§89-11  Resolution of disputes; impasses. (a)  A public employer and an exclusive representative may enter, at any time,into a written agreement setting forth an alternate impasse procedureculminating in an arbitration decision pursuant to subsection (f), to beinvoked in the event of an impasse over the terms of an initial or renewedagreement.  The alternate impasse procedure shall specify whether the partiesdesire an arbitrator or arbitration panel, how the neutral arbitrator is to beselected or the name of the person whom the parties desire to be appointed asthe neutral arbitrator, and other details regarding the issuance of anarbitration decision.  When an impasse exists, the parties shall notify theboard if they have agreed on an alternate impasse procedure.  The board shallpermit the parties to proceed with their procedure and assist at times and tothe extent requested by the parties in their procedure.  In the absence of analternate impasse procedure, the board shall assist in the resolution of theimpasse at times and in the manner prescribed in subsection (d) or (e), as thecase may be.  If the parties subsequently agree on an alternate impasseprocedure, the parties shall notify the board.  The board shall immediatelydiscontinue the procedures initiated pursuant to subsection (d) or (e) andpermit the parties to proceed with their procedure.

(b)  An impasse during the term of a collectivebargaining agreement on reopened items or items regarding a supplementalagreement shall not be subject to the impasse procedures in this section.  Theparties may mutually agree on an impasse procedure, but if the procedureculminates in an arbitration decision, the decision shall be pursuant tosubsection (f).

(c)  An impasse over the terms of an initial orrenewed agreement and the date of impasse shall be as follows:

(1)  More than ninety days after written notice byeither party to initiate negotiations, either party may give written notice tothe board that an impasse exists.  The date on which the board receives noticeshall be the date of impasse; and

(2)  If neither party gives written notice of animpasse and there are unresolved issues on January 31 of a year in which theagreement is due to expire, the board shall declare on January 31 that animpasse exists and February 1 shall be the date of impasse.

(d)  If an impasse exists between a publicemployer and the exclusive bargaining representative of bargaining unit (1),nonsupervisory employees in blue collar positions; bargaining unit (5), teachersand other personnel of the department of education; or bargaining unit (7),faculty of the University of Hawaii and the community college system, the boardshall assist in the resolution of the impasse as follows:

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

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

(3)  Report of the board.  The board shall promptlyreport to the appropriate legislative body or bodies the followingcircumstances as each occurs:

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

(B)  The ratification or failure ofratification 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 therequisite information; and

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

(e)  If an impasse exists between a publicemployer and the exclusive representative of bargaining unit (2), supervisoryemployees in blue collar positions; bargaining unit (3), nonsupervisoryemployees in white collar positions; bargaining unit (4), supervisory employeesin white collar positions; bargaining unit (6), educational officers and otherpersonnel of the department of education under the same salary schedule;bargaining unit (8), personnel of the University of Hawaii and the communitycollege system, other than faculty; bargaining unit (9), registeredprofessional nurses; bargaining unit (10), institutional, health, andcorrectional workers; bargaining unit (11), firefighters; bargaining unit (12),police officers; or bargaining unit (13), professional and scientific employees,the board shall assist in the resolution of the impasse as follows:

(1)  Mediation.  During the first twenty days afterthe date of impasse, the board shall immediately appoint a mediator,representative of the public from a list of qualified persons maintained by theboard, to assist the parties in a voluntary resolution of the impasse.

(2)  Arbitration.  If the impasse continues twentydays after the date of impasse, the board shall immediately notify the employerand the exclusive representative that the impasse shall be submitted to athree-member arbitration panel who shall follow the arbitration procedureprovided herein.

(A)  Arbitration panel.  Two members of thearbitration panel shall be selected by the parties; one shall be selected bythe employer and one shall be selected by the exclusive representative.  Theneutral third member of the arbitration panel, who shall chair the arbitrationpanel, shall be selected by mutual agreement of the parties.  In the event thatthe parties fail to select the neutral third member of the arbitration panelwithin thirty days from the date of impasse, the board shall request theAmerican Arbitration Association, or its successor in function, to furnish alist of five qualified arbitrators from which the neutral arbitrator shall beselected.  Within five days after receipt of such list, the parties shallalternately strike names from the list until a single name is left, who shallbe immediately appointed by the board as the neutral arbitrator and chairpersonof the arbitration panel.

(B)  Final positions.  Upon the selection andappointment of the arbitration panel, each party shall submit to the panel, inwriting, with copy to the other party, a final position which shall include allprovisions in any existing collective bargaining agreement not being modified,all provisions already agreed to in negotiations, and all further provisionswhich each party is proposing for inclusion in the final agreement.

(C)  Arbitration hearing.  Within one hundredtwenty days of its appointment, the arbitration panel shall commence a hearingat which time the parties may submit either in writing or through oraltestimony, all information or data supporting their respective finalpositions.  The arbitrator, or the chairperson of the arbitration paneltogether with the other two members, are encouraged to assist the parties in avoluntary resolution of the impasse through mediation, to the extentpracticable throughout the entire arbitration period until the date the panelis required to issue its arbitration decision.

(D)  Arbitration decision.  Within thirty daysafter the conclusion of the hearing, a majority of the arbitration panel shallreach a decision pursuant to subsection (f) on all provisions that each partyproposed in its respective final position for inclusion in the final agreementand transmit a preliminary draft of its decision to the parties.  The partiesshall review the preliminary draft for completeness, technical correctness, andclarity and may mutually submit to the panel any desired changes or adjustmentsthat shall be incorporated in the final draft of its decision.  Within fifteendays after the transmittal of the preliminary draft, a majority of thearbitration panel shall issue the arbitration decision.

