HomeMy WebLinkAboutCOM 0334.005 1998-2000
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STATE OF HAWAII ~
HAWAII LABOR RELATIONS BOARD
In the Matter of ) CASE NO. DR-O1-75
STEPHEN K. YAMASHIRO, Mayor, ) DECISION N0. 399
County of Hawaii, )
FINDINGS OF FACT, CONCLU-
Petitioner, ) SIONS OF LAW, AND DECLARA-
TORY RULING
and )
UNITED PUBLIC WORKERS, AFSCME, )
LOCAL 646, AFL-CIO, )
Intervenor. )
FINDINGS OF FACT,
CONCLUSIONS OF LAW. AND DECLARATORY RULING
On May 20, 1999, STEPHEN K. YAMASHIRO (YAMASHIRO), Mayor,
County of Hawaii, filed a Petition for Declaratory Ruling with the
Hawaii Labor Relations Board (Board). Also on May 20, 1999,
YAMASHIRO filed a Memorandum in Support of the Petition with the
Board. YAMASHIRO contends that the Memorandum of Agreement
between the public employers and the UNITED PUBLIC WORKERS, AFSCME,
LOCAL 646, AFL-CIO (UPW or Union) for bargaining unit O1 dated •
May 3, 1999 (MOA) is a new, superceding collective bargaining
agreement covering the period from July 1, 1995 to June 30, 1999.
YAMASHIRO contends that the Governor of the State of Hawaii
recognized the MOA as a new agreement which must be reduced to
writing and that the UPW, like Che Hawaii Government Employees
Association (HGEA), acquiesced to the Governor's analysis and
reduced the agreement to writing. YAMASHIRO further contends that
the UPW was also aware that the Union was required by law, and the
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Governor's request, to proceed with ratification of the new
agreement by their membership. YAMASHIRO raised the following
issues in his petition:
1. Whether the collective bargaining
agreement, dated May 3, 1999 is a new,
superceding, agreement between the Employers
and UPW, pursuant to Sec. 89-10, HRS?
2. If the May 3, 1999, Memorandum of
Agreement is considered a new collective
bargaining agreement, is the UPW required to
seek and obtain its members' ratification of
the May 3, 1999 collective bargaining
agreement, and may not rely on the prior
March 10, 1998, agreement, pursuant to
Sac. 89-10, HRS?
YAMASHIRO requested that the Board rule that the MOA
constitutes a new collective bargaining agreement; order the UPW to
proceed with membership ratification of the new May 3, 1999
agreement; order the County of Hawaii to comply with all terms and
conditions of the March 10, 1998 collective bargaining agreement
until such time as the UPW properly and lawfully conducts the
statutorily required ratification process and certifies the results
to the County of Hawaii; and order the UPW and its State director,
to pay the County of Hawaii's attorneys' fees and costa related to,
the filing of the instant matter; and order such other relief as
appropriate.
On May 25, 1999, the Board issued a notice of the receipt
of the instant petition for declaratory ruling and set a deadline
for the filing of petitions for intervention in these proceedings.
Thereafter, on May 27, 1999, the UPW filed a petition for
intervention with the Board. On June 8, 1999, the Board granted
the UPW's petition for intervention in Order No. 1730 and scheduled
a Board conference in this matter on June 23, 1999.
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On June 9, 1999, the UPW filed a motion to dismiss the
petition with the Board. The UPW contended that the Board should
dismiss the petition because (1) the petition is untimely and the
Board lacks jurisdiction over the matter, (2) Petitioner lacks
"standing," (3) Petitioner failed to establish "good cause" for the
issuance of a declaratory ruling, and (4) Petitioner failed to
comply with Administrative Rules Section 12-42-9 for an appropriate
petition.
On June 22, 1999, the UPW filed a reply brief in support
of its motion to dismiss with the Board. On June 23, 1999,
YAMASHIRO filed a memorandum in opposition to the UPW's motion to
dismiss with the Board.
