After winning a judgment from the Hawaii Labor Relations Board, a public employees union says its members shouldn’t have to follow a recently enacted state law that prohibits smoking at 12 medical facilities in the islands.

In a complaint filed with the board, the United Public Workers defended the necessity of smoking breaks and noted the long history of state employees being allowed to smoke in the workplace.

It accused the Hawaii Health Systems Corporation of violating collective bargaining agreements because it failed to consult with the union before posting signs informing people of the smoking ban, part of implementing the law known as Act 25.

The Labor Relations Board ruled in the union’s favor and moved to award the union $40,000 in attorneys’ fees and other costs. (The motion for the fees is pending.) The HHSC filed an appeal of that ruling in 1st Circuit Court last week.

Leahi Hospital in Kaimuki on Oahu is one of 12 Hawaii Health Systems Corporation facilities across the state.
Leahi Hospital in Kaimuki on Oahu is one of 12 Hawaii Health Systems Corporation facilities across the state. Under a new law, employees must walk off campus to smoke. Chad Blair/Civil Beat

Union representatives did not respond to a request for comment. But the CEO of the hospitals said her agency was simply following state law. And the authors of the legislation are concerned that a law intended to help people quit smoking may be disobeyed.

The legislation, which faced little opposition at the Hawaii Legislature this past session, was signed into law by Gov. David Ige in late April. It bans the use of tobacco products and electronic smoking devices on the premises of HHSC facilities.

In committee reports, legislators noted that the HHSC is committed to reducing the occurrence of preventable disease.

To that end, wrote state Sen. Josh Green, HHSC “must not permit the use of tobacco and other potentially dangerous substances on the campuses of its health facilities. Allowing such use would not only expose vulnerable patients, employees, and visitors to the perils of harmful substances, but would also demonstrate a shortcoming in the corporation’s goal of reducing the occurrence of preventable disease.”

“Smoking was germane to the ‘working environment’ of employees even before the public sector collective bargaining law was enacted.” —UPW complaint

But UPW, the third-largest union in the state with more than 13,500 members, says its members should not be required to obey Act 25.

Filings this year with the Labor Relations Board showed the union defending the necessity of smoke breaks and seeking more break time for its hospital employees so they could walk off hospital premises to light up.

In addition to chronicling in detail decades of smoking regulations in Hawaii, the UPW complaint gave a broad overview of collective bargaining.

For example, its July 25 complaint states:

As far back as one can reasonably recall public employees of the State of Hawaii and the various counties were permitted and allowed to smoke during working hours, including rest and meal periods in public work places prior to and after 1970.

Smoking was germane to the ‘working environment’ of employees even before the public sector collective bargaining law was enacted.

‘Willful Refusal To Negotiate’

In late October, the Hawaii Labor Relations Board ruled 2-to-1 in the union’s favor in its prohibited practice complaint, rejecting the HHSC’s argument that the labor board did not have jurisdiction.

It directed HHSC to “commence consultation or negotiation” with UPW, and it called for more than $40,000 in attorneys’ fees and other costs to be awarded to UPW.

Board members J.N. Musto, a former longtime leader of the University of Hawaii faculty union, and labor attorney Sesnita Moepono ruled in the majority.

In his lengthy dissenting opinion, attorney Kerry Komatsubara disagreed with many of the conclusions reached by his colleagues.

Dr. Linda Rosen said she was only following the law when HHSC implemented Act 25.
Dr. Linda Rosen said she was only following the law when HHSC implemented Act 25. File Photo

“Lost in the majority decision is the bottom line that smoking is banned,” he wrote. “If HHSC did nothing other than to post no smoking signs, then the question is how the ban would be enforced.”

As for the conflict with employee break times, Komatsubara wrote, “If the union is claiming that the rest and lunch periods must be negotiated, I question whether this is so? The passage of Act 25 does not take away, shorten or affect any worker’s right to have his/her rest and lunch periods. These workers can smoke during their rest and lunch periods, but they cannot smoke on the HHSC healthcare campuses.”

But Musto and Moepono wrote that HHSC’s “willful refusal to negotiate” over the proposals of the union constituted “a violation of the rights of employees” and are “prohibited practices.”

The implementation and enforcement of Act 25, they said, “is contrary to the rights of employees as previously determined by labor boards and courts” and abridges “prior statutory rights” of UPW’s bargaining unit agreements.

