§89-9 Scope of negotiations; consultation. (a) The employer and the exclusive representative shall meet at reasonable times, including meetings sufficiently in advance of the February 1 impasse date under section 89-11, and shall negotiate in good faith with respect to wages, hours, the amounts of contributions by the State and respective counties to the Hawaii employer-union health benefits trust fund to the extent allowed in subsection (e), and other terms and conditions of employment which are subject to collective bargaining and which are to be embodied in a written agreement as specified in section 89-10, but such obligation does not compel either party to agree to a proposal or make a concession.

(b) The employer or the exclusive representative desiring to initiate negotiations shall notify the other party in writing, setting forth the time and place of the meeting desired and the nature of the business to be discussed, sufficiently in advance of the meeting.

(c) Except as otherwise provided in this chapter, all matters affecting employee relations, including those that are, or may be, the subject of a rule adopted by the employer or any director, shall be subject to consultation with the exclusive representatives of the employees concerned. The employer shall make every reasonable effort to consult with exclusive representatives and consider their input, along with the input of other affected parties, prior to effecting changes in any major policy affecting employee relations.

(d) Excluded from the subjects of negotiations are matters of classification, reclassification, benefits of but not contributions to the Hawaii employer-union health benefits trust fund, recruitment, examination, initial pricing, and retirement benefits except as provided in section 88-8(h). The employer and the exclusive representative shall not agree to any proposal that would be inconsistent with the merit principle or the principle of equal pay for equal work pursuant to section 76-1 or that would interfere with the rights and obligations of a public employer to:

(1) Direct employees;

(2) Determine qualifications, standards for work, and the nature and contents of examinations;

(3) Hire, promote, transfer, assign, and retain employees in positions;

(4) Suspend, demote, discharge, or take other disciplinary action against employees for proper cause;

(5) Relieve an employee from duties because of lack of work or other legitimate reason;

(6) Maintain efficiency and productivity, including maximizing the use of advanced technology, in government operations;

(7) Determine methods, means, and personnel by which the employer's operations are to be conducted; and

(8) Take actions as may be necessary to carry out the missions of the employer in cases of emergencies.

This subsection shall not be used to invalidate provisions of collective bargaining agreements in effect on and after June 30, 2007, and except as otherwise provided in this chapter, shall not preclude negotiations over the implementation of management decisions that affect terms and conditions of employment that are subject to collective bargaining. Further, this subsection shall not preclude negotiations over the procedures and criteria on promotions, transfers, assignments, demotions, layoffs, suspensions, terminations, discharges, or other disciplinary actions as subjects of bargaining during collective bargaining negotiations or negotiations over a memorandum of agreement, memorandum of understanding, or other supplemental agreement; provided that such obligation shall not compel either party to agree to a proposal or make a concession.

Violations of the procedures and criteria so negotiated may be subject to the grievance procedure in the collective bargaining agreement.

(e) Negotiations relating to contributions to the Hawaii employer-union health benefits trust fund shall be for the purpose of agreeing upon the amounts which the State and counties shall contribute under section 87A-32, toward the payment of the costs for a health benefits plan, as defined in section 87A-1, and group life insurance benefits, and the parties shall not be bound by the amounts contributed under prior agreements; provided that section 89-11 for the resolution of disputes by way of arbitration shall not be available to resolve impasses or disputes relating to the amounts the State and counties shall contribute to the Hawaii employer-union health benefits trust fund.

(f) The repricing of classes within an appropriate bargaining unit may be negotiated as follows:

(1) At the request of the exclusive representative and at times allowed under the collective bargaining agreement, the employer shall negotiate the repricing of classes within the bargaining unit. The negotiated repricing actions that constitute cost items shall be subject to the requirements in section 89-10; and