On June 23, 1999, the Board conducted a hearing on the
UPW's motion to dismiss the complaint. After considering the
record and the arguments presented, the Board denied the UPW's
motion to dismiss the complaint. During the subsequent Board
conference scheduled in the matter, YAMASHIRO requested the Board
to conduct a hearing on the petition for declaratory ruling. In
its reply brief filed on June 22, 1999, the UPW opposed a hearing
due to Petitioner's noncompliance with Administrative Rules
Section 12-42-9(h).' After considering the record and YAMA.SHIRO's
'Administrative Rules Section 12-42-9(h) provides in
part:
(2) Any petitioner who desires a hearing on a
petition for declaratory ruling shall set
forth in detail in a written request the
reasons why the matters alleged in the
petition, together with supporting affidavits
or other written evidence and briefs or
memoranda or legal authorities, will not
permit the fair and expeditious disposition of
the petition and, to the extent that such
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arguments, the Board denied YAMASHIRO'a request for a hearing
because YAMASHIRO did not establish that the petition and other
written authorities would not permit a fair disposition of the
petition. Thus, the Board indicated that it would issue a ruling
in this matter on the record before it.
Thereafter, on June 24, 1999, the UPW filed a
Supplemental Memorandum with the Board. The UPW advised the Board
of proceedings before the Hawaii County Council regarding the
approval of the Unit O1 coat items for Unit O1 and requested timely
Board action to avoid further delays in proceeding before the
Council.
On June 28, 1999, YAMASHIRO, by and through his counsel,
filed a Supplemental Memorandum in Opposition to UPW'9 Supplemental
Memorandum with the Board. YAMASHIRO submits that Council action
was deferred because the figures in the resolution were wrong. in
addition, YAMASHIRO related the substance of Davis Yogi's (Yogi),
Chief Negotiator, State Office of Collective Bargaining, testimony
to the Council. YAMASHIRO also represented that all Council
members, except one, indicated that they would vote in favor of the
cost items.
FINDINGS OF FACT
YAMASHIRO is the Mayor of the County of Hawaii, and an
employer as defined in Section B9-2, HRS, of employees of Hawaii
County who are included in bargaining unit O1.
request for hearing is dependent upon factual
assertion, shall accompany such request by
affidavit establishing such facts.
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The UPW is the exclusive representative as defined in
Section 89-2, HRS, of bargaining unit Ol.
On March 10, 1998, the UPW and a multi-employer group
entered into a Unit O1 agreement covering the period from July 1,
1995 - June 30, 1999. The majority of Unit O1 employees ratified
the agreement. On August 7, 1998, the Maui County Council approved
the cost items. On or about August 18, 1998, the Hawaii County
Council deferred action on the coat items indefinitely. On
September 9, 1998, the Kauai County Council approved the cost
items.
By letter dated August 4, 1998, the Attorney General
issued an opinion to the Corporation Counsels of Hawaii and Maui
counties and the City and County of Honolulu. The Attorney General
concluded that the failure of the State Legislature to approve the
funding of the negotiated or arbitrated pay raises prior to
adjournment sink ~ constituted a rejection of the Unit 01 cost
items. All cost items were returned to the parties for further
bargaining. However, the Attorney General concluded that the
non-cost items agreed to remain in effect.
By letter dated August 7, 1998, UPW State Director
Gary W. Rodrigues (Rodrigues) advised Al Lardizabal (Lardizabal),
Acting Chief Negotiator, State Office of Collective Bargaining,
that the UPW disagreed with the Attorney General's opinion but in
view of the time involved in challenging the matter, the UPW
requested bargaining on the Unit O1 Agreement cost items to begin
on August 18, 1998. The Union enclosed the cost item proposals.
