"Appropriate bargaining unit" means the unit designated to be appropriate for the purpose of collective bargaining pursuant to section 89-6.

    "Arbitration" means the procedure whereby parties involved in an impasse submit their differences to a third party, whether a single arbitrator or an arbitration panel, for an arbitration decision. It may include mediation whereby the neutral third party is authorized to assist the parties in a voluntary resolution of the impasse.

    "Board" means the Hawaii labor relations board created pursuant to section 89-5.

    "Collective bargaining" means the performance of the mutual obligations of the public employer and an exclusive representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to wages, hours, amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund, and other terms and conditions of employment, except that by any such obligation neither party shall be compelled to agree to a proposal, or be required to make a concession. For the purposes of this definition, "wages" includes the number of incremental and longevity steps, the number of pay ranges, and the movement between steps within the pay range and between the pay ranges on a pay schedule under a collective bargaining agreement.

    "Cost items" means all items agreed to in the course of collective bargaining that an employer cannot absorb under its customary operating budgetary procedures and that require additional appropriations by its respective legislative body for implementation.

    "Day" means a calendar day unless otherwise specified.

    "Employee" or "public employee" means any person employed by a public employer, except elected and appointed officials and other employees who are excluded from coverage in section [89-6(f)]

    "Employee organization" means any organization of any kind in which public employees participate and which exists for the primary purpose of dealing with public employers concerning grievances, labor disputes, wages, hours, amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund, and other terms and conditions of employment of public employees.

    "Employer" or "public employer" means the governor in the case of the State, the respective mayors in the case of the counties, the chief justice of the supreme court in the case of the judiciary, the board of education in the case of the department of education, the board of regents in the case of the University of Hawaii, the Hawaii health systems corporation board in the case of the Hawaii health systems corporation, and any individual who represents one of these employers or acts in their interest in dealing with public employees. In the case of the judiciary, the administrative director of the courts shall be the employer in lieu of the chief justice for purposes which the chief justice determines would be prudent or necessary to avoid conflict.

    "Exclusive representative" means the employee organization certified by the board under section 89-8 as the collective bargaining agent to represent all employees in an appropriate bargaining unit without discrimination and without regard to employee organization membership.

    "Impasse" means failure of a public employer and an exclusive representative to achieve agreement in the course of collective bargaining. It includes any declaration of an impasse under section 89-11.

    "Jurisdiction" means the State, the city and county of Honolulu, the county of Hawai'i, the county of Maui, the county of Kaua'i, the judiciary, and the Hawaii health systems corporation.

    "Legislative body" means the legislature in the case of the State, including the judiciary, the department of education, the University of Hawai'i, and the Hawaii health systems corporation; the city council, in the case of the city and county of Honolulu; and the respective county councils, in the case of the counties of Hawai'i, Maui, and Kaua'i.

    "Mediation" means assistance by a neutral third party to resolve an impasse between the public employer and the exclusive representative through interpretation, suggestion, and advice.

    "Strike" means a public employee's refusal, in concerted action with others, to report for duty, or the employee's wilful absence from the employee's position, or the employee's stoppage of work, or the employee's abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment, for the purpose of inducing, influencing, or coercing a change in the conditions, compensation, rights, privileges, or obligations of public employment; and except in the case of absences authorized by public employers, includes such refusal, absence, stoppage, or abstinence by any public employee out of sympathy or support for any other public employee who is on strike or because of the presence of any picket line maintained by any other public employee; provided that, nothing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of employment. [L 1970, c 171, pt of §2; am L 1977, c 159, §16; am L 1980, c 252, §1; am L 1981, c 180, §2; am imp L 1984, c 90, §1 and am L 1984, c 254, §3; am L 1985, c 251, §3; gen ch 1985; am L 2000, c 253, § 93; am L 2001, c 90, § 8; am L 2002, c 232, §5; am L 2005, c 245, §3; ; am L 2007, c 294, §2; am L Sp 2008, c 5, §1; am L 2010, c 106, §2; am L 2011, c 43, §1]

    (c) The employer shall continue all payroll assignments authorized by an employee prior to July 1, 1970 and all assignments authorized under subsection (b) until the employee provides written notification within thirty days before the anniversary.date of the employee's execution of the written authorization under subsection (b), to the employee's exclusive representative to to discontinue the employee's assignments. The employee's exclusive representative shall provide a copy of the employee's written notification to the employer within ten business days of receipt from the employee.

    (d) If any provision of this section, or application thereof to any person or circumstances, is held invalid, the remainder of the section, or the application of the provision to other persons or circumstances, shall not be affected thereby. [L 1970, c 171, pt of §2; am L 1981, c 180, §1; am L 1982, c 100, §1; am imp L 1984, c 90, §1; gen ch 1985; am L 2018, c 7, §1]

    §89-5 Hawaii labor relations board.(a) There is created a Hawaii labor relations board to ensure that collective bargaining is conducted in accordance with this chapter and that the merit principle under section 76-1 is maintained.
    (b) The board shall be composed of three members of which (1) one member shall be representative of management, (2) one member shall be representative of labor, and (3) the third member, the chairperson, shall be representative of the public. All members shall be appointed for terms of six years each in accordance with the following procedures:

    (b) Because of the nature of work involved and the essentiality of certain occupations that require specialized training, supervisory employees who are eligible for inclusion in units (9) through (15) shall be included in units (9) through (15), respectively, instead of unit (2) or (4).

    (c) The classification systems of each jurisdiction shall be the bases for differentiating blue collar from white collar employees, professional from institutional, health and correctional workers, supervisory from nonsupervisory employees, teachers from educational officers, and faculty from nonfaculty. In differentiating supervisory from nonsupervisory employees, class titles alone shall not be the basis for determination. The nature of the work, including whether a major portion of the working time of a supervisory employee is spent as part of a crew or team with nonsupervisory employees, shall be considered also.

    (d) For the purpose of negotiating a collective bargaining agreement, the public employer of an appropriate bargaining unit shall mean the governor together with the following employers:

    Any decision to be reached by the applicable employer group shall be on the basis of simple majority, except when a bargaining unit includes county employees from more than one county. In that case, the simple majority shall include at least one county.

    (e) In addition to a collective bargaining agreement under subsection (d), each employer may negotiate, independently of one another, supplemental agreements that apply to their respective employees; provided that any supplemental agreement reached between the employer and the exclusive representative shall not extend beyond the term of the applicable collective bargaining agreement and shall not require ratification by employees in the bargaining unit.

    (f) The following individuals shall not be included in any appropriate bargaining unit or be entitled to coverage under this chapter:

    (h) Where any controversy arises under this section, the board, pursuant to chapter 91, shall make an investigation and, after a hearing upon due notice, make a final determination on the applicability of this section to specific individuals, employees, or positions. [L 1970, c 171, pt of sec 2; am L 1973, c 36, §1; am L 1975, c 162, §1; am L 1976, c 13, §1; am L 1977, c 191, §1; am L 1987, c 184, §1 and c 311, §1; am L 1988, c 394, §1 and c 399, §2; am L 1996, c 89, §5; am L 2000, c 253, § 96; am L 2005, c 202, §3 and c 245, §5; am L 2006, c 38, §32 and c 298, §7; ; am L 2007, c 115, §§3, 16 and c 294, §2; am L 2008, c 16, §18; am L Sp 2008, c 5, §1; am L 2010, c 106, §2; am L 2012, c 130 §5; am L 2013, c 137 §2; am L 2020, c 31, §1]

    (b) In any election where none of the choices on the ballot receives a majority of the votes cast, a runoff election shall be conducted with the ballot providing for a selection between the two choices receiving the largest number of valid votes cast in the election. The board shall certify the election results and the employee organization receiving a majority of the votes cast shall be certified as the exclusive representative of all employees in the appropriate bargaining unit for the purpose of collective bargaining. The employee organization shall remain certified as the exclusive representative until it is replaced by another employee organization, decertified, or dissolved.

    (c) No election shall be directed by the board in any appropriate bargaining unit within which:

    (d) The board shall adopt rules and regulations consistent with this section governing the conduct of elections to determine representation, including the time, place, manner of notification, and reporting the results of elections, and the manner for filing any petition for an election and decertification election or any petition concerning the results of an election. No mail ballots shall be permitted by the board except when for reasonable cause a specific individual would otherwise be unable to cast a ballot. No names, addresses or information regarding the work location of employees eligible to vote shall be provided to employee organizations involved in an election. The board shall have the final determination on any controversy concerning the eligibility of an employee to vote. [L 1970, c 171, pt of §2; am L 1988, c 399, §3; am L 2000, c 253, §97; am L 2013, c 137, §3]

    (b) An individual employee may present a grievance at any time to the employee's employer and have the grievance heard without intervention of an employee organization; provided that the exclusive representative is afforded the opportunity to be present at such conferences and that any adjustment made shall not be inconsistent with the terms of an agreement then in effect between the employer and the exclusive representative.

