Report Title:

Essential Employee, Essential Position; Collective Bargaining

Description:

Prohibits essential employees occupying essential position from participating in a strike.

THE SENATE

S.B. NO.

1162

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to collective bargaining and public employment.

 

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

SECTION 1. The purpose of this Act is to remove any threat to public health and safety in the event of a union strike by establishing a predefined percentage of essential employees and to include a process by which additional employees may be deemed essential. This Act does not affect the public employers’ rights under section 2 of Act 90, Session Laws of Hawaii 2001.

SECTION 2. 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 pursuant to section 89-12.

"Essential position" means any position designated by the public employer pursuant to section 89-12(a)(3) or by the board pursuant to section 89-12(c)(1) as necessary in order to avoid or remove any imminent or present danger to the public health or safety, which position shall be filled by the public employer."

SECTION 3. Chapter 89, Hawaii Revised Statutes, is amended by adding a new section to read as follows:

"§89-12 Strikes; rights and prohibitions. (a) Participation in a strike shall be unlawful for any employee who:

(1) Is not included in an appropriate bargaining unit for which an exclusive representative has been certified by the board;

(2) Is included in an appropriate bargaining unit for which process for resolution of a dispute is by referral to final and binding arbitration; or

(3) Is an essential employee occupying a position deemed essential by the public employer in the interest of avoiding or removing any imminent or present danger to the public health or safety as follows:

(A) Twenty-five per cent of those essential positions (full-time equivalent) whose services may not be given up for even the shortest period of time. Employee staffing requirements shall be determined by the public employer.

Examples of such essential positions include employees performing duties in wastewater treatment and disposal, emergency and police dispatching, custodial and food services in health institutions and correctional facilities, water main breaks, water safety, patient health care, and civil defense; and

(B) Those services which may be interrupted for a limited period but not for an indefinite period of time.

Examples of such essential positions include employees performing duties in sanitation (refuse, parks, airports, etc.), welfare and social services, traffic lighting system repair and maintenance, vehicle repair and maintenance for emergency and sanitation vehicles, road repair and maintenance, and parks repair and maintenance.

(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 after:

(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) Sixty days have elapsed since the fact-finding board has made public its findings and any recommendation; and

(4) The exclusive representative has given a ten-day notice of intent to strike to the board and to the employer.

(c) (1) 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 the following:

(A) To increase the percentage of essential employees pursuant to section 89-12(a)(3)(A);

(B) To investigate and determine if there is imminent or present danger to the health or safety of the public, and thereafter establish specific requirements that must be complied with and which shall include:

(i) Designation of essential positions pursuant to section 89-12(a)(3)(B); and

(ii) 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;

(2) The public employer shall give notice to an essential employee:

(A) By serving or delivering a copy thereof to the essential employee being notified;

(B) 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

(C) If service cannot be effected as set forth in subparagraph (A) or (B) above, or if the strike is in progress, by publishing at least once a day for three consecutive days, a copy thereof in both of the newspapers having the largest general circulation in the State. After the final publication, it shall be conclusively presumed that the essential employee has received such notice.

(D) 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.

(d) No employee organization shall declare or authorize a strike of employees, which is or would be in violation of this section. Where it is alleged by the public employer that an employee organization has declared or authorized a strike of employees which is or would be in violation of this section, the public employer may apply to the board for a declaration that the strike is or would be unlawful and the board, after affording an opportunity to the employee organization to be heard on the application, may make such a declaration.

(e) 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, forthwith, shall 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.

(f) Notwithstanding any of the above provisions, the public employer may utilize its supervisory personnel in the completion of bargaining unit work.

(g) This section does not preclude the public employer from contracting out or privatizing its operations pursuant to section 2 of Act 90, Session Laws of Hawaii 2001 to fill essential positions."

SECTION 4. Section 89-12, Hawaii Revised Statutes, is repealed.

["§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.

(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 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 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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By Request