Over Governor’s veto, Hawaii passes controversial “mini-EFCA” law

The Hawaii State Legislature has enacted legislation to certify unions as exclusive bargaining representatives without an election, or secret ballot, for employers with an annual gross revenue of $5 million or more. House Bill 952 also requires arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties of up to $10,000 per violation for unfair labor practices. The State Legislature overrode the governor's July 14 veto by a two-thirds vote in a Special Session held July 15.

While Hawaii has moved forward with its “mini-EFCA,” six Democratic U.S. senators friendly to labor reportedly have decided to drop the card-check provision of the Employee Free Choice Act, according to the New York Times. Card-check is a central element in the legislation, but it has proven to be a stumbling block in securing full support for the bill among Democrats. Provisions for a sharply reduced union election cycle, required union access to employer property, and a ban on captive audience meetings are some of the revisions said to be in the works; the bill's original mandatory arbitration and heightened damages provisions remain.

Effective July 1, Hawaii employees covered by H.B. 952 will be able to skip a secret ballot election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards. After a union is certified and issues a request to collectively bargain, the employer must commence bargaining within 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years.

Whether Hawaii will be the first of many states to move forward with EFCA-type laws remains to be seen. From a statistical standpoint, Hawaii’s move may seem unexpected since the state has the second-highest percentage of union workers in the country and nearly twice the national percentage.