02/16/2009 03:17 PM House L&C
| Audio | Topic |
|---|---|
| Start | |
| HR5 | |
| HB22 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE LABOR AND COMMERCE STANDING COMMITTEE
February 16, 2009
3:17 p.m.
MEMBERS PRESENT
Representative Kurt Olson, Chair
Representative Mark Neuman, Vice Chair
Representative Mike Chenault
Representative John Coghill
Representative Bob Lynn
Representative Robert L. "Bob" Buch
Representative Lindsey Holmes
OTHER LEGISLATORS PRESENT
Representative Carl Gatto
Representative Harry Crawford (on teleconference)
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE RESOLUTION NO. 5
Opposing any federal legislation that seeks to eliminate the
private election phase of union recognition campaigns or that
seeks to impose compulsory and binding arbitration on employers.
- MOVED HR 5 OUT OF COMMITTEE
HOUSE BILL NO. 22
"An Act relating to requiring subcontractors who do not have
employees and who are acting as independent contractors to
secure payment for workers' compensation, and to requiring
subcontractors who fail to secure payment of workers'
compensation to pay additional premiums incurred by contractors
because of that failure."
- HEARD AND HELD
HOUSE BILL NO. 102
"An Act relating to the Uniform Commercial Code, to the general
provisions of the Uniform Commercial Code, to documents of title
under the Uniform Commercial Code, to the Uniform Electronic
Transactions Act, and to lease-purchases of personal property;
amending Rules 403 and 902, Alaska Rules of Evidence; and
providing for an effective date."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HR 5
SHORT TITLE: OPPOSING FEDERAL EMPLOYEE FREE CHOICE ACT
SPONSOR(s): REPRESENTATIVE(s) JOHNSON
01/30/09 (H) READ THE FIRST TIME - REFERRALS
01/30/09 (H) L&C
02/11/09 (H) L&C AT 3:15 PM BARNES 124
02/11/09 (H) Heard & Held
02/11/09 (H) MINUTE(L&C)
02/16/09 (H) L&C AT 3:15 PM BARNES 124
BILL: HB 22
SHORT TITLE: WORKERS' COMPENSATION: SUBCONTRACTORS
SPONSOR(s): REPRESENTATIVE(s) CRAWFORD, BUCH
01/20/09 (H) PREFILE RELEASED 1/9/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) L&C, FIN
02/16/09 (H) L&C AT 3:15 PM BARNES 124
WITNESS REGISTER
JEANNE OSTNES, Staff
Representative Craig Johnson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of HR 5.
MILLIE DUNCAN, Administrator
Wildflower Court
Juneau, Alaska
POSITION STATEMENT: Testified in support of HR 5.
LINDA SHILTZ
Juneau, Alaska
POSITION STATEMENT: Testified in support of HR 5.
REPRESENTATIVE CARL GATTO
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified during the discussion of HR 5.
REBECCA LOGAN, President
Associated Builders and Contractors (ABC-AK)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HR 5.
SCOTT JUNGWIRTH, Chief Human Resource Officer
Providence Health & Services
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HR 5.
GARY HUME
National Federation of Business (NFIB)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HR 5 and in
opposition of the federal EFCA legislation.
STACY ALLEN
Health Care Representative; Registered Nurse
Laborers Local 341
Palmer, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of HR 5.
JEANINE ST. JOHN, Vice-President
Lynden Logistics (Lynden)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HR 5.
HEIDI DRYGAS
General Counsel
Alaska District Council of Laborers
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of HR 5.
REPRESENTATIVE HARRY CRAWFORD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified and answered questions via
teleconference during the discussion of HR 5; and testified via
teleconference as joint prime sponsor of HB 22.
HELENE ANTEL, Legal Counsel
International Brotherhood of Electrical Workers Local 1547
Palmer, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of HR 5.
TIM SHARP, Business Manager
Laborers Local 942
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to HR 5.
PAUL GROSSI, Staff
Representative Harry Crawford
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 22 on behalf of a joint prime
sponsor, Representative Harry Crawford.
ACTION NARRATIVE
3:17:27 PM
CHAIR KURT OLSON called the House Labor and Commerce Standing
Committee meeting to order at 3:17 p.m.
Representatives Buch, Coghill, Lynn, Neuman, Olson were present
at the call to order. Representatives Chenault and Holmes
arrived as the meeting was in progress. Representative Gatto
was also in attendance. Representative Harry Crawford testified
via teleconference.
HR 5-OPPOSING FEDERAL EMPLOYEE FREE CHOICE ACT
3:18:00 PM
CHAIR OLSON announced that the first order of business would be
HOUSE RESOLUTION NO. 5, Opposing any federal legislation that
seeks to eliminate the private election phase of union
recognition campaigns or that seeks to impose compulsory and
binding arbitration on employers.
3:18:11 PM
JEANNE OSTNES, on behalf of the prime sponsor, Representative
Craig Johnson, stated that HR 5 was previously heard before the
committee. She offered to review provisions of HR 5 if needed
and to answer questions.
3:19:44 PM
MILLIE DUNCAN, Administrator, Wildflower Court, stated that she
wished to speak in support of HR 5. She explained that she is
the administrator of a skilled nursing home in Juneau. She
recalled a scenario in 2003, such that a group of employees at
the facility decided they wanted union representation and
selected a union. The employees met with representatives and
were given cards to collect signatures. She stated that
employees visited other employees at their homes or surrounded
some co-workers and waited until they filled out the cards. She
further stated that some time later an employee related an
incident that had happened during that time period. She said
the employee told her that she had refused to sign the card and
was shoved around in the bathroom until she eventually signed
the card.
