Loophole for Collective Bargaining in Hawaii?

Months of angst over how Hawaii can achieve all its federal Race to the Top reforms might have been avoided had policymakers looked more closely at the state's labor law.

Although Gov. Neil Abercrombie's administration has made much of its need for the Hawaii State Teachers Association's cooperation in reaching the federal grant targets, a veteran labor attorney says the grant is not dependent on the teachers union, thanks to a loophole in state labor law.

Tony Gill, an attorney for the University of Hawaii Professional Assembly, submitted his analysis of state law to the Hawaii Labor Relations Board, which is hearing a protest by the teachers union over the governor's decision to impose a contract last year.

Deputy Attorney General Jim Halvorson credited Gill's analysis as complete, but said that just because the loophole exists doesn't mean it should be used, especially when doing so might jeopardize that same grant.

The new contract included a pay cut and increase in health costs for teachers, but it did not include teacher evaluations and performance-based pay — two key and controversial promises in the state's Race to the Top plan. That was because, state attorneys told Civil Beat, the law limits an employer to unilaterally imposing only changes in work conditions that had been presented at the bargaining table before an impasse was reached.

The U.S. Department of Education rebuked Hawaii in December for failing to meet Race to the Top promises and placed its $75 million grant on "high-risk" status, citing as one of the roadblocks the state's inability to successfully negotiate a collective bargaining agreement. Abercrombie blamed the union, but the reprimand galvanized the state to action and bargaining resumed.

A tentative agreement was rejected by teachers earlier this month. Abercrombie then said he would go ahead with every Race to the Top reform that didn't depend on bargaining, but indicated that performance pay might still depend on a new agreement with teachers.

Meanwhile, some union members touted the needed Race to the Top reforms as leverage to use in further negotiations, and their attorney tried to use the possibility of losing the grant as leverage to expedite his case before the labor board.

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