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This is the archive of Civil Beat’s coverage of the Hawaii Labor Board’s hearings of a complaint by the Hawaii State Teachers Association against the state. To read the latest developments, go to our live blog.

Archive of HLRB live blog for Dec. 14:

Archive of HLRB live blog for Nov. 29:

Archive of HLRB live blog for Nov. 21:

Archive of HLRB live blog for Nov. 16:

12:30 p.m. Pau for Today, Next Hearing Nov. 16

The next witness in the case was supposed to be Kalbert Young, director of the state Department of Budget and Finance.

But Halvorson says Young is unavailable this afternoon, and unavailable on the next hearing date.

“I spoke to him Wednesday, and he indicated that yesterday and today he is at his new condo taking delivery of some furniture,” Halvorson told the board.

He also said Young will be in New York on Nov. 16, so Nicholson announces the next witness up is Department of Education Superintendent Kathryn Matayoshi.

12:20 p.m. HLRB Board Member Has Questions for Dietz

After a couple of counter questions from Takahashi, HLRB board member Rock Ley says he has some questions.

Ley: To your knowledge, what authority did the HSTA negotiation team have to approve or reach tentative agreements?

Dietz: My assumption was that they had full authority to negotiate.

Ley: In your opinion, on April 27, 2011, did HSTA representatives appear intimidated or threatened when you hit your notebook on the table and used obscenities?

Dietz: No, sir.

Ley: What was their reaction, what you observed?

(Takahashi tried to object, saying the question was speculative, but Nicholson said he wouldn’t allow objections to questions from the board. Ley noted that he was asking for Dietz’s opinion.)

Dietz: I was ready to leave at that point, so I don’t know that I was focused on anybody else. And the general indication from both parties was, ‘No, we can finish this work that evening.'”

Ley’s questions ended testimony for the day.

11:25 a.m. HSTA: No Further Questions for Dietz

Takahashi wraps up his questioning of Dietz.

Nicholson calls for a 10-minute break before Halvorson has his turn at Dietz.

Halvorson says he has “very few” questions for Dietz and that he can finish quickly.

10:15 a.m. When Did Negotiations Fall Apart?

Takahashi wants to know from Dietz exactly when he felt negotiations were at an impasse, and what led up to it.

Takahashi references Dietz’s personal notes submitted as exhibits for three bargaining sessions that took place between May 2 to May 11. Dietz testifies that progress was made on those dates, based on his notes.

“At what point do you believe after May 11 did progress in negotiations cease?” Takahashi asks.

“I had a sense that progress was slowing, or the process was being dragged out by HSTA,” Dietz said. “I don’t know that I can point to a specific date or occurrence, but I do believe that on the date — and I don’t remember the specific date — but when the employer told HSTA we were at impasse — that day was a deciding day for me that we had gone as far as we could go.”

Takahashi asks if that was after May 11?

“I don’t recall the date we were at impasse.”

“After May 11, how many meetings were there with both teams?” Takahashi asks.

“I don’t recall,” Dietz said.

Takahashi continues to pry at this issue, asking for a specific occurrence that led to negotiations falling apart.

“In this time frame, and it may have begun around May 11, but certainly as each day went by, I had a sense that we were — it was almost a feeling of treading water. We weren’t getting close to a conclusion,” Dietz said.

9:40 a.m. ‘Let’s Move On’

Nicholson seems to be moving things along this morning, interrupting Takahashi and asking questions for him at times.

For example, Takahashi asks Dietz: “Did you attend the six bargaining sessions between May 2 and…”

Nicholson interrupts and asks Dietz: “Did you attend all formal bargaining sessions?”

Dietz replies yes.

Takahashi tries to ask if any tentative agreements were signed at those six sessions, repeating each date.

Nicholson interrupts again: “Do you recall any signed tentative agreements (by both parties)?”

He says no.

“OK let’s move on,” Nicholson says.

Friday — 9:15 a.m. ‘What More Do You Want From This Witness?’

And we’re back. The hearing started at 9 a.m. sharp.

Lots of empty seats this morning, with just University of Hawaii Professional Assembly Executive Director J.N. Musto, Hawaii State Teachers Association President Wil Okabe and another state staffer in the audience.

Dietz is back on the stand for his fourth day of testimony. Hawaii Labor Relations Board Chairman Nicholson had said at the close of yesterday’s hearing that he expects questioning of Dietz to wrap up today.

HSTA attorney Takahashi picks up where he left off, asking Dietz about a memo from the state that went out to teachers, informing them of the unilaterally imposed contract.

Takahashi wants to know about a dozen imposed items listed in the memo, and whether there were signed agreements by both parties for each.

During questioning, Nicholson interrupts: “What more do you want from this witness? I think we spent a lot of time on this subject yesterday.”

He tells Takahashi that the hearing needs to move along.

“Are we going to rehash the whole thing about what those proposals were that were submitted by the employer on June 17? The record is clear that there’s no document … where the union has signed off or HSTA has signed off. It appears from the record that only the employer signed off on these temporary agreements.”

“Just let us know, Mr Takahashi, here we’re going with this.”

3:40 p.m. Pau for Today

Chairman Nicholson ends today’s hearing just after 3:30 p.m. to allow Dietz to review several documents overnight that Takahashi is questioning him on.

One of the exhibits is a letter to Okabe letting him know that the state had implemented its last, best and final offer. Since Dietz didn’t write the letter, he’s not familiar with it.

Before today’s hearing draws to a close, Halvorson voices concern over the progress with Dietz on the stand.

“I have some real concerns about the way this case is proceeding, the way Mr. Takahashi is proceeding. He’s tying up some rather senior people … Mr. Dietz is…”

Nicholson cuts him off and says. “I’m sure we’ll be done by tomorrow.”

We’ll be back at 9 a.m. tomorrow.

3:10 p.m. Light at the End of the Tunnel?

Halvorson called for a 10 minute break shortly before 3 p.m.

At one point during the break, Dietz casually asks Takahashi: “Is there any light at the end of my tunnel?”

Takahashi seems confused and doesn’t reply right away. “Oh, you want to finish?”

He doesn’t give a straight answer. He somewhat apologizes to Dietz, saying his mind sometimes races.

“We can take a break for today if you want,” Takahashi offers.

Dietz declines, saying, “Let’s do what we gotta do.”

Takahashi tells him, “We can stop anytime, you let me know.”

“Thank you, I appreciate that,” Dietz says. “It takes some of the pressure off. If I start to get too foggy on you — sometimes I don’t realize it — that would be a sign.”

2:55 p.m. Dietz: Flabbergasted by HSTA’s rejection

Following a comment by Dietz that he was “flabbergasted that HSTA’s board had rejected the agreement” reached on June 17, Takahashi asks Dietz about his past union negotiating experience.

“Have you as a union member, have you ever had a contract rejected by the rank and file?” Takahashi asks.

Once.

“Have you ever had the experience of a contract being rejected by full committee?”

Yes.

“And what happened after that rejection?”

We went back to negotiations, Dietz says.

“That did not happen in this case,” Takahashi replies.

No, sir.

“Is it uncommon for a tentative agreement be ratified by the rank and file?”

No.

“Is it uncommon for a contract to be rejected?”

In my experience, yes.

2:15 p.m. Email to the Gov

Takahashi asks Dietz whether he was aware that the comprehensive settlement reached at the June 17 was dependent on approval from HSTA’s board.

He says yes.

“You knew that if the board voted it down, the comprehensive settlement would be rejected?”

Yes.

“You knew there was a chance of that?”

I suppose, yes.

Takahashi then asks about an email sent to the governor following the June 17 meeting.

“You sent an email to the governor that Wil (Okabe) would be recommending the package?”

Dietz replies yes, but says it wasn’t a direct email to the governor. It was sent to Abercrombie’s former chief of staff, Amy Asselbaye.

Neither Takahashi nor his team can locate a copy of that email in the thick stack of exhibits. He asks that a copy Dietz has be entered into the record.

Halvorson insists the email was submitted previously.

2:05 p.m. Compounded Questions

An example of how compounded some of Takahashi’s questions to Dietz can be.

Takahashi attempts to ask him a question two different ways, before breaking it down into three separate questions.

His initial question: “In your experience in the private sector, can an employer insist that the union agree that whatever’s being tentatively agreed to is being recommended?”

Halvorson objects, but Nicholson allows the question to be restated.

Takahashi tries again: “In the past, you’ve been involved in private sector negotiations and public negotiations, correct?”

Dietz says yes.

“Have you ever entered into an agreement where members of a negotiation team have to recommend it to a board for ratification? Have you ever had that experience?”

Yes, again.

“Did you have any such agreement with HSTA to that effect at any time in writing on June 17?”

Dietz replies no.

Takahashi moves on.

1:45 p.m. More on that June 17 Meeting

The hearing resumes promptly at 1:30 p.m.

Takahashi picks up right where he left off, asking Dietz for more details on the “off the record” June 17 meeting.

He asks why more members of the bargaining teams weren’t at the meeting.

“I think that both sides thought we had a better chance of reaching an agreement if it wasn’t the full teams of both parties,” Dietz replied. “We were more focused on trying to make a really good faith effort to reach an agreement than anything else.”

Dietz says HSTA representatives presented proposals for the state to review.

He said the dialogue at that meeting was “much more of an open discussion,” versus any back-and-forth discussions.

“Having said that, it’s clear the employer did not accept the proposal,” Dietz said.

11:47 a.m. June 17 Meeting ‘Off The Record’

HSTA attorney Takahashi is now digging around on a June 17 meeting among Gov. Neil Abercrombie, HSTA President Wil Okabe and HSTA Executive Director Al Nagasako, Board of Education Chairman Don Horner and Dietz.

Takahashi characterizes it as an “off-the-record” meeting, called to figure out how to facilitate further bargaining after the state already declared impasse.

It is this meeting that seems to be at the heart of all the angst between the state and the union. It appears that the actions and words said in this meeting led to understandings and misunderstandings that resulted, ultimately, in the HSTA board rejecting whatever agreement came out of it, and the state issuing its “last, best and final” offer, which went into effect July 1.

Before Takahashi gets too deep into his line of questioning, Nicholson calls a recess for lunch. We’ll be back at 1:30 p.m.

11:05 a.m. Nicholson Criticizes HSTA Legal Strategy

Frustrated, Deputy Attorney General Halvorson objects again to Takahashi’s questioning — multiple times — before having an outburst of his own.

“This is becoming burdensome to the witness to answer the same questions over and over and over again,” he tells the labor board chairman. “These witnesses have better things to do.”

Chairman Nicholson points out that one of the things dragging out the questioning is Takahashi’s attempt to hang his case on the opponent’s witnesses, who don’t recognize many of the documents he is using as exhibits.

“He needs to bring in a witness who can identify the documents and the notes and who prepared them so we can move things along,” Nicholson says. “If we had a union rep up here who could say ‘this is what it is,’ we could accept these things into evidence, as opposed to questioning people who have never seen the documents.

“But Mr. Takahashi has chosen to prove his case through the testimony of witnesses who don’t know or agree with what was said by (union representatives). But we’ll just truck along.”

10:45 a.m. ‘It Was an Obscenity, Not Swearing’

Now Takahashi is questioning Dietz on everyone’s favorite anecdote from the union’s lawsuit: the infamous Dietz outburst, in which he allegedly told HSTA negotiators “this is serious f**ing sht” and slammed the table.

Dietz owns the episode wholly.

“Your own declaration indicates you engaged in swearing,” Takahashi says.

Dietz: “Actually, it was an obscenity.”

Takahashi: “An obscenity, then. You had not done this before in these bargaining sessions.”

Dietz: “I cannot say with certitude that I never used an obscenity. Or that I never swore for that matter, either.”

Takahashi: “Did anyone attempt to calm you down?”

Dietz: “I can’t recall.”

(There’s some discussion of who might have calmed Dietz down.)

Takahashi: “After this particular incident where obscenities were used, what happened?”

Dietz: “I used the obscenities. You’re being polite.”

Labor Board Chairman: “Mr. Takahashi, it could have been a negotiation strategy. We’re really beating this thing to death, this outburst. What was the result of this outburst? Let’s go there.”

10:17 a.m. Consensus in the State Caucus

HSTA attorney Takahashi has taken to testifying again for the witness. This morning, he tried to describe the state’s negotiation team.

“Even after April 27, the lead on non-cost items was being taken by (Department of Education) representatives, and the lead on the cost items was being taken by yourself,” Takahashi told Dietz.

Dietz only had one problem with the lawyer’s representation of the state’s caucus: “That doesn’t fit my recollection of how the employer caucus worked,” he said.

“It was much more of a consensus-driven thing to arrive at decisions in the employer caucus,” he said, “but definitely, there were a lot of non-cost issues where I would have to defer to the DOE on operational matters, because that was an area where I had no experience.”

Takahashi asked who specifically Dietz deferred to on such operational matters. The answer: Superintendent Kathryn Matayoshi, Deputy Superintendent Ronn Nozoe, Department of Education chief negotiator Annette Anderson and a complex area superintendent on the team. Also, on occasion, the Board of Education representatives.

Labor Board Chairman Nicholson says it’s time for a break.

The deputy AG walks over to the witness stand, tells Dietz he’s doing great.

“I’m having a hard time following his questions,” Dietz says, but adds that he’s just trying to get the experience over with.

We’ll be back in 10 minutes.

9:59 a.m. ‘Between 5:17 p.m. and 6:21 p.m.’

HSTA attorney Takahashi is asking questions about what took place during the April 27 meeting, but what seems strange is that he’s getting down to the very minute details of the discussion.

It’s clear that at least one person on each of the negotiation teams keeps copious notes for such a time as this.

9:51 a.m. Dietz: Not Gov’s Intent to ‘Screw Anybody’

“I said it wasn’t the governor’s intention to screw anybody out of non-cost items,” Dietz tells the union attorney, about an April 27 bargaining session. “I was trying to impart that if HSTA was concerned that if we achieved a tentative agreement on the major cost items, the employer would decamp and walk away on non-cost items. It was my intent to allay that concern.”

Takahashi wants to know if that intent was communicated in the tentative agreement reached on April 27. Dietz says it was, in the fifth condition of the tentative agreement.

9:30 a.m. Cost Items vs. Non-Cost

HSTA attorney Takahashi wants to know at what point Dietz suggested shifting bargaining discussions from cost items (wages, benefits, etc) to non-cost items (performance evaluations, drug testing, etc.).