MS. DUNCAN emphasized that it is important to have a free
election, no matter what the outcome. She stressed the
importance for employees to have a safe workplace and not be
intimidated and forced to make choices they don't want to make.
She offered her belief that the current system of holding free
and private elections is beneficial. She concluded by stating
that she described the experience an employee had at Wildflower
Court, which she said she thought was not a unique experience.
She encouraged members to support HR 5.
3:21:46 PM
MS. DUNCAN, in response to Representative Lynn, answered that
she did not make a police report since the employee talked to
her sometime later. She added that she talked to the union
about the incident. The union representative said that he/she
did not have any control over actions taken between co-workers.
3:22:19 PM
MS. DUNCAN, in response to Representative Neuman, answered that
the union held an election and employees voted in a union.
However, negotiations proceeded but no agreement was reached
between the administration and the union. Another election was
held and the union was voted out, she stated.
MS. DUNCAN, in response to Representative Buch answered that she
has read the Employee Free Choice Act (EFCA).
REPRESENTATIVE BUCH explained that elections are not eliminated
by the EFCA.
MS. DUNCAN offered her belief that the election provision does
not offer a private and secret ballot process.
REPRESENTATIVE BUCH responded that those of us that advocate
options want to maintain the choices.
3:23:45 PM
LINDA SHILTZ explained that she works at Wildflower Court. She
offered her support for HR 5. She related that as Ms. Duncan
described, some employees desired union representation. She
said that she made it known she was not in support of union
representation, which resulted in a difficult work environment.
She explained that she felt her employer was fair. She related
that she did not want to pay union dues or have union
representation. Ms. Shiltz stated that she appreciates the
freedom of a secret ballot and the ability to vote privately for
her choice similar to the process of most elections. She
offered her belief that the private, secret ballot separates the
U.S. from totalitarian types of governments. She opined that
the election outcome does not matter. However, everyone should
have the right to privacy, she stated.
3:25:26 PM
REPRESENTATIVE BUCH inquired as to whether Ms. Shiltz could
compare wages and conditions in any other institutions.
MS. SHILTZ offered her belief that wages at Wildflower Court are
similar to wages at Bartlett Memorial Hospital in Juneau. She
related that Wildflower Court employees have benefits,
retirement, health insurance, paid holidays, and personal leave.
MS. SHILTZ, in response to Representative Buch, responded that
she is not sure if other nursing homes are similar to Wildflower
Court. She mentioned that she was not aware of other nursing
homes in Juneau.
3:27:20 PM
REPRESENTATIVE CARL GATTO, Alaska State Legislature, expressed
his concern that the resolution implies that it is about "free-
choice." He offered his belief that some people might interpret
"free-choice" to mean that they have the right to commit someone
else to their way of thinking. He suggested that those people
might think, "That's my choice. I can force you to raise your
hand and commit to a position because it is my choice." He
stressed that instance or circumstance would not be a valid
choice. He stated that individually, each person has one vote,
and his/her vote should be confidential. Totalitarian dictators
often receive 99 percent of the vote, because people do not have
free choice, he stated. He said he thinks it is reasonable and
fair to interpret "free choice" as keeping a person's vote
confidential. He indicated that as representatives of the
people, the committee votes should be open. However, during
elections constituents vote for or against their representatives
in elections with a private, secret ballot. He related that the
vote is private unless a person chooses to tell their
representatives how they voted. He opined that the EFCA is
mislabeled. He opined that the most reasonable position is to
keep the voting process private.
3:30:09 PM
REPRESENTATIVE GATTO, in response to Representative Buch,
answered that he has not read the EFCA in its entirety.
REPRESENTATIVE BUCH offered his belief that nothing in the EFCA
or in the National Labor Relations Act of 1935 (NLRA) eliminates
the opportunity for an election. He explained that no language
prohibits employees from that right. He recalled testimony that
described two elections that were conducted in Juneau. He
recalled that one voted for union representation and one
decertified the union. He inquired as to whether Representative
Gatto could point out language that eliminates elections.
REPRESENTATIVE GATTO inquired as to the reason for the
resolution is if a process is intact to vote for and against the
union. He recalled that nurses at Providence Hospital elected
to be members of IBEW. He further recalled the nurses later
voted to decertify the union representation. However, he
indicated that the election was conducted using a private ballot
process and not a raise of hands. He said, "If indeed you're
okay with everybody having a private ballot, I'm not sure why
you would even support this bill."
REPRESENTATIVE BUCH recalled last legislative session that this
body adopted a resolution, House Joint Resolution 25, which was
to support the freedom to choose unions, and to support the EFCA
of 2007 that was before the Congress at that time. He offered
his belief that HR 5 is unnecessary, which is why he said he has
been asking these questions.
REPRESENTATIVE GATTO explained that he is in opposition of the
pending EFCA before the Congress. He emphasized that the
pending EFCA is not necessary. He offered his support for HR 5.
In response to Representative Neuman, Representative Gatto
responded by offering his belief that everyone should have the
right to an election, which should be held as a secret ballot.
