HSTA immediately files demands for arbitration

The Hawaii State Department of Education has notified the Hawaii State Teachers Association that it will “take no further action” on two class grievances over unsafe working conditions and the state’s mandate that unvaccinated education employees be tested for COVID-19 weekly, citing the suspension of parts of Hawaii’s collective bargaining law because of the pandemic.

The letter HSTA received from HIDOE Labor Relations Administrator Brandon Lee Thursday said, “the governor’s Emergency Proclamation dated August 5, 2021, suspended the following provisions of law, but only as explicitly set forth below and as allowed by federal law, pursuant to section 127 A-13(a)(3): HRS section 89-9, scope of negotiations; consultation, section 89-10(d), written agreements; enforceability; cost items, and section 89-13, prohibited practices, evidence of bad faith, to the extent necessary to allow State and county departments, agencies, and other public entities to implement policies, practice, procedures, and to take other actions necessary to mitigate risks posed by COVID-19 and its variants, including but not limited to, imposition of requirements pertaining to or requiring employee testing.”

“This suspension ensures government can provide essential services safely and is necessary for the execution of emergency functions. As such, we are taking no further action on this matter,” Lee wrote.

The employer’s response of “no further action” can only be interpreted as a refusal to follow and comply with the terms of the collective bargaining agreement. Despite the employer’s unwillingness to follow the contractual grievance procedure, the HSTA immediately responded to the HIDOE with demands to move both the COVID-19 testing and the impact of COVID-19 on working conditions grievances to arbitration.

Other Hawaii public unions that have filed similar grievances received letters with similar responses from the state. It is HSTA’s understanding that all of the state departments have been instructed by the governor’s office to respond to similar grievances with the standard language used in the letter to HSTA.

HSTA President Osa Tui, Jr., said, “This is another example of the state disrespecting the bargaining process and trampling on the rights of employees who are doing their best to serve our keiki during the pandemic. It also blatantly disregards portions of the department’s own School Code.”

Tui said the HSTA will meet with its lawyers and other unions to decide further courses of action. “We don’t want schools to close but we insist that they be operated safely with uniform protocols and procedures and that’s not happening right now for many of our schools which puts our students, staff and communities at risk,” Tui added.

The HSTA filed the class grievances, which represent all teachers who have been wronged by action or inaction on the part of the employer, on Sept. 3.

In its unsafe working condition grievance, HSTA said, “The increase of positive COVID-19 cases and employer’s failure to consistently implement health and safety guidelines have created an unsafe working environment for HSTA’s members.”

“The employer has required thousands of staff and students to quarantine which in turn has required employees to engage in telework while on leave, increased their working hours to implement blended instructional delivery (simultaneous instruction), and caused other substantive changes in the working conditions of Bargaining Unit 05 employees,” the grievance said.

“The employer is violating the collective bargaining agreement by refusing to negotiate the impact of the changing working conditions,” the grievance added. The grievance points out the state has violated 13 articles of HSTA’s contract, including teaching conditions and hours, teacher protection, as well as assignments and transfers.

The grievance about COVID-19 testing says the Hawaii State Department of Education “directed all employees to be tested every week for COVID-19 or provide proof of COVID-19 vaccination by August 30, 2021, without impact bargaining over the implementation of this new directive. As a result of this new directive, employees who are unvaccinated have been required to undergo a medical examination to show that they are negative for COVID-19 at their own expense.”

The testing grievance charges HIDOE with violating 12 articles of HSTA’s collective bargaining agreement, including non-discrimination, association rights, and leaves.

For the last three weeks, educators across the state have taken to the streets in an informational picketing campaign to raise concerns about safety in our public schools, holding signs outside schools and state buildings.

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