Report Title:

Public Contracts; Right to Organize

Description:

Prohibits state contractors and other recipients of state funds from assisting, promoting, or deterring union organizing among its employees.

THE SENATE

S.B. NO.

2354

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO PUBLIC CONTRACTS.

 

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

SECTION 1. Chapter 103, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . EMPLOYEE RIGHT TO ORGANIZE

§103-A Definitions. For purposes of this part, the following terms have the following meanings:

"Assist, promote, or deter union organizing" means any attempt by an employer to influence the decision of its employees in this State or those of its subcontractors regarding either of the following:

(1) Whether to support or oppose a labor organization that represents or seeks to represent those employees; or

(2) Whether to become a member of any labor organization.

"Employer" means any individual, corporation, unincorporated association, partnership, government agency or body, or other legal entity that employs more than one person in the State.

"State contractor" means any employer that receives state funds for supplying goods or services pursuant to a written contract with the State or any of its agencies. "State contractor" includes an employer that receives state funds pursuant to a contract.

"State funds" means any money drawn from the state treasury or any special or trust fund of the State, and includes any money appropriated by the State and transferred to any public agency that is used by the public agency to fund a service contract in excess of $250,000.

"State property" means any property or facility owned or leased by the State or any state agency.

§103-B Use of state funds to reimburse state contractor. (a) No state funds shall be used to reimburse a state contractor for any costs incurred to assist, promote, or deter union organizing.

(b) Every request for reimbursement from state funds by a state contractor shall include a certification that the contractor is not seeking reimbursement for costs incurred to assist, promote, or deter union organizing. A state contractor that incurs costs to assist, promote, or deter union organizing shall maintain records sufficient to show that no reimbursement from state funds has been sought for those costs. The state contractor shall provide those records to the attorney general upon request.

(c) A state contractor is liable to the State for the amount of any funds obtained in violation of subsection (a) in addition to a civil penalty equal to twice the amount of those funds.

(d) This section shall not apply to a fixed—price contract or to any other arrangement by which the amount of the payment of state funds does not depend on the costs incurred by the state contractor.

§103-C Use of state funds by grant recipient. (a) The recipient of a grant of state funds, including state funds disbursed as a grant by a public agency, shall not use the funds to assist, promote, or deter union organizing.

(b) For purposes of this section, each recipient of a grant of state funds shall account for those funds as follows:

(1) State funds designated by the grantor for use for a specific expenditure of the recipient shall be accounted for as allocated to that expenditure; and

(2) State funds that are not designated as described in subparagraph (1) shall be allocated on a pro rata basis to all expenditures by the recipient that supports the program for which the grant is made.

(c) Prior to the disbursement of a grant of state funds, the recipient shall provide a certification to the State that none of the funds will be used to assist, promote, or deter union organizing. Any recipient that makes expenditures to assist, promote, or deter union organizing shall maintain records sufficient to show that state funds have not been used for those expenditures. The grant recipient shall provide those records to the attorney general upon request.

(d) A grant recipient is liable to the State for the amount of any funds expended in violation of subsection (a) in addition to a civil penalty equal to twice the amount of those funds.

§103-D Activities of a state contractor under a service contract. (a) No state contractor shall assist, promote, or deter union organizing by employees who are performing work on a service contract, including a public works contract, for the State or a state agency.

(b) A state contractor that violates subsection (a) shall be liable for a civil penalty of $1,000 per employee per violation.

§103-E Use of state funds by a state contractor under a contract in excess of a specified dollar threshold. (a) A state contractor that receives state funds in excess of $50,000 pursuant to a contract with the State or a state agency shall not use those state funds to assist, promote, or deter union organizing during the life of the contract, including any extensions or renewals of the contract. The dollar threshold in this subsection, however, does not limit the application of other provisions of this part that restrict the use of state funds.

(b) All contracts in excess of $50,000 and that are awarded by the State or a state agency shall contain the prohibition stated in subsection (a)

(c) A state contractor who is subject to subsection (a) and who makes expenditures to assist, promote, or deter union organizing shall maintain records sufficient to show that no state funds were used for those expenditures. The state contractor shall provide those records to the attorney general upon request.

(d) A state contractor shall be liable to the State for the amount of any funds expended made in violation of subsection (a) in addition to a civil penalty equal to twice the amount of those funds.

§103-F Activities of an employer conducting business on state property. (a) An employer conducting business on state property pursuant to a contract or concession agreement with the State or a state agency, or a subcontractor on such a contract or agreement, shall not use state property to hold a meeting with any employees or supervisors if the purpose of the meeting is to assist, promote, or deter union organizing. This section shall not apply if the state property is equally available, without charge, to the general public for holding a meeting.

(b) An employer that violates subsection (a) shall be liable to the State for a civil penalty equal to $1,000 per employee per meeting.

§103-G Use of state funds by a public employer. (a) A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing.

(b) Any public official who knowingly authorizes the use of state funds in violation of subsection (a) shall be liable to the State for the amount of those funds.

§103-H Use of state funds by a private employer in receipt of state funds in excess of a specified dollar threshold. (a) A private employer receiving state funds in excess of $10,000 in any calendar year on account of its participation in a state program shall not use any of those funds to assist, promote, or deter union organizing.

(b) As a condition of participating in a state program pursuant to which it will receive state funds in excess of $10,000 in any calendar year, a private employer shall provide a certification to the State that none of those funds will be used to assist, promote, or deter union organizing.

(c) A private employer who is subject to subsection (a) and who makes expenditures to assist, promote, or deter union organizing shall maintain records sufficient to show that no state funds were used for those expenditures. The private employer shall provide those records to the attorney general upon request.

(d) A private employer is liable to the State for any funds expended in violation of subsection (a) in addition to a civil penalty equal to twice the amount of those funds.

§103-I Civil action for violations. (a) A civil action for a violation of this part may be brought by the attorney general, or by any state taxpayer, on behalf of the people of the State, for injunctive relief, damages, civil penalties, and other appropriate equitable relief. All damages and civil penalties collected pursuant to this part shall be deposited in the state general fund.

(b) Before filing an action under this section, a taxpayer shall give written notice to the attorney general of the alleged violation and the intent to bring suit. If the attorney general commences a civil action for the same alleged violation within sixty days of receiving the notice, a separate action by the taxpayer shall be barred.

(c) A taxpayer may intervene as a plaintiff in any action brought under this section.

(d) A prevailing plaintiff in any action under this section is entitled to recover reasonable attorney’s fees and costs. A prevailing taxpayer intervenor who makes a substantial contribution to an action under this section is entitled to recover reasonable attorney’s fees and costs.

§103-J Expenses paid or incurred for union organizing. (a) For purposes of this part, any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for research for, or preparation, planning, or coordination of, or carrying out, an activity to assist, promote, or deter union organizing shall be treated as paid or incurred for that activity.

(b) For purposes of accounting for expenditures, if state funds and other funds are commingled, any expenditures to assist, promote, or deter union organizing shall be allocated between state funds and other funds on a pro rata basis.

§103-K Limitations of applicability of chapter. This chapter does not apply to an activity performed, or to an expense incurred, in connection with any of the following:

(1) Addressing a grievance or negotiating or administering a collective bargaining agreement;

(2) Allowing a labor organization or its representatives access to the employer’s facilities or property;

(3) Performing an activity required by federal or state law or by a collective bargaining agreement; or

(4) Negotiating, entering into, or carrying out a voluntary recognition agreement with a labor organization."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 3. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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