3:34:15 PM
REPRESENTATIVE BUCH offered his strong support of the right for
everyone to have an election, too. He maintained that his view
that HR 5 is unnecessary since this body passed a resolution
last year.
3:34:36 PM
MS. OSTNES explained that currently, approximately 60 percent of
the secret ballot elections are held during union organizing.
She offered that the NLRA provides unions with the secret ballot
choice. She related that the EFCA before the Congress last year
passed the House of Representatives but did not pass the Senate.
She pointed out that not only does the EFCA remove one option
for a secret ballot, but it adds a fourth choice. She pointed
out that employees are required to sign cards, not secretly, and
when a majority of 51 percent is reached, the other options are
no longer available. She stressed that only 51 percent of the
employees make the choice for all of the employees, who never
chose union representation. She offered that once 51 percent of
the "card check" process is fulfilled, that union negotiations
with the employer will begin. Therefore, the rest of the
employees do not have the opportunity to vote, she stated.
MS. OSTNES related that if the negotiations are successful, the
union represents the employees. And if an agreement is not
reached within 130 days, a federal arbitrator is assigned, which
creates a problem for the employer, she opined. Additionally,
the process continues for two years, which is also a problem for
an employer, she stated. She said she anticipates that the
Congress will take the matter up since President Obama and
Secretary Solis, the new Secretary of Labor have offered their
support for EFCA. Thus, she emphasized that the HR 5 should be
passed to inform the Congress that Alaska does not agree with
the provisions of EFCA.
3:37:40 PM
MS. OSTNES, in response to Representative Lynn, explained that
currently a secret ballot is allowed and unions prevail 60
percent of the time. However, if any EFCA bill passes the
Congress, the union organizers would hand employees a card and
once 51 percent of the workers sign the card, the union prevails
and an election is not held, she related. Thus, if a group of
20 employees are considering whether to have union
representation, and 11 sign the "card check", the remaining 9
employees would not have a choice in the matter. She opined
that many smaller companies will be affected and unions would
prefer to use the "card check" since it is less expensive for
them than to hold an election.
3:40:02 PM
MS. OSTNES, in response to Representative Lynn, reiterated that
an election would not be held.
REPRESENTATIVE LYNN related his understanding that HR 5 would
not change the opportunity for an election. He inquired as to
whether an election would be held.
MS. OSTNES explained that she has not been involved in an
employer and union election.
3:41:46 PM
REPRESENTATIVE HOLMES offered that the majority rules and 11
people would determine the outcome of an election whether it is
done by "card check" or ballot. She emphasized that under
existing law the majority decides the outcome.
MS. OSTNES responded that the difference is that in an election
all of the employees vote by secret ballot in private.
REPRESENTATIVE BUCH recalled two witnesses testified that
elections were held. He related that the success of an election
does not necessarily mean that the union prevailed. He offered
his belief that union membership is down. He stated that his
union membership has declined from 20 percent in the 80s to 12
percent today. Thus, he stated unions are losing. He related
that unions may prevail on "the front end" but in the end
employees are not able to obtain union representation.
Additionally, he pointed out that "card check" was a component
in the 1935 legislation. He opined it has not been used
frequently, but "card check" is not new. He further opined that
instead of losing an option, employees would gain an option.
MS. OSTNES referred to members' packets and to a publication by
the U.S. Department of Labor (US-DOL) titled "NEWS" dated
January 28, 2009, that provides statistics for union membership
in 2008. She stated that the publication reported that workers
belonging to a union rose by 428,000 in 2008.
3:45:47 PM
CHAIR OLSON clarified that this issue has not been singled out
as an issue to revisit. He explained that the legislature is
revisiting other issues, such as the Public Employees Retirement
System (PERS) and Teachers Retirement System (TRS), and
wastewater discharge.
3:46:27 PM
REPRESENTATIVE NEUMAN related his understanding that HR 5
addresses the issue of privacy. He further related that the
issue is not a matter of an election, but to ensure that
employees have the opportunity to cast their vote in private, in
a secret ballot.
MS. OSTNES agreed that the secret ballot is important.
Additionally, the EFCA abandons the concept that parties should
be bound only to the terms and conditions of employment when an
agreement is reached, as well as that the act imposes penalties
on employers and not the unions, she related.
3:47:51 PM
REPRESENTATIVE LYNN related his understanding that a person
could sign the card in private and could mail it in.
MS. DUNCAN agreed that a person could choose to sign the card in
private. She restated that the employee that came to her was
intimidated by a group of other employees who supported union
representation and shoved her around and the employee signed the
card.
3:49:20 PM
REBECCA LOGAN, President, Associated Builders and Contractors
(ABC-AK), stated that she wished to testify in favor of HR 5 and
against the federal EFCA bill. She opined the EFCA bill is
poorly written legislation that contains loopholes. She
explained that the EFCA replaces secret ballot elections with a
"card check" process, and includes compulsory binding
arbitration for first contracts, and an increase in unfair labor
practice sanctions that are applied exclusively to employers.
She referred to section 2 of the federal EFCA, which she
identified as the section that removes the requirement for a
secret ballot. She explained that the language in the bill
removes the requirement for secret ballot elections and makes it
optional.
