HOUSE OF REPRESENTATIVES

H.B. NO.

1931

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to public employees.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that Hawaii's collective bargaining in public employment law, chapter 89, Hawaii Revised Statutes, was enacted to promote labor management harmony in the public sector by:

     (1)  Establishing guidelines for employment relations relating to wages, hours, and working conditions;

     (2)  Providing a method for dealing with disputes and work stoppages; and

     (3)  Maintaining a favorable political and social environment.

     The legislature further finds that the policy to promote harmonious and cooperative relations between government and its employees rests on the right of public employees to organize for the purpose of collective bargaining, in accordance with article XIII, section 2, of the Constitution of the State of Hawaii.  The legislature finds that changes in federal constitutional law could have a major impact on public employee collective bargaining in Hawaii.  In Friedrichs v. California Teachers Ass'n, et al., 2013 WL 892547 (D. Cal. C.D. 2013), aff'd 204 WL 10076847 (Mem.) (9th Cir. 2014), aff'd 136 S.Ct. 1083 (Mem.), 194 L.Ed. 2d 255 (2016), the petitioners had asked the United States Supreme Court to overrule Abood v. Detroit Bd. Of Educ., 431 U.S. 209, 97 S. Ct. 1782, 52 L.Ed. 2d 261 (1977) (allowing public sector agency fees).  An equally-divided United States Supreme Court upheld the status quo established in the Abood case.  Many commentators considered that, but for the sudden death of Justice Antonin Scalia, Friedrichs would have overruled Abood.

     In June 2017, the petitioner in Janus v. American Fed'n of State, County, and Mun. Employees, Council 31, 851 F.3d 746 (7th Cir. 2017), cert. granted, 138 S.Ct (Mem.), 198 L.Ed. 2d 780 (2017) again asked the United States Supreme Court to overrule Abood.  The Court has accepted the case, and a decision is expected by the end of June 2018.  Most commentators again expect that Abood will be overruled, and traditional agency fees will be banned.

     The legislature also finds that, should the United States Supreme Court strike down laws requiring the payment of union dues by public sector employees, such a ruling would fundamentally undermine this legislature's consistent efforts to bar "free riders", and ensure labor management peace.  Not only would such a ruling undercut the collective bargaining representative's ability to collect resources from its bargaining unit, it would greatly diminish the public employees' ability to negotiate with management.  This, in turn, would cause the government to lose the advantages envisioned in section 89-1(a), Hawaii Revised Statutes.

     Accordingly, the purpose of this Act is to accommodate employees' political and sincere religious First Amendment-based objections to supporting exclusive representatives, while ensuring that public employees are able to effectively bargain collectively with the public employer.  This Act, consistently with the Constitution of the United States, will remove economic incentives to "free ride," so that Hawaii law will not be biased for or against employee membership in the bargaining unit's exclusive representative.  It will also provide exclusive bargaining representatives with the resources necessary to adequately represent public employees.

     SECTION 2.  Section 89-3.5, Hawaii Revised Statutes, is amended to read as follows:

     "§89-3.5  [Religious exemption from support of employee organization.  Notwithstanding any other provision of law to the contrary, any employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting employee organizations shall not be required to join or financially support any employee organization as a condition of employment; except that an employee may be required in a contract between an employee's employer and employee organization in lieu of periodic dues and initiation fees, to pay sums equal to the dues and initiation fees to a nonreligious, nonlabor organization charitable fund exempt from taxation under section 501(c)(3) of the Internal Revenue Code, chosen by the employee from a list of at least three funds, designated in the contract or if the contract fails to designate any funds, then to any fund chosen by the employee.  If an employee who holds conscientious objections pursuant to this section requests the employee organization to use the grievance-arbitration procedure on the employee's behalf, the employee organization is authorized to charge the employee for the reasonable cost of using the procedure.]  Exemption from support of exclusive representative.  Notwithstanding any other law to the contrary, any employee who, based on sincerely-held religious principles, or political choice, and in exercise of First Amendment rights, objects to joining an employee organization or financially supporting the exclusive representative, shall not be required to join or financially support the exclusive representative as a condition of employment; except that the exclusive representative may require the employee, in lieu of periodic dues and initiation fees, to pay, by payroll deduction and pursuant to published policy, sums equal to the dues and initiation fees to a charitable fund exempt from taxation under section 501(c)(3) of the Internal Revenue Code.  The charitable fund shall be chosen by the employee but shall not be one dealing with religious or collective bargaining issues.  If an employee who objects pursuant to this section requests the exclusive representative to use the grievance-arbitration procedure on the employee's behalf, the exclusive representative is authorized to charge the employee for the reasonable cost of using the procedure."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Public Employees; Political Exemption; Collective Bargaining; Union Fees

 

Description:

Broadens an employee's exemption from support of a bargaining unit's exclusive representative to include political objection.  Permits the exclusive representative to require an employee, in lieu of union fees, to pay an equivalent amount to a non-profit charitable fund.

 

 

 

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