Thereafter, by letter dated August 20, 1998, Lardizabal
wrote to Rodrigues affirming the State's commitment to the UPW on
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the negotiated pay raises. Lardizabal indicated that the
Legislature's action was considered a deferral of the State's
commitment to the contract. Lardizabal stated therefore that the
negotiations requested by Rodrigues' August 7, 1998 letter were not
required. Copies of Lardizabal's letter were sent to all personnel
directors.
On October 30, 1998, the Board issued Decision No. 395 in
Case No. CE-01-390, United Public Workers, 5 HLRB (1999). The
Board held that Mayor Harris committed a prohibited practice by
repudiating the Unit O1 agreement where the Employers' negotiators
had apparent authority to negotiate an agreement.
By letter dated May 3, 1999, Rodrigues notified Yogi
that the Unit O1 agreement for the period of July 1, 1995 to
June 30, 1999 had been ratified by the employees of Unit O1.
On May 3, 1999, the UPW and the multi-employer group
entered into a Memorandum of Agreement' which provides as follows:
This Memorandum of Agreement is entered
into this 3r° day of May 1999 by and between
the State of Hawaii, the City and County of
Honolulu, County of Hawaii, County of Kauai
and the County of Maui, hereinafter referred
to as the Employer, and the United Public
Workers, American Federation of State, County
and Municipal Employees, Local 646, AFL-CIO as
the exclusive representative of blue collar
employees in collective bargaining Unit 01,
hereinafter referred to as the Union.
The Employer and the Union agree that the
non-cost and cost items agreed to on March lo,
1998 and thereafter ratified by the Employees
of Unit 01 for the period July 1, 1995 to
'The Memorandum of Agreement was apparently entered into
at the insistence of Governor Benjamin J. Cayetano in order to
support the transmittal of the Unit O1 cost items to the
Legislature for funding.
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June 30, 1999 are included without change into
this Memorandum of Agreement.
This Agreement is for the contract period
July 1, 1995 to June 30, 1999.
The Union informs the Employer that the
agreement has been ratified and it is agreed
that this Memorandum of Agreement meets the
requirements of Section 89-10(a) and (b) HRS.
Also, by letter dated May 3, 1999, Governor Cayetano
informed Senators Carol Fukunaga and Andrew Levin of the Senate
Committee on Ways and Means that:
In further response to your letter of
April 27, 1999 (copy enclosed), concerning the
administration's position on the "retroactive
pay raises" and since my letter to you dated
April 29, 1999 (copy enclosed), the Employer,
HGEA and UPW have in fact reduced to writing
the agreements (copies enclosed), concerning
bargaining units 1, 2, 3, 4, 6, 8, 9, and 13,
to submit to the legislature the same coat
items which were submitted to the legislature
in 1998. In addition, the Unions have
communicated that these cost items have been
ratified by their memberships. This is in
compliance with the requirements of § 89-10,
Hawaii Revised Statutes, and is consistent
with the discussion in the August 4, 1998
attorney general opinion (copy enclosed).
The State Legislature approved the cost items during the
1999 legislative session. On May 14, 1999, Mayor Jeremy Harris, -
City and County of Honolulu, recommended approval of the cost items
to the City Council and approval was anticipated during early June.
By letter dated May 4, 1999, Hawaii County Corporation
Counsel Richard D. Wurdeman (Wurdeman) wrote to Gary Yoshiyama,
HGEA Hawaii Division Chief, thanking him for transmitting copies of
the May 3, 1999 Memoranda of Agreement between the HGEA, the
Governor and the City and County of Honolulu. Wurdeman indicated
that Hawaii County was not privy to the Agreement and was not aware
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of the understanding under which it was signed. Upon receipt of
the full text of the Agreement and the HGEA's certification that
the ratification required by 5 89-10, HRS, occurred, Wurdeman
indicated the Mayor would submit the requisite information to the
County Council.
Similarly, by letter dated May 5, 1999, Wurdeman wrote to
Rodrigues, indicating that Hawaii County was not privy to the
collective bargaining agreement between the UPW, the State, and
Maui County. Wurdeman requested a copy of the new agreement and
UPW•s certification that the contract was properly ratified by the
membership.
