§89-11 - Resolution of disputes; impasses.

§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 procedure
culminating in an arbitration decision pursuant to subsection (f), to be
invoked in the event of an impasse over the terms of an initial or renewed
agreement. The alternate impasse procedure shall specify whether the parties
desire an arbitrator or arbitration panel, how the neutral arbitrator is to be
selected or the name of the person whom the parties desire to be appointed as
the neutral arbitrator, and other details regarding the issuance of an
arbitration decision. When an impasse exists, the parties shall notify the
board if they have agreed on an alternate impasse procedure. The board shall
permit the parties to proceed with their procedure and assist at times and to
the extent requested by the parties in their procedure. In the absence of an
alternate impasse procedure, the board shall assist in the resolution of the
impasse at times and in the manner prescribed in subsection (d) or (e), as the
case may be. If the parties subsequently agree on an alternate impasse
procedure, the parties shall notify the board. The board shall immediately
discontinue the procedures initiated pursuant to subsection (d) or (e) and
permit the parties to proceed with their procedure.

(b) An impasse during the term of a collective
bargaining agreement on reopened items or items regarding a supplemental
agreement shall not be subject to the impasse procedures in this section. The
parties may mutually agree on an impasse procedure, but if the procedure
culminates in an arbitration decision, the decision shall be pursuant to
subsection (f).

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

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

(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 (5), teachers
and other personnel of the department of education; or bargaining unit (7),
faculty of the University of Hawaii and the community college system, 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 of
ratification 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.

(e) If an impasse exists between a public
employer and the exclusive representative of 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 (6), educational officers and other
personnel of the department of education under the same salary schedule;
bargaining unit (8), personnel of the University of Hawaii and the community
college system, other than faculty; bargaining unit (9), registered
professional nurses; bargaining unit (10), institutional, health, and
correctional 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 after
the date of impasse, the board shall immediately appoint a mediator,
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.

(2) Arbitration. If the impasse continues twenty
days after the date of impasse, the board shall immediately notify the employer
and the exclusive representative that the impasse shall be submitted to a
three-member arbitration panel who shall follow the arbitration procedure
provided herein.

(A) Arbitration panel. Two members of the
arbitration panel shall be selected by the parties; one shall be selected by
the employer and one shall be selected by the exclusive representative. The
neutral third member of the arbitration panel, who shall chair the arbitration
panel, shall be selected by mutual agreement of the parties. In the event that
the parties fail to select the neutral third member of the arbitration panel
within thirty days from the date of impasse, the board shall request the
American Arbitration Association, or its successor in function, to furnish a
list of five qualified arbitrators from which the neutral arbitrator shall be
selected. Within five days after receipt of such list, the parties shall
alternately strike names from the list until a single name is left, who shall
be immediately appointed by the board as the neutral arbitrator and chairperson
of the arbitration panel.

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

(C) Arbitration hearing. Within one hundred
twenty days of its appointment, the arbitration panel shall commence a hearing
at which time the parties may submit either in writing or through oral
testimony, all information or data supporting their respective final
positions. The arbitrator, or the chairperson of the arbitration panel
together with the other two members, are encouraged to assist the parties in a
voluntary resolution of the impasse through mediation, to the extent
practicable throughout the entire arbitration period until the date the panel
is required to issue its arbitration decision.

(D) Arbitration decision. Within thirty days
after the conclusion of the hearing, a majority of the arbitration panel shall
reach a decision pursuant to subsection (f) on all provisions that each party
proposed in its respective final position for inclusion in the final agreement
and transmit a preliminary draft of its decision to the parties. The parties
shall review the preliminary draft for completeness, technical correctness, and
clarity and may mutually submit to the panel any desired changes or adjustments
that shall be incorporated in the final draft of its decision. Within fifteen
days after the transmittal of the preliminary draft, a majority of the
arbitration panel shall issue the arbitration decision.

(f) An arbitration panel in reaching its
decision shall give weight to the following factors and shall include in its
written report or decision an explanation of how the factors were taken into
account:

(1) The lawful authority of the employer, including
the ability of the employer to use special funds only for authorized purposes
or under specific circumstances because of limitations imposed by federal or
state 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 meet
these costs; provided that the employer's ability to fund cost items shall not
be predicated on the premise that the employer may increase or impose new
taxes, fees, or charges, or develop other sources of revenues;

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

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

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

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

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

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

(g) The decision of the arbitration panel
shall be final and binding upon the parties on all provisions submitted to the
arbitration panel. If the parties have reached agreement with respect to the
amounts of contributions by the State and counties to the Hawaii employer-union
health benefits trust fund by the tenth working day after the arbitration panel
issues its decision, the final and binding agreement of the parties on all
provisions shall consist of the panel's decision and the amounts of
contributions agreed to by the parties. If the parties have not reached
agreement with respect to the amounts of contributions by the State and
counties to the Hawaii employer-union health benefits trust fund by the close
of business on the tenth working day after the arbitration panel issues its
decision, the parties shall have five days to submit their respective
recommendations for such contributions to the legislature, if it is in session,
and if the legislature is not in session, the parties shall submit their
respective recommendations for such contributions to the legislature during the
next session of the legislature. In such event, the final and binding
agreement of the parties on all provisions shall consist of the panel's
decision and the amounts of contributions established by the legislature by
enactment, after the legislature has considered the recommendations for such
contributions by the parties. It is strictly understood that no member of a
bargaining unit subject to this subsection shall be allowed to participate in a
strike on the issue of the amounts of contributions by the State and counties
to the Hawaii employer-union health benefits trust fund. The parties shall
take whatever action is necessary to carry out and effectuate the final and
binding agreement. The parties may, at any time and by mutual agreement, amend
or modify the panel's decision.

Agreements reached pursuant to the decision of
an arbitration panel and the amounts of contributions by the State and counties
to the Hawaii employer-union health benefits trust fund, as provided herein, shall
not be subject to ratification by the employees concerned. All items requiring
any moneys for implementation shall be subject to appropriations by the
appropriate legislative bodies and the employer shall submit all such items
within ten days after the date on which the agreement is entered into as
provided herein, to the appropriate legislative bodies.

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

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

(j) The costs and expenses for mediation
provided under subsection (d) or (e) shall be borne by the board. The costs
and expenses for any other services performed by neutrals pursuant to mutual
agreement of the parties and the costs for a neutral arbitrator shall be borne
equally by the parties. All other costs incurred by either party in complying
with this section, including the costs of its selected member on the
arbitration 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; am
L 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 complaints
covered by collective bargaining agreements. Att. Gen. Op. 73-6.

Law Journals and Reviews

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

Case Notes

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

Based on plain language of section and collective bargaining
agreement grievance procedure, plaintiff needed to pursue any claims arising
from 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 an
appropriate bargaining unit and, thus, subsection (a) did not confer any right
to submit employee's dispute to an agreed procedure or to the board for a final
and binding decision, the board was correct in dismissing employee's claim, and
there was no §89-13(a)(7) prohibited practice refusal or failure to comply with
chapter 89 by the employer. 97 H. 528, 40 P.3d 930.