Loading...
HomeMy WebLinkAboutCOM 0334.006 1998-2000 ,s Stephen K. Yamashiro ~ Richard Wvrdeman Mayor Corporation Coanid .~r « w'y ~a>xnf~r ,a~ .trfuttii OI'FTCE OF THE CORPORATION COUNSEL 103 Aupuni Suva, Sulte 325 • Hllo, Hawa37 %720.4262 • (8061 %t•82i[ • Fax (8081 961-8622 June 22, 1999 c~'o ~7 L The Honorable James Y. Arakaki CO~ z J_J Chairperson, Hawaii County Council rNV n J 25 Aupuni Street Hilo, Hawaii 96720 c,~ 3 Z RE: Res. 103-99: Approving collective bargaining cost items for the Includet)K ~ w Employees of the County of Hawaii in Bargaining Unit Ol (United Pul~c m Workers). Dear Chairperson Arakaki and County Council Members: Please accept my apology for not being able to be present to answer your questions on the above entitled resolution. The County has asked the NLRB to determine whether the May 3, 1999, collective bargaining agreement, which is the subject of the above entitled resolution, is a successor agreement requiring ratification or an amendment of the March 10, 1998, agreement which the County Council deferred. On June 23, 1999, I will be in Honolulu at the Hawaii Labor Relations Board arguing against the UPW's motion to dismiss the County of Hawaii's Petition for Declaratory Relief. 1 also understand that Mr. Davis Yogi, the State of Hawaii's Chief Negotiator from the Office of Collective Bargaining will be attending the meeting to provide some information concerning the State of Hawaii's position in this matter. In an effort to clarify the present situation I would like to bring to your attention some important facts: I. Factual Back rg ound: On or about Apri127, 1999, State Senators Fukunaga and Levin sent Governor Cayetano a letter requesting information concerning the 1999 Legislature's funding the cost items and asked: We request that you provide us with information and/or an opinion that can be given to the members who have expressed concerns regarding the funding of these cost items. This information and/or opinion should furnish the legislature with justified reasons for proceeding to fund those cost items during this session. Comm. No. ?'3 , b('6, >31e No. Ref. Tol ~ CC 14 P l ~ Ref. Date 'AIN ~ ~ On or about Apri129, 1999, Governor Cayetano responded: 1. The State Attorney General (AG) issued a written opinion Richard D. Wurdeman, Esq., et al. (sic) (copy attached) dated August 4, 1998, finding that the 1998 Legislature's decision not to fund the cost items in contracts between the employers and HGEA and UPW was a rejection of cost items. As such, cost items are returned to the parties for further bargaining. 2. Consistent with the AG's opinion, I informed the unions of the State's willingness to renew its agreement to the cost items on the same terms that were included in the unfunded contracts. [n anticipation of the unions' agreement, we included funding for the cost items in our financial plan. 3. I offered to sign new agreement between the employer and unions to reflect our agreement on the same terms and the unfunded contracts rejected by the 1998 Legislature. In November 1998, an arbitrator issued a decision resolving the UPW Unit 10 contract and the administration has submitted for the first time the cost items of the Unit ] 0 contract [sic] legislative for approval. 4. Based on the legal advice from the AG, I concluded that the agreements to the same terms contained in the unfunded contracts constituted a new contracts [sic]. Therefore, I urged the unions to reduce our understandings and agreements to writing and in turn to have the unions initiate aoaroariate actions to have the new contracts ratiTied by union membership and thereby avoid any questions and meet all of the preconditions for legislative funding. I have discussed my position exhaustively with the union leadership, but they disagree on the necessity for new written contracts or memorandums of agreements and associated member ratification processes. Therefore, the agreement we have with the unions amount to new verbal contracts which have not been reduced to writing nor undergone ratification by the membership. (Emphasis added) On or about May 3, 1999, Governor Cayetano sent Senators Fukunaga and Levin a follow up letter which clearly stated: 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 Apri129, 1999 (copy enclosed), the Employer, HGEA and UPW have in fact reduced to writing the agreements (copies enclosed), concerning bargaining units i, 2, 3, 4, 6, 8, 9, and 13, to submit to the legislature the same 2 cost 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 incompliance with the requirements of Sec. 89-10, Hawaii Revised Statutes, and is consistent with the discussion in the August 4. 1998 attornexgeneral opinion (copy enclosed). On or about May 3, 1999, the State of Hawaii, Maui County and the UP W signed a new collective bargaining agreement. The State Director for the UPW expressly acknowledges and admits that this agreement is a NEW agreement: The Employer and the Union agree that the cost and non-cost items agreed to on March 10, 1998 and thereafter ratified by the Employees of Unit Ol for the period of July 1, 1995 to June 30, 1999 are included without chanee into this Memorandum ofAgreement. This Agreement is for the contract period July 1, 1995 to June 30, 1999. (Emphasis added) On May 5, 1999, the County of Hawaii sent a letter to the UPW stating in relevant part: Mayor Yamashiro has requested that I write to you concerning the new collective bargaining agreement that you are reported to have entered into, on behalf of Unit 1, with the State and the County of Maui. As Hawaii County was not privy to this Agreement, we are unaware of its exact terms or of any understandings under which it was executed. Nevertheless, upon receipt of this new agreement, with your certification that it has been properly ratified by the membership, the Mayor is prepared to transmit any cost items to the County Council for their consideration, as provided by law. (Emphasis added) On or about May 10, 1999, Gary W. Rodrigues, the state director for the UPW, responded and wrote: I am not aware of the new Unit Agreement you refer to in your letter of May 5, 1999. However, enclosed is a copy of the Memorandum ofAgreement (MOA) signed by Governor Cayetano, and Mayors' [sic] Apana and Harris that was requested by the Governor. The MOA clearly refers to the Unit 1 Agreement dated March ]0, 1998. Therefore, your letter indicates that Mayor Yamashiro is playing another silly game with the Unit 1 Agreement. You are notified that if he continues his silly 3 game and we need to pursue a legal remedy, we intend to seek cost and fees from the County. I must note that the HGEA responded to a similar request by the County of Hawaii and provided in a separate letter, a certification that the new, May 3, 1999, collective bargaining agreements had been in fact ratified. It is the position of the County of Hawaii, absent such reassurance from the UPW that the collective bargaining agreement, dated May 3, 1999, is a new, superceding, agreement between the Employers and UPW, pursuant to Sec. 89-10, HRS. Accordingly, we have asked the HLRB to determine whether or not pursuant to Sec. 89-]0, HRS the UPW is required to seek and obtain its members' ratification of the May 3, 1999 collective bargaining agreement, and may not rely on the alleged ratification for the prior Mazch 10, 1998, agreement. [I. Applicable Law: As you know, the law is very clear in setting out the process for a legislative body, such as the Hawaii County Council to approve or disapprove the "cost items" to a collective bargaining agreement: § 89-10. Written agreements; appropriations for implementation; enforcement (a) Any collective bargaining agreement reached between the employer and the exclusive representative shall be subject to ratilcation 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 arbitration, and shall be valid and enforceable when entered into in accordance with provisions of this chapter. (b) All cost items shall be subject to appropriations by the appropriate legislative bodies. The emplover shall submit within ten days of the date on which the agreement is ratified by the emplovees concerned all cost items contained therein to the appropriate IeEislative bodies, except that if any cost 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. [f 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. (c) Because effective and orderly operations of government are essential 4 to the public, it is declared to be in the public interest that in the course of collective bargaining, the gublic emalover and the exclusive representative for each bargaining unit shall by mutual agreement include provisions in the collective bargaining agreement for that bargaining unit for an expiration date which will be on June 30th of an odd-numbered year. The parties may include provisions for the reopening date during the term of a collective bargaining agreement, provided that such provisions shall not allow for the reopening of cost items as defined in section 89-2. L 1970, c 171, pt of § 2; am L 1975, c 162, § 2; am L 1988, c 399, § l . (Emphasis added) You should note that under Chapter 89, HRS, an "Employer" is limited to the Governor and respective county mayors. 1 suggest you ask Mr. Yogi to confirm that insofar as he is concerned, the Governor, not the Legislature is the "Employer." S~ Sec. 89-2, HRS. As you are also aware, the Hawaii County Charter expressly prohibits illegal payments: Section 10-11. Payments and Obligations Prohibited: Verifications; Penalties. No payment shall be authorized or made and no obligation incurred against the county except in accordance with appropriations du[v made... . Every obligation incurred and every authorization of payment in violation of the provisions of this charter shall be void. Every payment made in violation of the provisions of this charter shall be illegal; and all county officers who knowingly authorize or make such payment or any part thereof shall be jointly and severally liable to the county for the full amount so paid or received. If any county officer or employee knowingly authorizes or makes any payment or incurs any obligation in violation of the provisions of this charter or takes part therein, that action shall be cause for his or her removal. (Emphasis added) The Mayor's concern is that if the May 3, 1999, collective bargaining agreement is a "successor" agreement, and the Council approves the cost items without the UPW's certification that the May 3, 1999, agreement was ratified by its membership, any payment could be ruled as an illegal payment under the HRS and County Charter. As a result the Mayor would be personally responsible for repaying the County treasury for the full amount of any payments and could be subject to removal from office. The Mayor's concern has its basis in reality. The UPW has sued the Mayor three (3) times under this Charter provision for alleged illegal privatized contracts. The Mayor has been subjected to a lawsuit over the irradiator under this Charter provision. The Mayor and other Council members 5 The Mayor's concern has its basis in reality. The UPW has sued the Mayor three (3) times under this Charter provision for alleged illegal privatized contracts. The Mayor has been subjected to a lawsuit over the irradiator under this Charter provision. The Mayor and other Council members have been the targets of a groundless impeachment attempt for other Charter violations. The Mayor, has consistently and steadfastly maintained and recognized the va?ue, hard work and significant contributions that the County of Hawaii's Unit Ol members have made and continue to make in providing vital services to its citizens and visitors. His position is that they should be recognized for their hard work in a legal and binding collective bargaining agreement. The only concern the Mayor has is that he should have the assurance of the UPW's State Director that the May 3, 1999, agreement was, in fact, ratified. Unfortunately, the UPW's State Director has attempted to distort and manipulate the Mayor's position through histrionics and propaganda that would make Sadaam Hussein blush. The UPW's State Director has on two (2) separate occasions distributed on a statewide basis a propaganda letter to all UPW members, that the Mayor "hates" Unit O1 members. He has launched a campaign of distortion and intimidation so far from the truth as to be actionable. Despite the UPW's State Director's untruthful and infantile attacks on the Mayor, the Mayor only seeks reassurance that the May 3, 1999, agreement has been ratified by its members. The HGEA met the Mayor's request without any hesitation. The question remains, what about the Mayor's request is so burdensome that the UPW's State Director can't take the time to have his executive assistant type out a similar, one page, two sentence letter? [II. Questions for Mr. Yogi. In the interests of clarifying the present factual circumstances, 1 respectfully submit that the Council may be interested in asking Mr. Yogi the following questions: l . Does he agree with the position stated by Governor Cayetano in his letter dated Apri129, 1999, in which the Governor adopted the Attorney General's opinion of August 4, 1998? 2. Does he agree with the Governor's stated position in his letter of Apri129, 1999, that the May 3, 1999, agreement with the UPW and other public sector unions were "new" or successor agreements under Chapter 89, HRS? 3. Does he agree that the Unit O] membership ratification that the State of Hawaii, the County of Maui, City and County of Honolulu and the UPW's State Director relies on was the ratification that was originally conducted for the March 10, 1998 agreement? 4. Does he agree that on or about May 14, 1999, the UPW and the State of Hawaii, with Mayor Apana and Mayor Harris agreed to change the "cost items" to the March 10, 1998, agreement? 5. Does he agree that on or about May 14, 1999, the UPW and the State of Hawaii, with 6 Mayor Apana and Mayor Harris agreed to change the "cost items" to the May 3, 1999, collective bargaining agreement? 6. Are the new "cost items" set forth in the Memorandum of Agreement dated May 14, 1999, going to cost the County of Hawaii, more or less than the "cost items" reflected in the May 3, 1999, or the March ]0, 1998, Unit O1, collective bargaining agreement? The purpose of posing these questions to Mr. Yogi is to shed some light and clarify some of the factual circumstances surrounding the new, successor collective bargaining agreement. I am sure Mr. Yogi will be able to answer these questions easily. His answers will indicate that the May 3, 1999, Unit O1 collective bargaining agreement was intended by the parties to be a new or successor agreement which requires ratification by its membership. It will also reveal that the UPW's State Director is attempting to circumvent the requirements under Chapter 89, HRS, by substantively changing the terms and conditions of the previous collective bargaining agreement without seeking ratification from its membership. The Council should note that the HLRB has ruled that "Ratification of the contract is a critical step in the ongoing collective bargaining process which requires that the desires of bargaining unit members are accurately reflected." See, In the Matter of Jerrold G. Brown and Those Similarly Situated and State of Hawaii Organization of Police Officers (SHOPO), 3 HPERB 170, at page 132 (1983). In the same case, the Board ruled as a matter of law that bargaining unit members have a right to make an informed choice whether or not to ratify a contract. Id•, at page 133. IV. Conclusion The Mayor's position is cautious and the most appropriate means for resolving the question of whether or not the May 3, 1999, agreement is a successor agreement. The Mayor has placed the issue before the Hawaii Labor Relations Board for their guidance. Given the clear and unambiguous requirements of Sec. 89-10(a) and (b), HRS, the Governor's position that the May 3, 1999, agreement is a new, successor agreement, that the "cost items" have been changed from the prior agreements and all the lawsuits filed against the Mayor personally (including those filed by the UPW's State Director), the Mayor is following the responsible path in an effort to resolve this important situation. I hope the Council can agree with the Mayor's prudent and cautious position in this matter. Respectfully yours, ed H. S. Hong Assistant Corporation Counse Enclosure 7 .~~f E%ECUTIYE CN~Ma CRS woNO~u~u ~G MJ~..~N J GTCT~No oo. t..?• April 29, 1999 Senator Carol Fukunaga, Co-chair Senator Andrew t..evin, Co-Chap Senate Committee on Ways and Means State Capitol Honolulu. Hawaii 96813 Dear Senators Fufarnaga aM Levin, to response to your Apn127, 1999 le4ber requesting the administration's position on the 'retroactive pay raises,' please be advised as follows: 1. The 51ata Atbrttay t3erlaral(AG) issued a wril6sn opinion Richard D. Wtrrdacnarl, Esq.. et d loopy rh~cftsd) dated Aupust 4.1998, ttrdrq lhat fhe 1998 Legislature's decision not b firrrd the cost i6erns en contracts bslween fhe employers and HCEA and tJPW was a nijsction of cost gems. As wilt, cost items are returtlsd b the parties lbrtbrtlter lmrgainnp. 2. Consistent with the AG's opinion, I Mom+ed the unions of the State's wrirgnsss to renew its agrsertwnt b the oast ilerns on the same terns that were inducted n the urltunded corttraCs. h sndrdpatlon of the unions' agreement, we inducted' twdig for the oat isms in our filtaneeal plan. 3. I offered 14 sign new apnednent between the snlployer end utrions b relied our apreerrrarrt an the sent ttrrms ss the tsrfiatldad contrails rrjaabed by the 1998 Leg~tabunt. In Novartrbar 1988, an arbitrator iesusd a dsolsion naolvinp tM UPW Unit 10 contrsct and tits sdrtrirrisvation hss wbmtttad for the first time the cost items of the Unit 10 contract legislative for spproval. 4. Based on the legal advice from the AG, I concluded that the agreements to the same terms contained in the unfunded contracts constituted a new contrails. Therefore, I urged the unions to reduce our understandings and agreements to writing and in tum to have the unions initiate appropriate actions to have the new ~cntra^_ts raged by union membership and thereby avoid any questions and meet a!I of the preconditions for legislative funding. 11 ~3yE t 5. However, both HGEA and UPW have taken the position that no new contracts need be signed because (a} they regaro_d the failure cf the 1996 Legislature to fund the contracts as merely a "tlefermec`' anc ,bl the parties ,sere agreeable to the same terms contained in the unfunaec contracts. As a result, no new wrtten contracts have been formally signed oy ^a e-pioyer and un:c^s and the un;cn leaders have not pursued rati ~caticn by •rei• ^embership. In conclusion, it is the administration's position t-at the parties have agreed to renew the agn~rnent with the same terms of the contracts which were not funded by the 1998 Legislature. However, renewed agreements documenting the understandings and agreements have not been executed between ir.= employer and union due to the unions unwillingness to execute new agreements. I have discussed my position exhaustively with th' union leadership, but they disagree on the necessity fcr new written contraCS or ne-,crandums of agreements and associated member ratfication processes. Th=-efore, the agreements we have with the unions amount to new verbal ccntrac:_ :vnicn `a:=_ net been reduced to writing nor undergone rat cation by fhe membersn~o. ff you wish to discuss this matter further, please contact Davis Yogi, our Director of the Office o! Collective Bargaining. Wtth warmest personal regards. Aloha. C~~~ BEN IN J. CAYETAN Attactvr~ent r_~ Saphen K. Yueuhiro Richud Wurdem~n Myw Cwrwr. G..r1 i ••«.r~ f~aunfg of ~ts(ubii OFFICE OF THE CORPORATION COUNSEL (Ol Aupnl Sc.«~ Sw~, ut • tiilw w.u9 %nwI6I • (!OQ %t ~l:fl • f,. (eael %I ~t23 May 5, 1999 Mr. Gary Rodrigues Executive Director UPWrAFSC~IE ' 1426 North School Saeet Honolulu, Hawaii 96817 Dear Mr. Rodrigues: Mayor Ystnashiro has requested that I write to you concerning the new collective bargaining agreement that you are repcxted to have entered into, on behalf of Unit 1, wilt the State and the Counry of Maui. As Hawaii Counry was not privy to this Agreement, we are unaware of its exact terms a of any understandings under which it aas executed. Nevertheless, upon receipt of this new agtxtment, with your certi5cation that it has been pe~opaly wti5ed by the membaabip. t6t; Maya is prepared to iranamit any ex~ llama b tJlta ~ Council for that ooaaidestiota, r provided by ln?. Sincerely yotus, . WURDEMAT~ Corporation Counsel RD1\ brel? F~t~ 1L„ - .~.=fit ~ - - GARY V.. RODRIGlES _ - ~ ' So v Snm Ovcaor, lP`~ ,-.I Pend >FCC~1F . AFSCME _ _ LOCAL 646 AFL•Ct0 C,___ ~ HAWAII _ ~~a Pdvts - May 10, 1999 Mr. Richard Wurdeman Corporation Counsel County of Hawaii OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hio, Hawaii 98720.4282 Dear Mr. Wurdeman: I am not aware d the new UnR 1 Agroernent you refer to in your beer d May 5. 1999. However, encbsed it a Copy d the Memorandum d Agreement (MOA) agned by Governor Cayetano, and Mayors' Agana and Harris that was requested by fhe Governor. The MOA dearly raters to the Unit 1 AgreetneM dated March 10, 1998. Mayor Yamattdr~o twe irarwNMad 1ti Coat ilerrrs for tha March 10. 1988 UNt 1 Agreement to the County Counci in 1898 at roquired to by ceder d the HLRB, even though hit traramiteion Contains ntiaNading and enaroua intonnation. Therefore. your leper indicates that Mayor Yamsshiro b paying andt~sr shy game with the Unit 1 Agreement. You are notified that It he continues his ady game and we need to pursue a legal romedy, we Merl to teak cost end tees horn the Courriy. Sincerey, Gary W Rodrigues State Director ~WR~t° EXHIBI'T__~~ 1 I Sa School Street ~ Honolulu. Ha~.aii Qo31 % ~ ~ 80S'~S»'-"bi l