HLRB Refuses to Order – Allows UHPA to Challenge in Court
News Release from UHPA, June 13, 2021
Refuse to rule for good cause and lack of jurisdiction
On Thursday, June 20, 2021, the Hawaii Labor Relations Board (HLRB) issued an order no. 3764 over UHPA’s Petition for Declaratory Ruling in Case No. 21-DR-07-177. Essentially, the Board refused to issue any ruling over UHPA’s three (3) questions presented to the Board for good cause and lack of jurisdiction.
Constitutional issues not within Board’s authority
UHPA questioned the following in its Petition for Declaratory Ruling:
- Whether the legislative deletion of a specific occupied bargaining unit position violates Hawaii Revised Statutes (HRS) Chapter 89, specifically whether any item in a budget bill that purports to delete an occupied position is null and void based on HRS § 89-19;
- Whether, if DAVID Y. IGE, Governor, State of Hawaii (Governor) signs HB 200 into law, has he committed a prohibited practice as a public employer due to the legislative deletion of a specific occupied bargaining unit position, specifically whether it would be a prohibited practice under HRS § 89-13[a](7) for the Governor to sign HB 200, based on §§ 89-3 and 89-8, and/or a prohibited practice under HRS § 89-13[a](8); and
- Whether, if the Governor signs HB 200 into law, when HB 200 contains the legislative deletion of a specific occupied bargaining unit position, any animus of a Hawaii State Legislator (Legislator) may be attributed to the Governor, and, if the Legislator’s animus is of an exacerbated type, it would justify an extraordinary corrective order from the Board.
The Board analyzed UHPA’s question 1. and 3. and determined that they are matters that question constitutional issues and not statutory matters covered under Chapter 89, HRS, in which the Board has original jurisdiction and authority. On question 2. the Board determined that the question is not properly before the Board to rule since there was no prohibited practice complaint filed.
Provides Pathway for Circuit Court Challenge
The Board’s order now allows UHPA to challenge the constitutional issues and concerns over HB 200 in Hawaii’s Circuit Court. The order was not necessarily unexpected, as in prior cases the courts have required the exhaustion of all applicable administrative remedies.
UHPA’s leadership and legal counsel are currently reviewing and analyzing the Board’s recent order. UHPA will keep the membership apprised of any future actions taken on this matter.
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UHPA Believes Budgetary Cuts Violate Our Statutory & Constitutional Rights, Files Request for Hawaii Labor Relations Board Ruling
News Release from UHPA, May 31, 2021
A University of Hawaii position currently occupied by a tenured faculty member is potentially being eliminated because of a legislative bill designed to target that specific job position. That bill is now with Gov. David Ige awaiting his approval or veto. UHPA has filed a complaint with the Hawaii Labor Relations Board to preempt any violations of Hawaii’s laws, the state constitution and collective bargaining agreement.
Taking a Stand
After several weeks of discussions and conversations, multiple news reports, and various opinions and perspectives shared by UH and State officials, UHPA cannot take a wait-and-see approach any longer. The specific action of summarily terminating an existing Unit 7 position currently occupied by a tenured 11-month researcher with many years of service and in good standing through targeted legislation cannot be accepted nor condoned.
Action is Unprecedented
Never in the history of UHPA did any Faculty member have to fear their employment could be targeted for termination by a legislator. This action by the Legislature was not the normal sweep of vacant positions for budgetary purposes. This was a direct and purposeful act to terminate one specific position from the UH filled and occupied by a tenured Faculty Member.
Violating Statutory and Constitutional Rights
HB 200, CD 1, if approved or not vetoed by the Governor, would not only violate Chapter 89, HRS, and our existing Unit 7 Agreement, but in UHPA’s view would violate our Hawaii State Constitutional Rights under Article XIII, Section 2. UHPA believes that the same tenets as argued before the Hawaii Supreme Court in Act 100, SLH 1999, are the same principals at play in HB 200, CD 1.
By Ignoring the Collective Bargaining Process
UHPA believes that as in Act 100, SLH 1999, the law would violate Article XIII, Section 2, because it negates the collective bargaining process on core subjects such as wages, hours and other conditions of employment that the voters contemplated would be part of the bargaining process when they ratified the Section 2 at the November 5, 1968 general election.
We Have No Choice
On Friday, May 28, 2021, UHPA through its legal counsel Gill, Zukeran, and Sgan, filed a request for a declaratory ruling with the Hawaii Labor Relations Board (HLRB). While this action is unprecedented and has never been attempted before, UHPA can’t take the back seat and wait until something does or doesn’t happen. We cannot consciously accept these types of inappropriate actions without questioning its legality.
The University of Hawaii Professional Assembly (UHPA) filed a petition for a “declaratory ruling” with the Hawai‘i Labor Relations Board (HLRB) this afternoon in response to the underhanded actions taken to modify the budget bill in conference committee without public input that terminated a tenured Faculty member’s position with the University of Hawai‘i effective July 1, 2021.
The unprecedented action has forced UHPA to take the extraordinary step of filing this petition with the HLRB to assess the bill from a legal and constitutional perspective before the June 21st deadline when Gov. David Ige must decide on his intent to veto.
We brought this to the attention of the HLRB for a number of important reasons:
This action is a clear example of overreach. The Hawai‘i State Constitution empowers only the UH Board of Regents to assert exclusive control over the internal structure, management and operations of the University of Hawai‘i system.
This specific action of targeting a single position is not designed or intended to support budgetary concerns. There were as many as 60 other vacant faculty positions available for use. The action only targeted one position that is currently filled by a tenured faculty member.
Protocols and procedures that affect the employment status of faculty members are specifically covered in the Unit 7 collective bargaining agreement to protect against these types of arbitrary and capricious actions. UHPA believes the bill violates the existing terms of the Unit 7 collective bargaining agreement and infringes upon our constitutional right to engage in collective bargaining.
UHPA is seeking the HLRB’s position on our expressed concerns.
“It is unfortunate that we must expend substantial amounts of the time, energy, money, and resources to address this grievous action instead of allowing our Faculty to devote their full and undivided attention on preparing for the upcoming fall semester and to continue to support the role of the UH as an economic engine to accelerate our state’s economic recovery.”
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