Dietz says he suggested that on March 30, explaining that his understanding was that cost items are traditionally saved for last, when negotiating with HSTA.

“Non-cost items were dealt with first, and cost items were held to the end,” he says.

Dietz is patient with the convoluted questions — more so than the deputy AG, who has objected a few more times.

“Objection! That’s a compound question. He starts on one, goes to another, and the witness doesn’t know what he’s answering.”

Several questions later, as Dietz was about to answer the inquiry, Halvorson issued the same objection.

“Did you understand the question?” the labor board chairman asked Dietz.

Dietz paused, before answering: “No.”

On another note entirely, the fan in the corner is helping control the temperature in here. Much more pleasant than in the overly warm early days. Also, for the first time since August, the blinds behind the labor board members are open, letting in a little natural light.

9 a.m. A Month Later, Still ‘Jumping Around’

It’s been nearly a month — our last hearing date was September 29 — and the state chief negotiator, Neil Dietz, is back on the stand.

Looks like the only ones interested in being here (aside from the four attorneys involved), are the executive director for the University of Hawaii Professional Assembly, the president of HSTA and the Department of Education negotiator.

Even though he’s a defendant in the case, he’s the union’s witness today. HSTA attorney Herb Takahashi has begun the hearing not by making an affirmative case with his own witnesses, but by calling the opposition’s witnesses.

Today, as if no time has passed since the last hearing date, Takahashi launches into questions about whether Dietz had ever had to negotiate wage cuts, before negotiating the teachers’ contract this year.

Deputy Attorney General Jim Halvorson is already objecting. Says Takahashi is already jumping from one topic to another with his questions. Labor board chairman Jim Nicholson tells Takahashi to “stop jumping around.”

After a month, you would think his questions could be more organized.

3 p.m. Pau For Today, Dietz Wants to be ‘Fresh’ on Stand

As with earlier today, Dietz appears to be having a tough time recalling specifics about bargaining sessions.

He’s replied to a number of questions from Takahashi with “I don’t know” and “I don’t know specifically.”

Takahashi asked for a break around 2:45 p.m.

Before the hearing starts up again, Dietz informally apologizes to Takahashi and says he’s trying his best to recall details.

Takahashi offers to break for the day.

“I don’t want him to go on if he doesn’t feel fresh,” Takahashi says.

Takahashi informs Nicholson, who glances at Dietz and simply says: “Fresh, eh? I don’t have a problem.”

The next available date for all parties to come together isn’t until Oct. 20. The board had offered eight possible dates in October, but HSTA President Wil Okabe will be out of town for all but two of those days.

UHPA attorney Linda Aragon tells the board that HSTA’s inability to make themselves available undermines UHPA’s position for supporting HSTA’s motion for “interlocutory relief.”

“Not being able to prosecute your case would be grounds for dismissal,” she tells the board.

Nicholson’s reply: “Well, this isn’t a court. We’re moving along as quickly as we can.”

2:30 p.m. ‘Nasty Things’

We finally hear some detail from Dietz on what he meant when saying “nasty things can happen to your working conditions” if the HSTA did not agree to 5 percent labor savings.

The phrase has been highlighted by the HSTA in its complaint before the Labor Relations board, and Takahashi has asked previous witnesses about what they thought Dietz meant.

“If we were uncomfortable with 5 percent cuts, 10 percent would double that level of uncomfortableness,” Dietz testified. “I’d rate that level of uncomfortableness with being nasty, unpleasant. I didn’t want to see it happen. I didn’t want to see 10 percent cuts imposed on anybody.”

“And what were you therefore saying?” Takahashi asks.

“I would’ve been saying exactly what I believe I said: The repercussions of the Legislature balancing the budget could be a 10 percent cut in labor costs— that could result in nasty things happening … It may not be the best choice of words, but I think it was an honest choice of words.”

What nasty things did you have in mind?

“I think lay offs were probably foremost in my mind,” Dietz replied.

2:05 p.m. ‘Make-It-Or-Break-It Point’

We’re back from lunch.

Takahashi begins questioning Dietz about an April 27 bargaining meeting — while the House and Senate were finalizing the state budget.

Dietz had said at that meeting that there were 24 hours to wrap up a financial package before the Legislature imposed 10 percent labor cuts.

Asked about the 10 percent figure, Dietz testified: “The two houses were in budget reconciliation. One house had 10 percent labor savings built in, the other did not. There was a concern that the 10 percent might carry.”

Takahashi asks what Dietz meant when he told HSTA representatives at that meeting that things were at a make-it-or-break-it point.

What did you intend by that?

“As I try to parse the phrase now, it’s just an expression that time was critical,” Dietz testified. “This was a point where we could make an agreement about how to achieve 5 percent labor cost savings — or the break it part would be we may be saddled with 10 percent cuts.”

You felt you were at a make-it-or-break-it point as respect to what?

“I was very concerned that here we had been operating to try to find solutions based on 5 percent labor savings, and that our ability to do that may be curtailed if the state budget came down imposing a 10 percent labor savings,” Dietz said.

Who in the governor’s administration may have referred or given you the impression that the Legislature could impose a 10 percent labor cut?

Dietz replied it may have included Amy Asselbaye, Andrew Aoki, Kalbert Young, Lloyd Nekoba, Tammy Chun.

11:54 a.m. Lunch Break

Dietz is relying heavily on his notes from bargaining sessions to refresh his recollection during examination.

Takahashi is impatient with that, pushing Dietz to use his memory.

Halvorson suggests it’s time for lunch break, and Nicholson agrees.

We’ll be back at 1:30 p.m.

11:38 a.m. Dietz’ Transition Into Negotiator Role

Takahashi asked a series of detailed questions about Dietz’ transition into the role of chief negotiator for the state of Hawaii.

There was a surprisingly minimal amount of briefing, based on Dietz’ testimony. He doesn’t recall having a briefing session with anyone before he went to his first bargaining session with the teachers union. He doesn’t know who — if anyone — was bargaining on the governor’s behalf before he took over. He did not make any inquiry about those details, he testifies.

He thinks his first bargaining session with HSTA took place on March 30 but isn’t entirely sure.

11:20 a.m. Multiple Meetings

Nicholson got his wish. When we returned from break, Takahashi’s questions jumped from February to April.

First he wants to know about a teachers’ convention in Waikiki that Dietz attended with Gov. Abercrombie. Did the governor mention negotiations? Dietz doesn’t recall. What he remembers about the governor’s speech is that Abercrombie spoke of his mother’s experience as a teacher and “seemed to be genuinely emotional about it,” Dietz says. “That’s what I recall the most.”

Now HSTA’s attorney wants to know about an April 8 meeting between Dietz, Abercrombie and HSTA Executive Director Al Nagasako and HSTA President Wil Okabe.

Why was the meeting held? Dietz doesn’t know off the top of his head, because it was called by the governor.

He doesn’t recall how long it was and speculates that his presence was requested because Okabe and Nagasako were there.

Was this a bargaining session? Dietz wouldn’t characterize it that way.

Was it a meeting to negotiate a contract? Dietz wouldn’t characterize it that way.

What came up in the meeting? Someone — Dietz doesn’t recall who — asked whether Teach For America teachers would be the first laid off in the event of teacher layoffs.

Also in his notes is mention of a “5 percent target,” which he says probably refers to a labor cost savings goal.

This meeting took place two days after the state reached a contract settlement with HGEA, he testifies. HGEA’s agreement included a 5 percent salary cut and a “favored nation” clause guaranteeing that no other union would receive a better contract.

10:15 a.m. United Public Workers Liked Furloughs

Takahashi is keenly interested in this Feb. 4 meeting where Dietz was introduced to the union leaders.

He has asked repeatedly if the meeting was a multi-union bargaining session. The answer has been no, every time.

The purpose of the meeting, Dietz says, was for Abercrombie to talk about his intentions for bargaining, and to enlist the support of the unions in achieving some sort of labor cost savings this year.

“I think he indicated, to the best of my recollection, that he wanted to be straightforward in what the state’s position was going to be, and not engage in what I would call ‘gamesmanship,'” Dietz says. “The other thing he wanted, or asked, was…I believe he asked for the public employees to help with how we would achieve labor cost savings.”

Abercrombie also made it clear he did not think furloughs were a good way to conduct the public’s business, Dietz adds.

Takahashi wants to know if any union leaders made statements. “Of course they did,” Dietz says.

Perhaps the most memorable of the union leaders’ statements was United Public Workers Director Dayton Nakanelua’s declaration that his members liked furloughs.

Again, it’s not clear what Takahashi is getting at with this line of questioning, but it’s revealing some interesting nuggets of information.

Labor board chairman Nicholson is granting everyone a break and says he hopes Takahashi will be done with the Feb. 4 meeting when we return.

9:55 a.m. Takahashi Testifying Again

Takahashi tried to get Dietz to clarify the meaning of a “tentative agreement” by referring him to Article III-i of the teachers’ 2009-2011 contract, which lays out one of the ground rules for negotiating:

“All items agreed to are agreed to tentatively pending final disposition of all items being negotiated.”

He never brought the line of questioning home, and now is moving to a different line, regarding a meeting in which Gov. Abercrombie introduced Dietz to the labor union leaders.

Following him is difficult because he keeps testifying on the witness’s behalf.

Nicholson has reprimanded him for it multiple times.

“Mr. Takahashi, you’ve really got to cut it out,” he says now. “I don’t want to have to play the tape to figure out what was said, but we’re going to have to resort to that eventually if you keep putting words in people’s mouths.”

9:30 a.m. ‘As Slowly As He Wishes’

It’s becoming a familiar refrain in this case, and after the 12th objection or so from the state this morning, Nicholson reminded us again while shaking his head: “It’s Mr. Takahashi’s case, and let’s just let him proceed as slowly as he wishes.”

9:21 a.m. ‘Conspiracy Theory’

Takahashi is in the weeds again, and Deputy Attorney General Halvorson can’t stand it.

The HSTA attorney asked Dietz all kinds of questions about statutory impasse and how it applied to the various bargaining units, then wanted to know whether those unions at impasse have selected arbitrators.

Halvorson objected: “What’s the relevance of interest arbitration for these other units?”

The board chairman sighed and asked Takahashi for an explanation: “Where are we going with this, Mr. Takahashi?”

He listened as Takahashi explained his purpose with a labyrinthine run-on sentence that was hard to follow.

Nicholson asked again, “The point is, what relevance is that to the questions you’re asking…in this conspiracy theory that you’re trying to enunciate?”

3:55 p.m. Where Did Threat of 10 Percent Labor Cut Come From?

Dietz testifies that he doesn’t recall any lawmakers ever telling him they would have to implement a 10 percent labor cut if he didn’t reach an agreement with HSTA.

He does recall the governor mentioning a possible 10 percent cut, at an April 26 meeting with Dietz and lawmakers.

Why it’s an issue: HSTA in its labor complaint alleges that Dietz told HSTA negotiators that unless they accepted a 5 percent wage reduction, the Legislature would impose a 10 percent wage cut.

And Nicholson has halted the hearing for today. We’ll resume at 9 a.m. on Thursday, Sept. 29, with Dietz back on the stand.

3:20 p.m. Statewide Governmental Policy?

Takahashi now wants to establish that the governor implemented a statewide policy regarding labor savings.

Dietz testifies that the governor’s objective, since before Dietz took office, was to achieve a 5 percent cost reduction among all the public labor contracts beginning July 1 this year.

That objective has remained consistent throughout the year’s negotiations including those still in progress, Dietz says. (Police and firefighters are still in bargaining.)

Dietz is careful to state that the governor’s position and labor savings objective is not synonymous with the position of the employer.

With each bargaining unit, the employer group changes. In the case of the teachers, the employer group consists of negotiators from the governor’s office, the Board of Education and the Department of Education.

2:33 p.m. Who’s Affected By ‘Favored Nation’ Clause?

Takahashi is uncharacteristically calm and topical today.

His line of questioning is focused right now: How did, does or would HGEA’s favored nation clause affect the other unions and bargaining units?

Dietz responds that it affects HGEA by guaranteeing that if any other bargaining unit negotiates something better than the terms in HGEA’s contract, HGEA will receive the “something better.”

The effect on the employer? Takahashi asks.

“We would have to honor those terms with HGEA,” Dietz responds.

The clause would have effect on an arbitration award for Bargaining Unit 10, he testifies.

Takahashi wants to know if the favored nation clause is applicable to every portion of the HGEA agreement — time off, pay, health benefits, etc.

“I don’t know that we ever considered that question,” Dietz says.

Dietz responds directly, without seeming like he’s trying to be clever. It’s refreshing after watching Board of Education Chairman Don Horner try to anticipate and head off the attorney’s conclusions.

2:26 p.m. HSTA Mum On Supreme Court Ruling

Although this morning’s Supreme Court order ruling that teachers can strike stirred up the state and UHPA attorneys, nobody on the HSTA side of the room has said a word about it yet. Takahashi is proceeding with the case as if nothing happened.

Odd.

2:15 p.m. HGEA Agreement In Question

Takahashi has moved into the controversial territory with Dietz: How exactly the state came to agree on increasing employee contributions to health care, and how HGEA ended up with a favored nation clause.

Dietz says he and HGEA Executive Director Randy Perreira reached what Dietz calls a “me too” agreement. That meant that if any other unions reached a better agreement than the one reached by HGEA, HGEA would also get an equitable contract.

This discussion took place on April 6, he testifies.

Some objections from the deputy attorney general about this discussion falling into the “internal discussions” territory protected by the labor board’s earlier ruling.

But because Dietz had the authority to enter into an agreement with HGEA, labor board chair Nicholson says the conversation in question is fair game in this case.

1:40 p.m. Hawaii’s Chief Negotiator On The Stand

State chief negotiator Neil Dietz is on the stand now.

Moments before we reconvened to hear from our fourth witness, UHPA Executive Director J.N. Musto and Dietz held a wry, almost non-verbal exchange about how long this examination might take. A chuckle from Musto and a dry but good-natured response from Dietz: “I don’t know what you find so humorous about it.”

HSTA attorney Takahashi’s questions right now are focused on establishing Dietz’s collective bargaining experience and former labor ties.

Dietz, as Civil Beat has reported before, had never been involved in public-sector contract negotiations before this year. He was appointed by the governor and began work on March 24.

Takahashi is uncharacteristically calm right now, but we haven’t gotten past Dietz’s career history yet.

An interesting seat change happened after lunch: UHPA attorney Tony Gill is now in the audience, and his colleague Linda Aragon is at the table with the other principal attorneys.

11 a.m. How Much Do Teachers Make?

HSTA attorney Takahashi astonished the room when he said “no further questions” less than an hour after beginning examination of Coppa.

But Coppa had to return to the stand, because Takahashi wasn’t yet satisfied that the state comptroller could not produce the payroll list for Department of Education employees.

It’s not clear why he wants a copy of the payroll.

Deputy Attorney General Jim Halvorson had no questions, but only wanted to clarify to the board and to Takahashi that the information requested would only tell us “how much a person is paid.”

Takahashi still wants the payroll list. Coppa told him he would have better luck getting it from the Department of Education, which supplies him with an electronic file that plugs into his software and prints out checks. He has never tried to print a list from the file he receives, he testified.

Takahashi announced again that he has no further questions.

The next witness is state chief negotiator Neil Dietz, who was sitting in on the hearing in its early days, until Takahashi got witnesses excluded from the proceedings.

Dietz will take the stand at 1:30 today.

10:48 a.m. About Kalbert Young, And Bruce Coppa On The Stand

Catching up on the last hour: The state asked the board to revoke Kalbert Young’s subpoena, citing concern about some of the information and documents requested.

The request is taken under advisement, and the state has to provide more information to the board. Not really clear on what the information is. Chairman Nicholson talks softly when he’s not frustrated.

Now state comptroller Bruce Coppa is on the stand, and objections are flying all over the place again as Takahashi begins examination.

Lots of detail-oriented questions about the state’s payroll system from the union attorney, and a lot of “I don’t knows” and “It’s really the Department of Education’s property” type answers from Coppa.

9:52 a.m. ‘Taken Under Advisement’

The matter concerning Randy Perreira’s subpoena “has been taken under advisement,” said Labor Relations Board Chairman Nicholson.

Tony Gill, who represents the University of Hawaii Professional Assembly, jumped in at the end of the hearing on the motion, to request a separate briefing and ruling on whether it is proper to even have a favored nation clause.

“I would be happy to participate in that, because UHPA has from time to time had a favored nation clause,” Gill said. “Whether we choose to have them again or not depends in large measure on how the board rules on this one.”

Nicholson, however, did not make a move to separate the issue from the rest of the case.

We’re on a short break now and expect to hear the motion to quash state budget director Kalbert Young’s subpoena when we get back.

9:23 a.m. What HSTA Wants From HGEA Executive Director

Takahashi says he won’t ask Perreira anything that isn’t already a matter of public record. Which begs the question: Why bother with a witness when you could make your case on public record alone?

The questioning of Perreira would center on HGEA’s favored nation clause, which HSTA says discriminated against and limited the teachers union’s bargaining rights. It forced the union to accept a 5 percent pay cut and a 50-50 split on health care costs.

The HGEA attorney comes back with a short and pointed response.

Although Takahashi says he is not seeking information about anything other than the public record (the favored nation clause), “if you look at the HSTA subpoena, what they are asking for is not a matter of public record,” she says. “They are asking when, where, who and in what manner HGEA received the favored nation clause. Those are confidential. That would include possibly strategies such as what concessions were made to get there, what discussions were had, what proposals were given up in order to achieve that.”

The Labor Relations Board has already ruled earlier in this case that all notes and meetings in which both collective bargaining parties are not present shall not be divulged. The only negotiation notes and conversations subject to examination are the ones that took place when both the collective bargaining teams involved were present.

Labor board chairman Jim Nicholson tells Takahashi he doesn’t see why Perreira’s testimony is relevant to HSTA’s case.

Nicholson adds that if this favored nation clause issue is in fact relevant, HSTA should be able to get the information it is seeking from one of the parties named in the case — Gov. Neil Abercrombie or one of the state’s negotiators — instead of dragging HGEA into the case.

Tuesday 9 a.m. — Motions to Quash

We started right on time. In addition to the attorneys, in the room today are:

-Annette Anderson, chief negotiator for the Department of Education
-Bruce Coppa, comptroller for the state
-J.N. Musto of the University of Hawaii Professional Assembly
–Wil Okabe, president of HSTA

The board is first hearing two motions, to quash the subpoenas for HGEA Executive Director Randy Perreira and budget director Kalbert Young.

An HGEA attorney explains that the information requested of her client (Perreira) is confidential and would be “highly damaging” to the collective bargaining process if it were shared in public.

“This dispute is between the parties to the negotiations, and should not be extended to non-parties,” she says.

Remember that the teachers union has been essentially setting fire to its bridges with the other public labor unions — including HGEA — by accusing them of conspiring with the governor to discriminate against HSTA.

HSTA attorney Herb Takahashi has launched into a long-winded response.

3:48 p.m. We’ll Be Back Sept. 27

We are pau for today. Nicholson said the Labor Relations Board is available to continue this hearing on Sept. 21 and Sept. 26-29, but that HSTA’s attorneys are available only on Sept. 27 and 29.

Linda Aragon, an attorney representing the University of Hawaii Professional Assembly, asked if the board, “in an effort to get this case going so we’re not here beyond the end of the year,” could not just set the hearing dates and let the parties involved in the case work around them.

Nicholson said that this is HSTA’s case, and HSTA therefore determines its own pace and availability. The board must work around the availability of the attorneys and witnesses, he said.

We’ll be back on Sept. 27th at 9 a.m. First on the agenda is a hearing on motions to quash subpoenas for HGEA Director Randy Perreira and state budget director Kalbert Young.

We may then hear from the third witness in the case: Bruce Coppa, director of the Department of Accounting and General Services.

3:41 p.m. Horner Off The Stand

The deputy AG asked Horner only a few questions, leading the witness to restate that the budgetary circumstances required the Department of Education to chose from among several unpleasant options to cut costs.

“We have to balance the budget,” Horner said. “It’s mandatory. And almost two-thirds of our budget is people. It is my belief, Mr. Halvorson, that people are the solution, not the problem, but the problem is economics. In order to balance the economics, unfortunately it impacts people.”

Horner said that of all the options the state faced in balancing the education budget, a 5 percent salary reduction for teachers seemed like it would have the least negative impact on student achievement. That is the reduction reflected in the contract that the governor unilaterally implemented on teachers July 1 this year.

During Halvorson’s short cross-examination, Takahashi submitted various objections, most of which the labor board chairman overturned.

“Mr. Takahashi, we’ve given you broad latitude, and we can certainly give Mr. Halvorson the same courtesy,” Nicholson said.

3:10 p.m. Horner: Council On Revenues Reports ‘Historically Wrong’

Takahashi now wants to know if the Board of Education chairman was familiar with the Council on Revenues economic projections, which he says improved Hawaii’s economic outlook for the next two years.

The implication is that the Department of Education should not have had to implement budget cuts as drastic as the state first projected earlier this year.

Horner says he is not familiar with the revenue reports in question, but he adds that such reports “historically have been wrong.”

HSTA President Wil Okabe, sitting in the back of the room, laughs aloud at the statement.

Horner, also a successful businessman, says that as a businessman, he relies on hundreds of economic indicators.

During the examination, he explains that the economic situation forced the Department of Education to make some cuts.

“The state has less revenue, which forces us to balance the budget with less money, which is tragic, because our teachers are hard-working,” Horner says. “I look forward to the day we can talk about salary raises instead of reductions.”

2:50 p.m. Why Doesn’t Civil Beat Stop Live Blogging?

Nicholson needed a break. Heck, seems like everyone needed a break. We’ve got a few minutes to relax. After stepping out into the hallways and alcoves to make phone calls or confer privately, everyone is back in the room except for the two labor board members.

In a friendly gesture, Horner asks Takahashi about where his offices are located. After a couple of exchanges each direction, the two loosen up, then Takahashi hesitates.

“We’d better be careful,” he says. “Is Civil Beat here? Recording everything we say.”

Horner points behind him.

He turns to face me. “Why don’t you guys stop doing that?” he asks.

We’re blogging for all the people who can’t be here and want to know what’s going on, I explain.

2:25 p.m. Controversial Letter to Labor Board

Looks like Takahashi is running the show now, as long as he keeps the case moving. Nicholson, having vented his irritation with the HSTA attorney, now brushes off Halvorson’s objections, encouraging Takahashi to “go ahead.”

The attorney for HSTA is now asking Horner about the circumstances surrounding a controversial letter that Horner, Superintendent Kathryn Matayoshi and Gov. Neil Abercrombie delivered to Labor Board Chairman Nicholson after the board’s hearing on whether to grant the teachers temporary relief from salary cuts.

The letter was a request for a mediation so that the state and union could return to negotiations regarding the teacher contract, after HSTA leaders indicated they wanted only to return to the table.

After receiving a copy of the letter, though, HSTA attorneys argued that it was an improper attempt to influence the board’s decisions in this case. The labor board ruled in August that the governor’s letter was not a problem.

It’s unclear what Takahashi hopes to prove with the letter, given the board’s earlier ruling.

2:08 p.m. ‘We Need To Get This Case Over-With’

The labor board chairman holds his head in his hand. The deputy attorney general, glasses removed, has pushed away from the table and chews on his pen.

Horner stares straight at his questioner, chin set hard. Takahashi leans forward in his chair.

Deputy AG Halvorson’s objections are now submitted in a voice quivering with restraint.

Everyone in the room is tense.

Halvorson has just objected that Takahashi is being argumentative. Horner has just answered the same question for the fifth time. Labor Board Chairman Nicholson follows Halvorson’s objection with a reprimand directed at the HSTA attorney.

“Mr. Takahashi just go on, this is your case,” he said. “We’ll just watch you keep beating it again and again and again until you’re satisfied. Go on.”

After Takahashi hesitated, Nicholson sighed with frustration.

“Just go ahead, Mr. Takahashi, we’ve been liberal and let you keep going. We need to get this case over with.”

A few minutes later, Nicholson told Takahashi some of his questions were out of line. He did not belabor the point.

“Let’s keep this thing moving,” he said.

2:03 p.m. ‘Intense Interrogation’

Horner, though polite, occasionally lets his irritation show through.

The first day he was on the stand, he reprimanded the attorney for the way his subpoena was dropped off at his office without a signature. Today, he has let the questioner know his displeasure with the tone and length of examination.

Shortly after we returned from lunch, Takahashi asked Horner if he had read one of the exhibits carefully.

“‘Carefully’ isn’t exactly the way I would characterize it, sitting here under the pressure of your intense interrogation,” Horner replied.

A few minutes later, Takahashi asked the witness, “I showed you this paragraph before, do you recall?”

“No, I don’t recall,” Horner replied, quickly adding, “You’ve showed me a lot of paragraphs in the six hours I’ve sat here, Mr. Takahashi; I don’t recall all of them.”

1:31 p.m. Some Things Never Change

Horner arrived just a minute after our scheduled resume time, we went back on the record, and Takahashi wasted no time in directing the witness to look at Exhibit 61.

He asks what the intent of the “last, best and final” offer letter was, then follows up with a long sentence, the meaning of which is hard to decipher.

Halvorson objects again, saying that Takahashi keeps going off on long narratives instead of questioning.

It’s almost like we never left for lunch, except some of us have refills now on our coffee.

A minute later, Halvorson objects to a question about discussions that may have taken place among members of the state management team while HSTA negotiators were absent. Again, Takahashi wants to know what the state team expected to happen with the June 17 agreement.

“We have already had a ruling that those discussions would be protected,” Halvorson says in his objection.

Nicholson allows the objection to stand.

11:53 a.m. No Backup Plan In Case HSTA Rejected Proposal

Horner tells Takahashi that the state’s negotiating team had no backup plan in the event the teachers union rejected the June 17 agreement. The state team had no intention of negotiating further.

“In that June 17 meeting, we agreed on a package,” Horner says. “My understanding was that the senior officials of HSTA would take that package in its entirety to the board of HSTA for approval, objection or whatever they so chose. It was their prerogative what they did with it. Our understanding was that it would be taken to them with a recommendation for approval.”

Takahashi wants to know if the state team met to discuss next steps after learning that HSTA’s board rejected the offer.

“I was under the assumption, knowing that the board had rejected our final offer, that there was no need to negotiate,” Horner says.

After a few more redundant questions from Takahashi and objections from Halvorson, the labor board chairman suggests we break for lunch. We’ll be back at 1:30 p.m.

11:50 a.m. Takahashi In The Weeds…Again?

Halvorson is not the only one frustrated with the labor attorney’s questions. He has submitted several more objections to questions that appear misleading, irrelevant or are redundant.

Labor Relations Board Chairman Nicholson is also asking the HSTA attorney things like, “Are we going to go down this line of questioning again, Mr. Takahashi?”

11:36 a.m. ‘Objection’

Although Takahashi is asking the questions, the deputy attorney general is keeping busy. He raises objection after objection, his tone terse and frustrated.

“Objection. We don’t know which UPW he’s talking about and it has no relevance.”

“Objection. That’s not his testimony.”

“Objection. That’s not what the witness testified earlier.”

“Objection. Relevance.”

“Objection. This witness has already stated he has nothing to do with the UPW negotiations.”

“Objection. Just because he doesn’t like the answer doesn’t mean he can keep asking the question.”

“Objection. I thought we were on this exhibit to refresh the witness’ memory, and the question has nothing to do with refreshing his memory.”

“Objection. The witness has already answered this question in an earlier session.”

“Objection. He’s compounding the question again.”

“I’m going to object. I think the document can speak for itself, so why are we taking the time to have someone read it to us?”

“I have an objection. Lack of foundation. There’s no way this witness knows when the letter was actually sent.”

“Objection. That’s grossly vague.”

In almost every case, the labor board chairman instructs Takahashi to rephrase his question, withdraw it, start over, or explain his reasoning for it.

11:22 a.m. UPW Off-Topic

HSTA attorney Takahashi asked Horner a series of questions about the contract for members of the United Public Workers. He was trying to establish that the state discriminated against Unit 5 (HSTA) employees when it established a 50-50 health cost contribution.

UPW workers pay 40 percent of their health care costs right now.

Each of Takahashi’s question met an objection from the state deputy attorney general.

“The witness has already stated that he has nothing to do with the UPW negotiations,” Jim Halvorson said after his fourth objection.

Labor Relations Board Chairman Jim Nicholson told the HSTA attorney that the board is considering allowing representatives from UPW and the Hawaii Government Employees Association to participate in the case.

“If you keep pounding this issue of Unit 1 (UPW), I think a representative of UPW should be here as a witness and also be allowed to testify,” Nicholson said.

He then told Takahashi he has gone far astray in asking Horner questions about the UPW contract, which the Board of Education has no part in negotiating.

10:50 a.m. Paying Teachers In Hard-to-Staff Areas

Takahashi is opening with a lot of questions about itemized agreements reached between HSTA and the state on June 17. Had the two teams reached a tentative agreement about the drug testing policy before that date? Horner says no.

Takahashi now wants to know about a $1,500 bonus for teachers in hard-to-staff areas, which Horner approved on June 17. Under earlier contracts, the bonus was $3,000, but had been eliminated for the 2009-2011 contract because of budget constraints.

“This is a good example of the concessions that we made,” Horner says. “Under that memo of understanding, none of these bonuses had been paid to our teachers. The board met in executive session to discuss how we could release this bonus, because we feel it’s important for our employees, even though we didn’t have the money in the budget for it.”

He said that the state wanted to give teachers some compensation, even if it couldn’t be $3,000.

“This is $1,500 more than they got under the previous contract, which was zero.”

10:30 a.m. Horner Back On The Stand

Crowd continues to dwindle. There are a total of six of us in the audience along with five attorneys, two labor board members and one witness: Board of Education Chairman Don Horner.

The pile of exhibits in front of Horner looks like it measures a good 10 inches in height.

Hawaii State Teachers Association attorney Herb Takahashi will resume questioning of Horner this morning.

4:06 p.m. Pau For Now

Takahashi stated earlier he has no idea how many more questions he will have for the witness.

Nicholson interrupted Takahashi’s second round of questions about the HGEA favored-nation clause to schedule another date for Horner to take the stand, because “we’re obviously not going to be able to finish today.”

Everyone agreed to resume the hearing at 9:30 a.m. on Monday, Sept. 19.

3:42 Redundant Redundancy

It’s been more than two hours, and Takahashi has covered two or three points thoroughly — too thoroughly, Halvorson feels.

He’s objected to yet another series of redundant questions from the HSTA attorney, about whether Superintendent Kathryn Matayoshi threatened layoffs if salary cuts weren’t obtained.

Horner says he would “in no way subscribe to the suggestion that Ms. Matayoshi threatened anyone.” But Takahashi asked again.

“If we ask it enough times, he’ll recall, is that what we’re getting at?” asked labor board chairman Nicholson.

Responding to Halvorson’s objection about redundancy, Nicholson said, “I heard him say that, but Mr. Takahashi needs to hear him say it again.”

3:28 p.m. State Thought Final Settlement Had Been Reached on June 17

Horner has testified that the purpose of the June 17 meeting, post-impasse, was to finalize an agreement that would be acceptable to HSTA and that the union negotiators would take to their board. The April 27 financial agreements still stood as the backbone for the meeting.

Horner says his understanding is that the state took its proposals regarding non-cost items off the table on June 17.

“We did negotiate several items and added some additional concessions to the agreement in order to make the agreement more attractive, because that was always a request by the HSTA,” he tells Takahashi. “A handshake by all the folks there at that meeting about what we agreed to is what I would characterize as a final settlement.”

Meanwhile, it’s worth observing that throughout the cross-examination, Takahashi has been mixing his dates up, confusing the witness and at times necessitating intervention from the labor board chairman to clarify.

3:14 p.m. Argumentative

Takahashi has been reprimanded once again, this time for interrupting and arguing with Horner.

The questioning is about an affidavit by state chief negotiator Neil Dietz. Takahashi basically wants to know if the statements made in it accurately represent the events of the April 27 and June 17 bargaining sessions.

It got heated when Takahashi began revising Horner’s testimony when he repeated it back to him, then arguing about it.

Halvorson burst out with another objection, practically rising out of his chair.

“He’s interrupting the witness and being argumentative,” Halvorson said of the HSTA attorney.

Labor Relations Board Chairman Nicholson sighed. “Stop interrupting the witness, Mr. Takahashi,” he said, “and stop arguing with him, and stop putting words in the witness’ mouth, and start asking questions.”

2:54 p.m. Slap Happy

Most everybody is back in the room, but we haven’t reconvened yet. Meanwhile, the labor board chairman and the witness are talking sports, and UHPA Executive Director J.N. Musto spontaneously bursts into laughter.

UHPA attorney Tony Gill jokes that he needs to file a restraining order against his client, and labor board chairman Nicholson comes back with, “you would need to get the Supreme Court to enforce it.”

Labor dispute humor. HSTA filed a request with the Hawaii State Supreme Court to compel this Labor Relations Board to make a ruling on its motion for relief from salary cuts.

2:44 p.m. ‘Get This Darn Deal Done’

After the state’s June 3 declaration of impasse, Horner did end up setting up a meeting between HSTA and Gov. Abercrombie, he says, at HSTA’s request. The meeting took place on June 14, and Horner mostly listened.

At the end, Horner testifies that he told the parties, “If we’re that close, why don’t we sit down and get this darn deal done?”

“And everyone said, ‘That’s a good idea,'” Horner says, which precipitated a last-ditch collective bargaining session on June 17.

After that session, Takahashi asks Horner, “Did you feel there was a final comprehensive settlement?”

Halvorson objects, saying “We’re beating this horse to death.”

Horner answers anyway: “We had already declared an impasse. But we had an agreement as of June 17 that both parties agreed to in that meeting.”

That was the agreement that was taken to HSTA’s board and subsequently rejected, Horner says.

And now, an hour into our afternoon session, Labor Relations Board Chairman Nicholson is giving everybody a 10-minute break.

2:33 p.m. ‘Don’t Testify, Mr. Takahashi’

Takahashi is making statements more than asking questions.

Halvorson and Nicholson have interrupted the HSTA attorney now at least a dozen times to stop him from making statements during cross-examination.

Nicholson finally tells him, “Don’t Testify, Mr. Takahashi.”

2:27 p.m. Horner Didn’t Want to Sign Letter Declaring Impasse

Horner told the HSTA attorney that he did not at first want to sign the state’s letter declaring impasse.

He testifies that he called HSTA President Okabe, telling him that signing the letter “was not my desire.

His opinion changed after that conversation, he said, “because I looked at all the facts.” He did not directly inform Okabe about his change of mind, but had Department of Education negotiator Annette Anderson inform HSTA’s negotiating team.

2:18 p.m. Defining ‘Tentative Agreement’

Takahashi has spent the last half-hour asking in various ways what the April 27 “tentative agreement” meant to Horner.

At issue right now is paragraph 5 in the tentative agreement, which states that the terms would be subject to approval by the union in a final comprehensive settlement. Although the major cost items were settled on April 27, many non-cost items remained open, Horner said, and the agreement on that date was therefore not comprehensive or final.

“You understood that neither party could implement the terms of the agreement until they became part of a final comprehensive settlement?” Takahashi asked Horner.

Horner said the documents should speak for themselves.

“Was there a time limit on the tentative agreement?” Takahashi asked. “Was there a deadline for paragraph 5 or 6 to be triggered?”

One of the HSTA’s main complaints against the state is that the state prematurely declared impasse while items were still being negotiated.

Halvorson is out of patience with Takahashi’s questions, which for the last 20 minutes have seemed like restatements of the same thing.

“Objection,” Halvorson said. “We are WAY over-repetitive at this time. This question has been asked so many times, it’s wasting time. It is abusive of the witness.”

Nicholson has asked Takahashi to find a new direction for his questions.

1:28 p.m. Back On The Record

Back from lunch, with no fanfare, Takahashi has launched back into his cross-examination of Board of Education Chairman Don Horner.

The questions are about the April 27 tentative agreement reached between the state and HSTA.

Horner explained that he and Board of Education member Jim Williams were not involved in negotiations before April 27 this year, because they did not take office until April 26. Former elected Board of Education member John Penebacker briefed them on the status of bargaining, Horner said, and “there were some handoffs in the process.”

The line of questioning takes a turn to the statements made during that April 27 bargaining session, which Horner says he does not recall verbatim. HSTA in its formal complaint said that the state’s negotiators engaged in bullying behavior during bargaining.

“I just remember the final agreement, which was amicable,” Horner says. “Very amicable. In general, I respectfully disagree with this statement that the tone of our negotiations was in any way coercive.”

11:58 a.m. Playing Telephone

Takahashi has asked a series of questions about phone calls.

Did Horner make a call to HSTA President Okabe about a letter being sent to declare impasse in negotiations? Horner doesn’t recall that phone call.

How many times has Horner spoken to Mr. Okabe since June? Horner doesn’t recall.

Did Horner ever call Okabe to arrange a meeting with the governor? Horner recalls that it was HSTA who called to make that request. He doesn’t remember if it was Okabe or HSTA Executive Director Al Nagasako who called.

“But if they say I called them, I certainly submit that they are correct,” Horner says, adding that his memory is not as good as he would like it to be. “I certainly welcomed that request, by the way.”

Five to noon, and Labor Relations Board Chairman Nicholson has recessed us until 1:30.

Over the lunch break, Horner will be reviewing Exhibit 107, at Takahashi’s request.

11:38 a.m. Horner’s Policy Against Taking Notes

Horner told Takahashi he does not have notes from bargaining sessions.

“I do not take notes, as a policy,” he said to the HSTA attorney.

Takahashi appeared amused.

“A policy? Is there a reason for this policy?”

“Because I can’t read them,” Horner said, matter of factly. The room erupted in laughter. “Seriously,” he said, looking around.

Takahashi asked if there was another reason behind Horner’s anti-note-taking policy.

“Because I don’t like giving information to lawyers,” Horner said, evoking more laughter from the dozen people in the room.

Takahashi won’t leave the issue alone, though. He has gotten Horner to acknowledge he has a binder at his office that may contain summaries of some of the bargaining meetings and/or sessions with HSTA. The summaries were compiled by Department of Education negotiator Annette Anderson, Horner said, and may have some marginal notes on them.

“Pardon the expression, but I’m not a pack rat, so I don’t keep a lot of minutes and notes,” Horner said.

11:33 Subpoena Disservice

In the middle of a line of questioning about which bargaining sessions Horner attended, Takahashi asked Horner, “Have you ever seen your subpoena?”

Horner took the opportunity to tell the board that he was never properly served.

“You dropped the subpoena off at my office, in the reception area,” Horner said. “There was no signature. They didn’t sign for it.”

11:15 a.m. HGEA And The ‘Favored Nation’ Clause

Takahashi is pursuing what Horner knew about the Hawaii Government Employees Association contract when he went into bargaining with HSTA.

HGEA was the first of the public unions to finalize a contract with the state, and therefore got a perk: no other public union would get a better deal than HGEA. It has become known as the ‘favored nation’ clause, and caused a lot of angst in HSTA.

Unlike Jim Williams, Horner was appointed to the Board of Education in February to fill an incomplete term — months before the rest of the newly appointed board took office. He was therefore involved in negotiations much earlier than Williams, who was the first witness in this case.

Was Horner familiar with the HGEA contract, Takahashi wants to know. Horner says he has not read the contract, is not an expert on the agreement, cannot recall its details off the top of his head, but is aware of the ‘favored nation’ clause.

11:00 a.m. Product of Public Education

Horner, one of the most powerful men in Hawaii — both its public and private sectors — is patient on the stand, but takes command when he feels the questions are out of line.

“You’ve already asked me that question,” he tells the HSTA attorney.

We’re becoming familiar with the more human side of this strong leader during the cross-examination: He is a product of the public schools in North Carolina. He was the first of his family to go to college, at the encouragement of a 10th-grade chemistry teacher. Even though his kids went to Iolani, he says he has a passion for public education, largely because of its influence in his life.

On why he accepted Gov. Neil Abercrombie‘s appointment to the Board of Education:

“I have a passion for the kids of Hawaii,” he tells Takahashi. “I have confidence in the public school system of Hawaii. I have the privilege of meeting over the years numerous of the professionals in the department and felt compelled to do my part to help with this transition.”

10:45 a.m. Zero Collective Bargaining Experience

Horner’s demeanor is relaxed as he answers HSTA attorney Herb Takahashi’s questions without missing a beat.

During his longer answers, he looks off into the corner of the room instead of making eye contact with the attorney. His shorter answers are no-frills.

Takahashi: “In your capacity as an employee and official of First Hawaiian Bank, what experience have you had in collective bargaining?”

Horner: “As far as negotiating collective bargaining, zero.”

Takahashi: “What experience within FHB did you have in collective bargaining?”

Horner: “None.”

Takahashi: “Outside of FHB?”

Horner: “None.”

Takahashi: “Is it correct to say that your first experience in collective bargaining as it relates to bargaining over public sector contracts involved employees in the Department of Education?”

Horner: “Yes, that would be correct.”

10:28 a.m. Horner’s In The House

Hawaii State Board of Education Chairman Don Horner is here to take the stand. While we wait, he’s talking story with HSTA President Wil Okabe about his sons and athletic injuries.

Would be hard to tell they are in a legal face-off over the teacher contract right now.

We’re scheduled to start at 10:30, and the two Labor Board members have just entered the room.

3:40 Williams Leaves The Stand, Horner’s Up Tomorrow

Takahashi is finished questioning the witness, but Halvorson reserves the right to recall him if needed.

The hearing is scheduled to resume at 10:30 a.m. Thursday with the second witness: Hawaii State Board of Education Chairman Don Horner, who represented the board during the contract negotiations.

3:30 p.m. Comparing Last Teacher Contract With This One

Taking a cue from Halvorson’s cross-examination, Takahashi has asked Williams a series of questions about the contract he negotiated on behalf of HSTA for the 2009-2011 school years.

The bottom line, Williams says, is that teachers over the next two years will make more than they did over the previous two years.

“You have to remember that the 2009-2010 year had the full (Gov. Linda Lingle) furlough days, so it was a larger reduction than for the 2010-11 year,” he says. “On average for those two years, though, the salary cut was greater than 5 percent per year.

“On a two-year basis, teachers will actually get paid more under what we’re implementing than under the two previous years of the contract. A teacher in the same place on the same salary schedule will get paid more under the salary schedule we’re implementing. Year to year, it’s not more. A little bit less this year than last year. But over the biennium, we do better than what we previously did.”

3:17 p.m. No Further Questions From The State

Halvorson has finished his cross-examination of Williams, only 24 minutes after beginning.

And now Takahashi has more questions.

3:15 p.m. What Intimidation?

Unlike Takahashi, Halvorson stands while he cross-examines the witness.

He began with a few questions about furlough days, and now is asking about the details of April 27, 2011, which was the first day Williams participated in the teacher contract negotiations as a Board of Education member appointed to the state team.

“I knew most of the HSTA people better than some of the employer group people I was working with,” Williams said, adding that HSTA’s negotiators interacted smoothly with one another.

He also said that his expectation at that April 27 meeting was to settle all the non-cost items in the HSTA contract, after the cost items were settled.

Williams acknowledged again that he missed some bargaining meetings after May 10, but to his knowledge, HSTA negotiators did not bring up the cost items again after April 27, when they reached a tentative agreement with the state’s bargaining team.

Halvorson asked if any of the HSTA team members, who Williams knew fairly well, indicated that they felt intimidated by the state’s team. It’s an important question, because HSTA’s legal complaint hangs on an allegation that state negotiators used bullying behavior and therefore bargained in bad faith.

“(HSTA team members) never said during those meetings or later on that they felt intimidated or coerced,” Williams told Halvorson. “They never brought that up and never indicated in my presence that they were in any way mistreated.”

2:50 p.m. State’s Turn — Finally

Halvorson gets his shot at questioning Williams, at last.

After four days of cross-examination by HSTA, the deputy attorney general promised to ask the witness, “just a few questions.”

2:26 p.m. Layoffs

Takahashi began asking Williams about the state’s response to the union’s request that the board grant relief from salary cuts until the case is settled.

The state response indicated that if HSTA’s request were granted, the Hawaii Department of Education would have to lay off some 700 employees in order to afford the increased salary costs.

Again, it’s not clear where Takahashi is going with this, because it doesn’t pertain directly to the main case against the state’s actions during collective bargaining.

Labor Board Chairman Nicholson has called for a 10-minute recess.

2:15 p.m. Superfluous Evidence?

Takahashi submitted the Labor Relations Board’s rules into evidence. Board chairman Nicholson raised his eyebrows and asked Takahashi: “You want the board to accept its own rules into evidence?”

Yes, Takahashi said, because he wants the board to “take judicial notice of it.”

Nicholson leaned back in his chair laughing. “Of course we will,” then with a straight face asked Takahashi if the attorney would like to submit the entire collective bargaining law, Chapter 89, into evidence. Various portions of the law are cited a dozen times an hour in this hearing.

“I don’t want to leave anything out, in case we should at some point have to refer to Chapter 89,” Nicholson said. “We want to make sure we know which Chapter 89 we’re talking about.”

People should be laughing right now, or at least smiling, but they’re intent on their laptops and phones.

2:00 p.m.

Deputy Attorney General Halvorson appears restless as he observes the cross-examination. He follows along in his book of exhibits as Takahashi breezes through them. When he is not fiddling with his pen, he leans back in his chair and looks over the rim of his glasses.

Halvorson has raised fewer objections today than on previous days of questioning — perhaps because the cross-examination has focused primarily on establishing the existence of some of the exhibit documents.

The objections so far are procedural — Takahashi keeps forgetting to ask the witness if he has ever seen the documents he keeps referring to.

1:24 p.m. Meandering

HSTA attorney Takahashi is asking Williams a lot of questions about exhibits, presumably letters exchanged among negotiators during the bargaining process.

It’s unclear where Takahashi is going with his cross-examination, because it’s less like a line of questioning than scattershot.

We started with whether there was ever a cost breakdown of what it would mean when the employer reduced its contribution to health premiums. Now we’re on when student instructional time became an issue in negotiations, and how.

1:07 p.m. Request For Official Transcript Denied
We’re back, and Labor Relations Board Chairman Jim Nicholson opened the afternoon session with a denial of HSTA’s request for an official transcript of the board proceedings thus far.

HSTA filed the request because, the motion says, Nicholson ordered the transcript sealed. Nicholson says the board has not sealed it, and that furthermore, no official transcript exists.

HSTA has its own transcript of the proceedings, because the court reporter in the room was hired by HSTA, and is welcome to obtain that at its own expense.

12:57 p.m. It’s the Fourth Day — And First Witness Still on Stand

Hawaii State Board of Education member Jim Williams is on the stand again. He was cross-examined by HSTA attorney Takahashi on Tuesday, Wednesday and Thursday last week, and today is a continuation.

The state hasn’t yet had its opportunity to question the witness.

Williams is a key witness for the union because he has a long history with HSTA and helped develop its negotiations process. He’s especially critical now because he participated as a member of the management team in this year’s negotiations, which fell apart. Few people know public labor bargaining as well as Williams, who has participated in it from both sides.

Everyone is in place now except for the two Labor Relations Board members presiding over the case.

10:14 a.m. Recess Till 1 p.m.

The board is recessed until 1 p.m., when Jim Williams is scheduled to return to the witness stand.

10:07 a.m. Motion To Revoke Lawmakers’ Subpoenas

The state has also requested that the board revoke subpoenas issued to six state legislators involved in the budget-making process — among them, Sen Jill Tokuda, Rep. Roy Takumi and Senate President Shan Tsutsui.

Halvorson said that as deputy attorney general, he is providing the lawmakers with legal counsel in this case.

HSTA attorney Takahashi says that the lawmakers are not respondents in the case, only witnesses, and that they therefore need no legal counsel.

“It is clear that the lawmakers are not party to this action,” he says. “They are not respondents, they have never been named as respondents, and they have not been called as respondents. This lawsuit is solely against the executive branch officials charged with responsibility for establishing a statewide governmental policy and committing various unconstitutional actions under chapter 89.”

The statewide governmental policy he’s referring to is the governor’s commitment this spring to cutting public labor salaries by 5 percent in order to help balance the state budget.

Halvorson responds that the legislators, by state constitution, cannot be made “to answer before any other tribunal for any statement made or action taken in the exercise of the member’s legislative function.”

Takahashi rebuts, saying the lawmakers need to make an appearance so he can establish a worthy record of whether the governor met with lawmakers to establish public workers’ salary cuts outside of negotiations.

Nicholson said the board would take the arguments under advisement.

The board is recessed until 1 p.m., when Jim Williams is scheduled to return to the witness stand.

9:20 a.m. Governor Should Be Last Resort, State Says

Deputy Attorney gGeneral Jim Halvorson, representing the state, is already letting his irritation show through and we’re not even a half-hour into the morning.

Takahashi has misrepresented the state’s position in its motion to revoke the governor’s subpoena, he says. The state is simply stating that the union has the burden to prove that it cannot get the information it seeks from any other source except the governor.

“We have not claimed that the governor has absolute immunity in this case,” Halvorson said. “Why he’s saying that that is an issue is because he wants to avoid the real issue. The issue regarding the subpoena of a high-ranking official is that they must show that they cannot get this information any other way. They haven’t even shown that they’ve tried to get the information any other way. What we do know is that they’ve subpoenaed something around 65 people, many of whom we believe possibly could provide the information that they seek from the governor.”

He reminded board members that they are still on the first witness in this case, which was filed in July, and that the governor should not be compelled to come and answer questions that could be answered by others.

Labor Board Chairman Nicholson has declared a 10-minute recess while he and board member Rock Ley consider the arguments.

9:10 a.m. Calling All Witnesses, Including The Governor

The state is trying to get Gov. Neil Abercrombie’s subpoena revoked so he doesn’t have to appear on the witness stand. He is one of about 80 witnesses on the union’s subpoena list.

HSTA attorney Herb Takahashi says there is no law that excuses a person, “by virtue of office or function,” from serving as a witness in a legal case.

9:00 a.m. Recording Public Meetings

Labor Relations Board Chairman Jim Nicholson seemed uncomfortable with Star-Advertiser reporter Derek DePledge’s recorder being on during the hearing.

DePledge said the recorder is effectively the same as if a TV camera were here, and that this is a public meeting. He’s happy to move the recorder, but there is no law prohibiting it being on. The chairman allows it to remain on.

8:55 a.m. Wednesday — In Memoriam

It’s starting to feel like family in this little board room. The same folks show up almost every time, with little variation: HSTA President Wil Okabe, UHPA Executive Director J.N. Musto, the attorneys representing the state, HSTA and UHPA, a handful of reporters and one or two other HSTA folks.

While we wait for the hearing to begin, the topic of conversation is labor attorney and mediator Michael Nauyokas, whose death was announced in the news last night. He was much-liked among this crowd.

Musto recollected Nauyokas’s humorous ad in the Gridiron program. He had photoshopped a picture to show Okabe and Gov. Neil Abercrombie hugging each other. The ad said something to the effect of, “great things can happen with the right mediator.”

11:20 a.m. Adjourned for Today, Future Scheduling

Nicholson interrupts questioning around 11:15 a.m. to ask Takahashi how much longer he needs with Williams.

“If you’re asking me if we’ll be finished by 11:30, no,” Takahashi replied.

Williams says he’s available on Wednesday afternoon, but won’t be available after that until Sept. 19.

The HLRB board is scheduled to hear motions related to the case at 9 a.m. Wednesday. Williams will resume at 1 p.m. that day and Don Horner will “be on deck,” according to Nicholson.

11 a.m. Takahashi in the Weeds — Again

Takahashi’s lines of questioning are tough to follow. It’s difficult to understand where he’s going or what he’s getting at.

Nicholson and Halvorson both make clear that they, too, are somewhat lost at times. Williams has had to repeatedly ask Takahashi exactly what he’s being asked.

Some of Takahashi’s questions have included:

What is Williams’ definition of an impasse? (He responded that he looks to Chapter 89 of HRS, which he says defines a statutory impasse as Feb. 1.)

What did he understand HSTA President Okabe to mean when Okabe said at an informal bargaining session that he had no authority to sign off on a tentative agreement? Okabe’s statement was taken from another witness’ affidavit, not Williams’. (Williams replied that he couldn’t “recall for sure” what explanation Okabe gave.)

What action, if any, was the employer group contemplating if the HSTA board voted to instead accept the last, best and final offer? (He responded that the offer “would go straight into implementation.”)

What Williams meant by “deal breakers” in hand-written notes from an informal bargaining session (He replied that it referred “to a question we asked, the employer asked, the HSTA: what are the deal breakers?”)

Side note: Okabe left the hearing around 10:45 a.m. Williams has to leave by 11:30 a.m.

10:05 a.m. Imposing Last, Best Offer ‘Pre-Planned’?

Takahashi says he’s trying to determine whether the state and Department of Education “pre-planned” to unilaterally impose its “last, best and final” offer prior to a vote by the HSTA board of directors to reject the offer.

He asked Williams complicated questions about the timing of letters sent out by the DOE and when those letters were drafted and sent.

Halvorson has objected all along the way, saying these questions have been asked and answered before.

Takahashi replies: “This testimony is relevant to show preplanning by the employer of implementation of unilateral action well before the (HSTA) board (of directors) took any action.”

He asks Williams whether employer group voted to do this.

Halvorson objects that it’s none of Takahashi’s business.

“I agree with Mr. Halvorson,” Nicholson said. “That’s getting into an area of discussion among the employer group, and we’re not going to go there.”

“Let’s get to the issues of the case and questions that are relevant.”

9:50 a.m. ‘This is Becoming Abusive’

Halvorson seems very irked this morning, just a half-hour into the hearing. He sighs often, leans back into his chair and stares around the room as Takahashi’s questioning of Williams drags on for the third day.

He has already objected numerous times to Takahashi’s questions.

Some of Halvorson’s comments:

“This has been asked and answered.”

“This is becoming overly repetitive.”

“This is becoming abusive.”

“What’s the relevance?”

Nicholson usually lets Takahashi continue, saying there’s an “urgency to get this case done.” He also at times instructs Takahashi to rephrase his questions.

“This all goes to ‘bad faith,'” Takahashi replied to one of the objections.

“If you ask a question 10 times, does it make it more so ‘bad faith’?” Nicholson said.

Ultimately, Nicholson says: “This is HSTA’s case, and I’ll let him proceed.”

9:40 a.m. Tensions High

Tension seem to be running high in the room this morning.

A woman with HSTA’s counsel who is at the attorneys table next to Takahashi, had a snappy exchange with HLRB Chair James Nicholson.

While questioning Williams, Takahashi had wanted to add an exhibit to the record. The woman stood up to hand out copies and was headed toward Williams when Nicholson interrupted: “Um, protocol — attorneys first.”

She replied, “I’m heading that way,” with a trace of sass in her tone.

She walked across the small room toward the state’s attorney, Jim Halvorson.

“Don’t trip on any wires,” Nicholson said, obviously annoyed.

The woman also handed Williams a copy, prompting another scolding from Nicholson. He reminded her that counsel has to be allowed to review any documents first, and be given an opportunity to object.

Nicholson gave similar reminders to Takahashi during yesterday’s hearing.

Thursday 9 a.m. — Williams Back on Witness Stand

And we’re back. BOE member Jim Williams is back on the witness stand, with HSTA attorney Herb Takahashi continuing questioning. The state hasn’t had its turn at Williams yet.

Williams told the HLRB board yesterday that he’s only available until noon. That could mean a half-day, or the board could move on to another witness this afternoon. BOE Chairman Don Horner is next on the witness list, and was on standby yesterday.

Only eight people are in the audience so this morning, including UPHA Executive Director J.N. Musto (in a sports coat and tie today) and HSTA President Wil Okabe.

2:45 p.m. Pau for Today

The hearing has been recessed until tomorrow morning at 9 a.m.

Williams tells the board he’s only available from 9 to noon tomorrow.

Nicholson asks Takahashi how much longer he needs to question the witness.

“I’m a terrible guesser,” Takahashi says, “I don’t know.”

“Another hour or two?”

“I don’t know.”

The bulk of the questioning this afternoon was centered around health benefits for HSTA members. It’s unclear exactly what point Takahashi is trying to make.

Even Nicholson admitted a few times that he was lost and wasn’t sure what was being asked.

Takahashi asked one question three different ways — because both Williams and Nicholson were confused — before striking it.

The unilaterally imposed contract set the employer and employee contributions for health coverage at 50-50 for HSTA members.

Takahashi asked Williams how HSTA members were affected by this change as compared to other state employees in other bargaining units. Williams said he wasn’t sure.

Williams, who previously was the administrator of the Hawaii Employer-Union Health Benefits Trust Fund, did say that some HSTA employees were previously receiving an employer contribution amount that was equivalent to about 70 percent of their premiums.

1:30 p.m. Break For Nothing?

The 15-minute break to allow Williams to review a memo seems to have been for nothing as Takahashi asked just one question about it.

His question: “Since June 16, have there been any school level positions in the DOE that have not been filled?”

Williams replied, “I don’t know.”

Takahashi moved onto other questions for some time before Nicholson circled back to the break.

Nicholson asked Takahashi if he’ll be asking any questions related to the memo that required the 15-minute break.

“No,” Takahashi says, “because he doesn’t know about it. After having read it, he still doesn’t know.”

1:10 p.m. Hearing Breaks Again After Break

The hearing resumed promptly at 1 p.m., but HLRB chair Nicholson has called a 15 minute break to allow Williams to review a document.

Takahashi had proceeded to ask Williams about a letter that Williams said he hadn’t seen before.

The letter is labeled as an executive memorandum to all department heads with the subject: “Interim budget execution policies and instructions for FY12.” It is dated June 16, 2011.

Nicholson calls for the break to allow Williams to review the memo, which appears to be from the Abercrombie administration.

12:40 p.m. Consternation and Confusion

Before the break, during questioning about the contract imposed on HSTA members, Williams says he feels HSTA management may have acted in bad faith.

He said HSTA’s rejection of the state’s last, best and final offer “left a lot of consternation and confusion.”

“It’s also a question of whether HSTA’s leaders had operated in good faith when they said they’d encourage the board (of directors) to adopt (the offer),” Williams said.

Remember, the state claims HSTA President Wil Okabe reassured state negotiators he would recommend the offer, but later voted against it with the union’s board of directors, thus denying HSTA membership a ratification vote.

“It’s hard for me to go back and say let’s negotiate” after that, Williams said.

Takahashi asked him who exactly said they’d recommend the offer to the board.

“Every person in the room,” Williams said. “Mr. Okabe is the only one who initialed it. But that’s a premise of good faith bargaining.”

Takahashi quipped back, “I didn’t ask you that.”

The HSTA lawyer didn’t seem to like the tables being turned on him. It’s ironic, given that HSTA called Williams as a witness — presumably to help bolster their own case.

“Did you ask anyone if they’d recommend it to the board of directors?” Takahashi asks.

“My testimony is no, because it would’ve been insulting to ask,” he replied.

11:50 a.m. Lunch Break

Only half of the room’s 20 chairs are filled. HSTA president Wil Okabe and UHPA executive director J.N. Musto are in the audience, both wearing aloha shirts.

HLRB members are wearing sports coats and ties, as are the attorneys.

Williams again reminds the board that he has to leave by 2:45 at the latest today.

Nicholson asks Takahashi how much more time he’ll need with Williams.

“Oh, I can’t tell,” Takahashi says.

The hearing will break for lunch until 1 p.m.

“Can I release Mr. (Don) Horner for this afternoon then?” Halvorson asks.

Nicholson agrees.

11:35 a.m. HSTA Attorney: Imposed Contract Wasn’t Negotiated

Takahashi continues to ask Williams about various exhibits, including a letter from DOE Superintendent Kathryn Matayoshi to HSTA members regarding the “last, best and final offer.”

Takahashi questions parts of the letter that refer to employee contributions for health coverage and specific dates for additional leave without pay.

Nicholson asks Takahashi several times: “Where are you going with this?”

He says he’s trying to show that “the unilaterally implemented changes were not what were negotiated.”

Takahashi asks Williams if a 50-50 split on health benefits was negotiated.

He replies that the employer contribution was negotiated.

“Proposals are based on the employer share,” Williams said. “Once you know the employer share, you know the employee share.”

Takahashi asks if Williams is familiar with Chapter 87, which he says prohibits bargaining over employee contributions.

Halvorson objects, saying Takahashi is mis-stating the law.

Nicholson chimes in: “I’m really confused now.”

Takahashi withdraws the question.

He moves on to ask Williams when the state mutually agreed upon dates for unpaid noninstructional days.

“We did not mutually agree on it,” Williams replied. “We’re talking about a unilaterally implemented contract … It’s a conundrum. HSTA had rejected the tentative agreement, the employer had decided to unilaterally implement it. It would be impossible to mutually agree when we’re in that mode.”

10:52 a.m. Nicholson: Bring Us With You

Takahashi’s jumping between exhibits — be it a letter from the state to HSTA employees or the state budget bill — and Nicholson appears irritated.

For example, Takahashi referenced a letter, asked Williams a single question, then asked another question about another exhibit without saying what he’s referring to.

“Bring us with you,” Nicholson chides Takahashi.

His line of questions also seems to irk Nicholson.

“I don’t even know what the question is,” Nicholson once said. Nicholson has had to rephrase several of Takahashi’s questions for him.

Even Williams appears annoyed at times with Takahashi’s questions.

For example, Takahashi asked a question, and then repeated it louder soon after.

“Just because I don’t answer right away doesn’t mean I’m not going to,” Williams replied.

Takahashi has had to strike questions at least five times so far this morning.

The state’s attorney, Jim Halvorson, has objected to Takahashi’s questions several times, saying Takahashi’s question has been “asked and answered numerous times.”

To one of those objections, Nicholson told Takahashi: “Rephrase it so it sounds like a different question.”

10:20 a.m. ‘Are You Accustomed to F Words?’

Takahashi again wants to know about statements made by Dietz.

Dietz had said at a bargaining session: “Look, this is serious f–ing shit.”

Takahashi asks how loud Dietz said it, and if Dietz was angry.

Williams replies: “He said it about this loud,” raising his voice significantly.

“Was he angry?”

“I don’t think so.”

“Are you accustomed to f-words?”

“Yes.”

HLRB chair Nicholson tells Takahashi to ask a relevant question.

“Are these customary words for bargaining?” Takahashi asks.

Nicholson asks if Takahashi is inferring whether there are rules for language, and Takahashi agrees.

Williams seems confused and asks for the question again, before replying no.

“What happened after he said what he said?” Takahashi asks.

Williams says he doesn’t recall.

Wednesday — 10 a.m. — 5 Percent Vs. 10 Percent

Questioning of witness Jim Williams started up right at 9 a.m. by HSTA attorney Herb Takahashi.

Takahashi wants to know Williams’ interpretation of why Neil Dietz — the state’s chief negotiator — referenced the possibility of 10 percent pay cuts at an April 27 “informal bargaining session.”

Dietz had said the Legislature might impose a 10 percent pay cut, although only 5 percent labor savings were being discussed.

“Did you understand him to mean that if the 5 percent wasn’t agreed to that the Legislature would implement or impose the 10 percent cuts?” Takahashi asked.

Williams replied: “I understood him to be saying that the Legislature was considering changing the proposed 5 percent labor savings provision in the budget to a 10 percent savings in the budget.”

Takahashi asked why a 10 percent cut “was even relevant.”

“Because the DOE has to live within its means,” Williams said. “The budget calls for labor savings, we have to deal with that one way or another.”

But Takahashi replied that the state’s budget hadn’t been enacted yet, saying, “There was no law passed that made reference to a 10 percent cut.”

HLRB chairman Jim Nicholson interjected: “To be clear, we’re talking about negotiations on April 27, 2011.”

Williams replied to Takahashi’s question, saying that no law had been passed.

12:10 p.m. Pau For Now, Williams Back Tomorrow

Cross-examination of Williams is finished for today, but he has been summoned back tomorrow. HSTA attorney Takahashi is not sure how much longer his questioning will take.

“It could be more than a couple of hours,” Labor Board chairman Nicholson warns Williams, and then the state will get its turn. Tomorrow is an all-day session, but Williams said he is free only from 9 a.m. until 2:45 p.m.

“I will say it’s a personal hardship, sir, but I will do it,” Williams told Nicholson. “It’s not going to get any easier for the next couple of weeks.”

While Nicholson didn’t pry into Williams’ personal affairs, he did reassure him that he can leave if he needs to.

“If at any time you have to stop and dig out, then stop and dig out,” he told the Board of Education member.

Before we were dismissed, Takahashi wanted to go back through his list of subpoenaed documents to ensure Williams had provided them all. So far Williams has produced notes from three bargaining sessions he attended, as well as a travel itinerary to explain why he did not participate in several of the other bargaining sessions.

To his knowledge, Williams said, he does not have any of the other documents and is not sure some of them ever existed.

Takahashi tried to go through line by line what he has requested from Williams, but the Labor Board chairman lost his patience.

“Let’s not repeat what’s here,” Nicholson told Takahashi. “(Williams) can read. Reading things over and over again is not going to make things move any quicker. If you want to go through each part of it, we can start first thing in the morning.”

Next on the witness list is either Board of Education chairman Don Horner or state chief negotiator Neil Dietz — the board and attorneys will decide tomorrow.

11:50 a.m. ‘Make-Or-Break Time’

Questions are honing in on the exact time and budget constraints during contract negotiations.

Getting a lot of the attention is a phrase Williams said to an HSTA negotiator during bargaining on April 27: “It’s make-or-break time.”

Takahashi wants to know what that meant.

Williams says it was meant to communicate to the teachers union that it was time for HSTA to determine whether they were going to agree to a 5 percent pay cut and a 50/50 split on health costs, or otherwise accept a potentially greater salary cut proposal.

Takahashi is getting a little adversarial, leaning forward in his chair, raising his voice and submitting questions with machine-gun speed. Nicholson has reminded him more than once that he needs to ask one question at a time and slow down.

Nicholson also told Takahashi to stop talking over Halvorson, who has objected to several of the questions.

“Let him talk,” Nicholson said of Halvorson. “He’s a participant here, too.”

11:30 a.m. The Time Crunch Under Hawaii’s Budget Pinch

Takahashi has moved his line of questioning into this spring’s negotiations. At issue right now is why state negotiators may have been rushed during an April 27 bargaining session.

Williams tells Takahashi there was a time crunch that day because the legislative session — and in particular, state budget discussion — was coming to a close. The parties needed to come to an agreement on certain bargaining items.

“It was important to deal with cost issues in the context of legislative deadlines,” Williams says.

We’re nearing noon, and Nicholson asks Takahashi if he is anywhere close to finishing with the witness. Takahashi says there is no way he’ll be done questioning Williams by noon.

We have another hearing session scheduled for tomorrow, so Nicholson asks if Williams can return then. Williams says he needs to check his calendar first. Nicholson says we’ll deal with tomorrow’s schedule when we recess at noon.

11:03 a.m. Procedural Frustration

Nicholson’s irritation with Takahashi’s questioning style is growing ever more evident. He’s even taken over basic questioning at times to help move the case along.

HSTA’s labor attorney asked Williams if he had ever seen a document labeled Exhibit 35. When Williams said he had not, Takahashi proceeded to try to read some of the document aloud. It sounded like the ‘favored nation’ clause guaranteeing HGEA members that no other public workers would receive a better labor agreement than theirs this year.

Nicholson interrupted Takahashi within seconds, saying, “Let’s establish the foundation of the document instead of reading it.”

Clearly exasperated, Nicholson then said, “Let’s just start over.”

Turning to Williams on the witness stand, Nicholson asked, “Have you ever seen Exhibit 35 before?”

The answer is still no.

“Let’s move on then,” he said.

And on to Exhibit 36 we go.

The issue arises again with Exhibit 38. Nicholson interrupts Takahashi.

“Mr. Takahashi, please, when you present a document, the first question should be, have you ever seen this document? I don’t want to tell you how to do this case, but it’s really taking a lot of time for me to keep repeating this.”

Takahashi takes the instruction in stride, cheerfully asking Williams if he has seen the document in Exhibit 38.

10:50 a.m. State Wants Its Turn

State deputy attorney general Halvorson told Nicholson he is concerned he might not get his chance to question the witness today.

Williams was scheduled to take the stand for half the day, and it’s already almost 11 a.m.

10:45 a.m. Why Williams Matters

We’re back after a 10-minute break. To recap why Williams is here today: He helped organize HSTA’s earliest negotiations. He probably understands the process better than anyone else who served on the state’s bargaining team this year.

The union’s negotiation process has been a key issue in the dispute between the union and the state this year, because state negotiators believed they had reached an agreement with the union, while union leaders maintained that the agreement was tentative pending committee and board approval within HSTA.

Williams’ testimony today has established his familiarity with HSTA’s bargaining process. Now we’re listening for how that played into negotiations this year when he sat on the other side of the table.

10:30 a.m. Requesting Williams’ Notes From Bargaining

At Nicholson’s prompting, Takahashi asked Williams for all his notes from bargaining sessions with HSTA, both formal and informal.

Nicholson reminds everyone that both sides must be present for a meeting to qualify as a bargaining session. Meetings where only one side is present to discuss its negotiation strategy is a meeting, or caucus.

Nicholson said that for the time being, witnesses are protected from divulging information about caucuses. Williams only has to answer questions about bargaining sessions.

10:20 a.m. Regrouping

Labor Board chairman Nicholson has stopped Takahashi twice to reset the line of questioning.

It’s unclear yet from the questions where Takahashi is going, but the subpoena indicated he would be asking Williams to produce documents about his appointment to the Board of Education and his participation in this year’s contract negotiations. (Williams was on the negotiating team for the state)

Nicholson intervened in the questioning to clarify that those documents need to be produced eventually and that the questions should pertain to verifying facts in this case.

10:05 a.m. Time Warp

And now we get to the question that gives all the others some relevance in this case: Takahashi got Williams to testify that the negotiation process for HSTA appears to work the same way today as it did when he was president in 1982.

He knows this because he negotiated supplemental agreements for Voyager PCS teachers as recently as 2010. He emphasized to Takahashi that it is a strictly observational statement. He is not sure whether things within the organization have changed.

Another noteworthy fact about Williams: He was influential in establishing the HSTA and shaping the organization in its earliest years. HSTA was formally incorporated in 1971.

10:00 a.m. No Speechifying During Witness Testimony

Takahashi waxed eloquent, asking Williams: “Do you know of a more democratic procedure than that which exists for HSTA collective bargaining?

HLRB chairman Nicholson reprimanded Takahashi for the loaded question, which Takahashi offered to withdraw.

“Let’s refrain from making speeches, and ask questions,” Nicholson said.

Halvorson is listening carefully in his chair at the other end of the attorneys’ table, which faces the two Labor Relations Board members.

