SB1621.DOC

SECTION 1. The purpose of this Act is to implement and promote the right to organize for the purpose of collective bargaining, as recognized in article XIII of the Hawaii state constitution.

SECTION 2. Chapter 377, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§377‑ Facilitation of initial collective bargaining agreements. Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the following procedure shall apply:

(1) Not later than ten days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative, as defined in sections 377‑5(a) and 377‑5(e), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement;

(2) If, after the expiration of the ninety-day period beginning on the date on which bargaining commenced, or an additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Federal Mediation and Conciliation Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement; and

(3) If, after the expiration of the thirty-day period beginning on the date on which the request for mediation is made under paragraph (2), or an additional period as the parties may agree upon, the Federal Mediation and Conciliation Service is not able to bring the parties to agreement by conciliation, the Federal Mediation and Conciliation Service shall refer the dispute to an arbitration panel established in accordance with regulations as may be prescribed by the Federal Mediation and Conciliation Service. The arbitration panel shall render a decision settling the dispute, and the decision shall be binding upon the parties for a period of two years, unless amended during that period by written consent of the parties."

SECTION 3. Chapter 380, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:

"§380‑ Union representation. (a) A duly certified labor organization that represents employees for the purpose of collective bargaining has a privilege to refuse to disclose and to prevent any other person from disclosing confidential information and communications made for the purpose of facilitating the rendition of union representational services to employees through the collective bargaining process, including but not limited to negotiations over labor agreements, investigation and processing of grievances or unfair labor or prohibited practices, exhaustion of internal union procedures and remedies, and actions to enforce rights established by contract or statutes on behalf of employees.

(b) The representational privilege shall extend to a duly certified labor organization, its officers, agents, employees, and designated representatives.

(c) Confidential information shall include all statements, documents, and information obtained from employees, employers, and other sources, and shall apply to the work product of the labor organization, its officers, agents, employees, and designated representatives.

(d) The representational privilege shall be respected by the courts, administrative agencies, arbitrators, legislative bodies, and other tribunals, except no privilege shall apply if the representational services were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the labor organization knew or reasonably should have known to be a crime or fraud.

(e) The union representational privilege may be waived only by duly authorized officers of the labor organization in writing.

§380‑ Payment for union representational activities. (a) A labor organization that provides representational services related to collective bargaining may bring a civil action in circuit court for nonpayment of union dues by members and agency fees by persons covered by a collective bargaining agreement.

(b) The court in any action brought under this section shall order payment of back dues or agency fees, or both, with interest and allow for costs and reasonable attorneys' fees to be paid by the defendant.

§380‑ Defenses for protected activity in a labor dispute. It is a complete defense to prosecution for trespass as a violation of section 708‑813 through 708‑815 and offenses against public order as a violation of section 711‑1101, 711‑1102, and 711‑1105, where a person or persons are engaged in a labor dispute within the meaning of section 380‑13(3), to publicize the existence of said dispute on the pathways, sidewalks, and areas adjacent to the entry ways or exits used by customers or employees, or both, to gain access to the establishment gained in the dispute."

SECTION 4. Section 377-5, Hawaii Revised Statutes, is amended to read as follows:

"§377-5 Representatives; [~~and~~] elections[.]; employee free choice. (a) Representatives chosen for the purposes of collective bargaining by a majority of the employees voting in a collective bargaining unit shall be the exclusive representatives of all of the employees in such unit for the purposes of collective bargaining. [Any individual employee or any minority group of employees in any collective bargaining unit shall have the right at any time to present grievances to their employer in person or through representatives of their own choosing.]

(b) Whenever a question arises concerning the determination of a collective bargaining unit, as defined in section 377-1, the board, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this chapter, shall conduct an appropriate hearing upon due notice and it shall decide in each case the unit appropriate for the purpose of collective bargaining.

(c) Whenever a question arises concerning the representation of employees in a collective bargaining unit, the board shall determine the representatives thereof by taking a secret ballot of employees and certifying in writing the results thereof to the interested parties and to their employer. There shall be included on any ballot for the election of representatives the names of all persons submitted by an employee or group of employees participating in the election, except that the board may in its discretion exclude from the ballot one who, at the time of the election, stands deprived of one's rights under this chapter by reason of a prior adjudication of one's having engaged in an unfair labor practice. The ballot shall be so prepared as to permit of a vote against representation by anyone named on the ballot. The board's certification of the results of any election shall be conclusive unless an appeal is taken therefrom under this chapter.

(d) Questions concerning the representation of employees may be raised by petition of any employee, or group of employees, or the employee's representative, or labor organization acting in their behalf, or by petition of the employee's employer in the case of jurisdictional disputes, or in any case after a union has requested recognition. Where it appears by the petition that an emergency exists requiring prompt action, the board shall act upon the petition forthwith and hold the election requested within such time as will meet the requirements of the emergency presented. The fact that one election has been held shall not prevent the holding of another election among the same group of employees, if it appears to the board that sufficient reason therefor exists. In any election where the choices on the ballot do not receive a majority, a run off shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election.

(e) Notwithstanding any other provision of this section, whenever a petition is filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by a labor organization for the purpose of collective bargaining, the board shall investigate the petition. If the board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the board shall not direct an election but shall certify the individual or labor organization as the bargaining representative of the employees.

(f) The board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in subsection (e). Such guidelines and procedures shall include:

(1) Model collective bargaining authorization language that may be used to make the designations described in subsection (e); and

(2) Procedures to be used by the board to establish the validity of signed authorizations designating bargaining representatives pursuant to subsection (e)."

SECTION 5. Section 377-9, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) After the final hearing, the board shall promptly make and file an order or decision, incorporating findings of fact upon all the issues involved in the controversy and the determination of the rights of the parties. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders which may be enforced in the same manner as final orders. Final orders may dismiss the complaint or require the person complained of to cease and desist from the unfair labor practices found to have been committed, suspend the person's rights, immunities, privileges, or remedies granted or afforded by this chapter for not more than one year, and require the person to take affirmative action, including reinstatement of employees [~~with or without pay, as the board may deem proper.~~], a make whole order in favor of employees, including back pay with interest, costs, and attorneys' fees. Any order may further require the person to make reports from time to time showing the extent to which the person has complied with the order. Furthermore, an employer who wilfully or repeatedly commits unfair or prohibited practices that interfere with the statutory rights of employees or discriminate against employees for the exercise of protected conduct shall be subject to a civil penalty not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the board shall consider the gravity of the unfair or prohibited practice and the impact of the practice on the charging party, on other persons seeking to exercise rights guaranteed by this section, or on public interest."

SECTION 6. Section 380-6, Hawaii Revised Statutes, is amended to read as follows:

"§380-6 Liability of association, officers, members. (a) No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the State for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts or of ratification of such acts after actual knowledge thereof.

(b) In accordance with the constitutional right to organize for the purpose of collective bargaining, no association or organization, its officers, employees, agents, members, or designated representatives shall be responsible or liable in any court or agency to any other person for engaging in lawful collective bargaining activities or for participating in a labor dispute, as defined in section 380‑13(3)."

SECTION 7. 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 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1621
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII