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HomeMy WebLinkAboutCOM 0277.006 2018-2020 COUNTY CLERIC COUNTY OF HAWAII RECEIVED -----Original Message----- Time 410pot By From:Jolyn Garidan Prieto [mailto:iolyn@hawaiifirefighters.org] Sent: Monday,June 03, 2019 4:13 PM Date / To: Council Testimony<counciltestimonV@hawaiicounty.Bov> Cc: Charlie Spain <cspain@hawaiifirefighters.org>; Ivan Higashi<ivan , hawaiifirefiRhters.or >; Richard Fong <richa rd@ hativaiifirefighters•org> Subject: EMAILING: Resolution 169-19 HI Fire Fighters Association_Support Importance: High Aloha, Please find attached the Hawaii Fire Fighters Association, Local 1463 testimony in support for Resolution 169- 19,funding of cost items awarded by arbitration to Bargaining Unit 11 Employees for the contract period July 1, 2019 through June 30, 2021. Feel free to contact our office at(808) 949-1566 if you have any questions. Mahalo, Jolyn Jolyn Garidan Prieto Hawaii Fire Fighters Association, Local 1463 1018 Palm Drive/Honolulu, Hawaii 96814 Tel: (808)949-1566/Fax: (808) 952-6003 www.hawaiifirefighters.org<hgap //www.hawaiifirefighters.org> 1 @HFFA1463 *** CONFIDENTIALITY NOTICE:This mail message and any accompanying attachments are intended only for use of the individual or entity recipient named above. If you are not the intended recipient,you are hereby notified that any disclosure,copying, distribution or the taking of any action in reliance on the contents of this material is strictly prohibited. If you have received this message in error, PLEASE IMMEDIATELY NOTIFY THE SENDER AND THEN DELETE THE MESSAGE AND ATTACHMENTS FROM YOUR SYSTEM. The Local 1463 logo is a registered trademark of the Hawaii Fire Fighters Association. It cannot be used with the expressed authorization of the Hawaii Fire Fighters Association. *** Comm. No, Ref. To: p Ref. nate JUN U3 2019 �avrnii t��r, {rkRS HAWAII FIRE FIGHTERS ASSOCIATION 0 4 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 1463,AFL-CIO A 1018 PALM DRIVE,HONOLULU,HAWAII 96814.1929 TELEPHONE(808)949-1566 FAX:(808)952.6003 rs0L14�}O"� WEBSITE;www.hawaiitiretighters.org COUNTY COUNCIL COUNTY OF HAWAII June 4,2019 Testimony by Hawaii Fire Fighters Association,Local 1463,AFL-CIO i Resolution 169-19 COMMITS TO FUNDING THE COST ITEMS AWARDED BY ARBITRATION TO THE HAWAII FIRE FIGHTERS ASSOCIATION (HFFA)UNIT 11 AND EMPLOYEES EXCLUDED FROM BARGAINING UNIT 11 FOR THE CONTRACT PERIOD JULY 1,2019 THROUGH JUNE 30,2021. The Hawaii Fire Fighters Association(HFFA),Local 1463, IAFF, AFL-CIO,represents more than 1,900 professional and 800 retired fire fighters throughout the State, which includes more than 300 Bargaining Unit 11 (BU 11)members serving with the County of Hawaii Fire Department. HFFA strongly supports Resolution 169-10 which reflects the cost adjustments as a i result of the April 8,2019 Arbitration Award. The BU 11 contract arbitration followed the process articulated in Chapter 89-11(e) (Resolution of disputes; impasses)of the Hawaii Revised Statutes and we have attached a copy. "Based on the record evidence and pursuant to the rationale expressed above in reliance on the statutory criteria set forth in HRS §89-11(f)," the Arbitration Panel— which included Mr. William Brilhante,Director of Human Resources for the County of Hawaii, serving as the Employer Group's representative— unanimously concluded: 1. "That the Employer Group"has the ability to pay Rank-for-Rank overtime and rejects the Employer Group's proposal;" 2. "Awards across-the-board salaries raises of 2% for the year beginning July 1, 2019 and an additional 2% for the year beginning July 1, 2010;" 3. That"members of Bargaining Unit 11 will be entitled to two (2) one-time lump sum payments reasonably equivalent to the one-time lump sum payments award to police officers in Bargaining Unit 12" and these payments are"in the interest and welfare of the public and are within the financial ability of the employers to meet these costs." HFFA and the Employer group reached agreement for the Employer-Union Health Benefits Trust Fund(EUTF)employer contributions as conferred by the award. Resolution 169-19 Hawaii Fire Fighters Association,Local 1463,AFL-CIO June 4,2019 Page 2 of 2 As you know,Bargaining Unit 11 (Fire Fighters) members, along with thousands of other Hawaii public sector union members in 10 other bargaining units including BU 10(Police Officers),are prohibited by law to go on strike but have available a negotiation process which, if necessary, culminates in final and binding arbitration to resolve disagreements related to negotiating the collective bargaining agreement. HFFA, in consultation with legal counsel,affirms our position that should the Council not approve this resolution or not incorporate the costs associated with this legal and binding arbitrated award into the operating budget would be a misinterpretation of Section 89-11(g), H.R.S. and is contrary to the established intent of the State's public policy. Rejection of this resolution does not require either party to go back to the bargaining table and clearly would not be an option that HFFA would entertain as a move to"re-negotiate" would undermine and be contrary to the core of collective bargaining. Having a final and binding arbitration award is the motivating factor that encourages both parties to go back to the table during the arbitration process to find common ground and resolution to our disputes as we are both aware that an arbitrated decision is binding on both parties. If government could just disregard a final and binding award, that would give the Employer an unfair advantage and no incentive to bargain fairly or at all knowing they could kill any award at the council level. In reality, collective bargaining would cease to exist in contract negotiations. The Employer Group, HFFA and the Arbitration Panel have fulfilled the statutory requirements for negotiations and this award is legal, binding and fair for both the Union and Employer. We respectfully urge you to commit funds to meet the terms and conditions of this arbitrated award and HFFA members along with its Executive Board appreciates your favorable action on this resolution. Thank you for the opportunity to provide testimony. 5/16/2019 htips://www.capitol.hawaii.gov/hrscurrenWoIO2_Ch0046-0115/HR80089/HRS 0089-0011.htm §89-11 Resolution of disputes; impasses. (a) A public employer and an exclusive representative may enter, at any time, into a written agreement setting forth an alternate impasse procedure culminating in an arbitration decision pursuant to subsection (f) , to be : invoked in the event of an impasse over the terms of an initial or renewed agreement. The alternate impasse procedure shall specify whether the parties desire an arbitrator or arbitration panel, how the neutral arbitrator is to be selected or the name of the person whom the parties desire to be appointed as the neutral arbitrator, and other details regarding the issuance of an arbitration decision. When an impasse exists, the parties shall notify the board if they have agreed on an alternate impasse procedure. The board shall permit the parties to proceed with their procedure and assist at tames and to the extent requested by the parties in their procedure. In the absence of an alternate impasse procedure, the board shall assist in the resolution of the impasse at times and in the manner prescribed in subsection (d) or (e), as the case may be. If the parties subsequently agree on an alternate impasse procedure, the parties shall notify the board. The board shall immediately discontinue the procedures initiated pursuant to subsection (d) or (e) and permit the parties to proceed with their procedure. (b) An impasse during the term of a collective bargaining agreement on reopened items or items regarding a supplemental agreement shall not be subject to the impasse procedures in this section. The parties may mutually agree on an impasse procedure, but if the procedure culminates in an arbitration decision, the decision shall be pursuant to subsection (f.) . (c) An impasse over the terms of an initial or renewed agreement and the date of impasse shall be as follows: (1) More than ninety days after written notice by either party to initiate negotiations,either party may give written notice to the board that an impasse exists. The date on which the board receives notice shall be the date of impasse;and (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 I shall be the date of impasse. (d) If an impasse exists between a public employer and the exclusive bargaining y representative of bargaining unit (1) , nonsupervisory employees in blue collar positions; bargaining unit (5) , teachers and other personnel of the department of education; or bargaining unit (7), faculty of the University of Hawaii and the community college system, the board shall assist in the resolution of the impasse as follows: (1) Voluntary mediation, During the first twenty days of the date of impasse,either party may request the board to assist in a voluntary resolution of the impasse by appointing a mediator or mediators,representative of the public from a list of qualified persons maintained by the board; (2) Mediation. If the impasse continues more than twenty days,the board shall appoint a mediator or mediators representative of the public from a list of qualified persons maintained by the board,to assist the parties in a voluntary resolution of the impasse. The board may compel the parties to attend mediation,reasonable in time and frequency,until the fiftieth day of impasse. Thereafter,mediation shall be elective with the parties,subject to the approval of the board; (3) Report of the board. The board shall promptly report to the appropriate legislative body or bodies lite following circumstances as each occurs: (A) The date of a tentative agreement and whether the terms thereof are confidential between the parties; (B) The ratification or failure of ratification of a tentative agreement; (C) The signing of a tentative agreement; t (D) The terms of a tentative agreement; or (E) On or about the fiftieth day of impasse, the failure of mediation. The parties shall provide the board with the requisite information;and (4) After the fiftieth day of impasse,the parties may resort to such other remedies that are not prohibited by any agreement pending between them,other provisions of this chapter,or any other law. (e) If an impasse exists between a public employer and the exclusive representative of bargaining unit (2) , supervisory employees in blue collar positions; bargaining unit (3) , nonsupervisory employees in white collar positions; bargaining unit (4) , supervisory employees in white collar positions; bargaining unit (6) , educational officers and other personnel of the department of education under the same salary schedule; bargaining unit (8), personnel of the University of Hawaii and the community college system, other than faculty; bargaining unit (9), registered professional nurses; bargaining unit (10), institutional, health, and correctional workers; bargaining unit (11) , firefighters; bargaining unit (12), police officers; bargaining unit (13) , professional and scientific employees; or bargaining unit https://www.capitol.hawail.govihrsourrenWoIG2 ChO046-0116MRS0089MRS 0089-0011.htm 114 5/16/2019 haps://www.capitol.hawali.gov/hrscurrenWo102_Ch0046-0115/HRS0089/HRS 0089-0011.htm (14) , state law enforcement officers and state and county ocean safety and water safety officers, the board shall assist in the resolution of the impasse as follows: (1) Mediation. During the first twenty days after the date of impasse,the board shall immediately appoint a mediator,representative of the public from a list of qualified persons maintained by the board,to assist the parties in a voluntary resolution of the impasse. (2) Arbitration. If the impasse continues twenty days atter the date of impasse,the board shall immediately notify the employer and the exclusive representative that the impasse shall be submitted to a three-member arbitration panel who shall follow the arbitration procedure provided herein. (A) Arbitration panel. Two members of the arbitration panel shall be selected by the parties; one shall be selected by the employer and one shall be selected by the exclusive representative. The neutral third member of the arbitration panel, who shall chair the arbitration panel, shall be selected by mutual agreement of the parties. In the event that the parties fail to select the neutral third member of the arbitration panel within thirty days from the date of impasse, the board shall request the American Arbitration Association, or its successor in function, to furnish a list of five qualified arbitrators from which the neutral arbitrator shall be selected. Within five days after receipt of the list, the parties shall alternately strike names from the list until a single name is left, who shall be immediately appointed by the board as the neutral arbitrator and chairperson of the arbitration panel. (B) Final positions. Upon the selection and appointment of the arbitration panel, each party shall submit to the panel, in writing, with copy to the other party, a final position that shall include all provisions in any existing collective bargaining agreement not being modified, all provisions already agreed to in negotiations, and all further provisions which each party is proposing for inclusion in the final agreement; provided that such further provisions shall be limited to those specific proposals that were submitted in writing to the other party and were the subject of collective bargaining between the parties up to the time of the impasse, including those specific proposals that the parties have decided to include through a written mutual agreement. The arbitration panel shall decide whether final positions are compliant with this S provision and which proposals may be considered for inclusion in the final agreement. (C) Arbitration hearing. Within one hundred twenty days of its appointment, the arbitration panel shall commence a hearing at which time the parties may submit either in writing or through oral testimony, all information or data supporting their respective final positions. The arbitrator, or the chairperson of the arbitration panel together with the other two members, are encouraged to assist the parties in a voluntary resolution of the impasse through mediation, to the extent practicable throughout the entire arbitration period until the date the panel is required to issue its arbitration decision. (D) Arbitration decision. Within thirty days after the conclusion of the hearing, a majority of the arbitration panel shall reach a decision pursuant to i subsection (f) on all provisions that each party proposed in its respective final position for inclusion in the final agreement and transmit a preliminary draft of its decision to the parties. The parties shall review the preliminary draft for completeness, technical correctness, and clarity and may mutually submit to the panel any desired changes or adjustments that shall be incorporated in the final draft of its decision. Within fifteen days after the transmittal of the preliminary draft, a majority of the arbitration panel shall issue the arbitration decision. i (f) An arbitration panel in reaching its decision shall give weight to the following factors and shall include in its written report or decision an explanation of how the factors were taken into account: (1) The lawful authority of the employer,including the ability of the employer to use special funds only for authorized purposes or under specific circumstances because of limitations imposed by federal or state laws or county ordinances,as the case may be; (2) Stipulations of the parties; (3) The interests and welfare of the public; (4) The financial ability of the employer to meet these costs;provided that the employer's ability to fund cost items shall not be predicated on the premise that the employer may increase or impose new taxes,fees,or charges,or develop other sources of revenues; (5) The present and future general economic condition of the counties and the State; https:/lwww.capitol.hawall.gov/hrscurrenWo102 Ch0046-0115/HRS0089/HRS_t)a89-0011.htm 214 5/16/2019 hKps:llwww.capitol.hawall.gov/hrscurrantNo102_Ch0046-0115/HRS00891HRS_0089.001 t.htm (6) Comparison of wages,hours,and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours,and conditions of employment of other persons performing similar services,and of other state and county employees in Hawaii; (7) The average consumer prices for goods or set-vices,commonly known as the cost of living; (8) The overall compensation presently received by the employees,including direct wage compensation,vacation,holidays and excused time,insurance and pensions,medical and hospitalization benefits,the continuity and stability of employment,and all other benefits I received; (9) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings;and (10) Such other factors,not confined to the foregoing,which are normally or traditionally taken into consideration in the determination of wages,hours,and conditions of employment through voluntary collective bargaining,mediation,arbitration,or otherwise between the parties,in the public service or in private employment. (g) The decision of the arbitration panel shall be final and binding upon the parties on all provisions submitted to the arbitration panel. If the parties have reached agreement with respect to the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund by the tenth working day after the arbitration panel issues its decision, the final and binding agreement of the parties on all provisions shall consist of the panel's decision and the amounts of contributions agreed to by the parties. If the parties have not reached agreement with respect to the amounts of contributions by the State and counties to the Hawaii employer--union health benefits trust fund by the close of business on the tenth working day after the arbitration panel issues its decision, the parties shall have five days to submit their respective recommendations for such contributions to the legislature, if it is in session, and if the legislature is not in session, the parties shall submit their respective recommendations for such contributions to the .Legislature during the next session of the legislature. In such event, the final and binding agreement of the parties on all provisions shall consist of the panel's decision and the amounts of contributions established by the legislature by enactment, after the legislature has considered the recommendations for such contributions by the parties. It is strictly understood that no member of a bargaining unit subject to this subsection shall be allowed to participate in a strike on the issue of the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund. The parties shall take whatever action is necessary to carry out and effectuate the final and binding agreement. The parties may, at: any time and by mutual agreement, amend or modify the panel's decision. Agreements reached pursuant to the decision of an arbitration panel and the amounts of contributions by the State and counties to the Hawaii employer-union health benefits trust fund, as provided herein, shall not be subject to ratification by the employees concerned. All items requiring any moneys for implementation shall be subject to appropriations by the appropriate legislative bodies and the employer shall submit all such items within ten days after the date on which the agreement is entered .into as provided herein, to the appropriate legislative bodies. (h) Any time frame provided in an impasse procedure, whether an alternate procedure or the procedures in this section, may be modified by mutual agreement of the parties. In the absence of a mutual agreement to modify time frames, any delay, failure, or refusal by either party to participate in the impasse procedure shall not be permitted to halt or otherwise delay the process, unless the board so orders due to an unforeseeable emergency. The process shall continence or continue as though all parties were participating. (i) Nothing in this section shall be construed to prohibit, the parties from reaching a voluntary settlement