It likely centers on an interpretation of state law regarding an impasse in labor negotiations that has never been tested.
Should Abercrombie prevail in his view that negotiations were at an impasse, and that he had no other choice but to impose contract terms the way he did, it could strengthen the authority of a governor who is experiencing a rough first year in office and expand executive power.
Should the HSTA prevail in its view that the impasse was declared prematurely and that the governor did not act in good faith, it could significantly weaken the governor’s influence as an employer, let alone a leader, and affect relations with Hawaii’s other largest public-sector unions.
The showdown comes as battles between labor and state governments have escalated across the country, with governors — some of them Democrats — demanding, and getting, concessions on wages and pensions in order to balance budgets.
Here at home, more details will emerge this week when the state responds to the HSTA’s 37-page complaint over Abercrombie’s bargaining tactics — there are some 90 allegations — filed with the Hawaii Labor Relations Board (HLRB).
The state will respond as well, as early as next week, to the union’s request on Monday that the HLRB restore the pay cuts, health-care cost increases and furloughs that went into effect with the new fiscal year July 1. That document is several pages thick.
For now, here’s what you need to know about what’s at stake between the governor and the HSTA. Civil Beat’s report is based in part on interviews with local labor and legal experts who were granted anonymity to comment on a sensitive matter they wouldn’t otherwise discuss.
The dispute between the administration and the union has included a pitched public-relations exchange — media reports, TV ads, FAQ’s — but the matter will not settled by those parties, the media or the public.
Rather, it is the three-member HLRB that is responsible for enforcing the collective bargaining law called Chapter 89 that covers state and county employees.
The outcome of the dispute centers on interpreting a key section of the law, Section 11, that addresses resolution of disputes and impasses.
Within Section 11, two passages are germane:
(4) After the fiftieth day of impasse, the parties may resort to such other remedies that are not prohibited by any agreement pending between them, other provisions of this chapter, or any other law.
Here is the second:
(c) An impasse over the terms of an initial or renewed agreement and the date of impasse shall be as follows:
(1) More than ninety days after written notice by either party to initiate negotiations, either party may give written notice to the board that an impasse exists. The date on which the board receives notice shall be the date of impasse;
(2) If neither party gives written notice of an impasse and there are unresolved issues on January 31 of a year in which the agreement is due to expire, the board shall declare on January 31 that an impasse exists and February 1 shall be the date of impasse.
The administration believes that this applies to the HSTA dispute, and that its final offer to the union is on solid legal ground.
HSTA’s complaint cites many sections of Chapter 89 but bases its allegations on Section 13, which deals with prohibited practices and evidence of bad faith.
The union’s complaint, as Civil Beat has reported, boils down to the argument that the state interfered with the union’s right to bargain collectively by preemptively deserting negotiations and making a “last, best and final” offer directly to teachers after HSTA negotiators rejected it.
HSTA’s complaint barely mentions Section 11, the part dealing with disputes and impasses.
The legal questions in the HSTA dispute are highly technical, and the labor board will be deliberating over uncharted territory.
But what it decides could determine the basis of future state labor negotiations.
The current Hawaii Labor Relations Board has never had to rule on a matter of such magnitude.
The chairman, James Nicholson, was appointed by former Gov. Linda Lingle. The other two members — Rock Ley and Sesnita Moepono — are Abercrombie appointees and joined the board just this year.
Once the administration has filed its response to both the union’s complaint and its request for an injunction, the board will likely call a public hearing. While such proceedings can take time, the importance of the dispute may spur the board to move expeditiously, possibly within a matter of weeks.
If the board rules that the two sides did, indeed, reach an impasse, a settlement is likely — one agreeable to the governor’s terms. The union could also appeal to Circuit Court.
If the board rules that there was no impasse, however, and that the state interfered with the union’s rights, a return to negotiations is likely.
That the dispute involves a Democratic governor who was elected in a landslide with the endorsement of the HSTA is a great irony.
Abercrombie, of course, is a former educator and union organizer who has told labor that they will never have a greater friend on the Capitol’s fifth floor.
But the Kumbaya moment, if you will, ended once Abercrombie was sworn in and became management. His primary responsibility is fiscal stability.
Having secured a deal with the state’s largest union, the Hawaii Government Employees Association, that called for a salary cut, an increase in union medical costs and paid days off, the governor believed he had a model for the HSTA and the United Public Workers.
Still outstanding is a settlement with the UPW. But many members of UPW, like all of the HGEA, are subject to binding arbitration, meaning they don’t have the right to strike.
Combined, the four largest public-sector unions represent some 75,000 state and county employees who are the very core of the Democratic Party of Hawaii.
The HSTA’s greatest leverage is its ability to strike. The sight of more than 12,000 teachers walking the picket line — last seen a decade ago — would please no one.
It takes a lot of work and leadership to organize thousands of people on different islands, however. The HSTA’s leadership has changed since the last strike. And there appears to be some disagreement among its board, which rejected an agreement that its negotiating team reached with management.
Public-sector labor has also been on the decline nationally. Hawaii has not (yet) experienced the seismic shifts that are happening between labor and government in states like Wisconsin, New York and New Jersey.
But, the kind of six-year deal that the University of Hawaii Professional Assembly garnered under the previous governor is not likely to be replicated anytime soon — namely, a cut in salary that is later reinstated and actually increased.
Nor are the days when a Hawaii public-sector union could count on a pay increase every odd year, as has largely been the case since collective bargaining was established in the state nearly 40 years ago.