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



(1)  Interfere, restrain, or coerce any employee in
the 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 any
term or condition of employment to encourage or discourage membership in any
employee organization;



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



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



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



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



(8)  Violate the terms of a collective bargaining
agreement;



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



(10)  Give employment preference to an individual
employed during a labor dispute and whose employment termination date occurs
after 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 protection
through the labor organization involved in the dispute.



(b)  It shall be a prohibited practice for a
public employee or for an employee organization or its designated agent
wilfully to:



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



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



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



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



(5)  Violate the terms of a collective bargaining
agreement. [L 1970, c 171, pt of §2; gen ch 1985; am L 1992, c 214, §3; am L
2003, c 3, §2]



 



Attorney General Opinions



 



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



 



Case Notes



 



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



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



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



  Where employee presented grievance to employer, was heard
with respect thereto, and was notified that the remedy employee sought as an
individual was denied, employer did not violate §89-8(b) and the board was
correct in determining that, on the relevant undisputed facts, the employer was
entitled 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 an
appropriate bargaining unit and, thus, §89-11(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 subsection (a)(7) prohibited practice refusal or failure to comply
with chapter 89 by the employer.  97 H. 528, 40 P.3d 930.



  Although an application of §84-13 was necessary to decide the
union's complaint under this section, it could not be said that the question
arose under chapter 84; where union filed the complaint with the board under
§89-19, the board had "exclusive original jurisdiction" to determine
prohibited practice complaints and the ethics commission would not have had
jurisdiction to make that determination; thus, the board had the power to apply
§84-13 in order to decide whether a prohibited practice  violation actually
occurred and it did not exceed its jurisdiction in ruling that a violation did
not 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.