    (c) Employee participation in the collective bargaining process conducted by the exclusive representative of the appropriate bargaining unit shall be permitted during regular working hours without loss of regular salary or wages. The number of participants from each bargaining unit with over 2,500 members shall be limited to one member for each five hundred members of the bargaining unit. For bargaining units with less than 2,500 members, there shall be at least five participants, one of whom shall reside in each county; provided that there need not be a participant residing in each county for the bargaining unit established by section 89-6(a)(8). The bargaining unit shall select the participants from representative departments, divisions or sections to minimize interference with the normal operations and service of the departments, divisions or sections. [L 1970, c 171, pt of §2; am L 1971, c 212, §2; am L 1977, c 191, §3; gen ch 1985]

    (d) 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, 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:

    This subsection shall not be used to invalidate provisions of collective bargaining agreements in effect on and after June 30, 2007, and except as otherwise provided in this chapter, shall not preclude negotiations over the implementation of management decisions that affect terms and conditions of employment that are subject to collective bargaining. Further, this subsection shall not preclude negotiations over the procedures and criteria on promotions, transfers, assignments, demotions, layoffs, suspensions, terminations, discharges, or other disciplinary actions as subjects of bargaining during collective bargaining negotiations or negotiations over a memorandum of agreement, memorandum of understanding, or other supplemental agreement; provided that such obligation shall not compel either party· to agree to a proposal or make a concession.
    Violations of the procedures and criteria so negotiated may be subject to the grievance procedure in the collective bargaining agreement.

    (e) Negotiations relating to contributions to the Hawaii employer-union health benefits trust fund shall be for the purpose of agreeing upon the amounts which the State and counties shall contribute under section 87A-32, 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.

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

    (b) All cost items shall be subject to appropriations by the appropriate legislative bodies. The employer shall submit within ten days of the date on which the agreement is ratified by the employees concerned all cost items contained therein to the appropriate legislative bodies, except that if any cost items require appropriation by the state legislature and it is not in session at the time, the cost items shall be submitted for inclusion in the governor's next operating budget within ten days after the date on which the agreement is ratified. The state legislature or the legislative bodies of the counties acting in concert, as the case may be, may approve or reject the cost items submitted to them, as a whole. If the state legislature or the legislative body of any county rejects any of the cost items submitted to them, all cost items submitted shall be returned to the parties for further bargaining.

    (c) Because effective and orderly operations of government are essential to the public, it is declared to be in the public interest that in the course of collective bargaining, the public employer and the exclusive representative for each bargaining unit shall by mutual agreement include provisions in the collective bargaining agreement for that bargaining unit for an expiration date which will be on June 30th of an odd-numbered 5 year. The parties may include provisions for reopening during the term of a collective bargaining agreement; provided that cost items as defined in section 89-2 shall be subject to the requirements of this section.

    (d) Whenever there is a conflict between the collective bargaining agreement and any of the rules adopted by the employer, including civil service or other personnel policies, standards, and procedures, the terms of the agreement shall prevail; provided that the terms are not inconsistent with section 89-9(d). Whenever there are provisions in a collective bargaining agreement concerning a matter under chapter 76 or 78 that is negotiable under chapter 89, the terms of the agreement shall prevail; provided that the terms are not inconsistent with section 89-9(d). [L 1970, c 171, pt of §2; am L 1975, c 162, §2; am L 1988, c 399, §1; am L 2000, c 253, § 99; am L 2002, c 195, §1]

(1) A dispute over the terms of an initial or renewed agreement shall not constitute a grievance;

(2) No employee in a position exempted from chapter 76, who serves at the pleasure of the appointing authority, shall be allowed to grieve a suspension or discharge unless the collective bargaining agreement specifically provides otherwise; and

(3) With respect to any adverse action resulting from an employee's failure to meet performance requirements of the employee's position, the grievance procedure shall provide that the final and binding decision shall be made by a performance judge as provided in this section.

    (b) The performance judge shall be a neutral third party selected from a list of persons whom the parties have mutually agreed are eligible to serve as a performance judge for the duration of the collective bargaining agreement. The parties, by mutual agreement, may modify the performance judge list at any time and shall determine a process for selection from the list.

    (c) The performance judge shall use the conditions in section 76-41(b) as tests in reaching a decision on whether the employer's action, based on a failure by the employee to meet the performance requirements of the employee's position, was with or without merit.