By letter dated May 10, 1999, Rodrigues enclosed a copy
of the MOA which had been signed by Governor Cayetano and Mayors
Apana and Harris. Rodrigues also indicated that YAMASHIRO had
already transmitted the cost items for the March 10, 1998 Unit O1
agreement to the County Council in 1998.
By letter dated May 11, 1999, Russell K. Okata, HGEA
Executive Director, informed YAMASHIRO that the employees of
Unite 02, 03, 04, 09, and 13 had ratified the terms of the contract
settlements for the period July 1, 1997 through June 30, 1999.
Okata also transmitted the tentative agreements to YAMASHIRO_
By letter dated May 13, 1999, Yogi wrote to Rodrigues
c6nfirming his understanding of the Lump Sum Salary Supplement for
the contract period July 1, 1995 to June 30, 1999. In addition, on
May 14, 1999, the UPW and the public employers entered into a
Memorandum of Agreement regarding the Retirees Lump Sum and another
Memorandum of Agreement amending various provisions of the Unit O1
contract.
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By letter dated June 24, 1999, Yogi wrote to YAMASHIRO
indicating his belief that the MOA signed by the Chief Executives
of the State, Maui, and the City and County of Honolulu included
sufficient notification of the UPW's ratification of the July 1,
1995 - June 30, 1999 agreement. At the request of the Hawaii
County Council, Yogi forwarded Rodrigues' letter dated May 3, 1999
confirming the ratification of the July 1, 1995 - June 30, 1999
agreement to YAMASHIRO.
Based upon the foregoing facts, the Board finds that the
parties entered into an agreement for bargaining unit O1 members on
March 10, 1998. The effective date is consistent with Decision
No. 395 where the Board found that the tentative agreements signed
on March 10, 1998 by the State's Chief Negotiator were binding on
the parties. The Board's decision was not issued until October 30,
1998. Nevertheless, the Attorney General opined in August 1998
that the cost items submitted by the Governor on May 1, 1998 for
the Unit O1 agreement were rejected by the Legislature's failure to
approve them. The Attorney General also stated that pursuant to
Section 89-10, HRS, the cost items are returned to the parties for
further negotiations. The Attorney General also concluded that the
agreement on the non-cost items was still valid.
Since the cost items were returned to the parties for
further bargaining, either party could have reopened the
negotiations. In fact, in August 1998, the UPW requested
negotiations on the Unit 01 coat items based upon the Attorney
General's Opinion, but the State's Acting Chief Negotiator assured
the UPW that further negotiations were not needed because the State
was committed to the negotiated agreement. This letter was
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circulated to the employing jurisdictions and there is nothing in
the record to indicate dissent by any employer, including
YAMASHIRO. Thus, while the coat items may have been subject to
renegotiation, none of the coat item provisions was reopened by any
party.
On or about May 3, 1999, the public employers and the UPW
entered into an MOA which plainly and clearly states that the
agreement entered into is the same agreement of March 10, 1998; no
items were reopened or changed and the operative dates of the
contract remain the same. Thus, based upon a plain reading of the
MOA, the Board finds that it consists of the same terms which were
previously presented to and ratified by the Unit O1 members.
Further, the MOA plainly provides that the Union
represented that the agreement was ratified and the parties thereto
agreed that the MOA met the requirements of Section 89-10, HR3,
including the ratification requirements. Based on these facts, the
Board finds that the ratification of the Unit O1 contract was
sufficient as to the majority of the multi-employer group.
Rodrigues in fact communicated to Yogi that the terms of
the July 1, 1995 - June 30, 1999 agreement were ratified by the
membership by letter dated May 3, 1999. Rodrigues' letter was
apparently not shared by Yogi with YAMASHIRO until on or about
Jame 24, 1999. In addition, the MOA expressly provides that the
Union represented that the terms of the contract had been ratified.
