For the last five months the Hawaii State Teachers Association has been making its case before the Labor Relations Board — and in the media — that Gov. Neil Abercrombie violated collective bargaining law when he unilaterally implemented a new contract on teachers in July.

Meanwhile, the state has stayed relatively silent. It remains to be revealed on what grounds the governor will defend his actions.

As labor board hearings resume this week, it appears the state may be relying on Hawaii’s impasse law.

In the early days of the brewing dispute, Abercrombie said negotiations had reached an impasse, but that even after impasse, the state met with union negotiators, who agreed to a June 17 settlement only to later renege on it.

The state and union reached official, legal impasse when they had not come to an agreement for teachers by Feb. 1 this year.

Statutory impasse is outlined in Section 89-11 of the Hawaii Revised Statutes:

(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.

This law is to ensure that the parties reach an agreement in time for the Legislature to pay for wage increases and other contract requirements.

Even after they reach legal impasse, negotiating teams can continue bargaining — like the state and the union did.

If things don’t go well and one side determines that the other is no longer bargaining in good faith, they reach a second type of impasse, which attorneys refer to as “common law” impasse. The aggrieved side may declare an impasse (which the state did via letter on June 3), after which the teams can continue bargaining.

The catch is that at any time after that, the aggrieved side can terminate negotiations. If the aggrieved side is the union, it can strike. If the aggrieved side is the state, it can impose its “last, best and final” offer — which the state did, after the union rejected the June 17 agreement. And, as both a deputy attorney general and the Supreme Court have recently reminded HSTA, the union may strike in response.

The way the state sees it, the governor’s team continued bargaining to try to break through the impasse they felt they had already reached with the teachers union. But when union negotiators — HSTA President Wil Okabe and Executive Director Al Nagasako — reneged on their promise to recommend the final June 17 settlement to the union’s board of directors, the state terminated negotiations and implemented it anyway.

From the state’s perspective, the union’s actions in this case were just another gesture in a long string of bad-faith bargaining.

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