§89-12 Strikes, rights and prohibitions.
(a) It shall be unlawful for any employee to participate in a strike if the
employee:
(1) Is not included in the appropriate bargaining
unit involved in an impasse; or
(2) Is included in the appropriate bargaining unit
involved in an impasse that has been referred to arbitration for a decision.
(b) It shall be lawful for an employee, who is
not prohibited from striking under subsection (a) and who is in the appropriate
bargaining unit involved in an impasse, to participate in a strike under the
following conditions:
(1) The requirements of section 89-11 relating to the
resolution of disputes have been complied with in good faith;
(2) The proceedings for the prevention of any
prohibited practices have been exhausted;
(3) The collective bargaining agreement and any
extension of the agreement has expired; and
(4) The exclusive representative has given a ten-day
notice of intent to strike, together with a statement of its position on all
remaining issues in dispute, to the employer and the board.
Within three days of receipt of the notice of
intent to strike, the employer shall submit its position on the remaining
issues in dispute that are included in the statement transmitted by the
exclusive representative with its notice of intent to strike. The board shall
immediately release the information on the positions of the parties to the
public.
(c) If any employee organization or any
employee is violating or failing to comply with the requirements of this
section, or if there is reasonable cause to believe that an employee
organization or an employee will violate or fail to comply with such requirements,
the public employer affected shall, forthwith, institute appropriate
proceedings in the circuit in which the violation occurs to enjoin the
performance of any acts or practices forbidden by this section, or to require
the employee organization or employees to comply with the requirements of this
section. Jurisdiction to hear and dispose of all actions under this section is
conferred upon each circuit court, and each court may issue in compliance with
chapter 380, such orders and decrees, by way of injunction, mandatory
injunction, or otherwise, as may be appropriate to enforce this section. The
right to a jury trial shall not apply to any proceeding brought under this
section. [L 1970, c 171, pt of §2; am L 1980, c 252, §2; gen ch 1985; am L 2000,
c 253, §101; am L 2001, c 90, §§7, 10; am L 2002, c 148, §6 and c 232, §4]
Case Notes
"Dispute" in subsection (a)(2) includes disputes
not only with regard to initial or renewed agreement but also with regard to
grievances. 54 H. 531, 511 P.2d 1080.
Subsection (c) does not require finding of irreparable harm
as a prerequisite to relief for violation of subsection (a)(2). 54 H. 531, 511
P.2d 1080.
Injunctive relief under subsection (e) is available for
violations of subsection (a)(2), notwithstanding the violations are also
violations of contract under §89-13; applicability of chapter 380. 54 H. 531,
511 P.2d 1080.
Civil contempt for violating order enjoining strikes. 55 H.
386, 520 P.2d 422.
Strike settlement agreements are enforced in accordance with
contract law. 60 H. 361, 590 P.2d 993.
Strike settlement did not have effect of condoning an illegal
strike. 60 H. 361, 590 P.2d 993.
Board had authority to order union to implement the staffing
of essential positions. 66 H. 461, 667 P.2d 783.
As plaintiff was designated an "essential
employee", notice plaintiff received leading plaintiff to believe
plaintiff could not strike was not a prohibited practice by employer. 87 H.
191, 953 P.2d 569.
Though designated as an "incumbent" employee,
plaintiff was "essential employee" where plaintiff: (1) received
notice by same means as essential employee; (2) was prohibited from striking;
and (3) was subject to discipline for not working if scheduled to work during a
strike. 87 H. 191, 953 P.2d 569.
Notes of Decisions
Poe v. Hawai'i Labor Relations Bd., 953 P.2d 569 (Haw. 1998).
· cites it 20× “POE’S REQUEST FOR A DECLARATORY RULING FROM THE BOARD CLARIFYING WHEN AN EMPLOYEE LEGALLY BECOMES AN “ESSENTIAL” EMPLOYEE WITHIN THE MEANING OR SCOPE OF HRS § 89-12 On June 8, 1994, Poe filed a petition for declaratory ruling with the Board in Case No.”