MS. LOGAN related that the language specifies that if the
National Labor Relations Board (NLRB) finds that a majority of
the employees have signed an authorization card they shall not
direct an election. However, the problem with the bill is that
it does not lay out the option for the employees, such as who
would initiate the efforts to hold a secret ballot, or how
employees would be able to determine that they would prefer the
election to the "card check." She offered that two weeks ago
the legislative director for the American Federation of Labor
and Congress of Industrial Organizations (AFL/CIO), Bill
Samuels, said those rules have not yet been worked out with the
NLRB. Thus, the law would pass without that option detailed,
she noted.
MS. LOGAN also pointed out that nothing in the proposed federal
statute settles the question of how arbitration panels will be
set up, the scope of their powers, or ability to issue decrees
on matters of fact and law. She opined that the EFCA does not
make any effort to indicate the set of relevant considerations
for the arbiter's decrees, which is in sharp contrast to the
detailed specifications of procedures and standards in Alaska's
law that requires interest arbitration in the public sector.
She said, "Finally, with regard to the unfair labor practice
sanctions that are applied exclusively to employers, it's really
almost embarrassing that this bill doesn't recognize the fact
that union organizers and overzealous pro-union employees are
also capable of coercive behavior during a union election." She
related that an entire department at the U.S. Department of
Labor deals with union corruption and union coercion. She
opined that to only have sanctions against employers is very
unfair. She offered her support for HR 5.
3:52:18 PM
MS.LOGAN, in response to Representative Buch, explained that
Section 3 of the EFCA of 2007, titled "Facilitating Initial
Collective Bargaining Agreements" only refers to the timeline of
the arbitration.
REPRESENTATIVE BUCH emphasized that language makes it very
specific, which he related is a component of the negotiations
process.
SCOTT JUNGWIRTH, Chief Human Resource Officer, Providence Health
& Services, asked to speak in favor of passage of HR 5. He
offered that Providence Health & Services is opposed to the EFCA
since it would fundamentally change the current union election
system that is based on the principle of democracy. He
explained that the current system allows for free and fair
elections, in which ballots are cast in private, free from
interference or influence by either side. He opined that open
dialogue and a direct dialogue with employees provide the best
means to carry out the healing mission. He related that his
employer respects the rights of employees to be represented by a
third party. He explained that his employer collaborates with
more than 40 bargaining units across its facilities in western
states such as Alaska or California. He further related that
the employee should have the right to choose whether to be
represented by a union through a fair election process, free
from coercion or intimidation. He expressed concern with
provisions in the EFCA that would impose mandatory binding
arbitration if an agreement is not met in 30 days of a request
for mediation on the initial collective bargaining agreement.
He opined that it is in the best interests of the employer and
employee to resolve issues through the process of collective
bargaining as dictated by the NLRA.
3:55:30 PM
GARY HUME, National Federation of Independent Business (NFIB),
related his personal experience, that he was a "union man" for
25 years. He explained that he left his job and now works in
the private sector. He opined that he was more or less stifled
in the union with little chance for improvement or to gain a
better wage. He further opined that a person with 5 years of
experience earned the same wages as he did. He stated that he
opposes union infiltration into the private sector. He said,
"And we already know that most of what is going on in the public
sector is tied up with union fat." He reiterated that he is
strongly opposed to the pending federal EFCA, which he opined
has no merit.
3:57:20 PM
STACY ALLEN, Health Care Representative; Registered Nurse,
Laborers Local 341, stated that she is a representative of the
Labors Local 341 and a registered nurse.
MS. ALLEN stated that in 1996, she worked in a hospital. She
related that she and her colleagues felt that the hospital
management made some dangerous decisions that placed patients at
risk as well as jeopardizing their nursing licenses. Despite
discussions with management as patient advocates, management did
not listen to the nurses. She offered that the nurses reached
out to the union, Local 341. She pointed out that the nurses
were at-will employees and management made it clear during the
organizing campaign that employees had no rights. She indicated
that the chief operating officer (CEO) told the nurses they were
unprofessional, that the nurses did not care about their
patients, only money. Additionally, management told the nurses
that they would lose benefits and be laid off, she stated.
MS. ALLEN described the process as so intimidating, that the
union filed an unfair labor practice with the NLRB. She
remarked that the NLRB ruled that the CEO had committed an
unfair labor practice. His penalty was that he was required to
read a letter restating the NLRA provisions. However, he
continued to berate employees, she mentioned. Despite the
threats, the nurses won their election, she related. She noted
that it took three years to obtain a contract due to delay
tactics such as management only agreeing to meet for
negotiations once or twice every few months. However, she said
that over the past 12 years, nurses have developed a very
cooperative relationship with the current management, that the
employer and employees work together to benefit all parties.
She explained that in her current job she is often contacted by
health care employees who feel that their ability to provide
good patient care is sometimes compromised by management's
actions. Sometimes employees relate harassment or
discrimination at the hands of a supervisor, she stated. She
opined that employees, regardless of their rank, all expressed
concern that they might be fired or subject to demotion in the
event that management even knew that the employees held
discussions with a labor union.
MS ALLEN said, "After all management sets your schedule.
Management approves or denies your vacation. Management awards
or denies overtime. Management promotes, demotes, and
determines your rate of pay." She stated that from her
observations as an employee participating in an organizing
campaign that it is very difficult for employees to reach out to
a labor union under the current system. She related her
understanding that the EFCA would help alleviate some of the
natural constraints. She urged the committee not to pass HR 5.
4:00:51 PM
MS. ALLEN, in response to Representative Buch, explained that
the union process started in 1995 and the election was held in
September 1996. She described the campaign as acrimonious. She
indicated that the employer tried hard to discredit the union
and the employees feared they would lose their jobs. In further
response to Representative Buch, she offered her belief that
joining the union made a huge difference. She surmised when
employees in a hospital are represented by a labor union, that
communication is opened up. She complained that the hospital
had been overloading employees, some nurses were laid off, and
the hospital had not purchased adequate supplies. She opined
that union representation made a difference. She remarked that
employees have a safe environment to air issues, and the nurses
collectively approach management with issues that arise.
Additionally, she mentioned that management pays attention to
any issues, which did not happen when a nurse individually
brought up an issue.
4:03:28 PM
JEANINE ST. JOHN, Vice-President, Lynden Logistics (Lynden),
stated she would like to testify in support of HR 5, effectively
opposing the EFCA, which is commonly referred to as the "card
check" bill. She offered her belief that the EFCA approach is
unnecessary and a poor approach to labor management practices.
She emphasized that the Lynden companies strongly oppose such
legislation. She related that the current process of secret
ballot elections is the appropriate process to ensure that
employees are not subject to threats or coercion. She surmised
that the EFCA would take away the rights of employees to use the
secret ballot to make the decision of whether to organize in the
workplace. She highlighted that Lynden has union and non-union
representation in various parts of its company. She stressed
that Lynden strongly supports the decision for its workers to
work through collective bargaining units and the methods by
which votes are taken to make decisions. She observed that the
current mechanism operates fairly.
MS. ST. JOHN opined that critical decisions should be based on
information pertaining to the process in an atmosphere free from
intimidation. She emphasized that employees cannot make
reasoned choices if they only hear one side of issue. She
expressed concern that the federal government would be involved
into the contract negotiation process as proposed by the EFCA.
She expressed concern over the potential for a government
employee presiding over mandatory binding arbitration, with the
potential to impose his/her decision on the employer and the
bargaining unit for up to two years. Additionally, she also
expressed concern that a government employee would have
sufficient knowledge of the industry and specific issues in the
workplace to make an educated decision. She pointed out that
provisions are not in the proposed EFCA that would change the
arbitrator's decision during the two year period.
MS. ST. JOHN opined that the proposed "card check" bill does not
offer guidance pertaining to the proposed binding arbitration
process, the method for choosing an arbitrator, or the manner
for challenging his/her decision. Instead, the EFCA bill would
allow the government to convey authority to a third party to
essentially decide what a private sector employer must provide
in terms of wages and benefits free from the checks and balances
of unit ratification. While the EFCA raises other additional
issues, she stated she only wished to address the two issues.
She urged members to vote yes on HR 5 and to continue to support
the employees' ability to make decisions through a thoughtful,
private ballot process without the potential for coercion or
threat.
4:06:49 PM
HEIDI DRYGAS, General Counsel, Alaska District Council of
Laborers, as general counsel for the Alaska District Council of
Laborers, related that she would like to clarify provisions in
the EFCA. She explained the process and emphasized that the
EFCA does not take away the secret ballot provision of the NFLA.
She explained that if 30 percent of the employees want to hold
an election, they can file a petition to do so. She referred to
HR 5, stating that the language stating federal supervision of
union recognition elections by the National Labor Relations
Board has been a legal requirement for at least 60 years is
incorrect.
MS. DRYGAS stated that currently there are two ways for
recognition as a bargaining representative. One, is to hold an
election as established by section 9 (c) of the NLRA, and the
other is through a majority signup. She explained that under
the EFCA, the union presents a majority of the cards to the
employer and the employer has an option to voluntarily recognize
the union as the exclusive representative of the employees,
which she offered has happened with some large employers such as
Kaiser Permanente. She offered that the EFCA takes that choice
away from the employer and gives it to the employees who through
signing cards indicate they want union representation, she
stated.
MS. DRYGAS referred to two clauses in HR 5, which state that the
private ballot elections will guarantee an outcome unaffected by
outside pressures, as well as that "card checks" will create an
opportunity for employers and union organizers to retaliate
against employees because of their votes. She said, "In
reality, nothing could be further from the truth. In the first
seventy years of the NLRA, there have been only 42 documented
cases of fraud or coercion found against unions in the
submission of authorization cards." She observed that is less
than one case per year. According to an Economic Policy
Institute Issue brief dated January 29, 2009, the majority sign-
up has been recognized as a means to union representation, she
stated. In contrast, she noted that in 2007, the NLRB annual
report identified 29,000 cases of intimidation and coercion by
employers against employees. She pointed out that an NLRB study
of 400 union elections identified that 32 percent of employees
who actively supported the union were fired. She said, "The
truth is that this is a lopsided problem, which is one of the
reasons we're urging passage of this act, and a vote against
this resolution." She stressed that the Alaska District Council
of Laborers seeks a fair process for employees, free of employer
intimidation and coercion. She opined that our country is based
on a simple principle of majority rule. She offered her belief
that 47 percent of America did not vote for Barack Obama for
president, yet he is still the President of the United States of
America. She noted that union representation is no exception.
She pointed out that majority rule has been in place since the
inception of the NLRA in 1935.
MS. DRYGAS referred to language in proposed HR 5, which states
that private balloting in elections exemplifies American ideals.
She opined that these types of claims that equate typical
elections in this country with the NLRB elections are false.
She stated that the reality is that the two types of elections
barely resemble each other. She surmised that there are few
democratic principles to glean from NLRB elections. She pointed
out that elections for union representation usually occur on
employer property and campaign finance laws do not apply. Thus,
employers can spend unlimited resources to defeat unions, and
often do, she further opined. She concluded that nothing in
union elections resembles whatsoever the democratic ideals that
citizens strive for in elections in our country.
4:11:28 PM
MS. DRYGAS, in response to Representative Buch, related the
union election process. She stated that typically employees
approach a union when they are dissatisfied with their
employer's response to an issue. She explained that a union
representative will generally speak to a few employees to
ascertain the circumstances before it moves forward with an
organizing campaign. At that time, since the union does not
have access to a list of employees, the process moves forward by
word of mouth, and the union collects bargaining cards, she
stated. She observed that this process has been in effect for
over seventy years under the NLRA. She indicated the signature
collection process can take several months. She offered that in
her experience, she has never faced a situation where the union
representative has used coercion or threats to collect
signatures. She said, "It's just not the way we do business."
MS. DRYGAS pointed out that the union still has to reach the
election process and then win an election. She related that the
union representatives rely on the employees and must convince
employees that union representation is best for them. Thus,
coercion does not work, she surmised. She explained that the
union can petition the NLRB if it collects 30 percent or more of
the authorization cards. She opined that the union will
generally obtain about 75 to 80 percent of the bargaining cards
before it will petition the NLRB. She reiterated that elections
are lopsided because the employer can disseminate information on
the intranet, while the union representative must conduct
his/her business after hours, or on breaks, or at coffee shops.
She opined that the employer has a clear advantage in union
elections. Once the NLRB is petitioned, authorization cards are
verified against the employer's list to ascertain that the
threshold is met. She related that once the threshold is met,
an election date is set and takes place on the employer's
property.
4:16:09 PM
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature, stated
that as a former union organizer that he never participated in
an election since his employer always fired him prior to an
election being held. He offered that elections are usually held
one to two years from the start of the process. He recalled
statistics mentioned that unions prevail 60 percent of the time.
However, a more meaningful question would be to determine the
number of elections that were requested that were not held. He
surmised that would be a much larger percentage. He opined that
the only reason the EFCA has occurred is due to the thousands of
employees nationwide have been denied the right to join a union
through employer coercion and delays by the NLRB. He further
recalled an instance in which the NLRB delay was over three
years.
4:18:56 PM
HELENE ANTEL, Executive Counsel, International Brotherhood of
Electrical Workers (IBEW) Local 1547, stated that she has been
an attorney for 23 of 30 years specializing in labor law. She
pointed out that strong emotions exist, locally and at the
national level. She remarked that people's opinions vary across
a broad spectrum about what the EFCA means. She offered to
provide several facts. She opined that legislation is not
pending nor in recent years considered, that seeks to eliminate
the private election phase of union recognition campaigns. She
opined that the fundamental purpose of HR 5 is inaccurate. She
stated that the pending EFCA act will not eliminate secret
ballot elections. Thus, those who are afraid the EFCA will
eliminate the secret ballot have unfounded fears. She offered
to outline six circumstances under which secret ballot elections
will continue.
4:20:56 PM
MS. ANTEL related, that first, if employees want a secret ballot
election, they may elect not to sign authorization cards.
Second, prior to a "card check" certification by the NLRB,
employees may change their mind and withdraw their authorization
cards. If card withdrawals bring the number down below 50
percent plus 1, a secret ballot election will be conducted.
Unions can request recognition without cards from the majority
of employees, and the secret ballot election will be conducted
by the NLRB. She stated that unions can request recognition
from the employer, and if the employer agrees to do so, a
volunteer recognition may happen. If not, a secret ballot
election will be held. She remarked that EFCA permits the
employer to challenge the composition of the bargaining unit.
If the NLRB changes the unit, and the definition is different
and the union no longer has a majority of cards, a secret ballot
election will be conducted. She indicated that EFCA permits the
employees to change their minds and choose not to be represented
by a union, in which case a secret ballot election will be
conducted. Finally, she noted that if the employer has reason
to believe that the union no longer represents a majority, the
employer can request a secret ballot election.
MS. ANTEL reiterated that anyone who has drawn the conclusion
that EFCA removes a secret ballot election is mistaken. She
explained that the EFCA gives the employees the choice whether
or not to sign authorization cards to be represented by a union
or to hold a secret ballot election. She emphasized that under
the current law, the choice whether or not to force employees
into an election process is the employers She said, "The
current law actually should be called the Employer Free Choice
Act because it is up to the employer completely to decide
whether or not its employee must participate in a secret ballot
election." She concluded by noting that it has been claimed
that EFCA is flawed because the administrative regulations are
not set forth in the bill. However, bills do not contain
administrative regulations, she stated.
4:23:28 PM
MS. ANTEL, in response to Representative Buch, answered that
very few employee groups are fortunate enough to begin work
under a collective bargaining union since the employer has the
ability to delay the bargaining process by a year or two. She
opined that the employer has the ability and power to make
certain that a collective bargaining unit agreement never
results. In further response to Representative Buch, Ms. Antel
stated that current elections would take place on the employers'
property, employers do not provide a list and the employer can
hold the employees captive and talk to them about all the
"horrible things that will result if the employees vote for the
union." She opined that the employers have the ability to
"corner" employees. She said, "To say that the current law
protects employee choice is to be dishonest." She opined that
the current law allows the employer to dictate when and under
what circumstances their employees will be able to organize.
