No, DOE, You’re Not God

by Tom Yamachika, President, Tax Foundation Hawaii

In recent weeks, it’s been no secret that the Hawaii State Teachers Association (HSTA) has had some concerns about their working conditions. Schools are about to start up again with in-person instruction. Teachers are then supposed to be teaching a bunch of random kids, few of whom may be vaccinated because vaccines only recently have been approved for early teenagers and still aren’t approved for kids under 12. Oh, and then some teachers are concerned about vaccine mandates. So HSTA filed a “class grievance” – basically a labor complaint – and asked for some dialogue with the Department of Education (DOE) about this.

DOE’s response, signed by its Labor Relations Administrator, told HSTA that “the Governor’s Emergency Proclamation dated August 5, 2021, suspended the following provisions of law, but only as explicitly set forth below and as allowed by federal law, pursuant to section 127A-13(a)(3),” cited a number of sections in the Hawaii law governing collective bargaining in public employment, and concluded with: “As such, we are taking no further action on the matter.”

Translation: “The Governor’s suspended the laws governing labor relations in public employment. Therefore, we can do what we want, and we won’t even listen to you. Go pound sand.”

What a high and mighty response!

The Governor did indeed issue a proclamation on August 5. The language in DOE’s response is apparently taken from pages 11-12 of the 20-page document. The Governor issued another proclamation on October 1 restating the same language, because emergency proclamations are effective for 60 days and the August proclamation would have expired on October 4th.

Was that response justifiable or necessary? Certainly, federal labor law protections normally associated with a collective bargaining agreement don’t apply when a State is the employer. There are U.S. constitutional protections preventing state law interference with contracts; the collective bargaining agreement is a contract. The constitutional law gives states certain liberties, including suspending or tweaking contract rights, to protect citizens in case of an emergency.

But none of this law gives the State the right to simply slam the door on a public worker union when it has understandable concerns about its members’ working conditions.

In other words, neither DOE nor the Governor can tear up a public union contract just by saying we’re in a COVID emergency. Our state government, having bargained for and entered into an agreement with HSTA, needs to live up to what it agreed to in the contract. HSTA needs to live up to what it agreed to, as do the other public employee unions such as HGEA and UPW. And we as a people have a right to expect that everyone will live up to their obligations, especially because roughly two billion dollars a year, close to one-eighth of the whole state budget, is invested in the DOE.

In this kind of situation, we should take a page from the ancient Hawaiians’ playbook. They had a ritual of sorts called ho‘oponopono. In the ritual, a statement of the problem is made, and the issue is discussed. Everyone is expected to work problems through and cooperate, not “hold fast to the fault.” Everyone’s feelings are acknowledged. Then they all worked out the problem and broke bread together afterward.

Slamming the door is no way to solve a problem, whatever it is. It just serves to polarize the parties further. Rather, even today, all of us need to be doing more listening and less positioning.