Legislature(2001 - 2002)
05/02/2002 08:05 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 327 - STATE EMPLOYEES CALLED TO MILITARY DUTY CHAIR COGHILL announced that the first order of business would be HOUSE BILL NO. 327, "An Act relating to state employees who are called to active duty as reserve or auxiliary members of the armed forces of the United States; and providing for an effective date." Number 0138 DAVE STEWART, Personnel Manager, Central Office, Division of Personnel, Department of Administration, walked the committee through the changes that the amendment adopted at the April 30, 2002, meeting in the proposed committee substitute. Number 0557 CHAIR COGHILL asked if there was any objection to adopting the proposed committee substitute (CS) for HB 327, version 22- GH2092\C, Craver, 5/1/02, as a work draft. There being no objection, Version C was before the committee. Number 0600 REPRESENTATIVE CRAWFORD asked if people get health benefits for themselves and their family when they're on active duty. Number 0726 MR. STEWART replied that employees called to active service for 30 days or longer are covered by the military's health insurance, but if the period of activation is not for 180 days or longer, the dependents are not covered for medical insurance. The state plan that would continue under the administrative order covers the employee and dependents. Number 0779 REPRESENTATIVE FATE referred to AS 39.20.452 which says, "... the University of Alaska ... shall adopt procedures" and wondered how the university would be forced to do that, inasmuch that it is constitutionally authorized to be governed by the board of regents. MR. STEWART said it is a legislative direction for the university to adopt whatever administrative procedure to accomplish the same thing as the executive branch. REPRESENTATIVE FATE commented that the university was sued on a similar thing about 1980, which was settled out of court because the legislature couldn't win that round. He wondered if that would be applicable to this. He said he wanted some determination from the university. MR. STEWART replied that the direction of the law would require the university to adopt whatever procedures necessary to follow the regulations adopted under the administrative order, because it participates in the PERS [Public Employees' Retirement System] and because of the placement of the university as "some order of state agency." The intent of the legislation is to affect all state employees regardless of their employment affiliation, so there is a uniform approach. There was some concern that if everyone didn't at least consider their own administrative process for enacting the same kind of treatment for employees that the state as a whole might be liable for allegations for disparate treatment. Number 0994 REPRESENTATIVE HAYES said he thought the university representative [Ms. Redman] who testified at the previous meeting said the university was going to enact regulations at the June board meeting to reflect the wishes of this legislation. Number 1020 REPRESENTATIVE STEVENS said he thought Ms. Redman said that the university's rules were different and that she would give the committee members a copy of them. He said he doesn't think the university agreed to comply with this. He asked how this bill would affect the collective bargaining agreements and is this something normally negotiated. Number 1085 MR. STEWART agreed that it is a subject that would be bargained. The collective bargaining language proposed in this legislation says this language won't or can't be imposed on existing contracts. It doesn't preclude it from being bargained from future contracts, and it doesn't preclude it from being included through a letter of agreement or letters of understanding. Number 1139 MR. STEWART responded to a question from Representative Wilson and said that the 8 employees were employees who have been called to active duty whose state salary exceeded the military salary. The list in the packet shows all 185 employees who could be activated. There are 50 employees whose state salaries would be higher than their military salaries, but they have not been activated. Number 1208 REPRESENTATIVE JAMES commented that she supports this issue; however, she is concerned about who pays. If these other agencies are asked to do this, she assumes that the legislature would have to fund it, and that might be problematic. She assumed that if the court and the legislature do this, there would be a supplemental [budget] if there wasn't a sufficient amount of money. The railroad and university don't get a supplemental, and she wonders how those costs would be associated. MR. STEWART said the intent of the legislation is to allow an enactment of these benefits for state employees in extreme situations for specified groups of people. The list of 185 people includes employees in the executive branch, the court system, and the legislature. Even if they were replaced for the full 90 days, the dollars are reasonable. In the executive branch, it is possible to replace an employee for 90 days with a short-term, non-permanent position, which is a wage-only position. Since only the wage is supplemented and not the full state salary for the people who are activated, there is only a moderate cost involved in that. If the employee is gone longer than 90 days, there are benefit costs for replacement employees, hence the limitation on the time. He can't speak for the university or the railroad on replacement costs. Number 1424 DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System, said he came prepared to say that if this bill were passed, the court system would almost certainly follow suit with a similar policy for the court employees. He noted that there is a difference between choosing to adopt a policy and being compelled to adopt a policy. He hasn't researched the issue completely to see whether the legislature can compel the court system or the university to do something exactly like HB 327. He noted that the court system is subject to the statewide leave policy. There is a provision in statute for military leave for those who go to active training and instructional duty. That statute has been on the books prior to statehood, and it provides 16.5 days of paid leave, which does not come out of annual leave. MR. WOOLIVER acknowledged that the extent of applying something outside the executive branch has never been challenged in the court system as far as he knew. He has not spoken with the court but was confident that the court would almost