Report Title:

Card Check; Collective Bargaining

 

Description:

Establishes procedures by which employees, including agricultural laborers, may certify union representation for collective bargaining purposes.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1769

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to labor.

 

 

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

 


     SECTION 1.  Chapter 377, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

     "§377-A  Streamlining union certification.  Whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting on their behalf alleging that a majority of employees in a unit appropriate for the purpose of collective bargaining wish to be represented by an individual or labor organization for that purpose, the board shall investigate the petition.  If the board finds that a majority of the employees in a unit appropriate for bargaining have 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 of the unit, the board shall certify the individual or labor organization as the representative.

     §377-B  Facilitating initial collective bargaining agreements.  (a)  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, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

     (b)  If, after the expiration of the ninety-day period beginning on the date on which bargaining commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the board of the existence of a dispute and request conciliation under section 377-3.

     (c)  If, after the expiration of the thirty-day period beginning on the date on which the request for conciliation is made under subsection (b), or such additional period as the parties may agree upon, the conciliator is not able to bring the parties to agreement by conciliation, the conciliator shall refer the dispute to an arbitration panel established in accordance with rules as may be adopted by the board.  The arbitration panel shall render a decision to settle 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 2.  Section 377-1, Hawaii Revised Statutes, is amended to read as follows:

     "§377-1  Definitions.  When used in this chapter:

(1)  "Person" includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, or receivers.

(2)  "Employer" means a person who engages the services of an employee, and includes any person acting on behalf of an employer, but shall not include the State or any political subdivision thereof, or any labor organization or anyone acting in behalf of such organization other than when it is acting as an employer in fact.

(3)  "Employee" includes any person, other than an independent contractor, working for another for hire in the State, and shall not be limited to the employees of a particular employer unless the context clearly indicates otherwise; and includes any individual whose work has ceased solely as a consequence of or in connection with any current labor dispute or because of any unfair labor practice on the part of an employer and (A) who has not refused or failed to return to work upon the final disposition of a labor dispute or a charge of an unfair labor practice by a tribunal having competent jurisdiction of the same or whose jurisdiction was accepted by the employee or the employee's representative, (B) who has not been found to be committing or a party to any unfair labor practice hereunder, (C) who has not obtained regular and substantially equivalent employment elsewhere, or (D) who has not been absent from the individual's employment for a substantial period of time during which reasonable expectancy of settlement has ceased (except by an employer's unlawful refusal to bargain) and whose place has been filled by another engaged in the regular manner for an indefinite or protracted period and not merely for the duration of a strike or lockout; but shall not include any individual employed in the domestic service of a family or person at the family's or person's home or any individual employed by the individual's parent or spouse, or any person employed in an executive or supervisory capacity, or any individual employed by any employer employing less than two individuals, or any individual subject to the jurisdiction of the Federal Railway Labor Act or the National Labor Relations Act, as amended from time to time; provided that the term "employee" includes any individual subject to the jurisdiction of the National Labor Relations Act, as amended from time to time, but over whom the National Labor Relations Board has declined to exercise jurisdiction or has indicated by its decisions and policies that it will not assume jurisdiction[.]; provided further that "employee" includes any agricultural laborer whose employer's business generates $10,000,000 or more in total annual revenue.

(4)  "Representative" includes any person chosen by an employee to represent the employee.

(5)  "Collective bargaining" is the negotiating by an employer and a majority of the employer's employees in a collective bargaining unit (or their representatives) concerning representation or terms and conditions of employment of such employees in a mutually genuine effort to reach an agreement with reference to the subject under negotiation.

(6)  "Collective bargaining unit" means all of the employees of one employer (employed within the State), except that where the board has determined and certified that such employees engaged in a single craft, division, department, or plant as provided in section 377-5(b) constitute a separate bargaining unit they shall be so considered.  Two or more collective bargaining units may bargain collectively through the same representative where a majority of the employees or each separate unit have voted by secret ballot as provided in section 377-5(c) so to do.

(7)  "Unfair labor practice" means any unfair labor practice as defined in sections 377-6 to 377-8.

(8)  "Labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

(9)  "All union agreement" means an agreement between an employer and the representative of the employer's employees in a collective bargaining unit whereby all of the employees in such unit are required to be members of a single labor organization.

(10) "Board" means the Hawaii labor relations board, provided for by sections 26-20, 89-5, and 377-2.

(11) "Election" means a proceeding in which the employees in a collective bargaining unit cast a secret ballot for collective bargaining representatives or for any other purpose specified in this chapter and shall include elections conducted by the board, or, unless the context clearly indicates otherwise, by any tribunal having competent jurisdiction or whose jurisdiction was accepted by the parties.

(12) "Secondary boycott" includes combining or conspiring to cause or threaten to cause injury to one with whom no labor dispute exists, whether by (A) withholding patronage, labor, or other beneficial business intercourse, (B) picketing, (C) refusing to handle, install, use, or work on particular materials, equipment, or supplies, or (D) by any other unlawful means, in order to bring one against one's will into a concerted plan to coerce or inflict damage upon another.

(13) "Person employed in an executive or supervisory capacity" means any employee who has the authority to hire or fire other employees or whose suggestions and recommendations as to hiring or firing and as to the advancement, promotion, or demotion of other employees will be given particular weight; but shall not mean registered nurses whose compensation is determined on an hourly basis or who are subject to supervision by any person other than the person in charge of all registered nurses at the employer's premises."

     SECTION 3.  Section 377-3, Hawaii Revised Statutes, is amended to read as follows:

     "§377-3  Conciliator.  In the event the board receives information that a labor dispute exists and determines that the dispute is within its jurisdiction and that the possibility of settlement and termination of the dispute may be increased by conciliation, the board shall so notify the governor.

     Upon receipt of the notice, the governor shall appoint, as conciliator with respect to the dispute, a person who is well known in the community as being impartial to both labor and industry, and shall so notify the board.  The position of conciliator shall not be subject to chapters 76 and 89.

     Upon receipt of notice of the appointment of a conciliator, the board shall forthwith refer the dispute to the conciliator.  The conciliator shall use the conciliator's best efforts to terminate the dispute by conciliation within the ten days immediately succeeding the reference of the dispute to the conciliator or within such additional time, not to exceed ten days, as is agreed upon by all parties to the dispute.  If, within the ten days, or the additional time, if any, the conciliator succeeds in terminating the dispute by conciliation, the conciliator shall immediately certify such fact to the board and the conciliator's appointment shall then end.  If, within the ten days, or the additional time, if any, the conciliator fails to terminate the dispute by conciliation, the conciliator shall immediately certify such fact to the board and the conciliator's appointment shall then end.  Upon the termination of the appointment of the conciliator, the board shall so notify the governor.

     In the case of a labor dispute over negotiation of an initial collective bargaining agreement, the conciliator is allowed thirty days from the date on which the request for conciliation is made under section 377-B(b) or such additional period as the parties may agree upon, to resolve the dispute."

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

     "§377-5  Representatives and elections.  (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)  For agricultural laborers only, the procedure as outlined in section 377-A shall apply."

     SECTION 5.  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 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect on July 1, 2009.

 

INTRODUCED BY:

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