HLRB Right Back
Have you taken Tylenol, lately?
Mediation, n. (mē-dē-ā-shən): That thing the governor rejected about a week ago, after initially endorsing it.
There is a catch, of course. Abercrombie wants to circumvent HSTA's board of directors, who currently vet whether or not proposed agreements are palatable enough to be voted on by the union's members. Instead of waiting for this process to unfold, the governor wants the HLRB "to require that all participating parties be vested with full authority to make proposals," emphasis his own, with the disclaimer that mediated agreements will be "subject solely to ratification by HSTA's members," emphasis implied. It's a new tactic, whereby state negotiators disregard pesky collective bargaining details and bet all of their chips on teachers being too apathetic to call the governor's bluff.
Dear Abby, they're not.
All of that is moot, however, if the labor board censures the offending memo. For if the document asserting the state's acquiescence to mediation—this time, at least—is deemed to have compromised the HLRB's ability to render a fair judgement, both mediation and the adjudicatory process will be imperiled. And to be clear, the board's three appointed representatives (each standing for a different faction of the state, labor, and the people) shouldn't disavow the memo unless they doubt their own equity, since damage to the board's credibility is the singular reason the missive may be problematic. Nicholson admitted as much when he said, "The board does not want members of the public and the parties to have the impression that the board's ability to hear this case or any other case has been compromised."
What, then, is the likelihood of Abercrombie's dispatch being rejected? That's a bit complicated. Ethics regulations to which HSTA representatives refer in their complaint (HRS §84-13) were designed to outlaw the leveraging of a state office for unwarranted employment, professional, compensatory, or other financial advancement, say state attorneys. If true, as appears from the statute's text, the issue will probably hinge upon whether or not the memo was ex parte, defined by Hawaii Administrative Rules §12.42.8(g)(19)(A) as "private communications with members of the board as to the merits of a proceeding with a view towards influencing the outcome of the cause," except in special cases, such as communication with reporters and requests for status updates. Both Abercrombie and HSTA President Wil Okabe have stated that the union received a copy of the letter, though HSTA maintains that the state failed to provide five copies to the board, as required by law. Thus, it's difficult to construe the letter as "private," even if HSTA is correct in alleging that it was hand delivered. Awkward maybe, but hardly clandestine. Contents of the memo were clearly intended to impact the case. Yet, as in traditional juridical cases, presentation of documents is perfectly legal, so long as all parties to the case are provided with the same information and a chance to respond in kind. Can't fault the state for exploiting a flawed system. Instead of crying foul, union bosses should petition local lawmakers to strengthen labor disputation statutes during next year's legislative session.
Nonetheless, the questions raised by HSTA turn the deliberations into a process story, guaranteeing a greater level of procedural scrutiny. That, in turn, may make all parties more conscious of their behavior moving forward, ensuring that evaluation of the union's ethics complaint remains severable from the contest over bad-faith bargaining. From here, the labor board can pursue three different options. First, they can rule that the state was justified in unilaterally declaring an impasse and imposing a contract upon teachers, which would effectively give the state authority to override collective bargaining at any point in the future by employing an adversarial strategy. Second, members could decide that the state bargained in bad faith and prematurely evacuated negotiations, thereby animating injunctive relief from the imposed contract's stipulations and necessitating further, perhaps mediated, discussion. Third, the HLRB could find that both or neither party bargained in bad faith, but that negotiations are mandated by collective bargaining protections enshrined in Chapter 89 and the state Constitution. If board members are reluctant to issue a ruling that will affect labor law for generations to come because of ethical discrepancies, legal ambiguity, or sheer nerves, sending everyone back to the table provides them with an easy, if unsatisfying, out.
That said, another round of talks is all the union wants. Moreover, reneging on your renege, as the governor has done by retracting his rejection of his initial mediation offer, wreaks of confusion, revealing that Abercrombie may not be as confident in the state's arguments as his oft-cited paroxysmal exhortations—i.e., HSTA is deliberately obstructing through the media, while he just wants to host a contractual kaffeeklatsch—would indicate. With two of three options leading to the union's preferred outcome, it might be time for the governor's speechwriters to begin drafting an apology. Union negotiators should definitely reject it, if one comes. After all, they can always change their mind at a later date.
Posted by Kris Coffield at 8/15/2011 10:35 PM 
Categories: Op-Ed
Tags: hsta abercrombie education hawaii politics
Categories: Op-Ed
Tags: hsta abercrombie education hawaii politics
It looks like HSTA is right about the number of copies, but wrong about the illegality of the memo. It does seem shady that the governor can do that, but I don't think his letter said anything that is threatening or would lead the appointees to believe that their livelihoods would be in jeopardy if they didn't side with the state. Two of the HLRB members are Abercrombie appointees after all, so the letter would only manifest a preexisting conflict.
This article rightly states that HSTA would be well served by approaching lawmakers to rectify collective bargaining problems and strengthen the law. How many different end-arounds do we have to see before unions make a serious united effort to assert what Cornel West recently said: Labor isn't a public interest, but a public service.
I hope that HLRB members are cautious about how they behave because of all the public eyes, but they're appointed for six years to downplay politics in the resolution process. They should be cautious not because of public perception, but because remaking the law will basically end collective bargaining in Hawaii and give the state the same unilateral power we're seeing in Michigan, Florida, and Wisconsin.
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