Provides a union representation privilege to protect the functions of the union as an exclusive bargaining representative to allow the union to perform its role in negotiations and contract enforcement; allows certification of union representatives through a card-check authorization; requires collective bargaining to begin upon union certification; sets certain deadlines for initial collective bargaining agreement procedures and conciliation of disputes; sets civil penalty for unfair labor practices; extends certain authorities to labor organizations representing employees for collective bargaining; allows labor disputes to be defenses against prosecution for certain violations of law. (SB1621 HD1)
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO COLLECTIVE BARGAINING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to implement and promote the right to organize for the purpose of collective bargaining, as recognized in article XIII of the Hawaii state constitution.
SECTION 2. Chapter 377, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§377‑ Facilitation of initial collective bargaining agreements. Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the following procedure shall apply:
(1) 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, pursuant to sections 377‑5(a) and 377‑5(e), or within a further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement;
(2) If, after the expiration of the ninety-day period beginning on the date on which bargaining commenced, or an additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever a request is received, it shall be the duty of the Federal Mediation and Conciliation Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement; and
(3) If, after the expiration of the thirty-day period beginning on the date on which the request for mediation is made under paragraph (2), or an additional period as the parties may agree upon, the Federal Mediation and Conciliation Service is not able to bring the parties to agreement by mediation or conciliation, the Federal Mediation and Conciliation Service shall refer the dispute to an arbitration panel established in accordance with regulations as may be prescribed by the Federal Mediation and Conciliation Service. The arbitration panel shall render a decision settling 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 3. Chapter 380, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:
"§380‑ Payment for union representational activities. (a) A labor organization that provides representational services related to collective bargaining may bring a civil action in circuit court for nonpayment of union dues by members and agency fees by persons covered by a collective bargaining agreement.
(b) The court in any action brought under this section shall order payment of back dues or agency fees, or both, with interest and allow for costs and reasonable attorneys' fees to be paid by the defendant.
§380‑ Protected activity for union organization activities; private property. Any person engaged in union organization activities, shall have the right to take part in such activities including holding placards, and passing out literature, on the pathways, sidewalks, and areas adjacent to the entry ways or exits used by customers or employees, including on private property; provided that this right shall not be extended to union activity inside the premises of an individual retail establishment."
SECTION 4. Section 377-5, Hawaii Revised Statutes, is amended to read as follows:
"§377-5 Representatives [
elections[ .]; employee free choice. (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
(b) Whenever a question arises concerning the
determination of a collective bargaining unit, as defined in section
377-1, the Hawaii labor relations 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
(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] the employees' 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) Notwithstanding any other provision of this section, whenever a petition is filed by an employee or group of employees, or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by a labor organization for the purpose of collective bargaining, the board shall investigate the petition. If the board finds that a majority of the employees in a unit appropriate for bargaining has 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 in the unit, the board shall not direct an election but shall certify the individual or labor organization as the bargaining representative of the employees.
(f) The board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in subsection (e). The guidelines and procedures shall include:
(1) Model collective bargaining authorization language that may be used to make the designations described in subsection (e); and
(2) Procedures to be used by the board to establish the validity of signed authorizations designating bargaining representatives pursuant to subsection (e)."
SECTION 5. Section 377-9, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) After the final hearing, the board
shall promptly make and file an order or decision, incorporating findings of
fact upon all the issues involved in the controversy and the determination of
the rights of the parties. Pending the final determination of the controversy
the board may, after hearing, make interlocutory orders which may be enforced
in the same manner as final orders. Final orders may dismiss the complaint or
require the person complained of to cease and desist from the unfair labor
practices found to have been committed, suspend the person's rights,
immunities, privileges, or remedies granted or afforded by this chapter for not
more than one year, and require the person to take [
action, including reinstatement of employees [ with or without pay, as the
board may deem proper.] and make whole orders in favor of employees,
including back pay with interest, costs, and attorneys' fees. Any order
may further require the person to make reports from time to time showing the
extent to which the person has complied with the order. Furthermore, an
employer who wilfully or repeatedly commits unfair or prohibited practices that
interfere with the statutory rights of employees or discriminate against
employees for the exercise of protected conduct shall be subject to a civil
penalty not to exceed $20,000 for each violation. In determining the amount of
any penalty under this section, the board shall consider the gravity of the
unfair or prohibited practice and the impact of the practice on the charging
party, on other persons seeking to exercise rights guaranteed by this section,
or on public interest."
SECTION 6. Section 380-6, Hawaii Revised Statutes, is amended to read as follows:
"§380-6 Liability of association, officers, members. (a) No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the State for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts or of ratification of such acts after actual knowledge thereof.
(b) In accordance with the constitutional right to organize for the purpose of collective bargaining, no association or organization, its officers, employees, agents, members, or designated representatives shall be responsible or liable in any court or agency to any other person for engaging in lawful collective bargaining activities or for lawfully participating in a labor dispute, as defined in section 380‑13(3)."
SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect on July 1, 2010.