(f)  An arbitration panel in reaching itsdecision shall give weight to the following factors and shall include in itswritten report or decision an explanation of how the factors were taken intoaccount:

(1)  The lawful authority of the employer, includingthe ability of the employer to use special funds only for authorized purposesor under specific circumstances because of limitations imposed by federal orstate laws or county ordinances, as the case may be;

(2)  Stipulations of the parties;

(3)  The interests and welfare of the public;

(4)  The financial ability of the employer to meetthese costs; provided that the employer's ability to fund cost items shall notbe predicated on the premise that the employer may increase or impose newtaxes, fees, or charges, or develop other sources of revenues;

(5)  The present and future general economic conditionof the counties and the State;

(6)  Comparison of wages, hours, and conditions ofemployment of the employees involved in the arbitration proceeding with thewages, hours, and conditions of employment of other persons performing similarservices, and of other state and county employees in Hawaii;

(7)  The average consumer prices for goods orservices, commonly known as the cost of living;

(8)  The overall compensation presently received bythe employees, including direct wage compensation, vacation, holidays andexcused time, insurance and pensions, medical and hospitalization benefits, thecontinuity and stability of employment, and all other benefits received;

(9)  Changes in any of the foregoing circumstancesduring the pendency of the arbitration proceedings; and

(10)  Such other factors, not confined to theforegoing, which are normally or traditionally taken into consideration in thedetermination of wages, hours, and conditions of employment through voluntarycollective bargaining, mediation, arbitration, or otherwise between theparties, in the public service or in private employment.

(g)  The decision of the arbitration panelshall be final and binding upon the parties on all provisions submitted to thearbitration panel.  If the parties have reached agreement with respect to theamounts of contributions by the State and counties to the Hawaii employer-unionhealth benefits trust fund by the tenth working day after the arbitration panelissues its decision, the final and binding agreement of the parties on allprovisions shall consist of the panel's decision and the amounts ofcontributions agreed to by the parties.  If the parties have not reachedagreement with respect to the amounts of contributions by the State andcounties to the Hawaii employer-union health benefits trust fund by the closeof business on the tenth working day after the arbitration panel issues itsdecision, the parties shall have five days to submit their respectiverecommendations for such contributions to the legislature, if it is in session,and if the legislature is not in session, the parties shall submit theirrespective recommendations for such contributions to the legislature during thenext session of the legislature.  In such event, the final and bindingagreement of the parties on all provisions shall consist of the panel'sdecision and the amounts of contributions established by the legislature byenactment, after the legislature has considered the recommendations for suchcontributions by the parties.  It is strictly understood that no member of abargaining unit subject to this subsection shall be allowed to participate in astrike on the issue of the amounts of contributions by the State and countiesto the Hawaii employer-union health benefits trust fund.  The parties shalltake whatever action is necessary to carry out and effectuate the final andbinding agreement.  The parties may, at any time and by mutual agreement, amendor modify the panel's decision.

Agreements reached pursuant to the decision ofan arbitration panel and the amounts of contributions by the State and countiesto the Hawaii employer-union health benefits trust fund, as provided herein, shallnot be subject to ratification by the employees concerned.  All items requiringany moneys for implementation shall be subject to appropriations by theappropriate legislative bodies and the employer shall submit all such itemswithin ten days after the date on which the agreement is entered into asprovided herein, to the appropriate legislative bodies.

(h)  Any time frame provided in an impasseprocedure, whether an alternate procedure or the procedures in this section,may be modified by mutual agreement of the parties.  In the absence of a mutualagreement to modify time frames, any delay, failure, or refusal by either partyto participate in the impasse procedure shall not be permitted to halt orotherwise delay the process, unless the board so orders due to an unforeseeableemergency.  The process shall commence or continue as though all parties wereparticipating.

(i)  Nothing in this section shall be construedto prohibit the parties from reaching a voluntary settlement on the unresolvedissues at any time prior to the issuance of an arbitration decision.

(j)  The costs and expenses for mediationprovided under subsection (d) or (e) shall be borne by the board.  The costsand expenses for any other services performed by neutrals pursuant to mutualagreement of the parties and the costs for a neutral arbitrator shall be borneequally by the parties.  All other costs incurred by either party in complyingwith this section, including the costs of its selected member on thearbitration panel, shall be borne by the party incurring them. [L 1970, c 171,pt of §2; am L 1978, c 108, §1; am L 1984, c 75, §1, c 219, §1, and c 254, §2;am L 1985, c 251, §5; gen ch 1985, 1993; am L 1995, c 202, §1 and c 208, §1; amL 2000, c 253, §100; am L 2001, c 90, §9; am L 2002, c 189, §1 and c 232, §3;am L Sp 2003, c 6, §1; am L 2004, c 10, §5]

 

Attorney General Opinions

 

  Ombudsman has no jurisdiction over employee complaintscovered by collective bargaining agreements.  Att. Gen. Op. 73-6.

 

Law Journals and Reviews

 

  Public Employee Arbitration in Hawaii, A Study in Erosion.  2UH L. Rev. 477.

 

Case Notes

 

  Before board, on own motion, can declare that an impasseexists, it must determine that the party claiming impasse has been negotiatingin good faith.  56 H. 85, 528 P.2d 809.

  Based on plain language of section and collective bargainingagreement grievance procedure, plaintiff needed to pursue any claims arisingfrom the agreement in the administrative forum rather than in circuit court. 92 H. 268, 990 P.2d 1150.

  Where employee was not the exclusive representative of anappropriate bargaining unit and, thus, subsection (a) did not confer any rightto submit employee's dispute to an agreed procedure or to the board for a finaland binding decision, the board was correct in dismissing employee's claim, andthere was no §89-13(a)(7) prohibited practice refusal or failure to comply withchapter 89 by the employer.  97 H. 528, 40 P.3d 930.