§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 under
section 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 Hawaii
employer-union health benefits trust fund or a voluntary employees' beneficiary
association trust to the extent allowed in subsection (e), and other terms and
conditions of employment that are subject to collective bargaining and that are
to be embodied in a written agreement as specified in section 89-10, but the
obligation does not compel either party to agree to a proposal or make a
concession; provided that the parties may not negotiate with respect to cost
items as defined by section 89-2 for the biennium 1999 to 2001, and the cost
items 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 exclusive
representative desiring to initiate negotiations shall notify the other party
in writing, setting forth the time and place of the meeting desired and the
nature of the business to be discussed, sufficiently in advance of the meeting.



(c)  Except as otherwise provided in this
chapter, all matters affecting employee relations, including those that are, or
may be, the subject of a rule adopted by the employer or any director, shall be
subject to consultation with the exclusive representatives of the employees
concerned.  The employer shall make every reasonable effort to consult with
exclusive representatives and consider their input, along with the input of
other affected parties, prior to effecting changes in any major policy
affecting employee relations.



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



(1)  Direct employees;



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



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



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



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



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



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



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



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



Violations of the procedures and criteria so
negotiated may be subject to the grievance procedure in the collective
bargaining agreement.



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



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



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



(2)  If repricing has not been negotiated under
paragraph (1), the employer of each jurisdiction shall ensure establishment of
procedures to periodically review, at least once in five years, unless
otherwise agreed to by the parties, the repricing of classes within the
bargaining unit.  The repricing of classes based on the results of the periodic
review shall be at the discretion of the employer.  Any appropriations required
to implement the repricing actions that are made at the employer's discretion
shall not be construed as cost items. [L 1970, c 171, pt of §2; am L 1975, c
31, §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, c
364, §§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 L
2007, c 58, §1 and c 294, §2]



 



Note



 



  For amendment exempted from the repeal and reenactment
condition placed on this section by L 2005, c 245, §8, as amended by L 2007, c
294, §2, see L 2007, c 58, §3.



 



Attorney General Opinions



 



  Pursuant to this section and §304-11, board of regents may
enter into a collective bargaining agreement providing for tuition exemption
for 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' contention
that timing of their paychecks as it stood on June 30, 1999 was continued
another 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, the
collective bargaining agreement expired on June 30, 1999; plaintiffs' rights
under the collective bargaining agreement expired on that day.  125 F. Supp. 2d
1237.



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



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



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



  Policy statement was not bargainable to the extent that it
constituted compliance with the Drug-Free Workplace Act.  Because the Act
inherently mandated implementation, appellant need not wait until appellee
attempted an implementation of an apparatus to effectuate the policy; because
implementation would affect bargainable topics, appellant may initiate
bargaining at any time upon such topics.  79 H. 154, 900 P.2d 161.



  County did not violate collective bargaining statutes by
refusing to bargain over effects of privatization where because privatization
effort 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 public
employees under article XIII, §2 of the Hawaii constitution by amending this
section to prohibit public employers and public employees' unions from
collectively 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 from
the collective bargaining process core subjects such as wages, hours, and other
conditions of employment that the voters contemplated would be part of the
bargaining process when they ratified article XIII, §2.  101 H. 46, 62 P.3d
189.



  The general prohibition in subsection (d) against a public
employer and the exclusive representative of a collective bargaining unit
agreeing to a "proposal inconsistent with merit principles" is
subject to this subsection's provisions allowing for, inter alia, negotiation
of promotion and demotion procedures in a collective bargaining agreement and a
grievance 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 and
13-3 do not conflict with subsection (d).  106 H. 205, 103 P.3d 365.



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



  As subsection (d) precludes collective bargaining over
classification issues and thus places them out of the reach of an arbitrator,
who derived jurisdiction and authority from the collective bargaining
agreement, arbitrator lacked arbitral jurisdiction.  101 H. 11 (App.), 61 P.3d
522.



 



Hawaii Legal Reporter Citations



 



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