THE SENATE

S.B. NO.

2366

TWENTY-NINTH LEGISLATURE, 2018

S.D. 2

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. Section 89-5.1, Hawaii Revised Statutes, is amended to read as follows:

"89-5.1 Hearing notice[.]; order; decision. (a) Notwithstanding section 91-9.5, in any hearing conducted by the board, all parties shall be given written notice of the hearing by first class mail or by electronic service through a company designated by the board at least fifteen days before the scheduled date of the hearing.

(b) Notwithstanding section 91-12, within a reasonable time after the board issues each written order or decision, the board shall provide to each party a copy of the written order or decision. The written order or decision shall be hand delivered, provided by the United States Postal Service with delivery confirmation, or transmitted via electronic service through a company designated by the board."

SECTION 2. Section 89-18, Hawaii Revised Statutes, is amended to read as follows:

"89-18 Penalty. (a) Any person who wilfully assaults, resists, prevents, impedes, or interferes with any member of the board or any of its agents or employees in the performance of duties pursuant to this chapter, shall be fined not more than $500 or imprisoned not more than one year, or both. The term "agent" includes a neutral third party who assists in a resolution of an impasse under section 89-11.

(b) All fines collected under this section shall be deposited into the collective bargaining dispute resolution special fund established pursuant to section 377-9(m)."

SECTION 3. Section 377-9, Hawaii Revised Statutes, is amended to read as follows:

"377-9 Prevention of unfair labor practices. (a) Any controversy concerning unfair labor practices may be submitted to the board in the manner and with the effect provided in this chapter, but nothing herein shall prevent the pursuit of relief in courts of competent jurisdiction.

(b) Any party in interest may file with the board a written complaint, on a form provided by the board, charging any person with having engaged in any specific unfair labor practice. The board shall serve or require the complainant to serve a copy of the complaint upon the person charged, hereinafter referred to as the respondent. If the board has reasonable cause to believe that the respondent is a member of or represented by a labor union, then service upon an officer of the union shall be deemed to be service upon the respondent. Service may be by delivery to the person, or by mail or electronic service through a company designated by the board, to the person's last known address. Any other person claiming interest in the dispute or controversy, as an employer, an employee or their representative, shall be made a party upon proof of the interest. The board may bring in additional parties by service of a copy of the complaint. Only one complaint shall issue against a person with respect to a single controversy, but any complaint may be amended in the discretion of the board at any time prior to the issuance of a final order based thereon. The respondent may file an answer to the original or amended complaint but the board may find to be true any allegation in the complaint in the event either no answer is filed or the answer neither specifically denies nor explains the allegation nor states that the respondent is without knowledge concerning the allegation. The respondent shall have the right to appear in person or otherwise give testimony at the place and time fixed in the notice of hearing. The hearing on the complaint shall be before either the board or a hearings officer of the board, as the board may determine.

The board shall fix a time for the hearing on the complaint[,] or a hearing on a dispositive motion, which shall be not less than ten nor more than [forty] ninety days after the filing of the complaint or amendment thereof. Notwithstanding section 91-9.5, in any hearing conducted by the board, all parties shall be given written notice of the hearing by first class mail or by electronic service through a company designated by the board at least fifteen days before the scheduled date of the hearing. [In case] If a party in interest is located without the State and has no known address within the State and no known electronic mail address, a copy of the complaint and copies of all notices shall be filed in the office of the lieutenant governor and shall also be sent by first class mail to the last known address of the party. [Such] The filing and mailing shall constitute sufficient service with the same force and effect as if served upon a party located within the State. The hearing may be adjourned from time to time in the discretion of the board, and hearings may be held at [such] places [as] designated by the board [shall designate].

In all proceedings under this chapter before the board, each member of the board may issue subpoenas and administer oaths. Depositions may be taken in the manner prescribed by law. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to the subpoena on the ground that the testimony or evidence required of the person may tend to incriminate the person or subject the person to a penalty or forfeiture under the laws of the State, but [such] the person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the person may testify or produce evidence, documentary or otherwise, in such proceedings. [Such] A person so testifying shall not be exempt, however, from prosecution and punishment for perjury committed in so testifying.

Any person who wilfully and unlawfully fails or neglects to appear or to testify or to produce books, papers, and records as required, shall, upon application to a circuit judge, be ordered to appear before the board, and failure to obey the order may be punished as a contempt of court.

Each witness who appears before the board by subpoena shall receive for the witness' attendance the fees and mileage provided for witnesses in civil cases in courts of record[, which shall be audited and paid by the State in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the board].

(c) A full and complete record shall be kept of all proceedings had before the board and all testimony and proceedings shall be taken down by a reporter engaged for such purpose or by use of a mechanical recording device. It shall not be necessary to transcribe the record unless requested for purposes of rehearing or court review. In the proceedings the board shall not be bound by technical rules of evidence[. No]; provided that no hearsay evidence[, however,] shall be admitted or considered.

