Hawaii teachers baffled by bargaining impasse with the State

Beth-Ann Kozlovich

with Beth-Ann Kozlovich

HONOLULU—Union contract negotiations may not be a big part of your life, but for teachers, fortunes rise and fall at the bargaining table. The charges and counter charges that continue to fly between the state and the union are taking both into untested areas according to former Hawaii State Teachers Association (HSTA) executive director Joan Husted.

The State implemented “its last, best, and final offer” in June prior to the expiration of the old contract, while the union asserted the State had walked away from the table 10 days before the contract ended and has no right to engage in a prohibited practice.

“This is the first time it has happened,” Husted says. “I started bargaining for teachers in 1971. Periodically [the State] would sit at the table and say, ‘You know, we might implement our last, best offer.’ And you’d say to them, ‘You don’t want to do that, let’s just get this settled.’ And they’d say, ‘Oh, okay.’ But it always lurked on the horizon back there that somebody might come along and decide that’s what they were going to do. If you had asked me to bet that it would be [Gov. Neil Abercrombie], I would have said there’s no way Abercrombie would do that.”

That fact has caused Husted and other teachers to question the governor’s affinity for his former profession. Husted says she supported his bid for governor as did many other educators and now many feel betrayed. Regardless of personal feelings, the union’s complaint that the State unilaterally imposed the contract to get what amounted to a 5 percent savings may get an answer from the Hawaii Labor Relations Board (HLRB) like none has seen before.

Labor attorney Tony Gill, whose firm was involved since the founding of the labor law, says of the five or six major points raised by the HSTA, several are clearly intended to implicate constitutional values. But on the question of the last, best offer being unilaterally implemented, it’s a matter of labor law doctrine under the statute.

Gill tries to explain: “The problem that the parties have and the problem that we as observers have is that there is some language in labor board decisions—unpublished decisions, orders, minor pieces of documentation that go one way—and the language of the statute under which everyone is supposed to be working appears to go another. And between the one way and the other, there is a great gap, a gap of knowledge because there are no clear labor board decisions that addresses this point. It is a genuinely new issue.”

Semantics are involved, he says, particularly regarding the word “impasse.” That said, Gill also says the best solution in the public interest now is to have the parties come back to the bargaining table and come up with a contract they can each live with. But given a hovering problem, wouldn’t it be better to finally have clarity and definitive answers? Gill says the only time a problem exists is when the parties disagree. So far, in all the years of bargaining, the parties have reached voluntary agreement at some point. Moreover, the board doesn’t exist to clear hypothetical situations but to get the public business done.

Pushing for reconciliation between the language of the statute and the language of the labor board’s decisions might mean the union would lose out.

Husted goes further. She says that pushing for reconciliation between the language of the statute and the language of the labor board’s decisions might mean the union would lose out.

“The abstract might go my way or it might go the employer’s way,” Husted says. She believes that, fundamentally, bargaining is about relationships and agrees with Gill that in an end-of-game option—the implementing of the last, best offer—the relationships won’t matter.

“If the courts say you can implement the last, best and final offer, it will change the whole dynamic of collective bargaining,” Husted says. “From my vantage point, it will make collective bargaining a meaningless activity because at any point in time, the employer can say, ‘well, we disagree’; ‘we’re at impasse’; ‘we’ve gone through the required steps so we’ll implement our last, best, and final offer.’ The union could go strike. But I don’t think that for the good of the community every time the parties go to the bargaining table that this community wants to face a teacher’s strike.”

Then again, one could ask whether relationships matter now as much as posturing to have one side come out the victor.

Late last week, the State responded in a 41 page formal reply, also filed with the HLRB, and said the union has engaged in “a consistent pattern and practice of bad faith bargaining and litigation” over the past three years.

Perhaps what is a little more quizzical is the joint statement made by Abercrombie, Superintendent Kathryn Matayoshi, and Board of Education Chairman Don Horner that they remain focused on “working together with educators and parents to make this upcoming school year a truly outstanding one for Hawaii’s students.”

“It is to everyone’s advantage to get it settled.”

That seems to be the point of every school year, not exclusively this one. But the central issue here is whether the State was within its purview to move to the endgame at the time at which it did. Husted says she is equally as concerned—and hopes the State is, too—that this process will have a very unintended consequence: It will threaten Hawaii’s much congratulated status with Race to the Top.

“The Governor is looking at the money and saying we won’t get the money if we don’t get this settlement,” Husted says. “The $76 million is actually spread over four years—it’s not for one particular year. The second thing is the federal law doesn’t interfere with the collective bargaining process. It is to everyone’s advantage to get it settled. What’s even more important, there are critical issues for Race to the Top that require mutual agreement by the parties that have to be negotiated. And if the well is poisoned, it will be hard for the two parties to come to agreement.”

In the absence of a return to bargaining, Gill believes we should know in a few months the answer to an abstraction that has quietly haunted the bargaining process for decades. Hopefully, the decision we get won’t be a situation where the treatment worked but the patient died anyway.

The entire interview with Joan Husted and Tony Gill is on the Town Square archive at www.hawaiipublicradio.org.