Even though the highly controversial Employee Free Choice Act (EFCA) has lost support and one of its main components – card check recognition – reportedly is on the verge of being eliminated, the State of Hawaii has chosen another path and has enacted a bill resembling the EFCA in almost every respect. On July 15, the state overrode Governor Linda Lingle’s veto and passed House Bill 952, a measure that amends the Hawaii Employment Relations Act (HERA) by allowing the state’s Labor Relations Board to certify the results of a representation election based on a majority of signed authorization cards, mandates arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties for unfair labor practices. While this bill is more limited in scope than the federal EFCA (H.R. 1409, S. 560) due to the fact that it only impacts certain employers, mainly agricultural with an annual revenue over a certain threshold, it will surely impact a number of private-sector as well as possibly Hawaii state employers that are not covered by the National Labor Relations Act. In addition, organized labor will no doubt use Hawaii as an example to push for the enactment of similar measures in other states.

Employees covered by this measure will be able to bypass a secret ballot union representation election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards in favor of representation. After a union is certified and issues a request to collectively bargain, the Hawaii employer must commence bargaining with 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days (30 under the proposed federal EFCA) the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years. The Hawaii mini-EFCA also imposes fines of up to $10,000 per unfair labor practice that is committed willfully or repeatedly. It is becoming clear that Congress will not follow Hawaii’s lead and is already moving away from consideration of the card check provisions of EFCA. However, for organized labor and certain employers in Hawaii, labor relations is entering a whole new era.