Arbitrator's decision may affect UH pay cut


POSTED: Wednesday, December 30, 2009

Whether the University of Hawaii can cut faculty pay beginning Friday will likely depend on the legal interpretation of four sentences.

Article 30, the last paragraph in the 52-page UH faculty contract, contains an “;evergreen clause”; that the union says keeps the contract—including the pay scale—in effect until a new contract is reached.

The union's position is backed up by an arbitrator's decision filed in state Circuit Court.

Arbitrator Mario Ramil ruled on July 20 that Article 30 is an evergreen clause and extends the contract past the expiration date of July 1.

But in a written statement Monday, UH President M.R.C. Greenwood said Ramil's ruling is “;very narrow ... and only stated that the CBA (collective bargaining agreement) continued during negotiations for a new contract.”;







        The University of Hawaii Professional Assembly says Article 30 of the UH faculty contract, shown below, contains what the union says is an “;evergreen clause”; that prohibits the UH administration from making any changes to the contract and prohibits the union from striking. The UH administration says the last sentence in the clause allows it to implement the pay cuts in an impasse.

“;A. This Agreement shall be effective as of July 1, 2003 and shall remain in effect to and including June 30, 2009. During the term of this Agreement, the parties, each on the call of the other, shall meet to bargain in good faith on matters covered herein. In the event that agreement cannot be reached on these matters, the current language of the Agreement shall continue in force and effect and Article XXIX, No Strike or Lockout, shall control the actions of the parties.


B. Negotiations for renewal shall be as provided by law.”;




The university announced Monday that it would implement a 6.667 percent pay cut for 18 months for faculty beginning Friday.

Michael Nauyokas, a mediator and attorney specializing in employment and labor law, said he would expect that the University of Hawaii Professional Assembly will go to Circuit Court today or tomorrow seeking to enforce Ramil's ruling and block the pay cuts.

UHPA may also file a grievance or prohibitive practice charge with the Hawaii Labor Relations Board or even go to the federal court, Nauyokas said.

Both UHPA and the UH administration declined yesterday to talk with the Star-Bulletin about legal issues surrounding the contract.

“;We will do what we need to do when we need to do it, where we need to do it,”; said UHPA attorney Tony Gill.

In her e-mail Monday, Greenwood cited the last sentence in Article 30, which says that negotiations for a new contract “;shall be provided by law.”;

Labor law allows an employer to implement its “;last, best final offer”; after reaching an impasse, Nauyokas said.

However, he said, there has never been a case in Hawaii where management has tried to impose a final offer when there is an evergreen clause in the contract.

“;It would set a precedent,”; Nauyokas said. Because the state Constitution gives workers the right to collective bargaining, the case could eventually go to the state Supreme Court, he said.

Nauyokas said the university seems to be saying that Ramil's ruling only applies “;during negotiations, and negotiations are over.”;

UHPA can argue that that the issue of the evergreen clause “;has already been resolved in spades, especially if there's a court order out there. Then she (Greenwood) is defying a court order,”; Nauyokas said.

To see Mario Ramil's decision on the UH faculty contract's evergreen clause, go to www.hsblinks.com/1l7.