(2) If repricing has not been negotiated under paragraph (1), the employer of each jurisdiction shall ensure establishment of procedures to periodically review, at least once in five years, unless otherwise agreed to by the parties, the repricing of classes within the bargaining unit. The repricing of classes based on the results of the periodic review shall be at the discretion of the employer. Any appropriations required to implement the repricing actions that are made at the employer's discretion shall not be construed as cost items. [L 1970, c 171, pt of §2; am L 1975, c 31, §1 and c 164, §1; am L 1980, c 253, §6; am L 1984, c 254, §1; gen ch 1985; am L 1986, c 156, §1; am L 1987, c 27, §4; am L 1988, c 399, §4; am L 1993, c 364, §§16, 17; am L 1998, c 115, §13; am L 1999, c 100, §2; am L 2000, c 253, §98; am L 2002, c 232, §2; am L 2004, c 10, §4; am L 2005, c 245, §§6, 8; am L 2007, c 58, §§1, 3 and c 294, §2; am L Sp 2008, c 5, §1; am L 2010, c 106, §2; am L 2013, c 98, §2; am L 2018, c 10, §1]

Note

Sections 87-4 and 87-1(8) referred to in subsection (e) are repealed. For present provisions, see chapter 87A.

Attorney General Opinions

Pursuant to this section and §304-11, board of regents may enter into a collective bargaining agreement providing for tuition exemption for faculty and staff members. Att. Gen. Op. 74-12.

Case Notes

Where dates upon which plaintiffs were paid were not a "cost item" as that term is defined in §89-2, plaintiffs' contention that timing of their paychecks as it stood on June 30, 1999 was continued another two years until July 1, 2001 by Act 100, L 1999 (which, inter alia, amended this section), lacked merit. Even if payroll lag was a cost item, the collective bargaining agreement expired on June 30, 1999; plaintiffs' rights under the collective bargaining agreement expired on that day. 125 F. Supp. 2d 1237.

Board was empowered to make declaratory judgment regarding validity of collective bargaining agreement. 60 H. 436, 591 P.2d 113.

Section does not bar arbitration of grievances over tenure and promotion. 66 H. 207, 659 P.2d 717.

Does not limit board's power to order union to implement staffing of essential positions. 66 H. 461, 667 P.2d 783.

Policy statement was not bargainable to the extent that it constituted compliance with the Drug-Free Workplace Act. Because the Act inherently mandated implementation, appellant need not wait until appellee attempted an implementation of an apparatus to effectuate the policy; because implementation would affect bargainable topics, appellant may initiate bargaining at any time upon such topics. 79 H. 154, 900 P.2d 161.

County did not violate collective bargaining statutes by refusing to bargain over effects of privatization where because privatization effort was contrary to law, it was outside scope of negotiable topics. 85 H. 61, 937 P.2d 397.

Section 2 of Act 100, L 1999 violated the rights of public employees under article XIII, §2 of the Hawaii constitution by amending this section to prohibit public employers and public employees' unions from collectively bargaining over cost items for the biennium 1999 to 2001. 100 H. 138, 58 P.3d 649.

Section 2 of Act 100, L 1999 (which amended subsection (a)) violated article XIII, §2 of the Hawaii constitution because it withdrew from the collective bargaining process 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 article XIII, §2. 101 H. 46, 62 P.3d 189.

The general prohibition in subsection (d) against a public employer and the exclusive representative of a collective bargaining unit agreeing to a "proposal inconsistent with merit principles" is subject to this subsection's provisions allowing for, inter alia, negotiation of promotion and demotion procedures in a collective bargaining agreement and a grievance process for violation thereof; §76-1, Revised Charter of Honolulu §§6-302, 6-306, 6-308, and rules of the civil service commission §§13-2 and 13-3 do not conflict with subsection (d). 106 H. 205, 103 P.3d 365.

In light of the plain language of subsection (d), labor relations board erred in concluding that the city's proposed transfer of refuse workers from one location to another was subject to collective bargaining under subsection (a). 106 H. 359, 105 P.3d 236.

As subsection (d) precludes collective bargaining over classification issues and thus places them out of the reach of an arbitrator, who derived jurisdiction and authority from the collective bargaining agreement, arbitrator lacked arbitral jurisdiction. 101 H. 11 (App.), 61 P.3d 522.

Where collective bargaining agreement provisions granted arbitrator broad authority to remedy grievances and, pursuant thereto, arbitrator ordered that employees be promoted: (1) employer was not estopped from asserting that the arbitrator exceeded the arbitrator's authority in granting remedial promotions; (2) the arbitration award did not violate public policy; and (3) the arbitrator's award did not exceed the arbitrator's authority. 134 H. 155 (App.), 338 P.3d 1170 (2014).

Discussed: 133 H. 188, 325 P.3d 600 (2014).