2018 Hawaii Revised Statutes
377. Hawaii Employment Relations Act
377-6 Unfair labor practices of employers.

Universal Citation: HI Rev Stat § 377-6 (2018)

§377-6 Unfair labor practices of employers. It shall be an unfair labor practice for an employer individually or in concert with others:

(1) To interfere with, restrain, or coerce the employer's employees in the exercise of the rights guaranteed in section 377-4;

(2) To initiate, create, dominate, or interfere with the formation or administration of any labor organization or contribute financial support to it, but an employer shall not be prohibited from reimbursing employees at their prevailing wage rate for time spent conferring with the employer, nor from cooperating with representatives of at least a majority of the employer's employees in a collective bargaining unit, at their request, by permitting employee organizational activities on employer premises or the use of employer facilities where the activities or use create no additional expense to the employer;

(3) To encourage or discourage membership in any labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment. An employer, however, may enter into an all-union agreement with the bargaining representative of the employer's employees in a collective bargaining unit, unless the board has certified that at least a majority of the employees have voted to rescind the authority of their bargaining representative to negotiate such all-union agreement within one year preceding the date of the agreement. No employer shall justify any discrimination against any employee for nonmembership in a labor organization if the employer has reasonable grounds for believing that:

(A) Such membership was not available to the employee on the same terms and conditions generally applicable to other members;

(B) Or that membership was denied or terminated for reasons other than the failure of the employee to tender periodic dues and the initiation fees uniformly required as a condition for acquiring or retaining membership;

(4) To refuse to bargain collectively with the representative of a majority of the employer's employees in any collective bargaining unit provided that if the employer has good faith doubt that a union represents a majority of the employees, the employer may file a representation petition for an election and shall not be deemed guilty of refusal to bargain;

(5) To bargain collectively with the representatives of less than a majority of the employer's employees in a collective bargaining unit, or to enter into an all-union agreement except in the manner provided in paragraph (3);

(6) To violate the terms of a collective bargaining agreement;

(7) To refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination of the board or of any tribunal of competent jurisdiction;

(8) To discharge or otherwise discriminate against an employee because the employee has filed charges or given information or testimony under the provisions of this chapter;

(9) To deduct labor organization dues or assessments from an employee's earnings, unless the employer has been presented with an individual order therefor, signed by the employee personally;

(10) To employ any person to spy upon employees or their representatives respecting their exercise of any right created or approved by this chapter;

(11) To make, circulate, or cause to be circulated a blacklist;

(12) To offer or grant permanent employment to an individual for performing work as a replacement for a bargaining unit member during a labor dispute; or

(13) Based on employment or willingness to be employed during a labor dispute, to give employment preference to one person over another who:

(A) Was an employee at the commencement of the dispute;

(B) Exercised the right to join, assist, or engage in lawful collective bargaining or mutual aid or protection through the labor organization engaged in the dispute; and

(C) Continues to work for or has unconditionally offered to return to work for the employer. [L 1945, c 250, pt of §8; RL 1955, §90-7; am L 1959, c 210, §1; am L 1965, c 79, §1; HRS §377-6; am L 1985, c 251, §16; gen ch 1985; am L 1992, c 214, §2]

Case Notes

Trial court erred in affirming Hawaii labor relations board's determination that employer violated paragraph (3), where employer's conduct of putting forward a threatening bargaining proposal did not effect any change in the terms or conditions of the union members' employment, nor involve any discharge or failure to hire union members, and as such, the conduct did not "discriminate", as no employees were treated differently than any others with respect to their employment conditions. 112 H. 489, 146 P.3d 1066 (2006).

Trial court properly affirmed Hawaii labor relations board's determination that employer refused to bargain in good faith in violation of paragraph (4), where elements of employer's final offer, which the board found to be a take-it-or-leave-it proposition, as well as the context of the negotiations, were sufficient evidence upon which the board could have concluded that the employer did not bargain in good faith. 112 H. 489, 146 P.3d 1066 (2006).

Trial court properly affirmed Hawaii labor relations board's determination that employer's conduct had a reasonable tendency to intimidate employees, in violation of paragraph (1), where employer's threatening letter required that the union withdraw its unfair labor practice charge as a condition of agreement, or involved layoffs without any benefits beyond those already in the collective bargaining agreement. 112 H. 489, 146 P.3d 1066 (2006).

Circuit court correctly affirmed the Hawaii labor relations board's ruling that employer did not meet its good faith bargaining obligation under paragraph (4); the board's findings were supported by credible evidence in the record that, inter alia, because the employer's bargaining committee was given "marching orders" from the corporate office, the union's cost proposals could not be considered in a meaningful way, and another employer offer that was good for only one day was the type of take-it-or-leave-it cost proposal inconsistent with an employer's duty to bargain in good faith. 128 H. 289, 287 P.3d 190 (2012).

The law does not require employers to furnish all eight types of information identified in the Hawaii labor relations board's (HLRB) order, or bargain over the subject matter of that information in every instance of effects bargaining accompanying a plant closure; however, this did not foreclose the possibility that a particular factor may be relevant, and thus appropriate for the HLRB to take into consideration in evaluating the totality of an employer's conduct in an effects bargaining case. 128 H. 289, 287 P.3d 190 (2012).

Does not prohibit "agency shop" agreements. 5 H. App. 158, 681 P.2d. 587 (1984).

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