certainly adopt a policy very similar to this. Number 1536 MR. WOOLIVER agreed that there are only a handful of employees who would be affected by this. So far none of them have been called to active duty. This issue is not tracked separately, but it looks like there are three or four people who could potentially be called up. It is likely that the court employees would also make more money from their military wage than the state wage. He wouldn't anticipate a significant cost; however, this wouldn't be free. It provides benefits for people who are not working for the court, and it would be compelled to hire a replacement. He said if the court adopted policies to reflect these changes, he would hope that the legislature would adopt a policy to pay for the costs incurred by the court or anybody else who adopted policies. CHAIR COGHILL commented that he would rather have the permissive language in the bill instead of the compelling language. Number 1680 REPRESENTATIVE FATE mentioned that the court system wouldn't be impacted with its 4 employees as much as the university would be with over 500 employees. Number 1694 WENDY LINDSKOOG, Director, External Affairs, Alaska Railroad Corporation, testified via teleconference. She told the committee that currently there are 17 employees who are in the National Guard. An estimate of the cost to the railroad to extend these benefits for all 17 employees for one year would be approximately $80,000 per month, which is close to $1 million for the year. Number 1815 PAM BARBEAU, Manager, Benefits & Records, Alaska Railroad Corporation, testified via teleconference. She explained that currently, paid military leave is provided for the National Guard training up to 15 days a year. Beyond that if people need time off, they would either take leave without pay or use their own paid leave. REPRESENTATIVE JAMES expressed more concern for the benefits than for the pay. MS. BARBEAU said there wasn't anything in place currently to continue the benefits. The employees are eligible to purchase continued coverage through the COBRA [Comprehensive Omnibus Budget Reform Act] provision that is required under USERRA [Uniformed Services Employment and Reemployment Rights Act]. Number 1925 REPRESENTATIVE STEVENS asked if there were any railroad employees who would earn less if they were called up for military duty. MS. LINDSKOOG replied that most railroad employees earn less on military duty than on their railroad jobs. Number 2075 KATHLEEN STRASBAUGH, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, stated that the Disaster Policy Cabinet strongly wished that the policy be uniform throughout the state rather than permissive. It is within legislative power to set employment standards of this type. She stated that it is fairly well settled that organizations can be required to follow certain kinds of standards, although there might be different procedures. MS. STRASBAUGH indicated that in Alaska, the Public Employee Relations Act (PERA) covers the court system, even though it doesn't have a collective bargaining agreement. The legislators and judges are not included in this, but it is well within the legislature's power to adopt employee standards. The Alaska railroad and university have certain laws that separate them and their own personnel procedures which the structure of the law now honors. In fact, they aren't a separate branch of government such as the court and legislature. The bill is not a great departure from other standardization that the legislature has already adopted. Number 2215 MS. STRASBAUGH referred to a question on collective bargaining and said that it is off the table for the current contracts. In a new agreement, the parties must come to the table with whatever laws are in force at the time of bargaining. If that clause wasn't in it, it would trigger an obligation to meet and confer with the union, but she doubted that in any collective bargaining relationship a benefit of this type would be seen as controversial between the parties. When the parties go to the table again, they will have to consider that, along with the occupational safety laws and certain other laws that employers and employees both have to follow. She commented that she doesn't see that as a great matter of concern. Number 2275 MS. STRASBAUGH said there is a similar situation in the procurement code where all the branches, the railroad, and stand-alone corporations have to meet the standards of the procurement code. They can do it with their own procedures, which is what this bill does, but they do have to meet certain standards. The purpose of this legislation is to set a standard for all state agencies, regardless of branch, to make sure that the sacrifices of the people called to duty are reduced to the extent possible. She explained that is why it was recommended to make it mandatory. MS. STRASBAUGH replied to a comment from Representative James saying that the proposed CS doesn't import all the details of the executive branch's personnel policies, which was a source of concern in the first draft of the bill. REPRESENTATIVE JAMES indicated that she wouldn't want to make this a bargaining issue. It seems to her that this should be a state policy for state employees, whether they're in a bargaining unit or not. Number 2449 MS. STRASBAUGH explained that in order to take something off the table it would have to be added to the list of exceptions for "bargainable" topics in the Public Employees' Relations Act. The reason is it is a wage issue, so it would ordinarily be bargainable. An additional step would have to be taken to do that. If the additional step wasn't taken, she didn't think there would be any enforcement problems. REPRESENTATIVE JAMES said she didn't have any problem with bargaining units bargaining on wages and benefits and treatment, but this is a substantial issue that is being mandated as a state policy, and she would not want that to get in the bargaining agreement so that some people would have a better deal than others. It has to be across the board. Number 2543 MS. STRASBAUGH said she doesn't think that taking this off the table is absolutely essential to the enforcement of this policy. In drafting the bill, it was assumed that it would set the policy; it would be a statutory entitlement that there would be substantial questions about whether a collective bargaining agreement could take those rights away. REPRESENTATIVE JAMES expressed concern that the bargaining units may make their employees better and then things would be unequal. Number 2595 REPRESENTATIVE