9:45 a.m. Negotiating Process for HSTA

Takahashi seems to be on familiar territory this morning as he questions Williams about HSTA’s negotiations process — or at least, the process as it existed when Williams was HSTA president.

What we’ve learned so far:

The negotiating team for the teachers union consists of between seven and nine people. They included the president, executive director, the chief negotiator, a negotiations research specialist, and four or five teachers who are selected by the union’s negotiations committee.

The negotiations committee is elected by the various HSTA chapters, of which there are a dozen or so.

Current HSTA president Wil Okabe, sitting in the back of the room, is nodding as he listens to Williams describe the process at Takahashi’s prompting.

Jim Halvorson, representing the state in this case, objected to the entire line of questioning, asking how the negotiation process in 1982 could possibly be relevant to today’s disagreement.

9:25 a.m. Basics on Jim Williams

HSTA lawyer Takahashi has begun questioning Williams to establish the basics of his background.

The current Board of Education member was co-founder of Voyager Public Charter School and served as president of HSTA from 1980 to 1982.

We went into a quick recess while the Labor Board Chairman Jim Nicholson made sure the attorneys and witness had a full copy of the teachers contract Williams helped negotiate in 1980.

Seems strange that everyone is seated — including the questioner — but the room is small, after all.

9:11 a.m. Dietz Gets the Boot, Williams On The Stand

Dietz will not be allowed to sit in on witness proceedings. He has already left his post in the front row.

Williams has taken the stand and is being sworn in.

Tuesday, Aug. 30 — 9:00 a.m.

We’ve started right on time this morning.

The room is warm.

The usual suspects are in the audience: HSTA president Wil Okabe, state chief negotiator Neil Dietz, attorneys representing the teachers union, university faculty union and the state, two reporters, and today — Jim Williams joins us. He is to be the first witness in the case.

The attorneys have started by discussing who on the witness list should be excluded (banned from the room).

There’s some talk about excluding University of Hawaii Professional Assembly director J.N. Musto. Herb Takahashi, representing the teachers union, says UHPA is intervening in the case in a very limited capacity and should not therefore be able to call witnesses.

Takahashi would also like to exclude Dietz from the proceedings if he is to testify later as a witness.

Moving the case along has been of prime importance to HSTA.

11:50 a.m. Pau Till Tuesday

No big decisions made today. Nicholson has called a recess until 9 a.m. Tuesday, when we finally get to hear from our first witness in the case. First up will be Board of Education member Jim Williams.

Williams is perhaps the most experienced member of the state’s team that negotiated the teachers’ contract.

But Tuesday’s hearing — like today’s — is only scheduled go on for half the day. And it looks like William will be the only witness called that day.

11:48 a.m. Teachers Victims of Discrimination?

Back from break now, and they’ve resumed arguments about various subpoena requests.

The new contract Gov. Abercrombie unilaterally implemented for teachers in July discriminated against them, Takahashi tells the chairman, because it gave them wage and benefit cuts not received by Bargaining Unit 1 members.

It’s worth noting that the United Public Workers, which represents BU1, is still in the middle of negotiations.

11:20 A Much-Needed Break

Nicholson called a 10-minute recess between subpoena motions in the case. Everyone seemed eager to get out the door and stretch their legs.

“Aren’t you bored?” deputy AG Halvorson asked me, then confessing that he is.

“If this were a court with a judge, we would have been out of here an hour ago,” he told me.

But he said he thinks the chairman is taking his time so the union feels it has ample time to make its arguments.

11:15 a.m. The Bargaining Kabuki Dance

Labor Board chairman Nicholson is still at a loss to understand who is in charge on each side during negotiations between HSTA and the state.

While the law prescribes how many votes the employer side gets, it does not specify who officially speaks for the state, or employer group. And the employer group is made up of various representatives from the governor’s office, the Hawaii State Board of Education and the Department of Education.

The law also does not prescribe who makes up the union negotiating team or who has the authority to speak on its behalf. That is all determined within the HSTA.

“I’m just trying to understand this negotiation process,” Nicholson says of talks between HSTA and the state. “When the parties start, does each side ask who has the authority to enter agreement? When does someone become the chief spokesperson on behalf of the employer group? Are there three employer groups in the room and each one speaks for itself?”

Former HSTA executive director Joan Husted has described the negotiating process to me before as “an elaborate Kabuki dance,” making it difficult to describe to outsiders.

10:50 Clarifying Requests

Nicholson is trying to get a firm grasp on what information the teachers union has requested to subpoena. HSTA attorneys have applied to subpoena the state’s notes from certain bargaining sessions, meetings, caucuses and conferences.

At issue is what constitutes “bargaining sessions,” “meetings,” “caucuses” and “conferences.” All of these have distinct meanings to the attorneys who requested the notes.

Nicholson is getting into the nitty-gritty — how many members of the state’s negotiating team had to be present for it to constitute a “meeting”? Does it qualify when an HSTA member was already present?

10:30 a.m. Who’s In Charge?

One of the state’s chief complaints with the way HSTA handled this contract offer is that negotiators shook hands on an agreement in June, only to have the HSTA board to overturn the agreement.

Gov. Neil Abercrombie and state attorneys have expressed frustration that the union’s negotiators don’t have the authority to strike a deal.

HSTA has defended this practice as one of its bargaining rights, but now the shoe is on the other foot. Takahashi is accusing state negotiators of not having the authority required to strike a bargain. There’s some discussion about whether Hawaii Department of Education negotiator Annette Anderson actually had the authority to speak on behalf of the entire employer group in bargaining meetings.

Labor Board chairman Nicholson interrupted Takahashi’s argument to ask who the chief spokesperson is for the state during negotiations.

“There doesn’t appear to have been consistency in that area,” Takahashi responds. Nicholson then asks who the chief spokeswoman for HSTA is.

Georgiana Alvaro, Takahashi says.

After a few minutes of escalating back-and-forth, Nicholson still hasn’t gotten a straight answer about who is actually in charge of negotiations for each of the teams.

9:50 a.m. Attorney-Client Privilege

The state is asserting attorney-client privilege in withholding some information that HSTA has subpoenaed.

The union wants information about numerous state leadership meetings regarding budget strategies and collective bargaining proposals. The state is saying attorneys were present at some of those meetings and therefore protected by attorney-client privilege.

HSTA’s Takahashi isn’t buying the argument.

“You can’t just say the privilege applies and get a privilege,” Takahashi says. “You have to establish that a lawyer was actually there at a meeting for the notes to be classified as a lawyer-client privilege.”

He says the state hasn’t produce a declaration saying that an attorney was present at any of the meetings from which HSTA has requested notes.

9:33 All Over The Map

The hearing has started out in the legal weeds this morning.

HSTA attorney Takahashi launched into a monologue about everything from what information can be subpoenaed and what motions can be filed in labor board cases, to whether state negotiators had the authority to strike a deal with the union and — again — whether the state engaged in good-faith bargaining.

His arguments are all over the map this morning.

State deputy attorney general Halvorson is leaning back listening, not taking notes on Takahashi’s arguments.

Thursday, Aug. 25 — 9:06 a.m.

The crowd is sparse this morning compared with when this hearing started on Aug. 10. Could be because the process has been so stop-and-go.

There are about 10 people in the audience, two of them reporters. The rest are state negotiators, HSTA leaders and an interested party or two.

This is the first day there have not been TV news cameras documenting the proceedings.

Labor Relations Board chairman Jim Nicholson asked the audience to step outside while Labor Relations director Valerie Kunimoto had a private meeting with the attorneys. The meeting lasted just a minute or two. We are now in session.

Notably missing today is J.N. Musto, executive director of UHPA, who was at earlier sessions last week. UHPA’s attorney Tony Gill is also absent. Looks like he’s sent a colleague in his place today.

Both UHPA and the Hawaii Government Employees Association in the last week have issued scathing statements about HSTA’s legal maneuvering in this case.

UHPA’s email to members on Thursday, Aug. 18, said HSTA’s legal actions and character attacks on other union leaders “could jeopardize the rights of all public sector unions, including the right to strike.”

11:15 a.m. Pau for Today

Meeting adjourned. Hearings in the union’s main complaint will continue on Aug. 25, Aug. 30, Aug. 31 and Sept. 1.

11:10 a.m. Gov’s Letter Ruled Not ‘Ex Parte’

The two remaining Labor Relations Board members have ruled that the governor’s letter was not an ex parte communication — meaning it was not private — and does not amount to the governor trying to unlawfully influence the case.

The parties can continue communicating with the board directly — but they have to copy all the other parties, the board said.

“The danger of ex parte is not having input from opposing party,” Chairman Nicholson advised. “The board finds that that communication was not ex parte as to HSTA, because HSTA was copied on the Aug. 10 letter.”

He observed that the letter was not copied to UHPA, which was granted intervenor status in the case, so “with an abundance of caution, the board will permit UHPA to present a response to the letter.”

“Given concerns regarding ex parte communications, any further communications with this board shall be in writing with copies to the parties,” he instructed.

Meanwhile, he observed that HSTA has raised some concerns that several outstanding cases before the board prohibit the union from striking. Those need to be dealt with, Nicholson said, so to expedite this case, he instructed all three parties — HSTA, UHPA and the state — to submit written briefs regarding their understanding and interpretation of HRS 89-12b(2).

10:10 a.m. ‘The Big Lie’

State Deputy Attorney General Jim Halvorson calls Takahashi’s claims about the governor’s Aug. 10 letter to the board “absurd.”

The letter requesting mediation should be taken at face value, Halvorson said, instead of presuming it was sent with malice. It was a direct response to HSTA’s Aug. 6 request for mediation, he says.

He also notes that the union’s request for mediation and binding arbitration included a second page containing “a proposed agreement on how that was going to take place.”

It was that enclosure that the state had some problems with, Halvorson says, and prompted the governor to seek the board’s assistance.

He also called Takahashi’s claim that a court would have rejected the governor’s letter “a big lie.”

“Every attorney in this state knows you can send letters of correspondence to the court requesting settlement conferences and other kinds of trial-setting conferences,” Halvorson said.

“He knows that what he’s saying is a lie,” Halvorson said of Takahashi. “But he thinks if he keeps saying it, maybe somebody’s going to buy it.”

Takahashi’s argument that the letter was designed to slow proceedings is inconsistent, and that the HSTA can thank itself for this week’s hearing delay.

“It is because of this motion that hearings were delayed, not because of the Aug. 10 letter,” Halvorson said.

The board has gone into recess to consider the arguments on the union’s motion against direct communications with the board.

9:55 UHPA Doesn’t Buy HSTA Accusations Against Board

UHPA attorney Tony Gill doesn’t buy Takahashi’s argument against the governor’s controversial letter to the board last week.

“We are not offended by the party’s attempt to find a recourse for the impasse,” Gill says, pointing out that impasse procedure allows parties to elect mediation subject to the HLRB’s approval

“The board can’t approve mediation without being apprised of that desire,” he says.

He added that UHPA hopes the ability to request mediation remains a tool in the union’s tool belt.

“I do not expect to differ constantly with HSTA in the weeks to come, or months as the case may be,” Gill said.

9:50 a.m. HSTA Questions Board’s Integrity

HSTA attorney Herb Takahashi says the governor knowingly used his official position to influence the board in this case, and that delaying the proceedings was all part of the governor’s plan.

Takahashi maintains that even though the union was copied on the letter Abercrombie delivered to the board last week requesting mediation, the communication’s intent was sinister and unlawful.

“If this same letter had been sent to a court, the court would immediately have rejected it,” Takahashi tells Chairman Nicholson. “I submit to you humbly, sir: If they felt they could not have gotten away with this, they wouldn’t have done it.”

9:15 a.m. Moepono Recuses Herself From The Case

HLRB member Sesnita Moepono read a statement recusing herself from the case. Her husband is a student services coordinator and a member of HSTA — a disclosure she shares openly before every case involving the union. But the state Ethics Commission gave an oral ruling on Wednesday stating her husband’s financial interest in the outcome of the union’s complaint against the state poses a conflict of interest for Moepono and disqualifies her from participating in this case only. The law cited for this ruling is HRS 84-14(a).

While she accepts the ethics ruling, she took the opportunity to express her frustration over “false accusations, innuendo and scurrilous remarks” about the board’s ability to rule with impartiality.

The process of being appointed by the governor and confirmed by the Senate does not necessarily strip a person of her rights to think and rule independently, she said.

“I accepted this appointment because I believe that I can contribute to making the collective bargaining process an even better process that my parents fought hard to create,” Moepono said, her voice shaking. “This case isn’t about any one individual. This case is about all of us and how we as members of this society are obligated to uphold the collective bargaining policy as dictated in chapter 89.”

HLRB Chairman Nicholson said Moepono’s recusal from this case means the remaining board members — him and Rock Ley — will not be allowed to communicate with her about the case.

Thursday, 9:03 a.m. — Eagerly Awaiting

Today HLRB will first hold a hearing about whether Gov. Neil Abercrombie’s letter last week unlawfully tried to influence the board’s decision in the union’s complaint against the state.

Five attorneys — two for HSTA, one for UHPA and two for the state — are gathered at their table, which faces the empty chairs for the three Hawaii Labor Relations Board members.

This morning’s audience, numbering close to 20, consists of the usual suspects: state chief negotiator Neil Dietz, UHPA director J.N. Musto, HSTA director Al Nagasako, some men in downtown business attire and a handful of reporters.

Musto is jocular, and the rest of the crowd is chatty. There are some empty seats today, which means we can spread out a little.

Aug 15: Monday Morning, Aaaaand We’re Back

Today begins a hearing on the union’s main complaint against the state. Attorneys for both the state and the HSTA may call witnesses and present evidence for their cases. The university faculty union’s attorney may do the same, but Tony Gill has told us he doesn’t plan to call witnesses. He primarily plans to offer legal analysis.

The big issues in this dispute:

What qualifies as an impasse in negotiations? The state says an impasse in negotiations forced it to implement a “last, best and final offer.” HSTA leaders contend the state declared impasse prematurely.
Assuming negotiations had reached impasse, does the governor have the authority to unilaterally implement new conditions on public employees?
If the Hawaii Labor Board rules in favor of the state, will that strip public unions of their right to strike in the future?
While the three labor board members consider these questions, they will likely find it hard to ignore the impact their decision could have on the state’s financial condition. If they rule in favor of the union and reverse the 5 percent pay cut for teachers, the state’s formerly balanced budget could end up untold millions in the hole.

Key players in the debate this week:

James Halvorson, deputy attorney general and lead counsel for the state
Herb Takahashi, longtime labor attorney, representing HSTA
Anthony Gill, longtime labor attorney representing the University of Hawaii faculty union
James Nicholson, chairman of the Hawaii Labor Relations Board, appointed by former Gov. Linda Lingle
Rock Ley, member of the Labor Relations Board, Abercrombie appointee
Sesnita Moepono, member of the Labor Relations Board, Abercrombie appointee
11 a.m. Recessed Until Aug. 18

Board Chairman Nicholson has called a recess until 9 a.m. Aug. 18, saying the board has “serious concerns” about challenges regarding the board’s ability to rule with impartiality.

“The board does not want members of the public and the parties to have the impression that the board’s ability to hear this case or any other case has been compromised,” he said. “We must hear this matter.”

While Nicholson didn’t directly mention the governor’s letter, it was clear from the context of his remarks that he was referring to the union’s complaint about a letter Gov. Neil Abercrombie sent to the board last Wednesday, urging the board to direct the parties to go into mediation.

The union filed an ethics complaint about the letter, stating that direct communication with labor board members interferes with the legal process.

The state has until noon on Wednesday to file its response.

10:32 a.m. Banter While We Wait

We’ve spent 40 of the last 50 minutes in recess.

UHPA director Musto is bantering with the reporters while we wait for the second recess to end.

He asks me to make sure I include something in Civil Beat’s live blog about witty banter. He adds that he lives his life assuming everything he says could end up in the newspaper the next day.

Dietz, Okabe and the attorneys are less relaxed, waiting anxiously in their seats while they keep an eye on the door — presumably watching for returning board members.

10:05 a.m. Hearing on Ethics Complaint

HSTA attorney Takahashi protested having the state’s witnesses in the hearing room during arguments. He named Dietz specifically — citing an exclusionary rule that, he said, prohibits him from sitting in the hearing and then serving as a witness later.

Labor board chairman Nicholson choked on laughter as he explained that the exclusionary rule applies to witnesses only when another witness is on the stand. There have been no witnesses on the stand in this case yet.

Nicholson wants to hear arguments about HSTA’s ethics motion against the state first. State deputy attorney general Halvorson says the state has not finished preparing its response, but he will present some impromptu oral arguments on the matter if the board really insists on dealing with the alleged ethics violation before moving on.

Nicholson has called a second recess — 20 minutes into the hearing.

9:45 First Recess…Already

The board opened this morning’s hearing at 9:40 a.m., and Takahashi immediately protested one of the state’s witnesses.

We haven’t caught her first name, but a Ms. Anderson has been designated to represent the Department of Education, and Takahashi says that the state’s witness should represent the entire employer group. The employer group consists of the Department of Education, Board of Education and Office of the Governor.

Nicholson heard the argument and called this morning’s first recess — only five minutes after convening the hearing.

9:36 a.m. A Late Start

Labor board chairman Jim Nicholson has been drifting in and out of the hearing room this morning. Six minutes past starting time and all three board members are absent.

State negotiator Neil Dietz is here in a short-sleeve collared shirt and is sitting directly behind HSTA President Wil Okabe, who wears an aloha shirt. There are only 13 in the audience, most of them reporters or negotiators directly involved in the case.

Monday, 9:22 a.m.

Eight minutes before the hearing begins, the same board room we squeezed into last Wednesday is filling up again, and it’s hot. Thermostat is set at 79 degrees.

Still, the attorneys — including the women — are wearing suits. Here already are Herb Takahashi representing HSTA, Tony Gill representing the university faculty union and Jim Halvorson, representing the state.

The audience includes a handful of reporters, state chief negotiator Neil Dietz, Board of Education member Jim Williams and the executive director of the University of Hawaii Professional Assembly, J.N. Musto.

We haven’t learned yet how the union’s ethics complaint filed against the governor early this morning will affect today’s hearing.

When this reporter asked if we would find out after the hearing begins, executive director of Labor and Industrial Relations Valerie Kunimoto told me, “I hope not.”

HSTA President Disappointed But Pressing On

HSTA President Wil Okabe said he’s disappointed that there wasn’t an immediate ruling.

“I don’t even know what that means,” he said of the Labor Relations Board chairman’s statement that the board would “take the arguments under consideration.”

He said he felt the union’s attorneys represented them well on Wednesday and he hopes for a favorable ruling eventually. Meanwhile, he said, “I think we just need to proceed.”

“This is definitely a distraction for our teachers,” he added. “If they’re under stress, it will definitely impact students’ learning.”

Watch the full video of his statements after the meeting:

3:08 p.m. Hearing Concludes, No Ruling

The hearing is over. The board has taken the arguments under advisement, said Chairman Jim Nicholson. The hearing on the union’s main complaint will proceed as scheduled Monday.

2:56 p.m. Board’s Considerations Will Include ‘Irreparable Harm’

The board must consider three standards when determining whether to grant the teachers relief from the forced pay cuts:

The likelihood of HSTA’s success based on the merits of its case
The public interest
Irreparable harm — in this case, whether teachers will suffer it unless temporarily relieved from the contract while the union proceeds with the legal process.
Halvorson declared earlier that a 5-percent pay cut doesn’t meet the “irreparable harm” criterion.

“We’re not talking about people who are going to be losing their jobs,” he said. “Just a mere 5-percent cut doesn’t meet the criteria, and because it is strictly monetary and remedial, later on it should be reversed.”

2:35 p.m. Unilateral Action Contradicts ‘The Law Of The Land’

It’s hot in here and the crowd has dwindled, which means the lock on the board room door has proved less effective than Nicholson hoped.

Takahashi was standing to give his rebuttal almost before Halvorson sat down.

His first response is about the unprecedented nature of the case. Again.

“The reason no unilateral action has been taken before is that’s the law,” he says. “It’s been the law of the land for many years.”

He then says the state, if it really had to implement a “last, best, final offer,” should have implemented one of the earlier tentative agreements it reached with the union. He still maintains the state implemented a contract that had never been discussed.

And it’s damage control time for his earlier statement that HGEA’s “favored nation clause” limited teachers’ negotiating rights.

“We’re not seeking here to invalidate any provisions of the HGEA contract,” Takahashi says now. “It was ratified by the members. What we are contending is that the right of a public employer to tell a union, ‘nobody else is going to get anything but this,’ that is unlawful.”

It’s worth noting that HSTA did in fact get a different offer. While HGEA took a 5-percent pay cut, HSTA took a 1.5-percent pay cut, along with some directed leave without pay. It amounts to the same in labor savings, but it’s a different way of slicing the pie.

The board is breaking to discuss the back-and forth.

2:19 PM

It IS All About The Money

Halvorson concludes his opening arguments with the bottom line.

“It’s all about the money,” he says. “We don’t have it. The budget is such that we have to find some ways to have labor savings, and Mr. Gill’s suggestion that we just go back to status quo for now will simply exacerbate that situation.”

2:15 p.m. HSTA Rejected Its Own Tentative Agreements

HSTA rejected “everything,” Halvorson tells the board. “Even stuff the employer had agreed to on behalf of HSTA.”

After months of negotiations culminating in a June 17 meeting, the union rejected its own tentative agreements with the state, and the state was left “with nothing on the table — no proposals from HSTA.”

Halvorson also addressed one of the union’s bigger complaints, that the state’s unilaterally imposed contract threw all agreements already reached out the door. Not true, Halvorson says.

“Everything the employer has implemented is what had been tentatively agreed to by HSTA representatives,” he says.

He then sneaks in a dig at HSTA’s negotiators.

“The appointed spokespersons apparently don’t know what their bargaining parameters are,” he says. “Moreover, they have not communicated back to their board any of the tentative agreements that had been come to in the process.”

2:05 p.m. State’s Response Begins: Budget Shortfall Still A Reality

Hawaii Deputy Attorney General Jim Halvorson jumps right in to talk about the state’s fiscal realities. The short of the story: While revenue projections may look better than in recent years, we’re still not out of the woods yet.

He says that although the financial revenue upswing is real, “what’s far more important is not the increasing revenues, but where these stand as compared with where we were in 2008. ”

The state still faced a $1.2 billion shortfall over the next two years when legislators were crafting Hawaii’s next two-year budget earlier this year. Something had to give.

“That was not a threat to the union or to negotiators,” Halvorson says. “This is the threat to Hawaii and the state Department of Education. It’s a huge budget shortfall.

“It appears from Mr. Takahashi’s arguments this morning that he believes you can’t consider that type of budget shortfall, but must negotiate in a vacuum without regard to the realities of your budget.”

1:40 p.m. No Precedent For This Decision

Labor attorney Tony Gill opens with arguments that he says will offer the board “an alternate way to decide this case.”

The first of these is an observation that while unilateral implementation of a contract may occur under federal law, that fact does not require Hawaii’s labor board to allow it here.

“That issue itself bears some addressing,” he says.

He points out to the board that this is the first time this board has had to deal with an employer’s implementation of a “last, best, final offer.”

The attempt was made two years ago with UHPA, but was later mooted by a settlement between the parties.

“There is no, to my knowledge, prior board case that deals with these facts,” Gill says.

1:26 p.m. UHPA In The Fray

Most of us are back from lunch and waiting for the hearing to continue at 1:30.

One significant development from this morning is that the board ruled in favor of UHPA’s request for intervention. That means UHPA “gets to sit in the case like attorneys,” Tony Gill tells Civil Beat.

“We don’t plan to call any witnesses,” he said, but the university faculty union does intend to offer legal input and its own interpretation of the law, because “we don’t have identical positions on the matter, but we have reached some of the same conclusions as HSTA, just by a different path.”

12:00 p.m. State’s ‘Financial Crisis’ Claim Disingenuous?

Matayoshi’s claim during bargaining that the state faced “a serious financial condition” contradicted the latest economic forecasts, Takahashi tells the board.

A May 26 report by the Council on Revenues indicated an 11-percent increase in general funds this fiscal year and a 6-percent increase next year.

Despite the positive projections, Matayoshi said the budget condition was so serious that if HSTA did not accept wage cuts proposed by the state, she would be forced to cut 700 jobs in the Department of Education.

Takahashi calls that “disingenuous.”

“This is economists, bankers, people of stature projecting those changes,” he says. “It’s disingenuous for the superintendent to say there would be layoffs when the primary indicator of the economic condition of the state contradicts the very premise on which she argues.”

No matter what Hawaii’s financial status is or was, he says, the state can’t use it as a free pass out of negotiating with integrity.

“The collective bargaining law on duties to bargain in good faith was not developed by the Legislature for good times only,” he declares. “Nor was it designed for bad times only. It was developed for good times and bad times. These statutory requirements are independent of financial crisis.”

With that, the session breaks for lunch. At 1:30 p.m., we should be hearing the state’s response.

11:40 Direct Dealing

Department of Education Superintendent Matayoshi’s June 23 letter to teachers constituted direct dealing with teachers, which is a violation of HRS 89-8(a), Takahashi says.

That statute gives employee organizations (read: unions) exclusive bargaining rights over wages, hours, terms and conditions of employment, and Takahashi says Matayoshi’s letter undermined the union. The letter outlined all of those things: wages, health costs, dates of directed leave without pay and informed teachers that the dates not yet determined would be decided by Department of Education administrators.

“We don’t have HSTA anymore, we have administrators dictating what the terms of directed leave will be,” Takahashi says.

The labor board has historically ruled against employers engaging in direct dealings with employees, he tells the board.

11:00 Premature Impasse

HSTA’s labor attorney has been speaking for half an hour now, growing ever more animated as he outlines the details of the case.

“Nobody declares impasse and implements nine days before a contract expires!” Takahashi exclaims to the board, clearly incredulous that the state negotiators did just that. “You negotiate to the end. Nobody with nine days remaining refuses to recognize the exclusive bargaining agent.”

10:40 Statewide Governmental Policy and Parity Provisions

We’re starting to hear some arguments today that we will probably hear again next week during hearings on the main complaint.

Takahashi tells the board that the governor established statewide governmental policy by planning for a 5-percent pay cut for all public employees, and that this subverted the union’s role in negotiations. No warm feelings for the “favored nation” clause in this year’s Hawaii Government Employees Association contract, either. The parity provision ensured that no other bargaining units would receive a better deal in their contracts than HGEA received.

“It is a violation of HRS Section 89-3, because it interferes, restrains and coerces employees in the exercise of their rights,” Takahashi says.

He adds that the statewide governmental policy violates HRS 89-10 and 89-11(g), which state that collective bargaining agreements are subject to review by the Legislature. The state put the cart before the horse in this case, he says, by involving the Legislature in the bargaining process to establish the expected cuts.

“The Legislature holds the card at the end when they reject the funding and appropriations,” he says.

10:15 Burden of Proof

Returning from recess, the board is now hearing the motion for relief from salary cuts and health premium increases contained in the teachers’ contract.

“There will probably not be a case of such monumental proportion for quite some time,” said labor attorney Herb Takahashi, representing HSTA.

He said the board should consider the irreparable harm of the pay cuts to the people sustaining them, but most importantly must answer a “threshold question.”

“Who has the burden of proof to establish whether good-faith bargaining took place prior to taking unilateral action?”

Takahashi argues the state is obligated to prove that. And that the state must also prove negotiations reached true impasse.

He says the court ruled in a 1974 case, Board of Education vs. Hawaii Public Employees Board, that “it’s the party asserting existence of impasse that bears burden of proving there’s been good-faith bargaining prior to impasse and implementation.”

9:45 a.m. ‘Watershed Case’

The crowd was standing-room only in the tiny Labor Relations Board room when the hearing began at 9 a.m.

Reporters sitting on the floor took notes on attorney Tony Gill’s statement. Gill is representing the University of Hawaii Professional Assembly. This is a “watershed case” for labor unions, he told the board. “We will be highly affected in many ways by what happens here.”

Chief negotiator for the state Neil Dietz arrived at 9:10 and had to squeeze into the room, waiting at the door next to Board of Education member and state negotiation team member Jim Williams.

After bringing in more chairs, Labor Relations Board member Jim Nicholson had the door locked.

HSTA attorney Herb Takahashi then responded to the faculty union’s request to intervene, saying it has “no basis for intervention as a matter of right.”

Nicholson called recess at 9:30. The door is now open and the audience and counsel seem relieved to breathe fresh air again.