Lack of staff, rise in cases delay rulings by labor board

The state agency charged with enforcing and protecting collective bargaining rights says its "skeleton crew and bare-bones budget" hamstring its ability to rule on dozens of labor complaints filed each year by public and private employees and their unions.

The quasi-judicial, three-member Hawaii Labor Relations Board saw its backlog of cases swell to 127 last year, up from 96 the year before. One of those cases dates as far back as 1997.

"We really are operating with a skeleton crew and bare-bones budget," said board member Sesnita Moepono. "We try to do as much as we can, but there’s only so many hours in a day and only so many people."

The agency’s backlog involves complaints filed by the state’s largest public worker unions, including the Hawaii Government Employees Association, United Public Workers, Hawaii State Teachers Association, University of Hawaii Professional Assembly and State of Hawaii Organization of Police Officers.

Highlighting some of the frustration about the labor board’s pace in issuing rulings has been a prohibited-practice complaint brought in 2011 by the teachers union against the state.

The HSTA says the state violated members’ collective bargaining rights when it imposed a "last, best and final" offer in July 2011 that saddled members with pay cuts and a larger share of health insurance premiums. Hearings in the prohibited-practice case spanned nine months, ending in May, but no ruling has been made.

The teachers union last year turned to the Hawaii Supreme Court to protest the board’s delay in making a ruling, but that effort failed. The union again petitioned the Supreme Court in January to compel the board to "promptly" issue a decision, but that bid was denied last month.

The union took its gripe to the state Capitol this session, proposing legislation that would have forced the board to rule on complaints within 30 days, or the matter would by default be ruled in favor of the complainant.

"We are hopeful that the Legislature will consider the harm caused to teachers and potentially all state employees by the HLRB delays," HSTA President Wil Okabe testified in support of House Bill 151.

The measure is still alive, but the latest version does not specify a number of days. Nor does it include the provision for cases to be decided in favor of a complainant absent a ruling.

The labor board’s backlog and funding problems came to light in Moepono’s testimony on the bill, citing concerns about the board’s ability to meet a hard and fast deadline.

"Just looking at the (HSTA) case — that went for nine months and the complainant called 26 witnesses," Moepono told the Star-Advertiser. "Had we had a statute that called for action within 30 or even 90 days, we wouldn’t have been able to fulfill the requirements of the law. And that not only impacts our office, but the parties would be impacted."

The agency, which typically sees about 75 cases filed each year, had its legal staff cut by three positions in the late 1990s. It has since been running with three support staff members: an executive officer, a secretary and a legal stenographer. The executive officer happens to be a lawyer, but there is otherwise no legal staff.

Moepono said the board’s $500,000 budget mostly goes toward salaries, with only about 5 percent pegged for operating expenses.

"There’s no cushion," she said. "For example, we don’t hire court reporters because we just don’t have the money. We tape our hearings and have to refer back to the audio when drafting decisions."

The state House and Senate labor committee chairmen say they are working to add staff to the labor board in this year’s budget and would prefer not to set a statutory deadline just yet.

"We do need to provide the board additional resources in order for them to meet the workload that they have," said Rep. Mark Nakashima, chairman of the House Labor and Public Employment Committee. "HB 151 (advanced) because there are issues and concerns there, but the days were blanked out because we probably have to double the staff to ensure that once the backlog is gone, that they have the adequate resources to meet that 30-day window. Otherwise, we’re just setting them up for failure."

Nakashima (D, Hamakua-South Hilo) said the House version of the state budget includes a request for a legal staff member. In the Senate, Judiciary and Labor Chairman Clayton Hee said he will be proposing funding for two new staff attorney positions for the board.

"There are also measures that would address some of the issues that have hamstrung the labor board, such as allowing the governor to appoint a replacement in the event of a recusal where a board vote may come out 1 to 1," said Hee (D, Heeia-Laie-Waia­lua).

Setting a deadline is "probably not in the best interest of all parties because it’s very difficult to predict cases and the complications that might arise," he said.

Nakashima added, "This year, I think we’ll go part way in trying to address the staffing needs, and give us time to evaluate where we are a year from now to see if additional resources or measures are needed."

It’s unclear why the labor board’s staff was slashed and never restored, but Nakashima said he wants to be cautious when restoring any cuts.

"During the closing days of the (former Gov. Linda) Lingle administration, we saw a lot of changes, and there wasn’t a lot of control as to where and why cuts were made at the department levels," he said. "As we build back and restore positions and services, we need to evaluate and make good decisions and not just put something back because it was cut."