Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/20/2012 01:30 PM Senate LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 224 EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 168 INJUNCTION SECURITY: INDUSTRIAL OPERATION TELECONFERENCED
Moved CSHB 168(JUD) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
          SENATE LABOR AND COMMERCE STANDING COMMITTEE                                                                        
                         March 20, 2012                                                                                         
                           1:34 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Dennis Egan, Chair                                                                                                      
Senator Joe Paskvan, Vice Chair                                                                                                 
Senator Linda Menard                                                                                                            
Senator Bettye Davis                                                                                                            
Senator Cathy Giessel                                                                                                           
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 168(JUD)                                                                                
"An Act  requiring the amount  of the  security given by  a party                                                               
seeking an injunction or order  vacating or staying the operation                                                               
of  a permit  affecting  an industrial  operation  to include  an                                                               
amount for  the payment of  wages and benefits for  employees and                                                               
payments to  contractors and subcontractors  that may be  lost if                                                               
the industrial operation is wrongfully enjoined."                                                                               
                                                                                                                                
     - MOVED CSHB 168(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
SENATE BILL NO. 224                                                                                                             
"An   Act  making   privileged  certain   communications  between                                                               
employees and  employee union representatives; and  amending Rule                                                               
402 and Rule 501, Alaska Rules of Evidence."                                                                                    
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 168                                                                                                                  
SHORT TITLE: INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                          
SPONSOR(s): REPRESENTATIVE(s) FEIGE                                                                                             
                                                                                                                                
02/23/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/23/11       (H)       JUD                                                                                                    
02/25/11       (H)       BILL REPRINTED 2/24/11                                                                                 
03/21/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/21/11       (H)       Heard & Held                                                                                           
03/21/11       (H)       MINUTE(JUD)                                                                                            
03/23/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/23/11       (H)       <Bill Hearing Canceled>                                                                                
03/30/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/30/11       (H)       Scheduled But Not Heard                                                                                
04/04/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/04/11       (H)       Moved CSHB 168(JUD) Out of Committee                                                                   
04/04/11       (H)       MINUTE(JUD)                                                                                            
04/05/11       (H)       JUD RPT CS(JUD) 3DP 2NR                                                                                
04/05/11       (H)       DP: KELLER, PRUITT, THOMPSON                                                                           
04/05/11       (H)       NR: GRUENBERG, HOLMES                                                                                  
04/07/11       (H)       TRANSMITTED TO (S)                                                                                     
04/07/11       (H)       VERSION: CSHB 168(JUD)                                                                                 
04/08/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/08/11       (S)       L&C, JUD                                                                                               
02/23/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/23/12       (S)       <Bill Hearing Postponed>                                                                               
03/01/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/01/12       (S)       Heard & Held                                                                                           
03/01/12       (S)       MINUTE(L&C)                                                                                            
03/13/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/13/12       (S)       Heard & Held                                                                                           
03/13/12       (S)       MINUTE(L&C)                                                                                            
03/20/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SB 224                                                                                                                  
SHORT TITLE: EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE                                                                           
SPONSOR(s): LABOR & COMMERCE                                                                                                    
                                                                                                                                
03/05/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/05/12       (S)       L&C, JUD                                                                                               
03/20/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
ANDY MODEROW, Executive Director                                                                                                
Alaska Conservation Alliance                                                                                                    
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Opposed HB 168.                                                                                           
                                                                                                                                
REPRESENTATIVE ERIC FEIGE                                                                                                       
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Sponsor of HB 168.                                                                                        
                                                                                                                                
DANA OWEN, Staff                                                                                                                
Senate Labor and Commerce Committee                                                                                             
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Presented SB 224 as staff to the committee                                                                
that is the sponsor.                                                                                                            
                                                                                                                                
DOUG MERTZ, Attorney                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT: Supported SB 224.                                                                                         
                                                                                                                                
STEVEN SORENSON, General Counsel                                                                                                
Public Safety Employees Association (PSEA)                                                                                      
Fairbanks, AK                                                                                                                   
POSITION STATEMENT: Supported SB 224.                                                                                         
                                                                                                                                
KATE SIAN, Deputy Director                                                                                                      
Labor Relations                                                                                                                 
Division of Personnel and Labor Relations                                                                                       
Department of Administration (DOA)                                                                                              
Juneau, AK                                                                                                                      
POSITION STATEMENT: Opposed SB 224, because it could                                                                          
significantly hinder management's rights.                                                                                       
                                                                                                                                
