Prevention of unfair labor practices
HRS §377-9
in effect377-9. Prevention of unfair labor practices
(a) Any controversy concerning unfair labor practices may be submitted to the board in the manner and with the effect provided in this chapter, but nothing herein shall prevent the pursuit of relief in courts of competent jurisdiction.
(b) Any party in interest may file with the
board a written complaint, on a form provided by the board, charging any person
with having engaged in any specific unfair labor practice. The board shall
serve or require the complainant to serve a copy of the complaint upon the
person charged, hereinafter referred to as the respondent. If the board has
reasonable cause to believe that the respondent is a member of or represented
by a labor union, then service upon an officer of the union shall be deemed to
be service upon the respondent. Service may be by delivery to the person, or
by mail or electronic service through a company designated by the board, to the
person's last known address. Any other person claiming interest in the dispute
or controversy, as an employer, an employee or their representative, shall be
made a party upon proof of the interest. The board may bring in additional
parties by service of a copy of the complaint. Only one complaint shall issue
against a person with respect to a single controversy, but any complaint may be
amended in the discretion of the board at any time prior to the issuance of a
final order based thereon. The respondent may file an answer to the original
or amended complaint but the board may find to be true any allegation in the
complaint in the event either no answer is filed or the answer neither
specifically denies nor explains the allegation nor states that the respondent
is without knowledge concerning the allegation. The respondent shall have the
right to appear in person or otherwise give testimony at the place and time
fixed in the notice of hearing. The hearing on the complaint shall be before
either the board or a hearings officer of the board, as the board may
determine.
The board shall fix a time for the hearing on
the complaint, which shall be not less than ten nor more than forty days after
the filing of the complaint or amendment thereof. Notwithstanding section
91-9.5, in any hearing conducted by the board, all parties shall be given
written notice of the hearing by first class mail or by electronic service
through a company designated by the board at least fifteen days before the
scheduled date of the hearing. In case a party in interest is located without
the State and has no known address within the State and no known electronic
mail address, a copy of the complaint and copies of all notices shall be
filed in the office of the lieutenant governor and shall also be sent by first
class mail to the last known address of the party. Such filing and mailing
shall constitute sufficient service with the same force and effect as if served
upon a party located within the State. The hearing may be adjourned from time
to time in the discretion of the board and hearings may be held at such places
as the board shall designate.
In all proceedings under this chapter before
the board, each member of the board may issue subpoenas and administer oaths.
Depositions may be taken in the manner prescribed by law. No person shall be
excused from attending and testifying or from producing books, records,
correspondence, documents, or other evidence in obedience to the subpoena on
the ground that the testimony or evidence required of the person may tend to
incriminate the person or subject the person to a penalty or forfeiture under
the laws of the State, but such person shall not be prosecuted or subjected to
any penalty or forfeiture for or on account of any transaction, matter, or
thing concerning which the person may testify or produce evidence, documentary
or otherwise, in such proceedings. Such person so testifying shall not be
exempt, however, from prosecution and punishment for perjury committed in so
testifying.
Any person who wilfully and unlawfully fails or
neglects to appear or to testify or to produce books, papers, and records as
required, shall, upon application to a circuit judge, be ordered to appear
before the board, and failure to obey the order may be punished as a contempt
of court.
Each witness who appears before the board by
subpoena shall receive for the witness' attendance the fees and mileage
provided for witnesses in civil cases in courts of record, which shall be
audited and paid by the State in the same manner as other expenses are audited
and paid, upon the presentation of properly verified vouchers approved by the
board.
(c) A full and complete record shall be kept
of all proceedings had before the board and all testimony and proceedings shall
be taken down by a reporter engaged for such purpose or by use of a mechanical
recording device. It shall not be necessary to transcribe the record unless
requested for purposes of rehearing or court review. In the proceedings the
board shall not be bound by technical rules of evidence.
