Hawaii lawmakers with little fanfare passed a bill this session that, if signed into law by Gov. David Ige, would fundamentally shift the power balance between the government and public employee unions here that have long held sway in Aloha State politics, opponents say.  

The measure, Senate Bill 410, seems innocuous enough. It’s a half a page long and only changes a few words in the state’s collective bargaining law, which can be found in Chapter 89 of the Hawaii Revised Statutes, which were first codified in 1970.

But officials from state and county governments across Hawaii have described these changes in terms like “hair-raising,” “insane” and “not acceptable.”

United Public Workers union building Kalihi UPW1. 13 nov 2016
The United Public Workers banded together with Hawaii’s other public employee unions to support a bill that could give them more power over how government operates. Cory Lum/Civil Beat/2016

“We look at it with complete horror and the public should too,” said Richard Thomason, the director of collective bargaining and labor relations for the University of Hawaii. “It’s throwing the keys to government away. Why it passed the Legislature is anybody’s guess.”

If SB 410 becomes law, Thomason and others critics say it will allow the state’s six public worker unions to control Hawaii government like never before.

Bad employees will be harder to fire, they say. Layoffs will be more difficult to execute. And even menial tasks — such as how best to clean a public toilet — could be subject to union negotiation.

“There’s going to be delay for everything and there’s going to be quid pro quo for everything,” Thomason said. “The first and foremost cost is that government is going to slow down even slower than it already is. And it’s already glacially slow.”

Hawaii’s public union representatives wholeheartedly disagree.

In nearly all the written testimony submitted by the public sector unions, they highlighted how the bill would “level the playing field” and keep the negotiations “healthy.”

“This proposal clarifies the obligation of the state to engage in negotiations in a fair and respectable manner,” the Hawaii State Teachers Association wrote.

“Collective bargaining is especially important to public school teachers. It is in the best interest of both the employer and the union to ensure that bargaining occurs in a way that supports an employee’s ability to enhance their professionalism, leads to a workplace free from health and safety risks, and is conducted in a fair and equitable manner.”

The measure passed both the House and Senate unanimously. And Sen. Gil Keith-Agaran, the main sponsor of the legislation, considers many of the concerns overblown.

Tipping The Power Balance

In essence, SB 410 could dramatically affect what’s required to be placed on the bargaining table during negotiations. It also might result in employees filing more grievances.

The biggest concern from the government’s perspective is related to the state’s and counties’ rights to manage their employees, particularly when it comes to hiring, firing, transfers, promotion, demotion, discipline and training.

The state’s collective bargaining law specifically prohibits unions from negotiating contracts that would interfere with the government’s right to do the following:

1- Direct employees;

2- Determine qualifications, standards for work, and the nature and contents of examinations;

3- Hire, promote, transfer, assign, and retain employees in positions;

4- Suspend, demote, discharge, or take other disciplinary action against employees for proper cause;

5- Relieve an employee from duties because of lack of work or other legitimate reason;

6- Maintain efficiency and productivity, including maximizing the use of advanced technology, in government operations;

7- Determine methods, means, and personnel by which the employer’s operations are to be conducted; and

8- Take such actions as may be necessary to carry out the missions of the employer in cases of emergencies.

Senate Bill 410, however, could make each one of those areas negotiable if, as the proposed change to the law now says, “it affects the terms and conditions of employment.” Many officials worry that could make nearly everything subject to union negotiation and sign-off, even how employees respond to natural disasters, such as tsunamis.

Wil Okabe has been on both sides of the negotiating table, first as the former president of the Hawaii State Teachers Association and now as the managing director for Big Island Mayor Harry Kim. Like Thomason, Okabe said SB 410 is a precarious piece of legislation that seems like it will strip the government of its ability to manage and direct its workforce.

He said it also drives an unnecessary wedge between government employers and the unions.

