Ā§377-9Ā  Prevention of unfair laborpractices.Ā  (a)Ā  Any controversy concerning unfair labor practices may besubmitted to the board in the manner and with the effect provided in thischapter, but nothing herein shall prevent the pursuit of relief in courts ofcompetent jurisdiction.

(b)Ā  Any party in interest may file with theboard a written complaint, on a form provided by the board, charging any personwith having engaged in any specific unfair labor practice.Ā  The board shallserve a copy of the complaint upon the person charged, hereinafter referred toas the respondent.Ā  If the board has reasonable cause to believe that therespondent is a member of or represented by a labor union, then service upon anofficer of the union shall be deemed to be service upon the respondent.Ā Service may be by delivery to the person, or by mail or by telegram.Ā  Any otherperson claiming interest in the dispute or controversy, as an employer, anemployee or their representative, shall be made a party upon proof of the interest.Ā The board may bring in additional parties by service of a copy of thecomplaint.Ā  Only one complaint shall issue against a person with respect to asingle controversy, but any complaint may be amended in the discretion of theboard at any time prior to the issuance of a final order based thereon.Ā  Therespondent may file an answer to the original or amended complaint but theboard may find to be true any allegation in the complaint in the event eitherno answer is filed or the answer neither specifically denies nor explains theallegation nor states that the respondent is without knowledge concerning theallegation.Ā  The respondent shall have the right to appear in person orotherwise give testimony at the place and time fixed in the notice of hearing.Ā The hearing on the complaint shall be before either the board or a hearingsofficer of the board, as the board may determine.

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

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

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

Each witness who appears before the board bysubpoena shall receive for the witness' attendance the fees and mileageprovided for witnesses in civil cases in courts of record, which shall beaudited and paid by the State in the same manner as other expenses are auditedand paid, upon the presentation of properly verified vouchers approved by theboard.

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

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

(e)Ā  If any person fails or neglects to obey anorder of the board while the same is in effect the board may petition thecircuit judge of the judicial circuit wherein the person resides or usuallytransacts business for the enforcement of the order and for appropriate temporaryrelief or restraining order, and shall certify and file in the court the recordin the proceedings, including all documents and papers on file in the matter,the pleadings and testimony upon which the order was entered, and the decisionand order of the board.Ā  Upon such filing the board shall cause notice thereofto be served upon the person by mailing a copy to the person's last known postoffice address, and thereupon the judge shall have jurisdiction in thepremises.

(f)Ā  Any person aggrieved by the decision ororder of the board may obtain a review thereof as provided in chapter 91 byinstituting proceedings in the circuit court of the judicial circuit in whichthe person or any party resides or transacts business, subject, however, to thegeneral provisions of law for a change of the place of trial or the calling inof another judge.Ā  Where different parties in the same proceeding filepetitions for review in two or more courts having proper jurisdiction, thejurisdiction of the judge first petitioned shall be exclusive and the otherpetitions shall be transferred to the judge.Ā  The petition shall state thegrounds upon which a review is sought and copies thereof shall be served uponthe other parties and the board.Ā  Service may be made by mailing such copies tothe last known post office address of the parties concerned.Ā  When theproceedings are at issue, they may be brought on for hearing before the courtupon the record by any party on ten days' written notice to the others.Ā  Uponthe hearing, the court may confirm, modify, or set aside the decision or orderof the board and enter an appropriate decree.Ā  No objection that has not beenurged before the board shall be considered by the court unless the failure orneglect to urge the objection shall be excused because of extraordinarycircumstances.

(g)Ā  In any proceedings for review of adecision or order of the board, the judge shall disregard any irregularity orerror unless it is made to appear affirmatively that the complaining party wasprejudiced thereby.

(h)Ā  Commencement of proceedings undersubsection (f) of this section shall not stay enforcement of the boarddecisions or order; but the board, or the reviewing court may order a stay uponsuch terms as it deems proper.

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

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

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

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

 

Note

 

Ā  L 2004, c 202, Ā§82 provides:

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

 

Cross References

 

Ā  Administrative procedure, see chapter 91.

Ā  Jurisdiction of courts, see Ā§380-14.

Ā  Mailing of notice, see Ā§1-28.

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

 

Rules of Court

 

Ā  Appeals, see Hawaii Rules of Appellate Procedure.

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

Ā  Depositions, see HRCP, pt V.

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

 

Case Notes

 

Ā  Circuit court proceeding for enforcement of H.E.R.B. ordercannot be removed to federal court.Ā  253 F. Supp. 597.

Ā  Based on the plain meaning of this act, the legislature hasgranted discretion to the Hawaii labor relations board in crafting remedial orderswhen an employer has committed an unfair labor practice;Ā  where board'ssubstantive remedy did not supply the terms of an ongoing collective bargainingrelationship but rather was in the nature of a one-time payout calculated toremedy 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 anabuse of discretion.Ā  112 H. 489, 146 P.3d 1066.