    (d) If it is alleged that the adverse action was not due to a failure to meet performance requirements but for disciplinary reasons without just and proper cause, the performance judge shall first proceed with a determination on the merits of the employer's action under subsection (c). If the performance judge determines that the adverse action may be based on reasons other than a failure to meet performance requirements, the performance judge shall then determine, based on appropriate standards of review, whether the disciplinary action was with or without proper cause and render a final and binding decision. [L 2000, c 253, § 91]

    (b) An impasse during the term of a collective bargaining agreement on reopened items or items regarding a supplemental agreement shall not be subject to the impasse procedures in this section. The parties may mutually agree on an impasse procedure, but if the procedure culminates in an arbitration decision, the decision shall be pursuant to subsection (f).

    (c) An impasse over the terms of an initial or renewed agreement and the date of impasse shall be as follows:

    (d) If an impasse exists between a public employer and the exclusive bargaining representative of bargaining unit (1), nonsupervisory employees in blue collar positions; bargaining unit (5), teachers and other personnel of the department of education; or bargaining unit (7), faculty of the University of Hawai'i and the community college system, the board shall assist in the resolution of the impasse as follows:

    (e) If an impasse exists between a public employer and the exclusive representative of bargaining unit (2), supervisory employees in blue collar positions; bargaining unit (3), nonsupervisory employees in white collar positions; bargaining unit (4), supervisory employees in white collar positions; bargaining unit (6), educational officers and other personnel of the department of education under the same salary schedule; bargaining unit (8), personnel of the University of Hawaii and the community college system, other than faculty, bargaining unit (9), registered professional nurses; bargaining unit (10), institutional, health, and correctional workers; optional appropriate bargaining unit (11), firefighters; bargaining unit (12), police officers; bargaining unit (13), professional and scientific employees; bargaining unit (14), state law enforcement officers; or bargaining unit (15), state and county ocean safety and water safety officers, the board shall assist in the resolution of the impasse as follows:

    (f) An arbitrator or arbitration panel in reaching its decision shall give weight to the following factors and shall include in its written report or decision an explanation of how the factors were taken into account :

    (g) The decision of the arbitration panel shall be final and binding upon the parties on all provisions submitted to the arbitration panel. If the parties have reached agreement with respect to the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund by the tenth working day after the arbitration panel issues its decision, the final and binding agreement of the parties on all provisions shall consist of the panel's decision and the amounts of contributions agreed to by the parties. If the parties have not reached agreement with respect to the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund by the close of business on the tenth working day after the arbitration panel issues its decision, the parties shall have five days to submit their respective recommendations for such contributions to the legislature, if it is in session, and if the legislature is not in session, the parties shall submit their respective recommendations for such contributions to the legislature during the next session of the legislature. In such event, the final and binding agreement of the parties on all provisions shall consist of the panel's decision and the amounts of contributions established by the legislature by enactment, after the legislature has considered the recommendations for such contributions by the parties. It is strictly understood that no member of a bargaining unit subject to this subsection shall be allowed to participate in a strike on the issue of the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund. The parties shall take whatever action is necessary to carry out and effectuate the final and binding agreement. The parties may, at any time and by mutual agreement, amend or modify the panel's decision.
    Agreements reached pursuant to the decision of an arbitration panel and the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund, as provided herein, shall not be subject to ratification by the employees concerned. All items requiring any moneys for implementation shall be subject to appropriations by the appropriate legislative bodies and the employer shall submit all such items within ten days after the date on which the agreement is entered into as provided herein, to the appropriate legislative bodies.

    (h) Any time frame provided in an impasse procedure, whether an alternate procedure or the procedures in this section, may be modified by mutual agreement of the parties. In the absence of a mutual agreement to modify time frames, any delay, failure, or refusal by either party to participate in the impasse procedure shall not be permitted to halt or otherwise delay the process, unless the board so orders due to an unforeseeable emergency. The process shall commence or continue as though all parties were participating.

    (i) Nothing in this section shall be construed to prohibit the parties from reaching a voluntary settlement on the unresolved issues at any time prior to the issuance of an arbitration decision.