FATE asked if this constitutes policy. MS. STRASBAUGH explained that certainly the branches have different employment policies, but they also can be required by the legislature to meet certain minimum standards. The university is simply not entitled to the same deference as the legislative, executive, and judicial branches. The way the law is presently structured; the university would adopt it in its own way and through its own procedures. But it doesn't stand alone from any laws which the legislature may care to make about its operations or anyone else's. MS. STRASBAUGH referred Representative Fate to the procurement code. It is set up so that each branch and the university and the railroad and certain other public corporations have their own rules and procedures through procurement of contracts, but they have to meet the standards that are in there. Likewise, this bill says the university could have its own procedures to make sure this standard is met, but it must meet the standard. It isn't really an invasion of any kind, except to the extent that any law restrains government officials' powers. Everyone is supposed to act in accordance with any laws that are adopted. In this case, each agency gets to carry out the policy in its own way. Number 2821 REPRESENTATIVE WILSON commented that she wouldn't like for the people called on their military duty to lose insurance benefits, but wondered where the policy should be because they do go into the National Guard, for example, with their eyes open knowing that they could get called up at any time. Number 2977 REPRESENTATIVE STEVENS asked if it is state policy to direct people that they have the opportunity of buying into their retirement benefits if they are on active duty. TAPE 02-51, SIDE B Number 2989 MS. STRASBAUGH said purchase military service can sort of be purchased. Under the new federal act [USERRA], there are certain standards set so people won't lose their vesting. This would allow in special circumstances - not for every call up - the governor to order pay and credited service. But there are already abilities to purchase active service. There is federal law regarding not losing vesting rights and so on. Number 2932 ANN COURTNEY, Senior Attorney, Labor and Employment, Alaska Railroad Corporation, testified via teleconference. She clarified a statement made earlier that all agencies have to comply with PERA. She stated that the Alaska Railroad is not under PERA. It was specifically exempted from PERA by the Alaska Railroad Corporation Act, AS 42.47.20, and it does not participate in state benefit plans at all. Number 2893 REPRESENTATIVE JAMES said that she understood that the railroad is independent on some things. In this case, there will be a bottom line for all people who work for the state. Although the railroad employees are not state employees, the railroad is owned by the state. She is struggling with trying to mandate that they do something because it is in state law. She expressed concern about having this part of the collective bargaining process because it could get out of kilter over time. MS. COURTNEY agreed there was that possibility depending upon the strength of the union and the state of negotiations as bargaining is entered into. There is always a possibility that if it's left up to the discretion of the negotiators, there will be different provisions of collective bargaining agreements for different unions and different employees. If it is mandatory for the collective bargaining agreements, there would be an obligation to confer or engage in impact bargaining regarding the wage provisions. Number 2783 MR. STEWART referred to the issue of collective bargaining and said that this legislation doesn't specify a wage rate or particular benefit payment; it only makes permissive the choice on the part of the issuance the administrative order. It would be his intention in formulating a bargaining strategy that what was bargained was acceptance or rejection of participation in whatever terms were dictated by the terms of the administrative order, so the proliferation of different terms among the bargaining units wouldn't be an issue. He explained that the Division of Personnel bargains for the state. The issue of going to the table with a wage article in this case would be if a wage were specified. There is no wage specified; only supplementation is being argued. Number 2731 REPRESENTATIVE JAMES said this may be a bad example, but she referred to the stress over the years with the geographical pay differential when the unions bargained a different one than what was in the statutes, and noted that's been problematic over the years. She doesn't have any problem with the bargaining units bargaining the areas in their best interests, but she has a problem when they deviate from what has been considered to be the state issue. She doesn't know if this bill will be that sort of an issue, but she doesn't want to walk into that trap. She just wants to be sure that this will be applied fairly and equally and to be guaranteed that that will happen. MR. STEWART agreed to wanting the same thing. Number 2662 REPRESENTATIVE WILSON referred to the two weeks that people take for their military duty in the summer and wondered if state employees get paid for those two weeks or if they take two weeks' vacation. MR. STEWART explained that state law and the collective bargaining policy requires the state to allow up to 16.5 days of paid military leave for training purposes. REPRESENTATIVE WILSON asked if they get paid from their state jobs and the National Guard. Number 2529 CAROL CARROLL, Director, Central Office, Administrative Services Division, Department of Military & Veterans Affairs, indicated that they do get paid while they are on National Guard duty. REPRESENTATIVE WILSON noted that they are treated pretty well. Number 2460 MS. BARBEAU reiterated that the Alaska Railroad Corporation provides up to 15 days per year of paid military leave and it does not decrement an employee's annual leave account. MS. STRASBAUGH said the statute for leave of absences for military leave is AS 39.20.340 and AS 39.20.350. Number 2389 REPRESENTATIVE JAMES commented that this bill is a good step; it just needs to be equitable. She said that she has no problem with the people on military leave getting paid twice. She has no problem with maintaining their pay for the short period of time up to whatever it would be so they don't lose anything. CHAIR COGHILL announced that HB 327 will be held over.
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