Hawaii Pub. Emp. Relations Bd. v. United Pub. Workers, Local 646, 667 P.2d 783 (Haw. 1983).
· cites it 27× “Conversely, HPERB contends Carbon Fuel is not instructive where the liability of a local union is at issue, HRS § 380-6 does not affect the viability of the mass-action theory which is separate and distinct from an agency theory, and HRS § 380-6 has no application in cases…”
Hawaii Gov't Employees Ass'n, AFSCME Local 152 v. Lingle, 239 P.3d 1 (Haw. 2010).
· cites it 8× “the judicial review of decisions or orders or the HLRB in accordance with [HRS] section 377-9” and HRS § 377-9(a) provides that "[a]ny controversy concerning unfair labor practices may be submitted to the [HLRB] ..., but nothing herein shall prevent the pursuit of relief in…”
Martin v. Montezuma-Cortez Sch. Dist. Re-1, 841 P.2d 237 (Colo. 1992).
· cites it 10× “70(4)(cm)(6)(c) (West 1988). [8] See Alaska Stat. § 23.40.200 (b) (1990) (prohibiting police, fire, correctional facility and hospital facility employees from striking); Haw.”
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 511 P.2d 1080 (Haw. 1973).
· cites it 54× “Appellant contends before this court that it is highly inequitable to deny appellant the right to adduce said evidence and for the court to deal solely with the question of whether appellant has violated HRS § 89-12 (a) (2). Appellant further contends, in essence, that where the…”
Gov't Employees Ass'n v. Lingle, 239 P.3d 1 (Haw. 2010).
· cites it 8× “the judicial review of decisions or orders or the HLRB in accordance with [HRS] section 377-9" and HRS § 377-9(a) provides that "[a]ny controversy concerning unfair labor practices may be submitted to the [HLRB] .”
Kelly v. 1250 Oceanside Partners, 140 P.3d 985 (Haw. 2006).
· cites it 2× “2d at 574 (upholding the circuit court’s affirmance of the HLRB’s grant of summary judgment on the ground that employer could prohibit employee from participating in a strike under HRS § 89-12(a) (1993) despite the circuit court’s reliance on other grounds).”
Lee v. United Pub. Workers, AFSCME, Local 646, 260 P.3d 1135 (Haw. App. 2011).
· cites it 6× “The exception to the exclusive original jurisdiction of the HLRB in clause (1) for proceedings pursuant to HRS § 89-12(e) related to actions brought by public employers to enforce restrictions on participation in a strike by an employee or employee organization set forth in HRS…”
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 520 P.2d 422 (Haw. 1974).
· cites it 8× “Therefore, we are of the opinion that unless HSTA can show that its strike of April 2, 1973, comes within the above exception in compliance with HRS § 89-12(b), 6 the action of HSTA would be violative of the said preliminary injunction.”
Hawaii State Teachers Ass'n v. Hawaii Pub. Emp. Relations Bd., 590 P.2d 993 (Haw. 1979).
· cites it 4× “In spite of this, the HSTA, on April 2, 1973, commenced a strike which lasted until April 18, 1973, when the bargaining unit ratified a strike settlement agreement, also referred to as the "Kagel Agreement.”
In re Hawai'i Gov't Employees Ass'n, Local 152, 170 P.3d 324 (Haw. 2007).
“RS § 89-14 states: Any controversy concerning prohibited practices may be submitted to the board in the same manner and with the same effect as provided in section 377-9; provided that the board shall have exclusive original jurisdiction over such a controversy except that…”
In re United Pub. Workers, AFSCME, Local 646, 315 P.3d 768 (Haw. App. 2013).
“Any controversy concerning prohibited practices may be submitted to the [HLRB] in the same manner and with the same effect as provided in section 377-9; provided that the [HLRB] shall have exclusive original jurisdiction over such a controversy except that nothing herein shall…”
— Haw. Rev. Stat. § 89-12(a) — 3 cases
Poe v. Hawai'i Labor Relations Bd., 953 P.2d 569 (Haw. 1998).