    (j) The costs and expenses for mediation provided under subsection (d) or (e) shall be borne by the board. The costs and expenses for any other services performed by neutrals pursuant to mutual agreement of the parties and the costs for a neutral arbitrator shall be borne equally by the parties. All other costs incurred by either party in complying with this section, including the costs of its selected member on the arbitration panel, shall be borne by the party incurring them." [L1970, c 171, pt of §2; am L 1978, c 108, §1,; am L 1984, c 75, §1, c 219, §1, and c 254, §2; am imp L 1984, c 90, §1; am L 1985, c 251, §5; am L 1995, c 202, §1 and c 208, §1; am L 2000, c 253, §100; am L 2001, c 90, §9; am L 2002, c 189, §1 and c 232, §3; am L Sp 2003, c 6, §1; am L 2004, c 10, §5; am L 2013, c 137, §4; am L 2014, c 75, §1; am L 2019, c 231, §2; am L 2020, c 31, §2]

Within three days of receipt of the notice of intent to strike, the employer shall submit its position on the remaining issues in dispute that are included in the statement transmitted by the exclusive representative with its notice of intent to strike. The board shall immediately release the information on the positions of the parties to the public.

    (c) No employee organization shall declare or authorize a strike of employees, which is or would be in violation of this section. Where it is alleged by the public employer that an employee organization has declared or authorized a strike of employees which is or would be in violation of this section, the public employer may apply to the board for a declaration that the strike is or would be unlawful and the board, after affording an opportunity to the employee organization to be heard on the application, may make such a declaration.

    (d) If any employee organization or any employee is violating or failing to comply with the requirements of this section, or if there is reasonable cause to believe that an employee organization or an employee will violate or fail to comply with such requirements, the public employer affected shall, forthwith, institute appropriate proceedings in the circuit in which the violation occurs to enjoin the performance of any acts or practices forbidden by this section, or to require the employee organization or employees to comply with the requirements of this section.
    Jurisdiction to hear and dispose of all actions under this section is conferred upon each circuit court, and each court may issue in compliance with chapter 380, such orders and decrees, by way of injunction, mandatory injunction, or otherwise, as may be appropriate to enforce this section.
    The right to a jury trial shall not apply to any proceeding brought under this section. [L 1970, c 171, pt of §2; am L 1980, c 252, §2; am imp L 1984, c 90, §1; am L 2000, c 253, §101; am L 2001, c 90, § 10; am L 2002, c 232, §4]

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

    (b) Information disclosed to the exclusive representative under this section shall be provided within a reasonable time after receipt of the written request.

    (c) Information regarding new hire employees under this section shall be provided to the appropriate exclusive representatives within two payroll periods.

    (d) An exclusive representative receiving government records pursuant to this section shall be subject to the same restrictions on disclosure of the records as the originating agency.

    (e) Information disclosed pursuant to this section shall be provided in a form conducive to electronic data processing; provided the employer possesses appropriate data processing capability. [L 1990, c 250, §1; am L 1991, c 152, §1; am L 2019, c 196, §1]

    (b) The position of chief negotiator for the State is hereby established to head the office. The chief negotiator shall be experienced in labor relations. The governor shall appoint the chief negotiator and may also appoint deputy negotiators to assist the chief negotiator. The governor, at pleasure, may remove the chief negotiator and any deputy negotiator. All other employees shall be appointed by the chief negotiator. All employees in the office of collective bargaining and managed competition shall be included in any benefit programs generally applicable to employees of the State.

    (c) Subject to the approval of the governor, the office of collective bargaining and managed competition shall:

    (d) No employee of the office of collective bargaining and managed competition shall be included in the civil service, any civil service classification system, or any appropriate bargaining unit; provided that any civil service position in existence on July 1, 2002, shall not be exempted from civil service until the incumbent in that position on the effective date of this Act vacates that position.

    (e) If the State executes a contract with a private contractor pursuant to the managed competition process authorized under this section, the State may use the layoff provisions of the civil service laws and the respective collective bargaining contracts to release employees displaced from their positions by the managed competition process. Prior to implementing any layoff provision of the civil service laws or a collective bargaining contract, the State shall use its resources for placing, retraining, and providing voluntary severance incentives for displaced employees. Methods that may be used to minimize or avoid the adverse effects of an agency's decision to secure needed services from contractors may include:

    (f) As used in this section, "managed competition" means the process established in this section by which the State and a private contractor compete to provide government services.[ L 1975, c 165, §2; am L 1977, 191, §4; am L 1982, c 129, §4; am L 1985, c 29, §1, am L 1986, c 128, §4; am L 1989, c 329, §3 ; am L 2000, c 253, §104; am L 2001, c. 90; §§4-5; am L 2002, c 106, §2; am L 2011, c 43 §2]

SECTION: