An obscure and untested provision in the state’s collective bargaining law might give Gov. Neil Abercrombie authority to implement federal Race to the Top education reforms without a new contract with teachers.

The provision, on the books since 1970, makes collective bargaining inoperative if it jeopardizes federal money.

In a filing with the Hawaii Labor Relations Board earlier this month, the University of Hawaii Professional Assembly pointed to a provision that says the requirements of collective bargaining "fall away" if a federal grant is in jeopardy.

"The logical consequence of this language is that the state can impose compliance" with Race to the Top reforms, "provided it do so narrowly," UHPA attorneys said in the filing.

The U.S. Department of Education has warned Hawaii that the state is at "high risk" of losing a $75 million federal grant because of a lack of progress on performance-based teacher evaluations and other reforms that have been tied to a labor dispute with teachers. The Hawaii State Teachers Association rejected a new six-year contract offer this month that included performance-based evaluations.

Abercrombie has said he would move forward with education reform with or without the teachers union. The governor’s advisers say invoking the provision is one of his legal options.

If Abercrombie invokes the provision on federal money — one state lawmaker described it as the "nuclear option" — it could also set a precedent in labor and management relations.

"Taking this path will open a Pandora’s box and will create a lot of ill will," said Randy Perreira, executive director of the Hawaii Government Employees Association, the state’s largest public-sector union.

Perreira and other labor leaders have been critical of the teachers union during the labor dispute, warning that some of the union’s actions could prompt legal rulings that jeopardize other unions. But Perreira said he is also surprised that Abercrombie, a labor advocate throughout his political career, would consider what he termed such a drastic step.

Tony Gill, an attorney representing UHPA, which has intervened in the teachers union case against Abercrombie before the labor board, described the provision on federal money as a loophole that has never been used to override collective bargaining obligations. He found only three mentions of the provision in cases before the labor board in four decades — and no court cases that offer guidance — but believes Abercrombie has the authority to apply it to Race to the Top.

Gill said the labor board’s standard is whether there is a "risk or possibility" that federal funds could be terminated. He said he would hope Abercrombie, or any future governor, would invoke the provision only under narrow circumstances to protect federal money.

"If you’re going to put a pipe through a wall, you make the smallest possible hole. You don’t knock the wall down," he said.

Gill, in a brief for the labor board, said he raised the subject in part to counter public perception that the teachers union is frustrating the state’s ability to implement Race to the Top, since he believes the governor has the authority to unilaterally solve compliance issues.

Others in the labor movement see grave risk if Abercrombie sets a precedent. The provision applies to "any federal grant-in-aid or other federal allotment of money," a broad description with no dollar threshold. A clever chief executive could seek to apply it aggressively if given a clear legal path.

Wil Okabe, president of the teachers union, said labor should be concerned.

"Look at what happened in Wisconsin," he said of the collective bargaining battle with Gov. Scott Walker, a Republican.

State Rep. Roy Takumi (D, Pearl City-Pacific Palisades), chairman of the House Education Committee and a communications specialist with the Hawaii State AFL-CIO, referred to invoking the provision on federal money as the "nuclear option."

"It sounds very broad," he said, adding that lawmakers might review the law to see whether it needs clarification. "From a lawmaking perspective, you’ve got to be very careful about an ‘It’s in the eyes of the beholder’ application."

State Sen. Jill Tokuda (D, Kaneohe-Kailua), chairwoman of the Senate Education Committee, said the state should proceed with caution. "Going down this path could have unintended consequences. It could set a huge precedent going forward in terms of how we deal with our unions, how we collectively bargain, the role of various entities in negotiations and what’s put forth for our workers," she said.

"So obviously, I think, I would just urge caution. Ideally, we would have a much more collaborative approach and be able to come to some resolution together."