§377-9  Prevention of unfair labor
practices.  (a)  Any controversy concerning unfair labor practices may be
submitted to the board in the manner and with the effect provided in this
chapter, but nothing herein shall prevent the pursuit of relief in courts of
competent jurisdiction.



(b)  Any party in interest may file with the
board a written complaint, on a form provided by the board, charging any person
with having engaged in any specific unfair labor practice.  The board shall
serve a copy of the complaint upon the person charged, hereinafter referred to
as the respondent.  If the board has reasonable cause to believe that the
respondent is a member of or represented by a labor union, then service upon an
officer of the union shall be deemed to be service upon the respondent. 
Service may be by delivery to the person, or by mail or by telegram.  Any other
person claiming interest in the dispute or controversy, as an employer, an
employee or their representative, shall be made a party upon proof of the interest. 
The board may bring in additional parties by service of a copy of the
complaint.  Only one complaint shall issue against a person with respect to a
single controversy, but any complaint may be amended in the discretion of the
board at any time prior to the issuance of a final order based thereon.  The
respondent may file an answer to the original or amended complaint but the
board may find to be true any allegation in the complaint in the event either
no answer is filed or the answer neither specifically denies nor explains the
allegation nor states that the respondent is without knowledge concerning the
allegation.  The respondent shall have the right to appear in person or
otherwise give testimony at the place and time fixed in the notice of hearing. 
The hearing on the complaint shall be before either the board or a hearings
officer of the board, as the board may determine.



The board shall fix a time for the hearing on
the complaint, which shall be not less than ten nor more than forty days after
the filing of the complaint or amendment thereof, and notice shall be given to
each party by service on the party personally or by mailing a copy thereof to
the party at the party's last known post office address at least ten days
before the hearing.  In case a party in interest is located without the State
and has no known post office address within the State, a copy of the complaint
and copies of all notices shall be filed in the office of the lieutenant
governor and shall also be sent by registered mail to the last known post
office address of the party.  Such filing and mailing shall constitute
sufficient service with the same force and effect as if served upon a party
located within the State.  The hearing may be adjourned from time to time in
the discretion of the board and hearings may be held at such places as the
board shall designate.



In all proceedings under this chapter before
the board, each member of the board may issue subpoenas and administer oaths. 
Depositions may be taken in the manner prescribed by law.  No person shall be
excused from attending and testifying or from producing books, records,
correspondence, documents, or other evidence in obedience to the subpoena on
the ground that the testimony or evidence required of the person may tend to
incriminate the person or subject the person to a penalty or forfeiture under
the laws of the State, but such person shall not be prosecuted or subjected to
any penalty or forfeiture for or on account of any transaction, matter, or
thing concerning which the person may testify or produce evidence, documentary
or otherwise, in such proceedings.  Such person so testifying shall not be
exempt, however, from prosecution and punishment for perjury committed in so
testifying.



Any person who wilfully and unlawfully fails or
neglects to appear or to testify or to produce books, papers, and records as
required, shall, upon application to a circuit judge, be ordered to appear
before the board, there to testify or produce evidence if so ordered, and
failure to obey the order may be punished as a contempt of court.



Each witness who appears before the board by
subpoena shall receive for the witness' attendance the fees and mileage
provided for witnesses in civil cases in courts of record, which shall be
audited and paid by the State in the same manner as other expenses are audited
and paid, upon the presentation of properly verified vouchers approved by the
board.



(c)  A full and complete record shall be kept
of all proceedings had before the board and all testimony and proceedings shall
be taken down by a reporter engaged for such purpose or by use of a mechanical
recording device.  It shall not be necessary to transcribe the record unless
requested for purposes of rehearing or court review.  In the proceedings the
board shall not be bound by technical rules of evidence.  No hearsay evidence,
however, shall be admitted or considered.



(d)  After the final hearing, the board shall
promptly make and file an order or decision, incorporating findings of fact
upon all the issues involved in the controversy and the determination of the
rights of the parties.  Pending the final determination of the controversy the
board may, after hearing, make interlocutory orders which may be enforced in
the same manner as final orders.  Final orders may dismiss the complaint or
require the person complained of to cease and desist from the unfair labor
practices found to have been committed, suspend the person's rights,
immunities, privileges, or remedies granted or afforded by this chapter for not
more than one year, and require the person to take affirmative action,
including reinstatement of employees and make orders in favor of employees
making them whole, including back pay with interest, costs, and attorneys'
fees.  Any order may further require the person to make reports from time to
time showing the extent to which the person has complied with the order.  Furthermore,
an employer or employee who wilfully or repeatedly commits unfair or prohibited
practices that interfere with the statutory rights of an employer or employees
or discriminates against an employer or employees for the exercise of protected
conduct shall be subject to a civil penalty not to exceed $10,000 for each
violation.  In determining the amount of any penalty under this section, the
board shall consider the gravity of the unfair or prohibited practice and the
impact of the practice on the charging party, on other persons seeking to
exercise rights guaranteed by this section, or on public interest.