“POE’S REQUEST FOR A DECLARATORY RULING FROM THE BOARD CLARIFYING WHEN AN EMPLOYEE LEGALLY BECOMES AN “ESSENTIAL” EMPLOYEE WITHIN THE MEANING OR SCOPE OF HRS § 89-12 On June 8, 1994, Poe filed a petition for declaratory ruling with the Board in Case No.”
Kelly v. 1250 Oceanside Partners, 140 P.3d 985 (Haw. 2006).
“2d at 574 (upholding the circuit court’s affirmance of the HLRB’s grant of summary judgment on the ground that employer could prohibit employee from participating in a strike under HRS § 89-12(a) (1993) despite the circuit court’s reliance on other grounds).”
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 511 P.2d 1080 (Haw. 1973).
“Appellant contends before this court that it is highly inequitable to deny appellant the right to adduce said evidence and for the court to deal solely with the question of whether appellant has violated HRS § 89-12 (a) (2). Appellant further contends, in essence, that where the…”
— Haw. Rev. Stat. § 89-12(a)(1) — 1 case
Martin v. Montezuma-Cortez Sch. Dist. Re-1, 841 P.2d 237 (Colo. 1992).
“70(4)(cm)(6)(c) (West 1988). [8] See Alaska Stat. § 23.40.200 (b) (1990) (prohibiting police, fire, correctional facility and hospital facility employees from striking); Haw.”
— Haw. Rev. Stat. § 89-12(a)(2) — 1 case
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 511 P.2d 1080 (Haw. 1973).
“Appellant contends before this court that it is highly inequitable to deny appellant the right to adduce said evidence and for the court to deal solely with the question of whether appellant has violated HRS § 89-12 (a) (2). Appellant further contends, in essence, that where the…”
— Haw. Rev. Stat. § 89-12(a)(3) — 1 case
Martin v. Montezuma-Cortez Sch. Dist. Re-1, 841 P.2d 237 (Colo. 1992).
“70(4)(cm)(6)(c) (West 1988). [8] See Alaska Stat. § 23.40.200 (b) (1990) (prohibiting police, fire, correctional facility and hospital facility employees from striking); Haw.”
— Haw. Rev. Stat. § 89-12(b) — 4 cases
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 520 P.2d 422 (Haw. 1974).
“Therefore, we are of the opinion that unless HSTA can show that its strike of April 2, 1973, comes within the above exception in compliance with HRS § 89-12(b), 6 the action of HSTA would be violative of the said preliminary injunction.”
Martin v. Montezuma-Cortez Sch. Dist. Re-1, 841 P.2d 237 (Colo. 1992).
“70(4)(cm)(6)(c) (West 1988). [8] See Alaska Stat. § 23.40.200 (b) (1990) (prohibiting police, fire, correctional facility and hospital facility employees from striking); Haw.”
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 511 P.2d 1080 (Haw. 1973).
“Appellant contends before this court that it is highly inequitable to deny appellant the right to adduce said evidence and for the court to deal solely with the question of whether appellant has violated HRS § 89-12 (a) (2). Appellant further contends, in essence, that where the…”
— Haw. Rev. Stat. § 89-12(b)(2) — 1 case
— Haw. Rev. Stat. § 89-12(c) — 3 cases
Hawaii Pub. Emp. Relations Bd. v. United Pub. Workers, Local 646, 667 P.2d 783 (Haw. 1983).
“Conversely, HPERB contends Carbon Fuel is not instructive where the liability of a local union is at issue, HRS § 380-6 does not affect the viability of the mass-action theory which is separate and distinct from an agency theory, and HRS § 380-6 has no application in cases…”
Poe v. Hawai'i Labor Relations Bd., 953 P.2d 569 (Haw. 1998).
“POE’S REQUEST FOR A DECLARATORY RULING FROM THE BOARD CLARIFYING WHEN AN EMPLOYEE LEGALLY BECOMES AN “ESSENTIAL” EMPLOYEE WITHIN THE MEANING OR SCOPE OF HRS § 89-12 On June 8, 1994, Poe filed a petition for declaratory ruling with the Board in Case No.”
In re United Pub. Workers, AFSCME, Local 646, 315 P.3d 768 (Haw. App. 2013).