4:26:40 PM
TIM SHARP, Business Manager, Laborers Local 942, offered that he
has worked 15 years as a union representative, and has spent the
past 10 years as a union organizer in Alaska, as well as having
worked on union campaigns nationwide. He offered his first-hand
experience in Alaska. He stated that he would like to speak
strongly against HR 5. He characterized HR 5 as a thinly veiled
attempt to try to keep American workers at a huge disadvantage
and prevent them from union representation at their workplace.
He opined that businesses that are pushing for changes are not
concerned about their employees, but their own profits, which
may be reduced by wages, benefits, and safety practices for the
workers.
MR. SHARP stated that organizing is not an easy task, even with
the NLRB overseeing elections, that regularly employees are
affected by coercion, threats, surveillance, and intimidation.
He further opined that businesses asked for HR 5, not workers.
He stated that businesses are primarily testifying against the
EFCA, not the workers. He pointed out that choosing a union is
a worker's right, not the company's choice. He surmised that
hundreds of thousands of workers are reflected in surveys. He
stressed that in one instance in Alaska after two elections and
ten years of negotiations that the workers could not obtain a
first contract agreement. He opined that the EFCA fixes the
problem and would offer workers a fair chance to decide if they
want to be in a union.
MR. SHARP, in response to Representative Buch, explained that
unions frequently obtain a minimum of 75 percent, but closer to
100 percent of authorization cards prior to elections. He
opined that the 45 days prior to election represents an
opportunity to fire workers or coerce them to "melt" the level
of support. He further opined that unions frequently don't move
forward unless they can win, but that the current system is
"skewed" against workers.
4:33:28 PM
CHAIR OLSON, after first determining no one else wished to
testify, closed public testimony on HR 5.
4:33:38 PM
REPRESENTATIVE BUCH stated that the committee has taken
considerable testimony and that he has amendments to offer.
CHAIR OLSON advised Representative Buch that the amendments in
question were prepared last Friday and could have been presented
to the committee within 24 hours of the meeting. He stated that
doing so would have followed the committee's guidelines.
4:33:55 PM
REPRESENTATIVE BUCH asked to read the following into the record:
I wish to express my displeasure about the 24-hour
policy that has been imposed on submitting amendments.
I have the right as a legislator to offer amendments
at any time on bills that I'm asked to vote on. And,
under parliamentary rules, the Chair has an obligation
to consider any amendment that I or other members
offer. In addition, these bill packets are sent by
email unlike any of the other committees who deliver
paper copies of each packet to my office 24 hours in
advance. It takes one hour for my staff to assemble
the bill packet, which leaves me less than 5 hours to
review its contents. How am I to get my amendments in
24 hours in advance when I don't even receive the bill
until 6 hours in advance. The 24-hour policy means
that there is no way for me to offer amendments. If I
try to offer amendments on the House Floor, I would be
told that the committee is the proper place to do
this. This system stifles debate and pushes through
legislation without full consideration. I
respectfully ask the Chair to eliminate this policy.
4:35:35 PM
CHAIR OLSON reiterated that Representative Buch received the
amendments last Friday, February 13, 2009. He recalled that
Representative Buch spent an hour in his office discussing other
matters with no mention of any amendments. He noted that
Representative Buch's comments are on the record.
4:35:54 PM
REPRESENTATIVE HOLMES asked to second the issue raised by
Representative Buch. She related that it is difficult to get
everything completed timely when bill packets arrive late in all
committees. She related her understanding that in this instance
this is the second time this bill is being heard. However, she
stated that requiring amendments 24 hours in advance is
difficult.
REPRESENTATIVE NEUMAN pointed out that bills are read across the
floor and at that time legislative staff can research any
issues.
4:37:03 PM
REPRESENTATIVE HOLMES inquired as to whether the 24-hour rule
for amendments is a general policy rule.
CHAIR OLSON advised committee members that a letter was sent to
every committee at the beginning of the session that outlined
the committee policies.
REPRESENTATIVE BUCH respectfully acknowledged that Chair Olson
allowed him to read his opposition to the policy on the record.
4:38:38 PM
REPRESENTATIVE HOLMES referred to page 2, lines 17 and 18 of the
resolution and inquired as to how HR 5 prohibits free speech and
free association.
MS. OSTNES responded that the language refers to the privacy of
secret balloting. She said that the state has a provision to
support constitutional right to privacy.
REPRESENTATIVE HOLMES stated that the resolution states that it
attacks the constitutional rights to associate and speak freely.
She inquired as to how the EFCA applies since the language
referred to is the first amendment of the U.S. Constitution.
MS. OSTNES said she did not know.
4:40:15 PM
REPRESENTATIVE HOLMES referred to page 2, lines 20 and 21 of HR
5, which she related says that employees who do not vote in
favor of union representation should not be forced to accept
union representation and pay mandatory union dues. She inquired
as to whether Ms. Ostnes could identify part of the EFCA that
makes any change to the underlying law of basically, the
majority rule, and minority is bound by that. She offered her
understanding that the EFCA does not change the underlying law.
