§89-9  Scope of negotiations; consultation. (a)  [Repeal and reenactment on July 1, 2010.  L Sp 2008, c 5, §1.] The employer and the exclusive representative shall meet at reasonable times,including meetings sufficiently in advance of the February 1 impasse date undersection 89-11, and shall negotiate in good faith with respect to wages, hours,the amounts of contributions by the State and respective counties to the Hawaiiemployer-union health benefits trust fund or a voluntary employees' beneficiaryassociation trust to the extent allowed in subsection (e), and other terms andconditions of employment that are subject to collective bargaining and that areto be embodied in a written agreement as specified in section 89-10, but theobligation does not compel either party to agree to a proposal or make aconcession; provided that the parties may not negotiate with respect to costitems as defined by section 89-2 for the biennium 1999 to 2001, and the costitems of employees in bargaining units under section 89-6 in effect on June 30,1999, shall remain in effect until July 1, 2001.

(b)  The employer or the exclusiverepresentative desiring to initiate negotiations shall notify the other partyin writing, setting forth the time and place of the meeting desired and thenature of the business to be discussed, sufficiently in advance of the meeting.

(c)  Except as otherwise provided in thischapter, all matters affecting employee relations, including those that are, ormay be, the subject of a rule adopted by the employer or any director, shall besubject to consultation with the exclusive representatives of the employeesconcerned.  The employer shall make every reasonable effort to consult withexclusive representatives and consider their input, along with the input ofother affected parties, prior to effecting changes in any major policyaffecting employee relations.

(d)  [Repeal and reenactment on July 1, 2010. L Sp 2008, c 5, §1.]  Excluded from the subjects of negotiations arematters of classification, reclassification, benefits of but not contributionsto the Hawaii employer-union health benefits trust fund or a voluntaryemployees' beneficiary association trust; recruitment; examination; initialpricing; and retirement benefits except as provided in section 88-8(h).  Theemployer and the exclusive representative shall not agree to any proposal thatwould be inconsistent with the merit principle or the principle of equal payfor equal work pursuant to section 76-1 or that would interfere with the rightsand obligations of a public employer to:

(1)  Direct employees;

(2)  Determine qualifications, standards for work, andthe nature and contents of examinations;

(3)  Hire, promote, transfer, assign, and retainemployees in positions;

(4)  Suspend, demote, discharge, or take otherdisciplinary action against employees for proper cause;

(5)  Relieve an employee from duties because of lackof work or other legitimate reason;

(6)  Maintain efficiency and productivity, includingmaximizing the use of advanced technology, in government operations;

(7)  Determine methods, means, and personnel by whichthe employer's operations are to be conducted; and

(8)  Take such actions as may be necessary to carryout the missions of the employer in cases of emergencies.

This subsection shall not be used to invalidateprovisions of collective bargaining agreements in effect on and after June 30,2007, and shall not preclude negotiations over the procedures and criteria onpromotions, transfers, assignments, demotions, layoffs, suspensions,terminations, discharges, or other disciplinary actions as a permissive subjectof bargaining during collective bargaining negotiations or negotiations over amemorandum of agreement, memorandum of understanding, or other supplementalagreement.

Violations of the procedures and criteria sonegotiated may be subject to the grievance procedure in the collectivebargaining agreement.

(e)  [Repeal and reenactment on July 1, 2010. L Sp 2008, c 5, §1.]  Negotiations relating to contributions to theHawaii employer-union health benefits trust fund or a voluntary employees'beneficiary association trust shall be for the purpose of agreeing upon theamounts that the State and counties shall contribute under sections 87A-32through 87A-37, toward the payment of the costs for a health benefits plan, asdefined in section 87A-1 and group life insurance benefits, and the partiesshall not be bound by the amounts contributed under prior agreements; providedthat section 89-11 for the resolution of disputes by way of arbitration shallnot be available to resolve impasses or disputes relating to the amounts theState and counties shall contribute to the Hawaii employer-union healthbenefits trust fund or a voluntary employees' beneficiary association trust establishedunder chapter 87D.