JAKE METCALF, Executive Director                                                                                                
Public Safety Employees Association (PSEA), Local 803                                                                           
Juneau, AK                                                                                                                      
POSITION STATEMENT: Supported SB 224.                                                                                         
                                                                                                                                
BARBARA HUFF TUCKNESS, Director                                                                                                 
Governmental and Legislative Affairs                                                                                            
Teamsters Local 959                                                                                                             
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Supported SB 224.                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:34:17 PM                                                                                                                    
CHAIR DENNIS EGAN  called the Senate Labor  and Commerce Standing                                                             
Committee meeting  to order at 1:34  p.m. Present at the  call to                                                               
order  were  Senators Giessel,  Menard,  Davis,  and Chair  Egan.                                                               
Senator Paskvan arrived soon thereafter.                                                                                        
                                                                                                                                
        HB 168-INJUNCTION SECURITY: INDUSTRIAL OPERATION                                                                    
                                                                                                                                
1:35:03 PM                                                                                                                    
CHAIR EGAN announced consideration of HB 168 [CSHB 168(JUD),                                                                    
labeled 27-LS0395\D, was before the committee].                                                                                 
                                                                                                                                
ANDY MODEROW,  Executive Director, Alaska  Conservation Alliance,                                                               
opposed HB 168,  and said he was concerned  that this legislation                                                               
is  unconstitutional,  punitive  and  would do  nothing  to  stop                                                               
frivolous litigants.  Further, it  would require Alaskans  to pay                                                               
the  corporate  costs  of  a  permit  delay  if  a  judge  grants                                                               
temporary release  after an initial  review, which places  a hold                                                               
on  a  permit. Temporary  release  is  only  granted if  a  judge                                                               
decides two  things: that the  case against the permit  is likely                                                               
to  succeed and  that  irreparable  harm will  be  caused in  the                                                               
absence of a temporary release being given.                                                                                     
                                                                                                                                
MR. MODEROW explained  that two things could cause  a strong case                                                               
against a permit in the eyes of  the court: if a court believes a                                                               
corporation  isn't following  the terms  of the  permit and  if a                                                               
court believes the government issued the permit in error.                                                                       
                                                                                                                                
1:37:00 PM                                                                                                                    
If  a case  is frivolous,  it will  be dismissed  and no  project                                                               
delay  will  occur,  Mr.  Moderow  said,  and  hence,  this  only                                                               
punishes  the  Alaskans  who  bring strong  cases  to  court  and                                                               
nothing  punishes the  frivolous litigants  who have  their cases                                                               
quickly dismissed.                                                                                                              
                                                                                                                                
Requiring  a  citizen  to  pay  for a  governmental  error  or  a                                                               
corporate misdeed puts a very  chilling effect on a long American                                                               
tradition  of   protecting  whistle  blowers.  Indeed,   it  only                                                               
penalizes the whistle blowers who make  a strong case in the eyes                                                               
of  the  judge. He  pointed  out  that this  legislation  impacts                                                               
Alaskans, communities, tribal  organizations and potentially even                                                               
the state of Alaska.                                                                                                            
                                                                                                                                
MR. MODEROW said in reviewing  cases where this bill would apply,                                                               
he found  one where Bella  Hammond and Vic Fisher  challenged the                                                               
legitimacy of some Pebble water  discharge permits. Alaskans like                                                               
them should  not have  to pay  for the  corporate cost  of delay,                                                               
particularly when after  a judicial review the  judge finds their                                                               
case likely has merit.                                                                                                          
                                                                                                                                
1:37:52 PM                                                                                                                    
This legislation has  been framed as a jobs bill,  but instead of                                                               
charging Alaskans  millions of dollars  to hold  their government                                                               
accountable, the core  of the problem could  be addressed through                                                               
adequately funded,  strong permitting programs that  make certain                                                               
that  when judicial  review occurs,  a permit  is upheld  and the                                                               
case is dismissed.  This is a better tactic than  taking away the                                                               
ability of an Alaskan to point out a governmental error.                                                                        
                                                                                                                                
1:38:44 PM                                                                                                                    
REPRESENTATIVE ERIC  FEIGE, sponsor of  HB 168, responded  that a                                                               
lot of objections  that have been raised are opinions,  and in SB
168 he  was trying to  essentially allow  people to work  and not                                                               
have their  projects stopped unless  there is a good  argument to                                                               
the contrary.                                                                                                                   
                                                                                                                                
1:39:48 PM                                                                                                                    
SENATOR PASKVAN joined the committee.                                                                                           
                                                                                                                                
REPRESENTATIVE FEIGE  said this bill  does not prevent  a lawsuit                                                               
from being filed  or a request for an injunction  as part of that                                                               
lawsuit.  Whenever  an injunction  is  requested,  he said  there                                                               
generally two reasons:  one is a legitimate  concern that somehow                                                               
the  operation continuing  would have  an adverse  effect on  the                                                               
plaintiff and  the other is  to delay because of  a philosophical                                                               
objection to it.                                                                                                                
                                                                                                                                
He explained  that HB 168 provides  the judge with a  fair amount                                                               
of  latitude.  Court Rule  65(c)  already  allows for  bonds  and                                                               
security  to  be  posted,  but  this  measure  would  provide  an                                                               
additional emphasis  on the part  of the legislature to  give the                                                               
judge certain things  to consider when it comes  to that security                                                               
or bond.                                                                                                                        
                                                                                                                                
CHAIR EGAN closed public testimony and removed his objection.                                                                   
                                                                                                                                
SENATOR PASKVAN moved  to report CSHB 168(JUD),  version \D, from                                                               
committee  to  the next  committee  of  referral with  individual                                                               
recommendations  and  attached  fiscal  note(s).  There  were  no                                                               
objections, and it was so ordered.                                                                                              
                                                                                                                                
1:43:07 PM                                                                                                                    
At ease from 1:43 to 1:44 p.m.                                                                                                  
                                                                                                                                
        SB 224-EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE                                                                     
                                                                                                                                
1:44:45 PM                                                                                                                    
CHAIR EGAN announced consideration of SB 224.                                                                                   
                                                                                                                                
1:45:12 PM                                                                                                                    
DANA  OWEN, staff  to the  Senate Labor  and Commerce  Committee,                                                               
sponsor,  said SB  224 (and  the companion  measure in  the other                                                               
body) seeks to grant to  the communications between employees and                                                               
their union representatives  the same kind of  protection that is                                                               
granted to  an attorney  who is  representing an  employee. Under                                                               
current  law, those  communications  are not  privileged, and  in                                                               
litigation,  attorneys  from  one  side can  subpoena  the  union                                                               
representative  and  request  any confidential  information  that                                                               
might   have  passed   between   the  employee   and  the   union                                                               
representative. The  upshot of  this is  a situation  where union                                                               
representatives  cannot  effectively  advise or  represent  their                                                               
members.                                                                                                                        
                                                                                                                                
MR.  OWEN  said  Mr.  Mertz  noted that  one  of  the  California                                                               
justices says  it is illogical to  assume that the only  advice a                                                               
union representative could legally  or effectively give to anyone                                                               
is, "Don't  talk to me." That  is what happens today  and that is                                                               
what  this bill  seeks to  remedy. Several  provisions in  SB 224                                                               
make it  clear that there  are conditions  under which no  one is                                                               
compelled to withhold  evidence and that in the  case of conflict                                                               
with federal or other state laws, this bill would not apply.                                                                    
                                                                                                                                
SENATOR MENARD  asked how many  Alaskan cases have  been affected                                                               
by a breach of confidentiality.                                                                                                 
                                                                                                                                
MR. OWEN replied that he didn't  have a number, but one such case                                                               
is  before the  Alaska Supreme  Court now;  briefs on  it are  in                                                               
their  packets. Maybe  one of  the attorneys  could provide  more                                                               
enlightened testimony  about it, but  he explained that  for many                                                               
years  the practice  has  been  to not  subpoena  these kinds  of                                                               
communications. It is a trend that started a few years back.                                                                    
                                                                                                                                
SENATOR MENARD asked  if there will be fewer  labor disputes with                                                               
this bill.                                                                                                                      
                                                                                                                                
MR. OWEN  replied that is  not the aim  of the bill,  although it                                                               
would be nice. The aim of the bill  is to make sure that one side                                                               
in this dispute doesn't have  effective representation eroded. It                                                               
only applies in  disciplinary proceedings when an  employee has a                                                               
dispute with the employer.                                                                                                      
                                                                                                                                
SENATOR PASKVAN said  it could be important to  indicate that the                                                               
other  side  has an  attorney  representing  it  and there  is  a                                                               
privilege if that  person is an attorney. He  understood that the                                                               
bill  attempts to  create  parity between  parties  where one  is                                                               
represented in connection with the advocacy services.                                                                           
                                                                                                                                
MR. OWEN agreed that was the case precisely.                                                                                    
                                                                                                                                
1:50:11 PM                                                                                                                    
DOUG MERTZ, Attorney, said this  issue came to his attention when                                                               
he  represented  a client  who  was  unjustly terminated  by  the                                                               
state. Under  existing law, when  that happens, you  are required                                                               
to go through  an administrative process before  bringing a suit.                                                               
The administrative  process involves a union  advocate, basically                                                               
dealing with people  from the state Division of  Personnel, in an                                                               
attempt to  resolve the  matter. The feature  that is  unusual is                                                               
that  the  state  prohibits  the   union  member  from  using  an                                                               
attorney.  It requires  using the  union advocate  and those  are                                                               
always  non-attorneys.  This  sets  up  the  kind  of  trap  that                                                               
happened with  his client,  where the  employee went  through the                                                               
whole process dealing with his  union folks, assuming as everyone                                                               
has, that his communications were confidential. He related:                                                                     
                                                                                                                                
     The  state said,  oh no,  no  confidentiality here.  We                                                                    
     have the right to all  your records, to all your notes,                                                                    
     to all your  emails and letters, anything  having to do                                                                    
     with  this  member,   including  tactical  discussions,                                                                    
     evaluations of  the strength  of the  case, discussions                                                                    
     of settlement  positions -  the sort  of thing  that if                                                                    
     there were  an attorney  representing the  person there                                                                    
     is no question it could not be obtained.                                                                                   
                                                                                                                                
MR. MERTZ  said it would  indeed be unethical  to even try  to do                                                               
it,  and yet  that  is  what has  happened  here.  The reason  it                                                               
matters  is  because  for  centuries,  confidentiality  has  been                                                               
recognized as  an absolute essential  to a fair legal  system. As                                                               
in the California Supreme Court  opinion that Mr. Owen mentioned,                                                               
it would  be ridiculous to think  that the only advice  the union                                                               
advocate could  give to  his member  is, "Don't  talk to  me." If                                                               
there is no  right to confidentiality between  the union advocate                                                               
and the  union member, then the  state could even call  the union                                                               
advocate as  a witness  against his own  client. The  state could                                                               
use this tactic  to obtain confidential notes  and discussions of                                                               
minutes of the other side's  collective bargaining team while the                                                               
collective bargaining is  going on! An employer  could obtain all                                                               
the  records having  to  do with  confidential  reports of  wrong                                                               
doing to law enforcement agencies  in order retaliate against the                                                               
person making the reports.                                                                                                      
                                                                                                                                
If there was  no right to confidentiality, no  union member would                                                               
ever talk  to his union advocate,  and the entire system  of pre-                                                               
court litigation,  the administrative  remedy, would  simply fall                                                               
apart,  Mr. Mertz  said. The  process  would become  meaningless,                                                               
because nobody would talk to the union advocate.                                                                                
                                                                                                                                
MR.  MERTZ said  in  his  case he  decided  to  make a  discovery                                                               
request for their internal communications  and their response was                                                               
that they couldn't do that because of attorney/client privilege.                                                                
Why  is this  coming up  now? He  explained that  when he  was an                                                               
assistant  attorney general  decades ago,  they would  never have                                                               
thought  of  doing   this;  it  would  have   been  dismissed  as                                                               
ineffective and maybe unethical. But in  the last two years, as a                                                               
result  initially of  overenthusiastic attempts  by an  assistant                                                               
attorney general  to gain  an advantage over  the other  side, it                                                               
became Department of Law policy.                                                                                                
                                                                                                                                
MR. MERTZ  said he took his  case to the State  Supreme Court and                                                               
it is considering  what to do with it now.  That raises the final                                                               
question: why should the legislature  deal with this problem when                                                               
it's in the  Supreme Court's lap? The answer is  that the Supreme                                                               
Court   is   examining   whether   this   tactic   violates   the                                                               
constitutional duty  of affording due process  to litigants. That                                                               
is a  very high level to  achieve. The legislature, on  the other                                                               
hand, has the luxury of deciding  whether this tactic is fair and                                                               
whether it  is good  policy to  let it happen.  He urged  them to                                                               
conclude that there  are so many down sides to  allowing one side                                                               
to invade  the confidentiality  of the other  side that  it would                                                               
essentially  destroy the  current  system  of employer  relations                                                               
with union members.                                                                                                             
                                                                                                                                
1:56:46 PM                                                                                                                    
SENATOR MENARD  asked why  unions don't  hire attorneys  as union                                                               
advocates.                                                                                                                      
                                                                                                                                
MR. MERTZ answered because attorneys  are really expensive and it                                                               
would  require   a  revolution  in   the  way  they   fund  their                                                               
representation. It  would mean displacing  all the  current corps                                                               
or  advocates, many  of whom  are quite  experienced and  good at                                                               
their jobs,  with new  attorneys. Even if  that was  possible, it                                                               
wouldn't happen real soon.                                                                                                      
                                                                                                                                
SENATOR MENARD asked if his concern was with the tactic.                                                                        
                                                                                                                                
MR. MERTZ answered yes; it is being used as an unfair tactic.                                                                   
                                                                                                                                
SENATOR PASKVAN  said the administrative process  is required and                                                               
as  part of  it,  the retention  by the  employee  of counsel  is                                                               
prohibited.                                                                                                                     
                                                                                                                                
MR. MERTZ replied, "Right on  both counts." The Supreme Court has                                                               
said you  have to exhaust  this administrative remedy  before you                                                               
can go to  court. And the collective  bargaining agreement, which                                                               
is approved  by the  legislature, says  you have  to use  a union                                                               
advocate,  essentially barring  private attorneys.  In his  case,                                                               
one  of the  things that  the state  attorney subpoenaed  was his                                                               
confidential correspondence with the union advocate.                                                                            
                                                                                                                                
2:00:10 PM                                                                                                                    
STEVEN  SORENSON, attorney  and  general  counsel, Public  Safety                                                               
Employees Association  (PSEA), said he supported  SB 224, because                                                               
PSEA had this happen in  Fairbanks: union records were subpoenaed                                                               
along  with  the deposition  of  an  executive director,  a  non-                                                               
attorney.  The   two  members  involved  in   this  lawsuit  were                                                               
represented by  business agents of the  union (non-attorneys) all                                                               
the  way through  the administrative  procedures (required  under                                                               
the  collective  bargaining agreement).  They  went  all the  way                                                               
through to  arbitration and have  now sued the city  for wrongful                                                               
termination.                                                                                                                    
                                                                                                                                
The city sought the union's  records and served a "subpoena duces                                                               
tecum"  on PSEA  to get  them  and deposed  the former  executive                                                               
director, John  Cyr. In  the deposition they  asked Mr.  Cyr what                                                               
advice  he, as  the executive  director  of the  union, gave  the                                                               
members;  he declined  to give  that information  absent a  court                                                               
order requiring  him to do  so. In  his response to  the subpoena                                                               
duces tecum  for those records,  he would  have to give  over the                                                               
emails, the  written correspondence, the advocacy  aspect of that                                                               
part of communication to the attorneys representing the city.                                                                   
                                                                                                                                
MR.  SORENSON said  this  case  was ongoing  and  in its  initial                                                               
stages of  discovery; it's  very likely, now  that there  is some                                                               
notoriety with Mr. Mertz's case,  that the attorneys for the City                                                               
of Fairbanks  could press  the Superior Court  to issue  an order                                                               
for these  records and require  the former executive  director to                                                               
testify. This  legislation is desperately  needed now  to protect                                                               
these private and confidential  communications that exist between                                                               
a business agent and its members.                                                                                               
                                                                                                                                
CHAIR EGAN asked him to explain a "subpoena duces tecum."                                                                       
                                                                                                                                
MR. SORENSON replied  that it is a type of  subpoena that is used                                                               
to get just the documents that a litigant may have.                                                                             
                                                                                                                                
2:04:24 PM                                                                                                                    
KATE  SIAN,   Deputy  Director,  Labor  Relations,   Division  of                                                               
Personnel  and  Labor  Relations,  Department  of  Administration                                                               
(DOA),  commented  specifically  about   section  2  rather  than                                                               
section  1 that  amends AS  23.40. She  said that  employee union                                                               
representatives  are  recognized  through  collective  bargaining                                                               
agreements  and  this   legislation  could  significantly  hinder                                                               
management's  rights,   which  are   also  found   in  collective                                                               
bargaining  agreements.  Further, she  said  unions  are free  to                                                               
bargain  language  with  regards  to  the  roles  their  employee                                                               
representatives play and, in fact, unions have done just that.                                                                  
                                                                                                                                
MS. SIAN used the Alaska  Correctional Officers Association as an                                                               
example,  because they  are in  current  negotiations with  them.                                                               
Their language states:                                                                                                          
                                                                                                                                
     The    confidentiality   of    officer   representative                                                                    
     discussions  with  members   regarding  contractual  or                                                                    
     disciplinary issues  shall be respected except  when an                                                                    
     officer  representative has  information of  a criminal                                                                    
     nature. Officer  representatives shall not be  asked or                                                                    
     compelled to  disclose information gained  while acting                                                                    
     in their  capacity as an officer  representative unless                                                                    
     it involves knowledge of criminal misconduct.                                                                              
                                                                                                                                
MS.  SIAN said  this matter  is more  appropriate for  collective                                                               
bargaining  than statute.  In  addition,  this legislation  could                                                               
present several  problems for  agencies, particularly  those that                                                               
provide security  related services. For instance,  the Department                                                               
of Corrections' policy is that  you need to report incidences and                                                               
security  breaches through  the  chain of  command and  sometimes                                                               
employee union  representatives are in  the line of  command, for                                                               
instance, a supervisor. They have  had examples where an employee                                                               
has  reported something  to their  employee union  representative                                                               
and that report  has not been brought forward. It  was done under                                                               
the guise  of talking  to an  employee union  representative, but                                                               
then at  the same time  saying they reported  it up the  chain of                                                               
command, because they happen to be one and the same person.                                                                     
                                                                                                                                
2:06:51 PM                                                                                                                    
She  said Mr.  Mertz mentioned  that union  advocates are  always                                                               
non-attorneys, but  that is  not accurate  for every  union. Many                                                               
attorneys  are  union  representatives;   PSEA  actually  has  an                                                               
attorney in addition to Mr. Sorenson.                                                                                           
                                                                                                                                
MS. SIAN  said that Mr. Mertz  raised the issue of  speaking to a                                                               
representative during collective bargaining  and pointed out that                                                               
there  are  specific  ground  rules  in  play  during  collective                                                               
bargaining that must be followed by both parties.                                                                               
                                                                                                                                
SENATOR  PASKVAN said  she referenced  a  contract provision  and                                                               
asked if that was based on fairness.                                                                                            
                                                                                                                                
MS.  SIAN replied  that  language was  probably  proposed by  the                                                               
union and may  have been the result of  interest arbitration, but                                                               
it was related  to fairness. It's understood  that employee union                                                               
representatives  play  a  vital  role in  the  world  of  labor's                                                               
organizations and  how business is  conducted in the  state. But,                                                               
for instance,  the Department of  Corrections has  major security                                                               
concerns  that  have  to  be   brought  forward  to  management's                                                               
attention, and there is some  concern that this legislation could                                                               
hinder that process.                                                                                                            
                                                                                                                                
SENATOR PASKVAN asked  if the employer is  represented by counsel                                                               
as part of the administrative hearing process.                                                                                  
                                                                                                                                
MS. SIAN  replied in the  grievance process that the  employer is                                                               
represented  by labor  relations and  all  but one  of the  labor                                                               
relations analysts are  attorneys and she can go  to the Attorney                                                               
General's Office for advice.                                                                                                    
                                                                                                                                
2:09:33 PM                                                                                                                    
JAKE  METCALF,   Executive  Director,  Public   Safety  Employees                                                               
Association (PSEA), Local  803, said he was also  a lawyer. Prior                                                               
to this job,  he worked as associate general  counsel and general                                                               
counsel for IBEW 1547. He  said unions have many representatives;                                                               
some  unions  call  them  shop stewards.  They  are  the  initial                                                               
representative   for   members,    especially   in   disciplinary                                                               
proceedings.  They usually  represent the  member throughout  the                                                               
grievance process  up unto  the time  it has  settled or  gone to                                                               
arbitration.                                                                                                                    
                                                                                                                                
These  representatives tend  to not  be attorneys,  he explained.                                                               
However, sometimes  attorneys that  have gone  to law  school but                                                               
have not  passed the  bar work  as business  representatives, but                                                               
they  are still  not considered  attorneys. For  this process  to                                                               
work, clients need the confidence  that their representatives can                                                               
talk to  them and  get all  the information,  much like  a lawyer                                                               
would do representing a client,  because all the information they                                                               
can gather early  on is used to hopefully settle  the case before                                                               
it has to go to arbitration, which is a very expensive process.                                                                 
                                                                                                                                
2:12:03 PM                                                                                                                    
MR. METCALF also  pointed out that in the  middle of representing                                                               
an  employee under  the collective  bargaining agreement,  if the                                                               
employer were to  come and say they want all  their records, they                                                               
could  say  no.  The  Alaska  Labor  Relations  Act  specifically                                                               
prohibits an  employer from interfering with  administration of a                                                               
union and the reason is because  it would mess up the process and                                                               
interfere with the union's ability  to represent the member. This                                                               
proposal   is  a   limited  privilege   that   would  allow   the                                                               
communications  between  a  union  rep   and  a  member  to  stay                                                               
confidential. If  they don't  have that, the  union can't  do its                                                               
job and  is limited  in its ability  to resolve  disputes quickly                                                               
costing  both  sides more  money  and  time.  This bill  is  very                                                               
necessary he concluded.                                                                                                         
                                                                                                                                
2:13:43 PM                                                                                                                    
SENATOR PASKVAN said he understood  the limited privilege, but he                                                               
could also  see the  benefit in a  reciprocal action  of removing                                                               
the  administrative privilege  even  if one  is  an attorney.  In                                                               
other words, if it's fair for one  side it should be fair for the                                                               
other side.  And just  because they can  afford the  attorney, if                                                               
it's appropriate to  gain access to that  information, then maybe                                                               
they should remove the privilege on the other side as well.                                                                     
                                                                                                                                
MR. METCALF said that was logical thinking.                                                                                     
                                                                                                                                
2:14:41 PM                                                                                                                    
BARBARA  HUFF TUCKNESS,  Director,  Governmental and  Legislative                                                               
Affairs, Teamsters Local  959, supported SB 224. She  read a last                                                               
minute letter about privileged communications  into the record in                                                               
support of SB 224 as follows:                                                                                                   
                                                                                                                                
     Dear Senator Egan:                                                                                                         
                                                                                                                                
     On behalf of  our Teamster Local 959  business reps and                                                                    
     the  members that  we represent  around  the state,  we                                                                    
     wish  to  thank  the  committee  for  introducing  this                                                                    
     legislation  in regards  to  the  impact of  privileged                                                                    
     communications.                                                                                                            
                                                                                                                                
     SB  224  would  allow   free  candid  and  confidential                                                                    
     conversations  between  employees  and  their  business                                                                    
     representative. In addition,  this bill allows business                                                                    
     representatives   to    fully   investigate   workplace                                                                    
     disputes. SB  224 establishes privilege similar  to the                                                                    
     attorney   client   privilege    between   a   business                                                                    
     representative  and   a  member.  This   correlates  to                                                                    
     conversations that  occur during the  administration of                                                                    
     any of our collective bargaining agreements.                                                                               
                                                                                                                                
     Additionally,  previous  legislatures  have  recognized                                                                    
     other  privileges  for   persons  other  than  doctors,                                                                    
     lawyers, and spouses  such as (a long  list included in                                                                    
     their packets).  Considering the  above examples  of SB
     224, we  believe the  merit of  privilege is  to ensure                                                                    
     that members,  clients and patients can  confide freely                                                                    
     in their  representatives or  provide support  in order                                                                    
     to  help  them   reduce  problems,  resolve  litigation                                                                    
     and/or get appropriate service.                                                                                            
                                                                                                                                
     Rick Boyles, Secretary Treasurer                                                                                           
                                                                                                                                
MS.  HUFF TUCKNESS  said  one of  the  earlier testifiers  talked                                                               
about  collective  bargaining  and  actually  used  an  excellent                                                               
example of where  the issue is. First of all,  she clarified that                                                               
Teamsters Local  959 represents private sector  and public sector                                                               
employees. The private sector, under  federal law, does recognize                                                               
this privilege.  The private sector in  the state does not.  As a                                                               
business agent,  she actually  does day-to-day  administration of                                                               
one  public sector  contract and  two  private sector  contracts,                                                               
collective bargaining  and arbitrations. She wears  two different                                                               
hats under two  different sets of laws. She  actually agreed with                                                               
the earlier testifier that this  should be an issue in collective                                                               
bargaining, but  unfortunately, the  success of  some individuals                                                               
in being able to collectively  bargain these particular issues in                                                               
a contract is good while other unions are not successful.                                                                       
                                                                                                                                
She said this  was one of the arguments used  that Senator Davis,                                                               
in  particular, might  remember in  the attempt  for about  seven                                                               
years  to pass  the  nurses'  overtime bill.  In  fact, Ms.  Huff                                                               
Tuckness  said  she   had  testified  on  it,   because  she  had                                                               
negotiated the  10-hour in-between  protection in  their hospital                                                               
agreements;  they  had minimum  hours,  and  it  was all  in  the                                                               
contract. Unfortunately,  the employer with the  other groups out                                                               
there  was  not   willing  to  negotiate  the   same  or  similar                                                               
provisions. That law  was finally passed, and it  has been pretty                                                               
successful for everybody around the  state, but the point is that                                                               
some individuals  or organizations have  those tools and  maybe a                                                               
relationship   with  a   particular   employer  to   successfully                                                               
negotiate those  provisions while others  don't. It would  set up                                                               
an unlevel playing field throughout  the state for those that are                                                               
unable to accomplish that.                                                                                                      
                                                                                                                                
2:19:08 PM                                                                                                                    
MS. HUFF TUCKNESS said the  other issue with respect to attorneys                                                               
is that while  Local 959 has a general counsel,  everyone else on                                                               
staff has been  hired from within the  different bargaining units                                                               
- to continue the relationship.                                                                                                 
                                                                                                                                
SENATOR  MENARD  noted   that  her  letter  of   March  20  about                                                               
privileged communication was indeed in their packets.                                                                           
                                                                                                                                
2:20:18 PM                                                                                                                    
SENATOR PASKVAN invited  Ms. Sian back and asked  her thoughts on                                                               
removing  any  attorney/client privilege  of  any  sort from  the                                                               
administrative proceeding.                                                                                                      
                                                                                                                                
MS. SIAN responded  that both sides have  emails and deliberative                                                               
conversations that they  wouldn't want the other side  to be able                                                               
to discover and  use. She could only speak for  the state and the                                                               
11 unions it  works with, but they don't try  to subpoena records                                                               
and don't seem to be having  any issues like that. She understood                                                               
this issue was based on a very limited incident.                                                                                
                                                                                                                                
SENATOR  PASKVAN remarked  that she  would find  it a  problem of                                                               
fundamental  fairness if  the other  side could  ask her  lawyers                                                               
what they were told on their side of the equation.                                                                              
                                                                                                                                
MS. SIAN answered at times, yes;  there are things you don't want                                                               
to disclose to  the other side. As an employer,  the state has to                                                               
provide  information  on  which   they  base  their  disciplinary                                                               
decisions; the state  is more of an open book,  because when they                                                               
go  to arbitration,  they have  all the  information and  have to                                                               
provide it  to the  unions and  their representatives.  So, there                                                               
are some differences in who holds what information.                                                                             
                                                                                                                                
SENATOR PASKVAN asked if there  is a difference between having to                                                               
turn  over  the  facts  of the  case  and  information  regarding                                                               
tactics or strategies that she  might want to establish while the                                                               
proceeding is still active.                                                                                                     
                                                                                                                                
MS. SIAN replied that the  unions have requested information that                                                               
the  state  has  withheld  based  on  confidentialities  such  as                                                               
deliberative privilege.                                                                                                         
                                                                                                                                
CHAIR  EGAN   found  no  further  questions   and  closed  public                                                               
testimony.  He  removed  his   objection,  thanked  everyone  for                                                               
attending.                                                                                                                      
                                                                                                                                
[SB 224 was held in committee.]                                                                                                 
                                                                                                                                
2:24:41 PM                                                                                                                    
CHAIR  EGAN adjourned  the Senate  Labor  and Commerce  Committee                                                               
meeting at 2:24 p.m.                                                                                                            
                                                                                                                                

Document Name Date/Time Subjects
SB 224 Sponsor Statement.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Sectional Analysis.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Relevant Statutes.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 20110718 PetRev Brief final copy.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 amicus brief of AFLCIO 20110718.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Brief of Appellee State of Alaska.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Appendix to Brief of Appellee State of Alaska.pdf SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 RP reply brief final 20111007.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 testimony, Mertz 032012.PDF SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB224-DOLWD-ALRA-3-16-12.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB224-DOA-LR-3-7-12.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 lttr supporting, Angaiak, NEA 031912.PDF SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224