on the unresolved issues at any time prior to the issuance of an arbitration decision. (j) The costs and expenses for mediation provided under subsection (d) or (e) shall be borne by the board. The costs and expenses for any other services performed by neutrals pursuant to mutual agreement of the parties and the costs for a neutral arbitrator shall be borne equally by the parties. All other costs incurred by either party in complying with this section, including the costs of its selected member on the arbitration panel, shall be borne by the party incurring them. (L 1970, c 171, pt of g2; am L 1978, c 108, §1; am L 1984, c 75, §1, c 219, §1, and c 254, §2; am L 1985, c 251, §5; gen ch 1985, 1993; am L 1995, c 202, §1 and c 208, §1; am L 2000, c 253, §100; am L 2001, c 90, §9; am L 2002, c 189, §1 and c 232, §3; am L Sp 2003, c 6, §1; am L 2004, c 10, §5; am L 2013, c 137, §4; am L 2014, c 75, §1) Attorney General Opinions ombudsman has no jurisdiction over employee complaints covered by collective bargaining agreements. Att. Gen. op. 73-6. Law Journals and Reviews https://www.capitol.hawall.gov/hrscurrenVV0IO2_Ch0046.0115/HRS0089/HRS 0089-00ll.htm 314 5/1612019 haps://www.cap(tol,hawall.gov/hrseurrenWoIO2_Ch0046.0115/HRS0089/HRS0089-0011.htm Public Employee Arbitration in Hawaii, A Study in Erosion. 2 UH L. Rev. 477. Case Notes Before board, on own motion, can declare that an impasse exists, it must determine that the party claiming impasse has been negotiating in good faith. 56 H. 85, 528 P.2d 809. Based on plain language of section and collective bargaining agreement grievance procedure, plaintiff needed to pursue any claims arising from the agreement in the administrative forum rather than in circuit court. 92 H. 268, 990 P.2d 1150. Where employee was not the exclusive representative of an appropriate bargaining unit and, thus, subsection (a) did not confer any right to submit employee's dispute to an agreed procedure or to the board for a final and binding decision, the board was correct in dismissing employee's claim, and there was no §89-13(a) (7) prohibited practice refusal or failure to comply with chapter 89 by the employer. 97 H. 528, 40 P.3d 930. Where arbitration between the State and union representing state employees was statutorily mandated arbitration pursuant to subsection (e), and not a voluntary agreement to arbitrate, the Hawaii labor relations board had original jurisdiction over the parties' dispute pursuant to §89-14; circuit court did not have jurisdiction pursuant to chapter 658A because that chapter was inapplicable. 134 H. 489, 345 P.3d 155 (2015) . Subsection (a) does not limit the Hawaii labor relations board's authority to intervene when a party commits a prohibited practice by refusing to comply with the alternative impasse procedure. 132 H. 492 (App.), 323 P.3d 136 (2014) . Where neither the government-employee union (union) nor the government employers challenged the terms of the arbitration award or sought to invalidate the arbitration award and where the union filed a motion in circuit court to confirm the arbitration award, the issues raised on appeal by the union relating to the selection of the neutral arbitrator were moot. However, the issues of whether the Hawaii labor relations board (board) or the circuit court had original jurisdiction to resolve the dispute over the selection of the neutral arbitrator and whether the board exceeded its authority in issuing its order for interlocutory relief fell within the public interest exception to the mootness doctrine. 132 H. 492 (App.), 323 P.3d 136 (2014) . Where the government-employee union's (union) claim that the government employers violated the terms of the arbitration award by failing to meet and confer as required by the arbitration award involved a controversy concerning prohibited practices, the Hawaii labor relations board had exclusive original jurisdiction over the claims raised in the union's motion for civil contempt, and the circuit court lacked jurisdiction to decide the motion for civil contempt. 132 H. 492 (App.), 323 P.3d 136 (2014) . Where the parties' actions precluded the arbitration from commencing on the date agreed upon under a memorandum of agreement and threatened the timely resolution of the impasse, the Hawaii labor relations board did not abuse its discretion in facilitating a timely resolution of the parties' stalemate in selecting a neutral arbitrator by having the American Arbitration Association select the neutral arbitrator. 132 H. 492 (App.), 323 P.3d 136 (2014) . Where the parties' claims regarding their dispute over the selection of a neutral arbitrator, as alleged in their prohibited practice complaints, clearly involved a controversy concerning prohibited practices, the Hawaii labor relations board had exclusive original jurisdiction to determine the controversy concerning the selection of the neutral arbitrator. 132 H. 492 (App.), 323 P.3d 136 (2014) . Previous VoIO2-C1]S2(14LULS Next F I 3 https•Jhvww.capitol,hawall.gov/hrscurrenWoIO2_Ch0046-0115/HRS0089/HRS 0089.0011<hlm 414 I I 3