(f)  The repricing of classes within anappropriate bargaining unit may be negotiated as follows:

(1)  At the request of the exclusive representativeand at times allowed under the collective bargaining agreement, the employershall negotiate the repricing of classes within the bargaining unit.  Thenegotiated repricing actions that constitute cost items shall be subject to therequirements in section 89-10; and

(2)  If repricing has not been negotiated underparagraph (1), the employer of each jurisdiction shall ensure establishment ofprocedures to periodically review, at least once in five years, unlessotherwise agreed to by the parties, the repricing of classes within thebargaining unit.  The repricing of classes based on the results of the periodicreview shall be at the discretion of the employer.  Any appropriations requiredto implement the repricing actions that are made at the employer's discretionshall not be construed as cost items. [L 1970, c 171, pt of §2; am L 1975, c31, §1 and c 164, §1; am L 1980, c 253, §6; am L 1984, c 254, §1; gen ch 1985;am L 1986, c 156, §1; am L 1987, c 27, §4; am L 1988, c 399, §4; am L 1993, c364, §§16, 17; am L 1998, c 115, §13; am L 1999, c 100, §2; am L 2000, c 253,§98; am L 2002, c 232, §2; am L 2004, c 10, §4; am L 2005, c 245, §§6, 8; am L2007, c 58, §1 and c 294, §2]

 

Note

 

  For amendment exempted from the repeal and reenactmentcondition placed on this section by L 2005, c 245, §8, as amended by L 2007, c294, §2, see L 2007, c 58, §3.

 

Attorney General Opinions

 

  Pursuant to this section and §304-11, board of regents mayenter into a collective bargaining agreement providing for tuition exemptionfor faculty and staff members.  Att. Gen. Op. 74-12.

 

Case Notes

 

  Where dates upon which plaintiffs were paid were not a"cost item" as that term is defined in §89-2, plaintiffs' contentionthat timing of their paychecks as it stood on June 30, 1999 was continuedanother two years until July 1, 2001 by Act 100, L 1999 (which, inter alia,amended this section), lacked merit.  Even if payroll lag was a cost item, thecollective bargaining agreement expired on June 30, 1999; plaintiffs' rightsunder the collective bargaining agreement expired on that day.  125 F. Supp. 2d1237.

  Board was empowered to make declaratory judgment regardingvalidity of collective bargaining agreement.  60 H. 436, 591 P.2d 113.

  Section does not bar arbitration of grievances over tenureand promotion.  66 H. 207, 659 P.2d 717.

  Does not limit board's power to order union to implementstaffing of essential positions.  66 H. 461, 667 P.2d 783.

  Policy statement was not bargainable to the extent that itconstituted compliance with the Drug-Free Workplace Act.  Because the Actinherently mandated implementation, appellant need not wait until appelleeattempted an implementation of an apparatus to effectuate the policy; becauseimplementation would affect bargainable topics, appellant may initiatebargaining at any time upon such topics.  79 H. 154, 900 P.2d 161.

  County did not violate collective bargaining statutes byrefusing to bargain over effects of privatization where because privatizationeffort was contrary to law, it was outside scope of negotiable topics.  85 H.61, 937 P.2d 397.

  Section 2 of Act 100, L 1999 violated the rights of publicemployees under article XIII, §2 of the Hawaii constitution by amending thissection to prohibit public employers and public employees' unions fromcollectively bargaining over cost items for the biennium 1999 to 2001.  100 H.138, 58 P.3d 649.

  Section 2 of Act 100, L 1999 (which amended subsection (a))violated article XIII, §2 of the Hawaii constitution because it withdrew fromthe collective bargaining process core subjects such as wages, hours, and otherconditions of employment that the voters contemplated would be part of thebargaining process when they ratified article XIII, §2.  101 H. 46, 62 P.3d189.

  The general prohibition in subsection (d) against a publicemployer and the exclusive representative of a collective bargaining unitagreeing to a "proposal inconsistent with merit principles" issubject to this subsection's provisions allowing for, inter alia, negotiationof promotion and demotion procedures in a collective bargaining agreement and agrievance process for violation thereof; §76-1, Revised Charter of Honolulu§§6-302, 6-306, 6-308, and rules of the civil service commission §§13-2 and13-3 do not conflict with subsection (d).  106 H. 205, 103 P.3d 365.

  In light of the plain language of subsection (d), laborrelations board erred in concluding that the city's proposed transfer of refuseworkers from one location to another was subject to collective bargaining undersubsection (a).  106 H. 359, 105 P.3d 236.

  As subsection (d) precludes collective bargaining overclassification issues and thus places them out of the reach of an arbitrator,who derived jurisdiction and authority from the collective bargainingagreement, arbitrator lacked arbitral jurisdiction.  101 H. 11 (App.), 61 P.3d522.

 

Hawaii Legal Reporter Citations

 

  Mandatory subjects of negotiation--classification plans. 78-2 HLR 78-939.