(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. Notwithstanding section 91-12, within a reasonable time after the board issues each written order or decision, the board shall provide to each party a copy of the written order or decision. The written order or decision shall be hand delivered, provided by the United States Postal Service with delivery confirmation, or transmitted via electronic service through a company designated by the board. Pending the final determination of the controversy the board may, after hearing, make interlocutory orders [which] that 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 affirmative action, including reinstatement of employees and make orders in favor of employees making them whole, 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 or employee who wilfully or repeatedly commits unfair or prohibited practices that interfere with the statutory rights of an employer or employees or discriminates against an employer or employees for the exercise of protected conduct shall be subject to a civil penalty not to exceed $10,000 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. All monetary penalties collected under this subsection shall be deposited into the collective bargaining dispute resolution special fund established pursuant to subsection (m).

(e) If any person fails or neglects to obey an order of the board while the [same] order is in effect, the board may petition the circuit judge of the judicial circuit [wherein] where the person resides or usually transacts business for the enforcement of the order and for appropriate temporary relief or restraining order, and shall certify and file in the court the record in the proceedings, including all documents and papers on file in the matter, the pleadings and testimony upon which the order was entered, and the decision and order of the board. Upon [such] the filing the board shall cause notice thereof to be served upon the person by mailing a copy to the person's last known post office address, and thereupon the judge shall have jurisdiction in the premises.

(f) Any person aggrieved by the decision or order of the board may obtain a review thereof as provided in chapter 91 by instituting proceedings in the circuit court of the judicial circuit in which the person or any party resides or transacts business, subject[, however,] to the general provisions of law for a change of the place of trial or the [calling in] substitution of another judge. Where different parties in the same proceeding file petitions for review in two or more courts having proper jurisdiction, the jurisdiction of the judge first petitioned shall be exclusive and the other petitions shall be transferred to the judge. The petition shall state the grounds upon which a review is sought and copies thereof shall be served upon the other parties and the board. Service may be made by mailing [such] copies to the last known post office address of the parties concerned. When the proceedings are at issue, they may be brought on for hearing before the court upon the record by any party on ten days' written notice to the others. Upon the hearing, the court may confirm, modify, or set aside the decision or order of the board and enter an appropriate decree. No objection that has not been urged before the board shall be considered by the court unless the failure or neglect to urge the objection shall be excused because of extraordinary circumstances.

(g) In any proceedings for review of a decision or order of the board, the judge shall disregard any irregularity or error unless it is made to appear affirmatively that the complaining party was prejudiced thereby.

(h) Commencement of proceedings under subsection (f) of this section shall not stay enforcement of the board decisions or order; but the board, or the reviewing court may order a stay upon [such] terms as it deems proper.

(i) Petitions filed under this section shall have preference over any civil cause of a different nature pending in the circuit court, shall be heard expeditiously, and the circuit courts shall always be deemed open for the trial thereof.

(j) Any party may appeal from the judgment of a circuit court entered under this chapter, subject to chapter 602, in the manner provided for civil appeals from the circuit courts.

(k) A substantial compliance with the procedure of this chapter shall be sufficient to give effect to the decisions and orders of the board, and they shall not be declared inoperative, illegal, or void for any nonprejudicial irregularity in respect thereof.

(l) No complaints of any specific unfair labor practice shall be considered unless filed within ninety days of its occurrence.

(m) There is established the collective bargaining dispute resolution special fund into which shall be deposited:

(1) Appropriations made by the legislature to the fund;

(2) Gifts, donations, and grants from public agencies and private persons; and

(3) Civil, criminal, and administrative penalties, and fines collected under this chapter and chapter 89 or any rule adopted pursuant to this chapter or chapter 89.

All interest earned or accrued on moneys deposited in the fund shall become part of the fund. Subject to legislative authorization, the board may expend moneys from the fund to resolve collective bargaining disputes and to carry out the board's duties, including conducting mediations and investigations."

SECTION 4. Section 377-15, Hawaii Revised Statutes, is amended to read as follows:

"377-15 Penalty. (a) Any person who wilfully assaults, resists, prevents, impedes, or interferes with the conciliator or any member of the board or any of the agents or agencies of either in the performance of duties pursuant to this chapter shall be fined not more than $500 or imprisoned not more than one year, or both.

(b) All fines collected under this section shall be deposited into the collective bargaining dispute resolution special fund established pursuant to section 377-9(m)."

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2018-2019 for the Hawaii labor relations board to be distributed as follows:

(1) $           for one full-time equivalent (1.0 FTE) attorney position;

(2) $           for one full-time equivalent (1.0 FTE) chief clerk position; and

(3) $10,000 for travel and interpreter costs.

The sum appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on January 1, 2050.


 


 

Report Title:

Collective Bargaining; Labor Relations Board; Delivery of Decisions and Orders; Notice Requirements; Appropriation

 

Description:

Requires the Labor Relations Board to deliver its orders and decisions by hand, USPS mail using a delivery confirmation, or electronically. Extends the time to hold a hearing on a complaint from 40 to 90 days. Repeals the requirement for the State to pay for witness fees and to conduct an audit. Establishes a collective bargaining dispute resolution special fund. Appropriates funds for 1 full-time equivalent (1.0 FTE) attorney position, 1 full-time equivalent (1.0 FTE) chief clerk position, and travel and interpreter costs. Effective 1/1/2050. (SD2)

 

 

 

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