As well, the “unilateral implementation and enforcement” of the prohibition on the use of tobacco on HHSC premises and “the prohibition on collective bargaining” abridged the constitutional rights of public employees, they found.

‘Cease And Desist’

UPW has now asked HHSC to “cease and desist” enforcing Act 25 at its facilities, effectively asking it to break the law, according to HHSC.

Last week the agency appealed the Labor Relations Board decision to the 1st Circuit Court in Honolulu, the jurisdiction it had said all along was the more appropriate place to settle the smoking ban dispute.

HHSC Chief Executive Officer Linda Rosen said she has been disappointed with the dispute, given the hospital system’s limited staff and resources.

“We are engaged in this struggle around something that is the law, and we really wish our resources could be better spent,” she said. “It does put a strain on our staff.”

UPW has said that HHSC failed to negotiate with the union before enforcing the law, but Rosen rejects that claim.

“I don’t think we can negotiate if the goal is to violate the law,” she said.

Before session convenes, Senator Rosalyn Baker speaks to Sen Josh Green. 12 july 2016
Sens. Josh Green and Roz Baker authored the legislation banning smoking on HHSC premises. Cory Lum/Civil Beat

State Sen. Roz Baker, one of the co-authors of the bill that resulted in Act 25, said she’s disappointed that UPW apparently doesn’t care about the health of its members.

“It has been proven that smoking cigarettes and other tobacco products leads to cancer, other chronic diseases as well as other health risks, loss of productivity and a shortened life span as well as an increase in health care costs,” said Baker, who chairs the Senate Committee on Commerce, Consumer Protection and Health. “It seems to me if UPW really cared about their members they would advocate for smoking cessation programs  or help for their members to stop smoking for their members’ health as well as the health and well-being of their family members.”

“I don’t think we can negotiate if the goal is to violate the law.” — Dr. Linda Rosen

Baker concluded, “Smoking is a health hazard and not a right.”

The state-controlled HHSC operates 1,285 licensed beds in facilities located on five islands. Last year it recorded 21,676 acute care admissions. Services include long-term care, emergency room visits and births.

HHSC has been in the news a lot recently as the state has moved to transfer control of three Maui region hospitals to private control under Kaiser Permanente. UPW and another public-sector union with employees at HHSC, the Hawaii Government Employees Association, has clashed with the state over the transfer, which is planned for July.

HHSC employs 4,200 full-time workers. The UPW bargaining units include 1,467 blue collar, nonsupervisory and institutional health and correctional workers.

The HHSC has posted Act 25 advisories at all of its facilities.
The HHSC has posted Act 25 advisories at all of its facilities. Chad Blair/Civil Beat

Act 25 actually states that the tobacco and electronic smoking device use prohibitions “shall not be subject to collective bargaining.”

Anne Lopez, HHSC’s general counsel and chief operating officer, said: “We did not so much ‘implement’ the law as tell our regions that the law had passed and that pursuant to the law smoking was prohibited on all of our campuses. It is not and never has been our plan to create new policies prohibiting smoking or implementing new disciplinary rules related to violating the law.”

Act 25 signs were posted at all HHSC facilities by October. To date, no employees appear to have violated the policy, said Rosen.

‘The Big Picture’

“What is our concern is our employees’ health,” said Rosen, a former director of the Department of Health. “I have a lot of sympathy for those addicted to nicotine, but I know as a physician that they can get help to quit. I know it’s hard, but my hope is that they will become former smokers at some point.”

Green, the other lead author on Act 25, said the legislation is part of a “big picture” that shows Hawaii having the most progressive policies in the nation when it comes to smoking.

“I focus on keeping people healthy and alive, not on smoke breaks.” — State Sen. Josh Green

“We have passed multiple pieces of legislation to do all that we can to decrease the impact of smoking and secondary smoking. That’s where we are coming from.”

While Green said he respects UPW’s right to challenge any law, including Act 25, “From my position, this bill is pure and simple about good health for our workers and setting a good example for our patients.”

A medical doctor at one of the HHSC facilities in the Big Island, Green said that some of his co-workers”give me a little grief” when they see him on hospital grounds.

“But they know I sometimes pass bills that will affect them,” he said. “I focus on keeping people healthy and alive, not on smoke breaks.”

A Nov. 14 letter from UPW to HHSC requesting negotiations over smoking policies:

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