Representative Jon Riki Karamatsu
House Journal Written Remarks
House Bill 952, House Draft 1, Senate Draft 2, Conference Draft 1
Relating to Labor
Labor Unions; Private Sector
July 15, 2009
The following is submitted in opposition to the motion to override the Governor’s veto on House Bill 952, House Draft 1, Senate Draft 2, Conference Draft 1, the “card check” bill.
The purposes of this bill are to: (1) change the union certification process by allowing certification of a union representative through card check authorizations without a secret ballot election; (2) to permit a union and individual employees, but not an employer, to collect attorneys’ fees and costs in actions before the Hawaii Relations Board (HLRB); and (3) to allow a civil penalty if an employer or employee, but not a union, willfully or repeatedly commits a prohibited practice.
While I support employees’ rights to be represented by unions if they so choose, I must vote “no” on the motion to override the Governor’s veto because the final form of this bill undermines the intent and purpose of “fairness” and process of collective bargaining between employees and employers on several points: (1) The authorization card process destroys the current process of certifying union representatives through election by secret ballots, which is a fair democratic process that protects the privacy of the individual to make a decision without possible outside influence such as intimidation and coercion; (2) This bill gives an unfair advantage to employees in addressing prohibited practices claims whereas, current law is fair to all parties when addressing prohibited practices; (3) This bill gives unions an unfair advantage over both employers and employees because it allows a civil penalty if an employer or employee repeatedly commits a prohibited practice, but not if a union repeatedly commits a prohibited practice; and (4) This bill places the employers in an unfair position to the employees and unions.
First, we should continue the current process of certifying union representatives through election by secret ballots. In Hawaii, elections have been the exclusive means by which a union may obtain certification by the HLRB to act as a collective bargaining representative for a group of employees. However, this bill obligates the HLRB to certify a union based on authorization cards without an election. Authorization cards are not good indicators of support and this method of certifying a collective bargaining representative is susceptible to intimidation, coercion, and other factors.
In contrast, an election by secret ballots similar to the process we elect our public officials is a democratic process that protects the privacy of individuals to make a decision, in this case, a decision on whether one wants or does not want union representation. This process is a better method of ascertaining whether a union truly has majority support.
Second, this bill gives an unfair advantage to employees in addressing prohibited practices claims by amending section 377-9, Hawaii Revised Statutes, modifying the remedial powers of the HLRB to include authority to award employees any interest on back pay awards, plus costs and attorneys’ fees if they prevail in a prohibited practice claim with the HLRB.
There is no downside to an employee, through its union representative, to file unfounded or specious prohibited practice claims against the employer, as the employer must vigorously defend any and all such claims for fear that in the chance that the employee prevails; there will be an additional award of attorneys’ fees and costs to the employee’s representative, the union.
Even if the employer prevails against a frivolous employee’s prohibited practice claim, the employer cannot be awarded its attorneys’ fees and costs. This will have the unintended consequence of driving up the cost of doing business in Hawaii and presumably driving away business interests at a time when we can least afford it.
In contrast, current law is fair in addressing prohibited practices. Section 89-14, Hawaii Revised Statutes, provides that any controversy concerning prohibited practices may be submitted to the HLRB in the same manner and with same effect as provided in section 377-9, Hawaii Revised Statutes. Section 89-13, Hawaii Revised Statutes, provides that it is unlawful for either employers or unions to engage in prohibited practices either against one another or against individual employees. Complaints alleging prohibited practices may be submitted by a union against an employer on behalf of one or more union members, by an employer against a union, or by an individual employee against his or her union, his or her employer, or both.
Further, this bill may also have a detrimental impact on the resolution of labor disputes through the grievance procedure and arbitration provided for in the current collective bargaining agreements. Those collective bargaining agreements provide that each side will bear its own costs and fees. This bill is an incentive for union attorneys to file HLRB claims rather than grievances. Therefore, it counters the core of the collective bargaining process by replacing negotiations between the parties with mandatory mediation and binding arbitration, leading to the unintended consequences of taking away the need of the parties to negotiate in good faith and come to a reasonable resolution since the party with the best position for an arbitration will not be inclined to meaningfully participate in negotiations but will instead be motivated to “try the issues” before an arbitration panel.
Third, this bill amends section 377-9, Hawaii Revised Statutes, by mandating the HLRB impose a civil penalty not to exceed $10,000 in the event that an employer or any employee is found to have “willfully or repeatedly” committed a prohibited practice. This amendment fails to provide such penalties against a union if the HLRB finds it has committed prohibited practices against an employer. The bill also fails to provide for the imposition of a civil penalty in the event that a union has been found to have committed prohibited practices against one of its own members. Thus, this bill gives unions an unfair advantage over both employers and employees.
Finally, we need to have fairness and a “give and take” relationship between the employees and employers, and unions and employers. Of the many things that inspired me to enter politics, fairness is on the top of the list. I learned how Hawaii’s labor workers were discriminated against and treated very poorly from the 1880s until the middle of the twentieth century. They had very little rights and were paid low wages. My heroes of the World War II generation worked hard, proved their loyalty to their country, and entered politics to eliminate the discriminatory laws. They made sweeping changes beginning from the 1950s that brought more fairness for the people of Hawaii. Over the last six decades, the rights and benefits of employees have increased tremendously. Today, the Big Five companies, Republican oligarchy, and powerful descendants of the missionaries no longer dominate the economic landscape, reaping the benefits of native and immigrant laborers here in the islands. Many of us in elected office are descendants of plantation laborers, the 1954 Democratic Revolution, and the World War II generation.
As beneficiaries of the sacrifices of the generations before us, we are now both employees and employers. The state is now made up of many small businesses involved with our largest industry, tourism, followed by federal spending, retail, diversified agricultural, technology, science, and film to name a few. Our small businesses face a constant threat of being overtaken by large companies from abroad. It is my goal to do all I can to help Hawaii’s small businesses be sustainable and prosperous, even expanding globally.
In order to strengthen Hawaii’s economy, the relationship between its employees and employers are very important. I have told the business community and the unions that this relationship is like marriage. Both sides have to be able to “give and take” because they need each other. If the employer’s profits increase, employees deserve more benefits. In contrast, if the employer is facing financial difficulties because unions representing employees refuse to capitulate or compromise, the employer reduces the size of its workforce or worse, closes down and the employees lose their jobs.
Maybe the big companies from abroad can handle the requests by the labor unions including the other high costs of doing business in Hawaii such as expensive land and high shipping costs; however, they can always pick up and leave for another part of the world that fits their budget better.
I worry about the future economic viability of our small businesses will go the way of many “mom and pop” stores that have closed because the cost of doing business here far outweighed their profits. I will do all I can to avoid this. This bill places employers in an unfair position to their employees and the unions, and could have the unintended consequence of further driving businesses to shut down and discouraging future businesses from operating in Hawaii.
For the foregoing reasons, I vote “no” on the motion to override the Governor’s veto of House Bill 952, House Draft 1, Senate Draft 2, Conference Draft 1. Thank you.
JON RIKI KARAMATSU 