Rodrigues provided a copy of the MOA to YAMASHIRO by letter dated
May l0, 1999 in response to Wurdeman's request. It appears from
these facts that while YAMASHIRO is a member of the employer group,
he was not given a copy of the MOA previously because he was not
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"privy' to the agreement. While it would appear prudent and the
normal course of business that all employers be given the
opportunity to review and sign the collective bargaining agreements
between the multi-employer group and the exclusive representatives,
YAMASHIRO leaves the Board with the impression that this was not
done in this case and prompted him to request and obtain the
contract and ratification certification directly from the Union.
Although the multi-employer group and the UPW thereafter
entered into other Memorandums of Agreement which modified the
Unit O1 contract with regard to the Retirees Lump Sum and other
provisions of the contract, there is nothing in the language of the
Memorandums of Agreement to indicate that they are part of the MOA.
Mindful that the MOA is retroactive to July 1, 1995, the Board
finds that the Memorandums of Agreement entered into on May 14,
1999 regarding the Retirees Lump Sum and other modifications to the
Unit O1 contract are mid-term modifications to the contract.
DISC[7SSION
The issue before the Board is whether the May 3, 1999 MOA
is a new, superceding agreement and whether such new agreement ,
requires another employee ratification pursuant to Section 89-10,
HRS. Petitioner contends that the May 3, 1999 MOA is a new,
superceding agreement which requires another employee ratification.
Sections 89-10(a) and (b), HRS, provide as follows:
(a) Any collective bargaining agreement
reached between the employer and the exclusive
representative shall be subject to
ratification by the employees concerned. The
agreement shall be reduced to writing and
executed by both parties. The agreement may
contain a grievance procedure and an impasse
procedure culminating in final and binding
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arbitration and shall be valid and enforceable
when entered into in accordance with provision
of this chapter.
(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 coat
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.
Petitioner contends that the prior March 10, 1998 Unit O1
contract is not valid because the Legislature rejected the cost
items by its failure to approve them during the 1998 legislative
session. Pursuant to Section 89-10, HRS, the cost items were
returned to the parties for further bargaining.
However, under the facts before the Board, the UPW,
immediately requested reopening negotiations over the cost items in
accordance with the August 4, 1998 Attorney General's Opinion and
the Acting Chief Negotiator reaffirmed the commitment to the
negotiated Unit O1 contract indicating that further negotiation was
unnecessary. Thus, none of the provisions of the March 10, 1998
agreement was reopened or renegotiated. The May 3, 1999 MOA merely
incorporated the terms of the March 10, 1998 Unit O1 agreement. A
plain reading of the terms of the MOA indicates that it is the same
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contract as the March 10, 1998 Unit O1 contract which was
previously ratified by the membership.
The parties to the MOA, consisting of a simple majority
of the public employer group, expressly confirmed that the terms of
the Unit O1 agreement were ratified by the membership and agreed
that the MOA complied with Section 89-10, HRS. Based upon the
record before the Board, the Hoard concludes that the terms of the
MOA are the same as provided in the agreement of March 10, 1998.
Assuming that the Board found that the terms of
the MOA were different from the March 10, 1998 agreement, the Board
would be reluctant to order a re-ratification3 in view of the
Intermediate Court of Appeals holding in ~yoahi v. HPERB, 5 Haw.
App. 533 (1985) (Ariyoshi case). In that case, the Board found
that the union had violated the employees' rights in the conduct of
the ratification vote and since the validity of the vote was in
question, the Board ordered a re-ratification of the contract. The
Court found, however, that the Board's re-ratification order
constituted an abuse of discretion and exceeded the bounds of
reason in part, because the contract would have expired within four
months of the Board's order. The Court found that a cease and
desist order to the union would have been sufficient as a remedy.
