Legislature(2003 - 2004)
2004-02-23 House Journal
Full Journal pdf2004-02-23 House Journal Page 2690 HB 518 HOUSE BILL NO. 518 by the House Rules Committee by request of the Governor, entitled: "An Act amending the Public Employment Relations Act to exclude from collective bargaining individuals who perform confidential or managerial duties for a public employer and relating to those exclusions; and providing for an effective date." was read the first time and referred to the State Affairs and Labor & Commerce Committees. 2004-02-23 House Journal Page 2691 The following fiscal note(s) apply: 1. Zero, Dept. of Fish & Game 2. Zero, Dept. of Law The Governor's transmittal letter dated February 20, 2004, follows: "Dear Speaker Kott: Under the authority of article III, section 18, of the Alaska Constitution, I am transmitting this bill to amend the Public Employment Relations Act (PERA). Specifically, the bill would exclude public employees in upper-level ("managerial") or sensitive ("confidential") positions from collective bargaining. Allowing employees in these positions to participate in bargaining creates a conflict of interest and could allow employees in managerial or confidential positions to benefit from the inherent advantage they have over other employees. When managerial and confidential employees bargain they have access to information and key officials that is unavailable to other employees. Amending PERA resolves the conflict of interest and reduces the opportunity for unfair gain by those employees. Bargaining laws for public employees would be aligned with the labor laws that apply to private industry, federal law, and the majority of state's that have chosen to exclude confidential and managerial employees from bargaining. The bill provides legislative findings setting out the concerns the bill is intended to address. These findings were drawn mainly from the work of the Blue Ribbon Commission (Commission) on the State Personnel Act. The Commission reviewed state employment laws from 1977 through 1980. The Commission recognized that allowing managers to participate in bargaining could hamper labor negotiations and that the state's managers needed to be politically responsive to the chief executive. The Commission recommended that assistant and deputy directors and certain chiefs be excluded from bargaining. Report of the Blue Ribbon Commission on the State Personnel Act to the Eleventh Alaska State Legislature 14 (1/9/1980). 2004-02-23 House Journal Page 2692 The exclusion for confidential employees is based upon case law from the National Labor Relations Board (Board) and existing state regulation. B. F. Goodrich Co., 115 N.L.R.B. 722, 37 L.R.R.M.(BNA) 1383 (1956); 8 AAC 97.990(a)(1). The Board has consistently recognized an exclusion from bargaining for "persons who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." The Alaska Labor Relations Agency adopted this definition as regulation in 8 AAC 97.990(a)(1); although, rather than exclude these employees from bargaining entirely, the agency requires them to bargain in a separate unit when they are employed by the state. 8 AAC 97.090. Bargaining in a separate unit, however, does not remove the conflict of interest created when a public employer is forced to bargain the wages and working conditions of employees responsible for actually developing and implementing the employer's labor policy. Recognizing this problem, the agency excluded the confidential positions of labor analyst and human resource manager from bargaining completely in State of Alaska v. Confidential Employees Ass'n, Decision & Order No. 157 (04/07/1993). The agency's decision, however, was reversed on appeal, State of Alaska v. Confidential Employees Ass'n, case no. 1JU-93-0656 CI (9/1/1994, as clarified on 10/12/1994), necessitating a legislative solution to the problem. The exclusion for managers is based on National Labor Relations Board v. Bell Aerospace Co., 416 U.S. 267, 287-88 (1974). In that case the United States Supreme Court affirmed the Board's longstanding exclusion from bargaining of employees "who formulate and effectuate management policies by expressing and making operative the decisions of the employer." The exclusion was based on the Board's interpretation of Congressional intent. I urge your prompt and favorable action on this measure. Sincerely yours, /s/ Frank H. Murkowski Governor"