Can the Unions Dodge the Law? (smoking)

A recent decision of the Hawaii Labor Relations Board (HLRB) has some people wondering if the United Public Workers (UPW), one of the government employee unions, has figured out how to ignore the law.

Earlier this year, our lawmakers passed Act 25. It bans smoking on the premises of our state-owned hospitals. The law, which is trying to protect not only workers but also visitors and patients, says specifically that it is not subject to collective bargaining, and that hospital administrators are required to “prominently display signs stating that ‘tobacco and electronic smoking device use is prohibited’” at all entrances and other conspicuous locations at each facility.

UPW said, “As far back as one can reasonably recall public employees of the State of Hawaii and the various counties were permitted and allowed to smoke during working hours, including rest and meal periods in public work places prior to and after 1970. Smoking was germane to the ‘working environment’ of employees even before the public sector collective bargaining law was enacted.” To protect its sacrosanct working environment, the UPW asked the Hawaii Health Systems Corporation (HHSC), which runs the state hospitals, to bargain in good faith over this change in working conditions. HHSC came back with some form of, “No, we have nothing to talk about. We have to follow the law, and you do too.” One thing led to the next, and then both parties battled it out before the HLRB.

In a 2-1 decision, the HLRB ruled that the HHSC didn’t fulfill its duty to bargain in good faith over working conditions. The UPW, reveling in its victory, wrote the HHSC on November 14, 2016, in a letter published by Civil Beat. “Consistent with [the HLRB] Order,” it said, “we request HHSC to issue prompt written notifications … that smoking is currently permitted in designated areas in HHSC facilities.” HHSC, of course, balked at doing so because Act 25 still says that smoking is banned at all HHSC facilities. HHSC is now in the process of appealing the ruling through the court system.

Is the UPW right, and have they found a way to ignore whatever laws they don’t like? If, for example, our legislature passes a tax increase, would the union and its members be able to ignore it unless they bargain in good faith? Could they legitimately tell the State, “No, we won’t comply with your new tax. What will you give us if we do?”

Before we run away screaming that our labor board is off its rocker, we need to understand that the board knew that it doesn’t have the power to declare a law invalid. If there is a constitutional problem with a law, the courts are supposed to strike it down. The HLRB opinion makes that point clearly.

Perhaps the point the HLRB was trying to make was this. Although the smoking ban is not subject to negotiation, the details of its implementation might be. For example, the law doesn’t say that an employee caught smoking on premises is to be fired on the spot. So, one legitimate subject of bargaining is the kind of discipline that HHSC can impose. Does an employee get a second chance? A third? (The UPW proposed that an employee can’t be dismissed except for a ninth offense within two years.) Also, employees who now need to walk further to be able to puff on their cigarettes might want to have longer break times. Do they get a few more minutes? That kind of issue is also legitimately negotiated.

Apparently, neither side is now able to see the forest for the trees. The union is overstating the effect of the ruling, and the employer may be overreacting to the overstatement. Hopefully, most of the details can get sorted when the court process plays out.

“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias...”

— Learned Hand
(1872-1961), Judge, U. S. Court of Appeals
Source: Learned Hand, in “The Spirit of Liberty” - a speech at “I Am an American Day” ceremony, Central Park, New York City (21 May 1944)

The second hand smoke issue is very overblown. However, it is beyond annoying to visit a place of business or home where the occupants regularly smoke inside. It takes a very stout air cleaning system to keep the air reasonable fresh in a bar that allows smoking. Much better to set up a smoking patio outside, where patrons can enjoy their smoke without annoying and chasing away the rest of the potential customers.

Well their Vette , maybe we should just not allow any facility that implements this foolish smoking rule to not benefit from the revenues raised with the heavy taxation and other costs imposed on tobacco? What do you think got this republic going? TOBACCO you nit. Ya know with an attitude like yours the next thing they will try to tax into oblivion will be sugary drinks to avoid obesity? OR taxing farmers because their cows fart? This “filthy” habit you speak of has raised more cash for states and the federal government than you can shake a stick at and you jump right on the bandwagon...not very freeper like of you. I also smoke where and when I want....I’m thinking of moving soon is a house beside you available?

Much better to set up a smoking patio outside, where patrons can enjoy their smoke without annoying and chasing away the rest of the potential customers.

Much better to let private business set their own policies, and let the market decide whether it's a viable economic plan or not.

If you don't like being in areas where people are allowed to smoke, don't go there. Take your business elsewhere, because there are plenty of businesses which cater to nanny-staters and their ilk...

to add; The free market would handle the smoking “problem” nicely if private property rights were still meaningful. A business or whatever could decide to allow smoking or not and the customers could choose to go to a smoking or non smoking establishment.

Private property and the free market; a nice combo. Cheers.

"Your selfish attitude does harm to innocent people who come into contact with your smoke."

As someone who lived through the fifties, the sixties, and even during the seventies, when smoking was EVERYWHERE, where are the DEAD BODIES, (as in millions plus per year, 2nd hand smoke) you alluded to. Second hand smoke was everywhere, from airplanes to hospitals.

Obviously second hand smoke is so deadly, people are refusing to die. ROLL YOUR EYES NOW.

The following argument is made for demonstration purposes only. As someone who LOVES the CHILDREN, and it is obvious that you deplore the CHILDREN, it is people like myself that are willing to put their lives at risk, for the CHILDREN. Yes your scratching your head, what in the world is this idiot talking about.

It's very simple, I and millions of others, openly support the CHILDREN through the EXCESSIVE {Confiscatory} TAXES, we pay on each and every pack of cigarettes / cigars, etc. And you jump with joy that we pay those EXCESSIVE {Confiscatory} TAXES. Yet, you want to treat us as second class citizens. I got two words for you, and they're not Happy Motoring, or Merry Christmas.

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