MS. OSTNES responded that President Obama repealed executive
order number 13201 on January 30, 2009. She stated that action
to repeal the executive order takes away that right. She opined
that the union dues that are collected can be used for union
politics, lobbying and non-bargaining activities.
REPRESENTATIVE HOLMES offered her interpretation that the clause
says basically that if you did not vote for union, that you
should not have to be represented by the union. However, she
said she thought that the majority rule applied. She opined
that she did not see how this resolution would address anything
in the EFCA.
MS. OSTNES pointed out that she thought this would apply to
mandatory union dues.
4:42:02 PM
REPRESENTATIVE HOLMES referred to the next clause, which says
that compulsory binding arbitration is fundamentally
unconstitutional.
MS. OSTNES related that this refers to the takings clause of the
constitution. She explained that you could have a federal
arbitrator mandate that an employer must pay $50 for an employee
when the employer can only afford to pay $25.
REPRESENTATIVE HOLMES suggested that clause is not very clear.
She referred to page 1 of HR 5, to the secret ballot
cornerstone, and inquired as to whether all elections are held
by secret ballot.
MS. OSTNES said she did not know. She surmised that the
majority of the time, votes are held by secret ballot, which
should be allowed.
REPRESENTATIVE HOLMES stated that she does not have a secret
ballot in the legislature, nor does she have a secret ballot at
any community council meetings.
MS. OSTNES agreed, but suggested that the difference is that it
is her choice to participate.
4:43:52 PM
REPRESENTATIVE NEUMAN moved to report HR 5 Version 26-LS0419\R
out of committee with individual recommendations and the
accompanying fiscal notes.
REPRESENTATIVE BUCH objected.
A roll call vote was taken. Representatives Representative
Chenault, Lynn, Neuman, Coghill, and Olson voted in favor of
moving to report HR 5 from committee. Representatives Buch and
Holmes voted against it. Therefore, HR 5 was reported out of
the House Labor and Commerce Standing Committee by a vote of 5-
2.
4:44:39 PM
The committee took an at-ease from 4:44 to 4:49 p.m.
HB 22-WORKERS' COMPENSATION: SUBCONTRACTORS
4:49:15 PM
CHAIR OLSON announced that the final order of business would be
HOUSE BILL NO. 22, "An Act relating to requiring subcontractors
who do not have employees and who are acting as independent
contractors to secure payment for workers' compensation, and to
requiring subcontractors who fail to secure payment of workers'
compensation to pay additional premiums incurred by contractors
because of that failure."
4:49:20 PM
PAUL GROSSI, Staff, Representative Harry Crawford, Alaska State
Legislature, speaking on behalf of a joint prime sponsor of HB
22, Representative Harry Crawford, stated that the bill would
require sole proprietors that are subcontractors to carry
workers' compensation on themselves. He offered that this bill
would address a long-standing issue that identifies whether a
subcontractor is actually a subcontractor or an employee. He
stated that in the worst case, a worker is injured, does not
have workers' compensation insurance, and files a claim against
the contractor. He explained those claims would go to the
Workers' Compensation Board to determine whether the injured
worker is an employee or a subcontractor. He indicated that if
the injured worker is found to be an employee that the employer
must cover the Workers' Compensation claim. However, if the
Workers' Compensation board finds that the injured person is
determined to be a subcontractor, he/she is personally liable or
their insurance company must pay the claim.
4:51:34 PM
MR. GROSSI related that the more common instance arises when a
contractor wins a bid, begins the job, and during an insurance
audit, the insurance company requires the contractor to pay
additional premiums, which reduces the contractor's profit. The
most common complaint is that some contractors cover their
employees, but other contractors call their workers
subcontractors when in reality they are employees to avoid
paying Workers' Compensation premiums and to obtain a bidding
advantage. Additionally, the employee affected work in the
construction industry, which poses higher risks for injury. In
the event the worker is injured and not covered by workers'
compensation, the potential exists to shift the cost to a
hospital. He opined that in many instances the workers are
truly subcontractors. He stressed that this bill removes the
uncertainty and removes the doubt of liability and coverage.
4:54:06 PM
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature,
speaking as joint prime sponsor of HB 22, stated that he has
worked on this issue since he has served in the legislature. He
explained that this issue relates to liability. He stated that
many general contractors hire subcontractors with the
expectation that the subcontractors hold workers' compensation
insurance, and often the subcontractors provide proof of
coverage. He pointed out when a subcontractor drops his/her
insurance and someone is subsequently injured, that the
liability falls on the general contractor. However, he opined,
the liability should rest with the subcontractor. This bill
requires that the right person has the liability. He offered
that it is not imposing a requirement that a sole proprietor
acquire insurance for himself/herself. He described a scenario
in which a person is building a home and hires a sole proprietor
to build a deck. He indicated that the person building the deck
is not required to hold workers' compensation insurance.
However, if a general contractor builds the home and hires a
subcontractor to build a deck that under this bill the
subcontractor must hold workers' compensation insurance, he
stated. He emphasized that HB 22 erases all doubt as to who is
liable. Representative Crawford opined that this bill helps
ensure a fair and level playing field for general contractors
and subcontractors.
4:56:49 PM
CHAIR OLSON announced that HB 22 would be held over for further
consideration.
4:57:00 PM
ADJOURNMENT
There being no further business before the committee, the House
Labor and Commerce Standing Committee meeting was adjourned at
4:57 p.m.
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