“Any controversy concerning prohibited practices may be submitted to the [HLRB] in the same manner and with the same effect as provided in section 377-9; provided that the [HLRB] shall have exclusive original jurisdiction over such a controversy except that nothing herein shall…”
— Haw. Rev. Stat. § 89-12(c)(1) — 1 case
Martin v. Montezuma-Cortez Sch. Dist. Re-1, 841 P.2d 237 (Colo. 1992).
“70(4)(cm)(6)(c) (West 1988). [8] See Alaska Stat. § 23.40.200 (b) (1990) (prohibiting police, fire, correctional facility and hospital facility employees from striking); Haw.”
— Haw. Rev. Stat. § 89-12(c)(2) — 1 case
Poe v. Hawai'i Labor Relations Bd., 953 P.2d 569 (Haw. 1998).
“POE’S REQUEST FOR A DECLARATORY RULING FROM THE BOARD CLARIFYING WHEN AN EMPLOYEE LEGALLY BECOMES AN “ESSENTIAL” EMPLOYEE WITHIN THE MEANING OR SCOPE OF HRS § 89-12 On June 8, 1994, Poe filed a petition for declaratory ruling with the Board in Case No.”
— Haw. Rev. Stat. § 89-12(c)(2)(B) — 1 case
Poe v. Hawai'i Labor Relations Bd., 953 P.2d 569 (Haw. 1998).
“POE’S REQUEST FOR A DECLARATORY RULING FROM THE BOARD CLARIFYING WHEN AN EMPLOYEE LEGALLY BECOMES AN “ESSENTIAL” EMPLOYEE WITHIN THE MEANING OR SCOPE OF HRS § 89-12 On June 8, 1994, Poe filed a petition for declaratory ruling with the Board in Case No.”
— Haw. Rev. Stat. § 89-12(c)(l) — 1 case
Martin v. Montezuma-Cortez Sch. Dist. Re-1, 841 P.2d 237 (Colo. 1992).
“70(4)(cm)(6)(c) (West 1988). [8] See Alaska Stat. § 23.40.200 (b) (1990) (prohibiting police, fire, correctional facility and hospital facility employees from striking); Haw.”
— Haw. Rev. Stat. § 89-12(e) — 7 cases
Hawaii Pub. Emp. Relations Bd. v. United Pub. Workers, Local 646, 667 P.2d 783 (Haw. 1983).
“Conversely, HPERB contends Carbon Fuel is not instructive where the liability of a local union is at issue, HRS § 380-6 does not affect the viability of the mass-action theory which is separate and distinct from an agency theory, and HRS § 380-6 has no application in cases…”
Hawaii Gov't Employees Ass'n, AFSCME Local 152 v. Lingle, 239 P.3d 1 (Haw. 2010).
“the judicial review of decisions or orders or the HLRB in accordance with [HRS] section 377-9” and HRS § 377-9(a) provides that "[a]ny controversy concerning unfair labor practices may be submitted to the [HLRB] ..., but nothing herein shall prevent the pursuit of relief in…”
Lee v. United Pub. Workers, AFSCME, Local 646, 260 P.3d 1135 (Haw. App. 2011).
“The exception to the exclusive original jurisdiction of the HLRB in clause (1) for proceedings pursuant to HRS § 89-12(e) related to actions brought by public employers to enforce restrictions on participation in a strike by an employee or employee organization set forth in HRS…”
Gov't Employees Ass'n v. Lingle, 239 P.3d 1 (Haw. 2010).
“the judicial review of decisions or orders or the HLRB in accordance with [HRS] section 377-9" and HRS § 377-9(a) provides that "[a]ny controversy concerning unfair labor practices may be submitted to the [HLRB] .”
Hawaii Pub. Emp. Relations Bd. v. Hawaii State Teachers Ass'n, 511 P.2d 1080 (Haw. 1973).
“Appellant contends before this court that it is highly inequitable to deny appellant the right to adduce said evidence and for the court to deal solely with the question of whether appellant has violated HRS § 89-12 (a) (2). Appellant further contends, in essence, that where the…”
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