§89-13  Prohibited practices; evidence ofbad faith.  (a)  It shall be a prohibited practice for a public employer orits designated representative wilfully to:

(1)  Interfere, restrain, or coerce any employee inthe exercise of any right guaranteed under this chapter;

(2)  Dominate, interfere, or assist in the formation,existence, or administration of any employee organization;

(3)  Discriminate in regard to hiring, tenure, or anyterm or condition of employment to encourage or discourage membership in anyemployee organization;

(4)  Discharge or otherwise discriminate against anemployee because the employee has signed or filed an affidavit, petition, orcomplaint or given any information or testimony under this chapter, or becausethe employee has informed, joined, or chosen to be represented by any employeeorganization;

(5)  Refuse to bargain collectively in good faith withthe exclusive representative as required in section 89-9;

(6)  Refuse to participate in good faith in themediation and arbitration procedures set forth in section 89-11;

(7)  Refuse or fail to comply with any provision ofthis chapter;

(8)  Violate the terms of a collective bargainingagreement;

(9)  Replace any nonessential employee forparticipating in a labor dispute; or

(10)  Give employment preference to an individualemployed during a labor dispute and whose employment termination date occursafter the end of the dispute, over an employee who exercised the right to join,assist, or engage in lawful collective bargaining or mutual aid or protectionthrough the labor organization involved in the dispute.

(b)  It shall be a prohibited practice for apublic employee or for an employee organization or its designated agentwilfully to:

(1)  Interfere, restrain, or coerce any employee inthe exercise of any right guaranteed under this chapter;

(2)  Refuse to bargain collectively in good faith withthe public employer, if it is an exclusive representative, as required insection 89-9;

(3)  Refuse to participate in good faith in the mediationand arbitration procedures set forth in section 89-11;

(4)  Refuse or fail to comply with any provision ofthis chapter; or

(5)  Violate the terms of a collective bargainingagreement. [L 1970, c 171, pt of §2; gen ch 1985; am L 1992, c 214, §3; am L2003, c 3, §2]

 

Attorney General Opinions

 

  Unilateral wage increases by employer pending representationelections as constituting interference, restraint or coercion.  Att. Gen. Op.74-6.

 

Case Notes

 

  Only interference with a lawful employee activity may besubject of a prohibited practice charge under subsection (a)(1).  60 H. 361,590 P.2d 993.

  To prove a prohibited practice under subsection (b), aconscious, knowing, and deliberate intent to violate the provisions of chapter89 must be proven.  66 H. 401, 664 P.2d 727.

  The broad policy statements within §89-1 do not imposebinding duties or obligations upon any parties but, rather, provide a usefulguide for determining legislative intent and purpose; these statements,therefore, do not implicate the prohibited practice provision of refusing orfailing to comply with any provision of chapter 89, as set forth in subsection(a)(7); thus, employee's claim that employer violated §89-1 properlydismissed.  97 H. 528, 40 P.3d 930.

  Where employee presented grievance to employer, was heardwith respect thereto, and was notified that the remedy employee sought as anindividual was denied, employer did not violate §89-8(b) and the board wascorrect in determining that, on the relevant undisputed facts, the employer wasentitled to summary judgment; thus, there was no subsection (a)(7) or (8)prohibited practice violation of the collective bargaining agreement.  97 H.528, 40 P.3d 930.

 Where employee was not the exclusive representative of anappropriate bargaining unit and, thus, §89-11(a) did not confer any right tosubmit 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 subsection (a)(7) prohibited practice refusal or failure to complywith chapter 89 by the employer.  97 H. 528, 40 P.3d 930.

  Although an application of §84-13 was necessary to decide theunion's complaint under this section, it could not be said that the questionarose under chapter 84; where union filed the complaint with the board under§89-19, the board had "exclusive original jurisdiction" to determineprohibited practice complaints and the ethics commission would not have hadjurisdiction to make that determination; thus, the board had the power to apply§84-13 in order to decide whether a prohibited practice  violation actuallyoccurred and it did not exceed its jurisdiction in ruling that a violation didnot occur based on the application of §84-13.  116 H. 73, 170 P.3d 324.

 

Hawaii Legal Reporter Citations

 

  Violation of bargaining agreement.  78-2 HLR 1219.