In the instant case, the MOA which YAMASHIRO challenges
extends from July 1, 1995 to June 30, 1999. Thus, the contract
'Declaratory ruling petitions request agency
interpretations on the applicability of statutes, rules, or orders
to specific fact situations. Thus, a request for affirmative
remedial relief in a declaratory ruling petition is highly unusual.
YAMASHIRO, however, requested, inter 3113, in this petition that
the Board order the UPW to conduct ratification vote on the MOA by
the Union membership.
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will expire on the date of this decision. We believe an order to
the Union to re-ratify the terms of a contract which have already
been accepted by the membership would create a situation like the
Ariyoshi case which would be disruptive of public employer-employee
relations under the contract and would not be in concert with the
policy and goals of collective bargaining in public employment as
proclaimed in Section 89-1, HRS. In the Board's view, this would
be the absurd result of an overly technical reading of the
collective bargaining law which offends common sense.
CONCLUSIONS OF LAW AND DECLARATORY RULING
The Board has jurisdiction over this petition pursuant to
Sections 89-5 and 91-8, HRS.
The MOA dated May 3, 1999 between the public employers
and the UPW for bargaining unit O1 contains the same terms as the
March 10, 1998 agreement which was previously ratified by the
membership. The MOA states that the parties thereto have agreed
that the provisions of Section 89-10, HRS, have been complied with.
Under the circumstances of this case, the Petitioner has failed to
establish that ratification of the MOA is required. ,
DATED: Honolulu, Hawaii, June 30, 1999
HAWAII LABOR RELATIONS BOARD
v
RUSSELL T. H oard Member
CHESTER C. IR]NI Board Member
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CONCURRING OPINION
I am in agreement with the conclusion reached by my
fellow Board members but feel compelled to further explain my
reasons for reaching that result.
The Attorney General's well-researched and reasoned
opinion dated August 4, 1998 concluded that the failure of the
Legislature to fund the Unit O1 cost items constituted a rejection
of the cost items and that all cost items are returned to the
parties for further bargaining. I agree with the opinion of the
Attorney General. It follows that there is no contract with
respect to the cost items and that any subsequent agreement reached
between the parties is a "new" agreement. There can be no serious
question that if the parties had negotiated cost items different
from that presented to the Legislature, ratification by the Union
membership would be required under Section 89-10(a), HRS.
However, the facts of this case are that the parties, on
May 3, 1999, agreed to the identical cost items that had been
presented to the Legislature. On a technical legal basis, it can
be persuasively argued that because rejection of the cost items by
the Legislature effectively extinguished the March 10, 1998
agreement between the parties, any agreement between the parties is
a "new' agreement requiring ratification under Section 89-10(a),
HRS. In my view, such an argument would run counter to the
decision in the }~iyoshi case cited in the main opinion. In that
case the Intermediate Court of Appeals found that the Board erred
in ordering re-ratification of a collective bargaining agreement
where there had been an admittedly flawed ratification process.
The Court looked to the circumstances under which re-ratification
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had been ordered and found that requiring re-ratification exceeded
the bounds of reason.
The circumstances surrounding this case are that: (1} the
MOA entered into on May 3, 1999 contains the identical terms as the
agreement of March 10, 1998; (2) the March 10, 1998 agreement had
been ratified; (3) all other legislative bodies involved have
funded or are expected to fund the agreement; (4) the agreement
will expire on the date of this decision; (5) requiring
ratification of the May 3, 1999 MOA may result in Unit O1 employees
having to wait another year to receive agreed upon wage increases.
Under such circumstances, requiring ratification of the May 3, 1999
MOA would not be in keeping with the statement of policy contained
in Section 89-i, HRS, and would be disruptive of the employee-
employer relationship. Requiring ratification, therefore, would
exceed the bounds of reason.
BERT M. TOMASU, Chairperson
Copies sent to:
Ted H.S. Hong, Assistant Corporation Counsel
Herbert R. Takahashi, Esq.
Joyce Najita, IRC
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