Report Title:

Substitute Teachers, DOE; Collective Bargaining Unit

Description:

Creates a collective bargaining unit for substitute teachers of the DOE, including part-time employees working less than one-half of a full-time equivalent.

THE SENATE

S.B. NO.

2663

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO COLLECTIVE BARGAINING IN PUBLIC EMPLOYMENT.

 

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

SECTION 1. In the regular session of 2003, the legislature passed and the governor vetoed S.B. No. 1462, S.D. 1, relating to collective bargaining for substitute teachers and part-time employees in the department of education. The legislature finds that substitute teachers have long been neglected in terms of bargaining rights. Substitute teachers are a necessary and integral part of the cadre of teachers. Although substitute teachers are usually hired on a day to day basis, some fill in for regular teachers on longer term assignments, which effectively results in putting substitute teachers into full-time teaching for indefinite periods. The legislature further finds that substitute teachers should be conferred the right to collective bargaining.

This measure addresses the governor's reasons for the veto, which concerns issues of clarity and expression of legislative intention.

The purpose of this Act is to establish a new collective bargaining unit for substitute teachers and other part-time employees of the department of education.

SECTION 2. Section 302A-101, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Substitute teacher" means a teacher hired to work in a day-to-day, fill-in capacity."

SECTION 3. Section 87A-1, Hawaii Revised Statutes, is amended by amending the definition of "employee" to read as follows:

""Employee" means an employee or officer of the State, county, or legislature,

(1) Including:

(A) An elective officer;

(B) A per diem employee;

(C) An officer or employee under an authorized leave of absence;

(D) An employee of the Hawaii national guard although paid from federal funds;

(E) A retired member of the employees' retirement system; the county pension system; or the police, firefighters, or bandsmen pension system of the State or county;

(F) A salaried and full-time member of a board, commission, or agency appointed by the governor or the mayor of a county; and

(G) A person employed by contract for a period not exceeding one year, where the director of human resources development, personnel services, or civil service has certified that the service is essential or needed in the public interest and that, because of circumstances surrounding its fulfillment, personnel to perform the service cannot be obtained through normal civil service recruitment procedures,

(2) But excluding:

(A) A designated beneficiary of a retired member of the employees' retirement system; the county pension system; or the police, firefighters, or bandsmen pension system of the State or county;

(B) Except as allowed under paragraph (1)(G), a person employed temporarily on a fee or contract basis; and

(C) A part-time, temporary, and seasonal or casual employee[.]; provided that substitute teachers and other employees under bargaining unit (14) shall not be excluded."

SECTION 4. Section 89-6, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) All employees throughout the State within any of the following categories shall constitute an appropriate bargaining unit:

(1) Nonsupervisory employees in blue collar positions;

(2) Supervisory employees in blue collar positions;

(3) Nonsupervisory employees in white collar positions;

(4) Supervisory employees in white collar positions;

(5) Teachers, not including substitute teachers and other employees under paragraph (14), and other personnel of the department of education under the same pay schedule[, including part-time employees working less than twenty hours a week who are equal to one-half of a full-time equivalent];

(6) Educational officers and other personnel of the department of education under the same pay schedule;

(7) Faculty of the University of Hawaii and the community college system;

(8) Personnel of the University of Hawaii and the community college system, other than faculty;

(9) Registered professional nurses;

(10) Institutional, health, and correctional workers;

(11) Firefighters;

(12) Police officers; [and]

(13) Professional and scientific employees, who cannot be included in any of the other bargaining units[.]; and

(14) Substitute teachers, without regard to the number of hours worked per week, and part-time employees of the department of education working less than twenty hours a week who are equal to one-half of a full-time equivalent of the department of education, excluding casual and part-time employees of the department of education who are less than one-half of a full-time equivalent."

2. By amending subsection (d) to read:

"(d) For the purpose of negotiating a collective bargaining agreement, the public employer of an appropriate bargaining unit shall mean the governor together with the following employers:

(1) For bargaining units (1), (2), (3), (4), (9), (10), and (13), the governor shall have six votes and the mayors, the chief justice, and the Hawaii health systems corporation board shall each have one vote if they have employees in the particular bargaining unit;

(2) For bargaining units (11) and (12), the governor shall have four votes and the mayors shall each have one vote;

(3) For bargaining units (5) [and], (6), and 14, the governor shall have three votes, the board of education shall have two votes, and the superintendent of education shall have one vote;

(4) For bargaining units (7) and (8), the governor shall have three votes, the board of regents of the University of Hawaii shall have two votes, and the president of the University of Hawaii shall have one vote.

Any decision to be reached by the applicable employer group shall be on the basis of simple majority, except when a bargaining unit includes county employees from more than one county. In [such] that case, the simple majority shall include at least one county."

3. By amending subsection (f) to read:

"(f) The following individuals shall not be included in any appropriate bargaining unit or be entitled to coverage under this chapter:

(1) Elected or appointed official;

(2) Member of any board or commission;

(3) Top-level managerial and administrative personnel, including the department head, deputy or assistant to a department head, administrative officer, director, or chief of a state or county agency or major division, and legal counsel;

(4) Secretary to top-level managerial and administrative personnel under paragraph (3);

(5) Individual concerned with confidential matters affecting employee-employer relations;

(6) Part-time employee working less than twenty hours per week, except part-time employees included in [unit] units (5)[;] and (14);

(7) Temporary employee of three months' duration or less;

(8) Employee of the executive office of the governor or a household employee at Washington Place;

(9) Employee of the executive office of the lieutenant governor;

(10) Employee of the executive office of the mayor;

(11) Staff of the legislative branch of the State;

(12) Staff of the legislative branches of the counties, except employees of the clerks' offices of the counties;

(13) Any commissioned and enlisted personnel of the Hawaii national guard;

(14) Inmate, kokua, patient, ward or student of a state institution;

(15) Student help;

(16) Staff of the Hawaii labor relations board; or

(17) Employees of the Hawaii national guard youth challenge academy."

