HOUSE OF REPRESENTATIVES

H.B. NO.

1930

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO PUBLIC EMPLOYEES.

 

 

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

 


     SECTION 1.  The legislature finds that Hawaii's collective bargaining in public employment law, chapter 89, Hawaii Revised Statutes, was enacted to promote labor management harmony in the public sector by:

     (1)  Establishing guidelines for employment relations relating to wages, hours, and working conditions;

     (2)  Providing a method for dealing with disputes and work stoppages; and

     (3)  Maintaining a favorable political and social environment.

     The legislature further finds that the policy to promote harmonious and cooperative relations between government and its employees rests on the right of public employees to organize for the purpose of collective bargaining in accordance with article XIII, section 2, of the Constitution of the State of Hawaii.

The legislature also finds that changes in federal constitutional law could have a major impact on public employee collective bargaining in Hawaii.  In Friedrichs v. California Teachers Ass'n, et al., 2013 WL 892547 (D. Cal. C.D. 2013), aff'd  204 WL 10076847 (Mem.) (9th Cir. 2014), aff'd 136 S.Ct. 1083 (Mem.), 194 L.Ed. 2d 255 (2016) the petitioners had asked the United States Supreme Court to overrule Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S. Ct. 1782, 52 L.Ed.2d 261 (1977) (allowing public sector agency fees).  An equally-divided United States Supreme Court upheld the status quo established in the Abood case.  Many commentators considered that, but for the sudden death of supreme court justice Antonin Scalia, Friedrichs would have overruled Abood.

In June 2017, the petitioner in Janus v. American Fed'n of State, County, and Mun. Employees, Council 31, 851 F.3d 746 (7th Cir. 2017), cert. granted, 138 S.Ct. (Mem), 198 L.Ed. 2d 780 (2017) again asked the United States Supreme Court to overrule Abood.  The court has accepted the case, and a decision is expected by the end of June 2018.  Most commentators again expect that Abood will be overruled, and traditional agency fees will be banned.

     The legislature finds that should the United States Supreme Court strike down laws requiring the payment of union dues by public sector employees, such a ruling would fundamentally undermine the legislature's consistent efforts to bar "free riders," and ensure labor management peace.  Furthermore, not only would such a ruling undercut the collective bargaining representative's ability to collect resources from its bargaining unit, it would greatly diminish public employees' ability to negotiate with management and cause government to lose the advantages envisioned under the collective bargaining in public employment law.

     The purpose of this Act is to ensure that public employees are able to effectively bargain collectively with their public employers by establishing a mechanism, consistent with the United States Constitution, that will provide exclusive bargaining representatives with the resources necessary to adequately represent public employees and will remove economic incentives to "free ride" so that Hawaii law will not be biased for or against employee membership in the bargaining unit's exclusive representative.

     SECTION 2.  Section 89-1, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The legislature declares that it is the public policy of the State to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government.  These policies are best effectuated by:

     (1)  Recognizing the right of public employees to organize for the purpose of collective bargaining;

     (2)  Requiring public employers to negotiate with and enter into written agreements with exclusive representatives on matters of wages, hours, and other conditions of employment, while, at the same time, maintaining the merit principle pursuant to section 76-1; [and]

     (3)  Enabling exclusive representatives to maintain financial viability and organizational capacity, and the ability to effectively represent public employees; and

    [(3)] (4)  Creating a labor relations board to administer the provisions of chapters 89 and 377."

     SECTION 3.  Section 89-2, Hawaii Revised Statutes, is amended by amending the definition of "exclusive representative" to read as follows:

     "Exclusive representative" means the employee organization certified by the board under section 89-8 as the collective bargaining agent to represent all employees in an appropriate bargaining unit [without discrimination and without regard to employee organization membership]."

     SECTION 4.  Section 89-3, Hawaii Revised Statutes, is amended to read as follows:

     "§89-3  Rights of employees.  Employees shall have the right of self-organization and the right to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing on questions of wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.  An employee shall have the right to refrain from any or all of such activities, except for having a payroll deduction equivalent to regular dues remitted to an exclusive representative or charitable organization as provided in [section] sections 89-3.5 and 89-4."

     SECTION 5.  Section 89-4, Hawaii Revised Statutes, is amended to read as follows:

     "§89-4  Payroll deductions.  (a)  Upon receiving from an exclusive representative a written statement specifying the amount of regular dues required of its members in the appropriate bargaining unit, the employer shall deduct this amount from the payroll of every member employee in the appropriate bargaining unit, and remit the amount to the exclusive representative.  Additionally, the employer shall deduct an amount equivalent to the regular dues from the payroll of every nonmember employee in the appropriate bargaining unit, except for employees who object under section 89-3.5, and shall remit the amount to the exclusive representative; provided that the deduction from the payroll of every nonmember employee shall be made only for an exclusive representative which provides for a procedure for determining the amount of a refund to any employee who demands the return of any part of the deduction which represents the employee's pro rata share of expenditures made by the exclusive representative for activities of a political and ideological nature unrelated to terms and conditions of employment.  If a nonmember employee objects to the amount to be refunded, the nonmember employee may petition the board for review thereof within fifteen days after notice of the refund has been received.  The employer shall deduct an amount equivalent to the periodic dues and initiation fees from the payroll of every employee who objects under section 89-3.5 in a bargaining unit with a published policy that so requires and shall remit the amount to the charitable organization designated in writing by the employee who objects under section 89-3.5.  If an employee organization is no longer the exclusive representative of the appropriate bargaining unit, the deduction from the payroll of members [and], nonmembers, and employees who object under section 89-3.5 shall terminate.

     (b)  The employer shall, upon written authorization by an employee, executed at any time [after the employee's joining an employee organization], deduct from the payroll of the employee the amount of membership dues, initiation fees, representation or service fees, group insurance premiums, [and] or other association benefits, and shall remit the amount to the employee organization designated by the employee.

     (c)  The employer shall continue all payroll assignments authorized by an employee prior to July 1, 1970, and all assignments authorized under subsection (b) until notification is submitted by an employee to discontinue the employee's assignments.

     (d)  The exclusive representative may establish:

     (1)  Dues, rates, or charges to support its activities and other programs it chooses to provide to its members; and

     (2)  Rates or charges for services or other programs it chooses to provide to nonmembers and employees who object under section 89-3.5.

     (e)  The public employer shall be entitled to rely on, and shall not be liable for accurately implementing, reports of employee deductions supplied by the exclusive representative.  Any challenge to rates or charges for services shall be within the exclusive original jurisdiction of the board as a prohibited practice."

     SECTION 6.  Section 89-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The employee organization which has been certified by the board as representing the majority of employees in an appropriate bargaining unit shall be the exclusive representative of all employees in the unit.  As exclusive representative, it shall have the right to act for and negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership[.], except that in the grievance-arbitration procedure, it need not represent employees who do not pay reasonable costs of representation.  Any other provision herein to the contrary notwithstanding, whenever two or more employee organizations which have been duly certified by the board as the exclusive representatives of employees in bargaining units merge, combine, or amalgamate or enter into an agreement for common administration or operation of their affairs, all rights and duties of such employee organizations as exclusive representatives of employees in such units shall inure to and shall be discharged by the organization resulting from such merger, combination, amalgamation, or agreement, either alone or with such employee organizations.  Election by the employees in the unit involved, and certification by the board of such resulting employee organization shall not be required."

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

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


Report Title:

Public Employment; Collective Bargaining

 

Description:

Amends collective bargaining law to ensure that exclusive bargaining representatives retain the resources necessary to adequately represent public employees and remove economic incentive to free ride.

 

 

 

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