Can the Unions Dodge the Law?

by Tom Yamachika, President, Tax Foundation Hawaii

A recent decision of the Hawaii Labor Relations Board (HLRB) has some people wondering if the United Public Workers (UPW), one of the government employee unions, has figured out how to ignore the law.

Earlier this year, our lawmakers passed Act 25. It bans smoking on the premises of our state-owned hospitals. The law, which is trying to protect not only workers but also visitors and patients, says specifically that it is not subject to collective bargaining, and that hospital administrators are required to “prominently display signs stating that ‘tobacco and electronic smoking device use is prohibited’” at all entrances and other conspicuous locations at each facility.

UPW said, “As far back as one can reasonably recall public employees of the State of Hawaii and the various counties were permitted and allowed to smoke during working hours, including rest and meal periods in public work places prior to and after 1970. Smoking was germane to the ‘working environment’ of employees even before the public sector collective bargaining law was enacted.” To protect its sacrosanct working environment, the UPW asked the Hawaii Health Systems Corporation (HHSC), which runs the state hospitals, to bargain in good faith over this change in working conditions. HHSC came back with some form of, “No, we have nothing to talk about. We have to follow the law, and you do too.” One thing led to the next, and then both parties battled it out before the HLRB.

In a 2-1 decision, the HLRB ruled that the HHSC didn't fulfill its duty to bargain in good faith over working conditions. The UPW, reveling in its victory, wrote the HHSC on November 14, 2016, in a letter published by Civil Beat. “Consistent with [the HLRB] Order,” it said, “we request HHSC to issue prompt written notifications … that smoking is currently permitted in designated areas in HHSC facilities.” HHSC, of course, balked at doing so because Act 25 still says that smoking is banned at all HHSC facilities. HHSC is now in the process of appealing the ruling through the court system.

Is the UPW right, and have they found a way to ignore whatever laws they don't like? If, for example, our legislature passes a tax increase, would the union and its members be able to ignore it unless they bargain in good faith? Could they legitimately tell the State, “No, we won't comply with your new tax. What will you give us if we do?”

Before we run away screaming that our labor board is off its rocker, we need to understand that the board knew that it doesn't have the power to declare a law invalid. If there is a constitutional problem with a law, the courts are supposed to strike it down. The HLRB opinion makes that point clearly.

Perhaps the point the HLRB was trying to make was this. Although the smoking ban is not subject to negotiation, the details of its implementation might be. For example, the law doesn't say that an employee caught smoking on premises is to be fired on the spot. So, one legitimate subject of bargaining is the kind of discipline that HHSC can impose. Does an employee get a second chance? A third? (The UPW proposed that an employee can't be dismissed except for a ninth offense within two years.) Also, employees who now need to walk further to be able to puff on their cigarettes might want to have longer break times. Do they get a few more minutes? That kind of issue is also legitimately negotiated.

Apparently, neither side is now able to see the forest for the trees. The union is overstating the effect of the ruling, and the employer may be overreacting to the overstatement. Hopefully, most of the details can get sorted when the court process plays out.

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Dec 9, 2016: UPW Wins Right to Smoke On The Job in Hospitals