(d) After the final hearing, the board shall
promptly make and file an order or decision, incorporating findings of fact
upon all the issues involved in the controversy and the determination of the
rights of the parties. Pending the final determination of the controversy the
board may, after hearing, make interlocutory orders which may be enforced in
the same manner as final orders. Final orders may dismiss the complaint or
require the person complained of to cease and desist from the unfair labor practices
found to have been committed, suspend the person's rights, immunities,
privileges, or remedies granted or afforded by this chapter for not more than
one year, and require the person to take affirmative action, including
reinstatement of employees and make orders in favor of employees making them
whole, including back pay with interest, costs, and attorneys' fees. Any order
may further require the person to make reports from time to time showing the
extent to which the person has complied with the order. Furthermore, an
employer or employee who wilfully or repeatedly commits unfair or prohibited
practices that interfere with the statutory rights of an employer or employees
or discriminates against an employer or employees for the exercise of protected
conduct shall be subject to a civil penalty not to exceed $10,000 for each
violation. In determining the amount of any penalty under this section, the
board shall consider the gravity of the unfair or prohibited practice and the
impact of the practice on the charging party, on other persons seeking to
exercise rights guaranteed by this section, or on public interest.
(e) If any person fails or neglects to obey an
order of the board while the same is in effect the board may petition the
circuit judge of the judicial circuit wherein the person resides or usually
transacts business for the enforcement of the order and for appropriate
temporary relief or restraining order, and shall certify and file in the court
the record in the proceedings, including all documents and papers on file in
the matter, the pleadings and testimony upon which the order was entered, and
the decision and order of the board. Upon such filing the board shall cause
notice thereof to be served upon the person by mailing a copy to the person's
last known post office address, and thereupon the judge shall have jurisdiction
in the premises.
(f) Any person aggrieved by the decision or
order of the board may obtain a review thereof as provided in chapter 91 by
instituting proceedings in the circuit court of the judicial circuit in which
the person or any party resides or transacts business, subject, however, to the
general provisions of law for a change of the place of trial or the calling in
of another judge. Where different parties in the same proceeding file
petitions for review in two or more courts having proper jurisdiction, the jurisdiction
of the judge first petitioned shall be exclusive and the other petitions shall
be transferred to the judge. The petition shall state the grounds upon which a
review is sought and copies thereof shall be served upon the other parties and
the board. Service may be made by mailing such copies to the last known post
office address of the parties concerned. When the proceedings are at issue,
they may be brought on for hearing before the court upon the record by any
party on ten days' written notice to the others. Upon the hearing, the court
may confirm, modify, or set aside the decision or order of the board and enter
an appropriate decree. No objection that has not been urged before the board
shall be considered by the court unless the failure or neglect to urge the
objection shall be excused because of extraordinary circumstances.
(g) In any proceedings for review of a
decision or order of the board, the judge shall disregard any irregularity or
error unless it is made to appear affirmatively that the complaining party was
prejudiced thereby.
(h) Commencement of proceedings under
subsection (f) of this section shall not stay enforcement of the board
decisions or order; but the board, or the reviewing court may order a stay upon
such terms as it deems proper.
(i) Petitions filed under this section shall
have preference over any civil cause of a different nature pending in the
circuit court, shall be heard expeditiously, and the circuit courts shall
always be deemed open for the trial thereof.
(j) Any party may appeal from the judgment of
a circuit court entered under this chapter, subject to chapter 602, in the
manner provided for civil appeals from the circuit courts.
(k) A substantial compliance with the
procedure of this chapter shall be sufficient to give effect to the decisions
and orders of the board, and they shall not be declared inoperative, illegal,
or void for any nonprejudicial irregularity in respect thereof.
(l) No complaints of any specific unfair labor
practice shall be considered unless filed within ninety days of its occurrence.
(m) All documents filed with the board under
this section shall be delivered to the board as:
(1) An original paper document; or
(2) An electronic version, filed by electronic
service through a company designated by the board.
A document filed by electronic means shall be
deemed an original document for the purposes of this section.
(n) For the purposes of this section,
"document" includes all complaints, answers, motions, memoranda,
declarations, exhibits, certificates of service, and other papers filed with
the board.
[L 1945, c 250, §9; am L 1951, c 249, §9; RL 1955, §90-10; am L
1965, c 96, §66 and c 244, §§4, 5; HRS §377-9; am L 1979, c 111, §16; am L
1985, c 251, §18; gen ch 1985; am L 2004, c 202, §37; am L 2006, c 94, §1; am L
Sp 2009, c 6, §2; am L 2010, c 109, §1; am L 2016, c 191, §1; am L 2019, c 211,
§2; am L 2024, c 141, §2]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0377/HRS_0377-0009.htmFetched: 11/10/2026