(e)  If any person fails or neglects to obey an
order of the board while the same is in effect the board may petition the
circuit judge of the judicial circuit wherein the person resides or usually
transacts business for the enforcement of the order and for appropriate temporary
relief or restraining order, and shall certify and file in the court the record
in the proceedings, including all documents and papers on file in the matter,
the pleadings and testimony upon which the order was entered, and the decision
and order of the board.  Upon such filing the board shall cause notice thereof
to be served upon the person by mailing a copy to the person's last known post
office address, and thereupon the judge shall have jurisdiction in the
premises.



(f)  Any person aggrieved by the decision or
order of the board may obtain a review thereof as provided in chapter 91 by
instituting proceedings in the circuit court of the judicial circuit in which
the person or any party resides or transacts business, subject, however, to the
general provisions of law for a change of the place of trial or the calling in
of another judge.  Where different parties in the same proceeding file
petitions for review in two or more courts having proper jurisdiction, the
jurisdiction of the judge first petitioned shall be exclusive and the other
petitions shall be transferred to the judge.  The petition shall state the
grounds upon which a review is sought and copies thereof shall be served upon
the other parties and the board.  Service may be made by mailing such copies to
the last known post office address of the parties concerned.  When the
proceedings are at issue, they may be brought on for hearing before the court
upon the record by any party on ten days' written notice to the others.  Upon
the hearing, the court may confirm, modify, or set aside the decision or order
of the board and enter an appropriate decree.  No objection that has not been
urged before the board shall be considered by the court unless the failure or
neglect to urge the objection shall be excused because of extraordinary
circumstances.



(g)  In any proceedings for review of a
decision or order of the board, the judge shall disregard any irregularity or
error unless it is made to appear affirmatively that the complaining party was
prejudiced thereby.



(h)  Commencement of proceedings under
subsection (f) of this section shall not stay enforcement of the board
decisions or order; but the board, or the reviewing court may order a stay upon
such terms as it deems proper.



(i)  Petitions filed under this section shall
have preference over any civil cause of a different nature pending in the
circuit court, shall be heard expeditiously, and the circuit courts shall
always be deemed open for the trial thereof.



(j)  [L 2004, c 202, §37 amendment
repealed June 30, 2010.  L 2006, c 94, §1.]  Any party may appeal
from the judgment of a circuit court entered under this chapter, subject to
chapter 602, in the manner provided for civil appeals from the circuit courts.



(k)  A substantial compliance with the
procedure of this chapter shall be sufficient to give effect to the decisions
and orders of the board, and they shall not be declared inoperative, illegal,
or void for any nonprejudicial irregularity in respect thereof.



(l)  No complaints of any specific unfair labor
practice shall be considered unless filed within ninety days of its occurrence.
[L 1945, c 250, §9; am L 1951, c 249, §9; RL 1955, §90-10; am L 1965, c 96, §66
and c 244, §§4, 5; HRS §377-9; am L 1979, c 111, §16; am L 1985, c 251, §18;
gen ch 1985; am L 2004, c 202, §37; am L 2009, c 6, §2]



 



Note



 



  L 2004, c 202, §82 provides:



  "SECTION 82.  Appeals pending in the supreme court as of
the effective date of this Act [July 1, 2006] may be transferred to the
intermediate appellate court or retained at the supreme court as the chief
justice, in the chief justice's sole discretion, directs."



 



Cross References



 



  Administrative procedure, see chapter 91.



  Jurisdiction of courts, see §380-14.



  Mailing of notice, see §1-28.



  Oaths, subpoenas, see §§1-21, 603-21.9, 621-1, 621-12.



 



Rules of Court



 



  Appeals, see Hawaii Rules of Appellate Procedure.



  Complaint in lieu of petition, see HRCP rules 3, 81(i).



  Depositions, see HRCP, pt V.



  Oaths, subpoenas, see HRCP rules 43(d), 45.



 



Case Notes



 



  Circuit court proceeding for enforcement of H.E.R.B. order
cannot be removed to federal court.  253 F. Supp. 597.



  Based on the plain meaning of this act, the legislature has
granted discretion to the Hawaii labor relations board in crafting remedial orders
when an employer has committed an unfair labor practice;  where board's
substantive remedy did not supply the terms of an ongoing collective bargaining
relationship but rather was in the nature of a one-time payout calculated to
remedy the unfair labor practice that the board found employer had committed,
remedy was not unreasonable or in disregard of principles of law and was not an
abuse of discretion.  112 H. 489, 146 P.3d 1066.