Why Public Unions Fight Con-Con

Larry Price
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Wednesday - October 08, 2008
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If you were looking for a reason to have, or not have, a constitutional convention, you would probably have to look no further than Hawaii’s labor laws, especially those dealing with public-sector bargaining.

Public-sector labor relations differ widely among the 50 states. Several have no public-sector bargaining laws and a few prohibit at least some occupations from bargaining, and most prohibit strikes.

For that reason, the group with the most to lose in Hawaii in a new Con-Con would likely be the public-sector employees and it only make sense for them to be defensive.

While exemptions for federal labor law coverage are relatively few in the private sector, that is not the case in the public sector. In the private-sector, only agricultural workers, domestic workers and supervisors and managers are exempt from coverage. Public-sector differences exist by types of employees and political jurisdictions. In fact, there is a difference between employees within and outside a statutory civil service system. In most places, but not necessarily in Hawaii, politically appointed employees are usually unprotected and in many locations, civil service employees are not permitted to bargain collectively, and using a prospective employee’s political party membership as a criterion for maintaining a public position is limited.

A constitutional convention could produce other changes.

Within every state, a variety of lesser jurisdictions and semi-autonomous agencies exist. Agood example in Hawaii is our statewide university system. It is largely autonomous from the legislature in terms of governance. Same is true for counties, cities, school boards, transportation authorities, and the like, are all publicly governed, but each is responsible to a different constituency and in many cases dependent on a different source of funding.

Another consideration is how our current labor laws feature different provisions for employees by occupation and jurisdiction - teachers, police, firefighters, state employees and local employees. It is this area where the largest differences exist among state and across employee groups in terms of collective bargaining rights and restrictions.

Our current dilemma over the teachers collective bargaining contract is a classic example of what can happen under current labor laws in the public sector. While the law primarily applies to elementary and secondary public school teachers, the law also confers exclusive recognition on a majority union. The bargaining laws do not include interference from the American Civil Liberties Union (ACLE) or the National Education Association (NEA).It does not impose one public-sector union’s acceptance of an agreement with management over a random drug-testing program for it’s members on another public union. It’s interesting to note that the United Public Workers Union agrees with the City & County - that there was a need for random drug testing of its members - but the Hawaii State Teacher’s Association and the American Civil Liberties Union disagree with state officials over the legality of a ratified contract they negotiated in good faith. That question is still tied up in the courts.

Fewer states permit bargaining for general state employees than for special occupational groups, but when it does happen, it is generally a mutual duty. It’s also interesting to note that more states permit strikes for local employees than for other classifications. In Hawaii specifically, strikes are prohibited and arbitration is mandated. State employees can strike, and have several times over the years, with proper notice, fact-finding and voluntary arbitration. The same is true for school teachers and municipal employees.

Additionally, there are other unions with vested interest in keeping the labor laws in the state as they are. They include the Service Employee Union (SEIU) and the Teamsters, which are major mixed unions along with the IAFF and the Fraternal Order of Police (FOP). Several other unions exclusively or predominately represent public-sector employees. One of the most powerful is the American Federation of State, County and Municipal Employees (AFSCME).

Another threat to Hawaii’s workers, both public and private, is a strong undercurrent of interest in making Hawaii a “Right-to-Work” state. That probably doesn’t mean much to people who are too young to remember Hawaii’s labor laws prior to statehood. Simply put, in a “Right-to-Work” state anyone can be fired without cause.

There is a good possibility that the most hotly contested ballot question in the general election will be whether or not to mandate a constitutional convention. The outcome could be more important to the future of Hawaii than who gets elected. And in this one the lack of money is not an issue.

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