, several incidents have occurred wherein the attempted enforcement of chapter 379A, HRS, resulted in the issuance of letters of admonishment by legal counsel for the unions. These letters indicated that the enforcement of section 379A-1, HRS, could result in the filing of a lawsuit against any officer as well as the government for false arrest and constitutional violations. Consequently, no enforcement of this law has resulted. Your Committee determines that if a law is unenforceable and in conflict with federal labor laws and policy, it should not remain in the statutes, as its continued existence places law enforcement officials at risk of lawsuits for false arrest and acts to divest individuals of constitutionally protected rights.

As affirmed by the record of votes of the members of your Committee on Labor that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 536 and recommends that it pass Second Reading and be referred to the Committee on Judiciary and Hawaiian Affairs.