Bias on the
labor board?

Unions have a winning
record with the Labor
Relations Board.
Why?

By Ian Y. Lind
Star-Bulletin

HONOLULU Mayor Jeremy Harris earlier this year accused the Hawaii Labor Relations Board of being a kangaroo court where the county, and the public, can't get a fair hearing.

The board, which normally operates out of public view, plays a key role in interpreting the contracts that bind the state and counties to thousands of government employees and their unions.

Harris gets backing from Hawaii County, where assistant corporation counsel Ted Hong has been an outspoken critic of the board.

"I think they're biased. It's no secret, I've said it in public documents," Hong said.

But Bill Puette, director of the University of Hawaii's Center for Labor Education and Research, and one of the few independent observers who reviews all the board's rulings, sees it differently.

"We have a good board, a fair board," Puette said. "Their opinions reflect a consistent philosophical framework despite their political ramifications, and they are generally trying to uphold basic principles."

Hawaii Labor Relations Board Three members appointed by the governor to six-year terms that can be renewed indefinitely. By law, one member represents labor, one represents management, and a third represents the public. The public member serves as chairman. CURRENT MEMBERS Bert M. Tomasu: Representing the public, chairman. Appointed 1989. Tomasu, an attorney, has worked in the Office of Consumer Protection, as executive director of the Board of Medical Examiners, and as majority attorney for Democrats in the state Senate. Russell T. Higa: Representing management. Appointed 1989. Higa has been on both sides of the labor divide, both as deputy attorney general representing the state in labor matters, and as attorney for the statewide police officers' union, SHOPO. Chester C. Kunitake: Representing labor. Appointed 1997. Long-time official of the Hawaii Government Employees Association, the state's largest public employee union.

The three-member board was created in 1985 by the merger of the Hawaii Public Employment Relations Board and the Hawaii Employment Relations Board. The labor board's primary responsibilities include processing complaints of prohibited practices by employers, employees, and unions, overseeing union representation elections, and determining what positions are included in each bargaining unit.

Puette said the board was traditionally criticized as anti-labor and pro-employer because its members are beholden to the governor for their jobs.

In 1986, then-board chairman Mack Hamada even got into a scuffle with United Public Workers director Gary Rodrigues following a House Finance Committee hearing. The union then went to court seeking the ouster of Hamada and another member from the board, alleging they were prejudiced against the union. The union's attempt failed.

More recently, labor appears to have increased its clout, and Puette has been "greatly surprised that the board has boldly said 'no' to the governor" on several occasions.

Harris has not provided details to back up his charges of bias, and Carol Costa, city information director, failed to provide supporting documents to the Star-Bulletin despite repeated assurances over several weeks that the records were forthcoming.

Hong cites several points of criticism:

Past decisions. Hong said the board has consistently ruled against Hawaii County over the last five years.

"I have had over 30 cases with them, and have yet to win any," Hong said.

But Hong admitted the county has been unsuccessful in getting any of the board rulings overturned in court.

In one decision that covered appeals of a dozen different rulings, the Supreme Court said the county's arguments were simply "without merit."

"My record on appeal (to court) is zero," Hong said. "I've lost everything I've taken up. Given that record, I acknowledge this sounds a lot like sour grapes."

Generational bias. "These individuals (board members) come from a generation of people who have participated with the Democratic machine, and they come from a union-organized, labor-sympathetic perspective," Hong said. "I don't have any problem with that generally, but I do when they let their individual biases reflect on my clients' interests."

But Honolulu attorney Michael Nauyokas, a specialist in employment and labor law, said the appointment process provides a safeguard. "The governor appoints the board, and the governor is the representative of management. I'm sure he wouldn't intentionally appoint people who were sell-outs to the unions," Nauyokas said.

Conflicts. Hong says two board members have ties to the State of Hawaii Organization of Police Officers but have participated in a number of cases involving that union. Board member Chester Kunitake, a long-time employee of the Hawaii Government Employees Association, is the brother of SHOPO vice-president Dennis Kunitake, and Russell T. Higa is a former SHOPO attorney, Hong said.

But insiders point out Higa was also formerly a deputy attorney general and represented the state on labor matters. It is fairly common, they say, for individuals to move from jobs on one side of the labor-management line to the other based on knowledge of the collective bargaining process.

Undue influence. Both Harris and Hong accuse UPW's Rodrigues of wielding political power behind the scenes, including intimidating judges as a member of the Judicial Selection Commission.

Nauyokas called much of the criticism of Rodrigues unfair.

"These guys are doing their job, to represent their members," Nauyokas said. "That's who they have a fiduciary duty to. They are not supposed to say, 'What's right for the whole world?' Whether you agree with his views or not, Gary actively enforces the contract and is doing the job for his membership."

Observers offer several explanations for labor's winning record before the board.

Generally, they say, the pendulum of employment law across the country has swung from the point where employers thought they had a free hand to where they feel they can't do anything.

"Basically, it's a very difficult time for employers," said Wilma Sur, an attorney who practices in the employment law area. "There's no question that employees are much better protected now," she said, including new protections against discrimination granted by federal and state laws.

Public employee unions in Hawaii also have "structural strength that is built into their relationship with the state and counties," according to Ed Parnell, a retired National Labor Relations Board official who now serves as a labor arbitrator.

Parnell cites two provisions common to the public employee contracts. The first incorporates "past practices" into the contracts, and the second says changes cannot be made except by mutual consent. These give significant power to the unions and function as constraints on the labor board, as well as on arbitrators and courts, in handling of labor issues, Parnell said.