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State charges 'bad faith' against teachers union

Months of negotiations failed, according to a response filed Thursday

By Mary Vorsino

LAST UPDATED: 3:19 a.m. HST, Jul 22, 2011

The state shot back at the teachers union Thursday in its response to a "prohibited practice" complaint, saying the union has a "pattern and practice of bad faith bargaining" and failed to reach an agreement despite months of negotiations and dozens of proposals and counterproposals.

The response, filed with the Hawaii Labor Relations Board just before the close of business, also said the state was legally justified in unilaterally implementing a "last, best and final" contract offer July 1 for teachers that included pay cuts, furloughs and higher health care premiums, and asks that the union's complaint be dismissed.

In a joint statement, the governor, schools Superintendent Kathryn Matayoshi and Board of Education Chairman Don Horner said the state's response to the labor board outlines "how the state bargained in good faith for many months to reach agreement with negotiators representing teachers."

They added, "Our focus remains on working together with educators and parents to make this upcoming school year a truly outstanding one."

Hawaii State Teachers Association President Wil Okabe said Thursday night he stands by the union's complaint, filed July 8, which alleges the state bargained in bad faith and violated the state Constitution and members' rights when it implemented a contract offer without union approval.

"Everything hinges on bargaining in good faith," said Okabe, who reiterated his interest in returning to the negotiating table.

No hearing date on the case has been set, and no talks between the state and union are scheduled.

The response came a little more than a week before public schools resume Aug. 1 and as several education reform issues that require union approval — including revamped teacher evaluations — remain unresolved.

Matayoshi and Gov. Neil Abercrombie have said the imposed contract was needed to avoid layoffs or cuts to instructional time and is in line with what other public employees received.

The "last, best and final" offer includes a 1.5 percent pay cut, 7 1⁄2 furlough days for 10-month teachers (or nine furlough days for 12-month teachers) and a 50-50 split on employee and state contributions to medical insurance. Teachers had been paying 40 percent.

In a letter sent to teachers this week, Okabe said HSTA members are "confronting the most serious threat to our Constitutional rights in a generation" and compared the labor dispute to the controversial passage of a Wisconsin law this year limiting collective bargaining for many public workers.

In its response to the union's prohibited-practice complaint, the state said the HSTA failed to come to an agreement in negotiations that began in September, during which "the employer and HSTA exchanged extensive quantities of proposals and counterproposals, with the employer alone developing over 50 versions. HSTA had 73 initial proposals."

The state's 41-page response also denied all of the union's key allegations and said that under state laws and "the ruling of federal courts and the NLRB (National Labor Relations Board), employers are permitted to implement last, best and final offers in the event of impasse."

Hawaii labor law experts have acknowledged that federal labor law allows a private employer to implement its "last, best" offer if talks are at an impasse, but applying that to public-sector negotiations, governed by state labor laws, is uncharted territory in the islands.

The state also said the union had a three-year history of "bad faith bargaining and litigation," pointing to a years-long dispute over random drug testing for teachers.

The issue of testing arose in 2007 when HSTA members agreed to a two-year contract that included a statewide random drug-testing policy in exchange for 4 percent raises each year. Shortly after the contract was ratified, though, teachers and the HSTA raised concerns about testing, drawing the ire of the Lingle administration.

There was no mention of random drug testing in the state's "last, best and final" offer. Instead, teachers are now subject to a "reasonable suspicion" testing policy and face suspensions or voluntary resignations for positive tests.

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