“Since 1970, the collective bargaining law was able to make the parties work together in harmony for 47 years,” Okabe said. “This is now going to tip the scale of the balance.”

A Clear Divide

When he introduced the measure, Keith-Agaran was chairman of the Judiciary and Labor Committee, one of the most influential committees in the Legislature.

The bill sailed through the legislative process, passing every committee and floor vote in both the House and Senate with unanimous approval. Not a single legislator voted with reservations.

Not surprisingly the bill received unanimous support from each of Hawaii’s six public employee unions, which together represent nearly 78,000 state and county workers.

James Nishimoto, who is Gov. David Ige’s chief negotiator, says SB 410 could cripple management’s rights. Office of the Governor

Those unions include the Hawaii Government Employees Association, the Hawaii State Teachers Association, United Public Workers, the University of Hawaii Professional Assembly, the Hawaii Fire Fighters Association and the State of Hawaii Organization of Police Officers.

Conversely, the legislation received universal opposition from every government official who testified, including Gov. David Ige’s chief collective bargaining negotiator, James Nishimoto, who is the director of the Hawaii Department of Human Resources.

Others who opposed the bill on behalf of the government employers included Maui County Councilman Don Couch, Department of Education Superintendent Kathryn Matayoshi and Wes Machida, who is Ige’s director of budget and finance.

Machida warned lawmakers that the legislation could result in making government less efficient and more expensive. He said it could also hurt the state’s bond rating, which allows it to borrow money at a lower interest rate.

Jonathon Grems, of the Honolulu Police Department’s human resources division, submitted testimony as well, telling lawmakers that if SB 410 is passed it would make it harder for HPD to discipline its officers for misconduct as well as “give an interpretation to the employees that they may refuse to perform certain duties unless mutually agreed upon.”

Grems also relayed HPD’s concerns that setting the minimum qualifications for standards of work would also require SHOPO’s mutual agreement.

‘A Little Bit Of Crying Wolf’

In an interview with Civil Beat, Keith-Agaran defended the legislation and described the government’s concerns as “somewhat laughable.”

He said the legislation came from concerns that the employers were using the language of the current law — and in particular the word “permissive” — to avoid negotiating certain terms that were already in the collective bargaining agreements.

By deleting that word he said the Legislature is simply bringing back the status quo of negotiations by making sure that everything already in the collective bargaining agreements is back on the table, and not easily dismissed by the government.

Judiciary and Labor Commitee Chair Gil Keith Agaran gestures before death/dying measure vote. 28 feb 2017
State Sen. Gil Keith-Agaran finds the concerns of government officials about SB 410 to be “laughable.” Cory Lum/Civil Beat

As for the government’s concerns about employees not responding to emergencies when told and complaining about minor changes in their work conditions unless they get paid more or are given something else in return, Keith-Agaran doesn’t buy it.

“It’s a little bit of crying wolf on some of these things,” Keith-Agaran said. “Having worked at the Department of Land and Natural Resources when there was a fire, it’s not in the job description of our foresters or the other people who worked at the state to respond. But it was all hands on deck. And I expect that our employees would do the job if they’re asked.”

Keith-Agaran added that he wouldn’t be surprised if Ige is pressured by his department heads and the county mayors to put SB 410 on his veto list.

If the bill is vetoed, Keith-Agaran said he wouldn’t anticipate the Legislature reconvening for an override vote. He noted that the conversation might change if the Legislature returns for a special session to extend the Oahu general excise tax surcharge to help pay for Honolulu’s struggling rail project.

A representative from Ige’s office said the governor has yet to make a decision on SB 410.

Ryker Wada, deputy director of the Hawaii Department of Human Resources Development, said it’s entirely possible that much of the consternation on the part of employers is inflated. But he also said SB 410 muddies the waters just enough that it makes the worst-case scenario possible.

“It looks like a very simple and innocuous change in the law and maybe it is, maybe we’re looking too much into it,” Wada said. “But it potentially has much larger implications.”

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