SECTION 5. Section 89-10.8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A public employer shall enter into written agreement with the exclusive representative setting forth a grievance procedure culminating in a final and binding decision, to be invoked in the event of any dispute concerning the interpretation or application of a written agreement. The grievance procedure shall be valid and enforceable and shall be consistent with the following:

(1) A dispute over the terms of an initial or renewed agreement shall not constitute a grievance;

(2) No employee in a position exempted from chapter 76, who serves at the pleasure of the appointing authority, shall be allowed to grieve a suspension or discharge unless the collective bargaining agreement specifically provides otherwise; [and]

(3) The public employer shall adopt appropriate administration and grievance guidelines for members of bargaining unit 14 comprised of substitute teachers and certain other part-time employees of the department of education, as defined in section 302A-101, that account for but are not limited to, elements of varied qualifications, status, possible work locations, and actual time on the job among its members; provided that the guidelines shall be used to formulate a written agreement with the exclusive representative under this subsection; and provided further that the written agreement shall not substantially depart from the guidelines; and

[(3)] (4) With respect to any adverse action resulting from an employee's failure to meet performance requirements of the employee's position, the grievance procedure shall provide that the final and binding decision shall be made by a performance judge as provided in this section."

SECTION 6. Section 89-11, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) If an impasse exists between a public employer and the exclusive bargaining representative of bargaining unit (1), nonsupervisory employees in blue collar positions; bargaining unit (2), supervisory employees in blue collar positions; bargaining unit (3), nonsupervisory employees in white collar positions; bargaining unit (4), supervisory employees in white collar positions; bargaining unit (5), teachers and other personnel of the department of education; bargaining unit (6), educational officers and other personnel of the department of education under the same salary schedule; bargaining unit (7), faculty of the University of Hawaii and the community college system; bargaining unit (8), personnel of the University of Hawaii and the community college system, other than faculty; [or] bargaining unit (13), professional and scientific employees [,]; or bargaining unit (14), substitute teachers, without regard to the number of hours worked per week, and part-time employees of the department of education working less than twenty hours a week who are equal to one-half of a full-time equivalent of the department of education, the board shall assist in the resolution of the impasse as follows:

(1) Voluntary mediation. During the first twenty days of the date of impasse, either party may request the board to assist in a voluntary resolution of the impasse by appointing a mediator or mediators, representative of the public from a list of qualified persons maintained by the board;

(2) Mediation. If the impasse continues more than twenty days, the board shall appoint a mediator or mediators representative of the public from a list of qualified persons maintained by the board, to assist the parties in a voluntary resolution of the impasse. The board may compel the parties to attend mediation, reasonable in time and frequency, until the fiftieth day of impasse. Thereafter, mediation shall be elective with the parties, subject to the approval of the board;

(3) Report of the board. The board shall promptly report to the appropriate legislative body or bodies the following circumstances as each occurs:

(A) The date of a tentative agreement and whether the terms thereof are confidential between the parties;

(B) The ratification or failure [or] of ratification of a tentative agreement;

(C) The signing of a tentative agreement;

(D) The terms of a tentative agreement; or

(E) On or about the fiftieth day of impasse, the failure of mediation.

The parties shall provide the board with the requisite information; and

(4) After the fiftieth day of impasse, the parties may resort to such other remedies that are not prohibited by any agreement pending between them, other provisions of this chapter, or any other law."

SECTION 7. Section 302A-624, Hawaii Revised Statutes, is amended as follows:

1. By amending the section heading to read:

"[[]302A-624[]] Teachers' salary schedule[.]; part-time employees."

2. By amending subsection (e) to read:

"(e) Effective July 1, [1996,] 2004, the per diem rate for substitute teachers and part-time employees of the department of education working less than twenty hours a week who are equal to one-half of a full-time equivalent of the department of education, excluding casual and part-time employees of the department of education who are less than one-half of a full-time equivalent shall be based on [the annual entry step salary rate established for a Class II teacher on the most current teachers' salary schedule. The per diem rate shall be derived from the annual rate in accordance with the following formula:

Per Diem Rate = Annual Salary Rate ¸ 12 months ¸ 21

Average Working Days Per Month]

chapter 89 procedures."

SECTION 8. Part-time teachers, including substitute teachers, and part-time employees of the department of education working less than twenty hours a week who are equal to one-half of a full-time equivalent of the department of education, excluding casual and part-time employees of the department of education who are less than one-half of a full-time equivalent, who were excluded from bargaining unit 5 and were assigned to unit 5's excluded counterpart, unit 55, prior to July 1, 2004, shall be transferred to bargaining unit 14 with the same benefits received under unit 55 as of July 1, 2004, without the loss of any benefits previously obtained under bargaining unit 5 representation; provided that upon the execution of a collective bargaining agreement between the public employer and the exclusive representative for bargaining unit 14, all retained benefits shall lapse and be replaced by those contained in the collective bargaining agreement for bargaining unit 14.

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2004.

INTRODUCED BY:

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