Legislature(1997 - 1998)
05/08/1997 02:10 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL 151
"An Act relating to public employment labor relations;
relating to the protection of the rights of public
employees under the Public Employment Relations Act;
establishing ethical standards for union
representatives of public employees; and establishing
disclosure requirements for public employee labor
organizations."
ART CHANCE, COUNSEL, SENATE FINANCE COMMITTEE, LABOR
RELATIONS, provided a sectional analysis of the major
changes to the existing work draft for SB 151.
Section #2 would provide that the parties may not negotiate
terms contrary to a statute except if such terms are
specifically made subject to bargaining by the Act.
Section #3 would provide that public employers retain
managerial rights and prerogatives and that limitations on
such rights are to be narrowly construed by arbitrators, the
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labor relations agency and the courts.
Section #4 incorporated the Alaska Labor Relations Agency
(ALRA) regulations and decisions regarding composition of
bargaining units and would add definitions of supervisory,
confidential and law enforcement employees based on ALRA
decisions. It also would require that peace officers,
including Correctional Officers, must be in separate
bargaining unit from employees who are not peace officers.
The provision would mirror the National Guard Unit language
in federal law.
Representative J. Davies questioned the rational used to
determine that police officers and correctional officers
should be in different bargaining units. Mr. Chance noted
that action resulted from union claims in labor relation
agency hearings.
Section #5 would reflect ALRA's decisions and federal law in
permitting public employers to challenge the composition of
a bargaining unit and to question the majority status of a
union.
Section #6 would require the ALRA to investigate the
propriety of a mutually recognized bargaining unit upon the
petition of an employee in that bargaining unit.
Section #8 would make it an unfair labor practice for a
public employer to contribute financial or other support to
a union mirroring federal law. It would allow a public
employer to confer with its employees over work related
matters without incurring unfair labor practice charges.
Section #8 would also eliminate the current law's
authorization of compulsory union membership while retaining
the authorization for compulsory fees for collective
bargaining services. It would prohibit a union from
involving a secondary employer in a labor dispute,
picketing, boycotting or otherwise interfering with a
private employer as the result of a dispute with a public
employer. It would prohibit a union from charging an
unreasonable service fee related to the cost of
representation and would provide that an employee may bring
such charges to the ALRA. Finally, it would prohibit a
public employee union and public employer from agreeing to
refrain from doing business with another employer.
Co-Chair Therriault asked if Section #8 would be similar to
the system used by the National Education Association (NEA).
Mr. Chance replied that it would require a separate
accounting.
Section #9 would provide that statements by legislators,
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judges and certain municipal officials may not constitute
unfair labor practices so long as that person is not
specifically responsible for relations with employees.
Section #12 would narrow the scope of employees prohibited
from striking and would, thus, be subject to interest
arbitration.
Section #13 would narrow the scope of employees who can be
enjoined from striking, and thus, subject to interest
arbitration. It would add a class of residential care
employees to reflect changes in Pioneer Home to assisted
living. It would remove post-secondary education employees
from this class to a class three employee, mirroring K-12
teachers and other school employees.
Section #14 would reflect recent court holding that ferry
system employees are class three employees. It would
provide that an employee may lawfully strike only after an
impasse in bargaining.
Section #15 would provide a reliable means of selecting
arbitrators for interest arbitrations and would require that
they have Alaska or Pacific Northwest experience.
Section #16 would prohibit agreements longer than three
years and automatic renewal clauses. It would provide that
employees may resort to binding grievance arbitration only
under the terms of an agreement. Section #16 would prohibit
a labor organization that has failed to file required
financial reports from enforcing an agreement and would
require that the ALRA, rather than the Commissioner of
Administration, promulgate regulations governing residency
base pay differentials in recognition of the fact that the
Public Employee Relations Act (PERA) applies to all public
employers, not just the State.
Section #19 would establish arbitrating selection of
criteria for binding grievance arbitration and would require
Alaska or Pacific Northwest experience.
Section #20-#22 would increase Legislative oversight
authority over collective bargaining by:
* Defining monetary terms and adding terms
which address extensions, modifications and
interest for arbitrator's awards.
* The legislative body of a political
subdivision to review and approve the monetary
terms of an agreement.
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* Providing that no monetary term is effective
or enforceable until approved by the Legislature
or the legislative body of a political
subdivision.
* Requiring the parties to resume negotiations
in the event of disapproval.
* Requiring the Commissioner of Administration
to report all State agreements, settlements and
arbitrators' awards costing over $10 thousand
dollars to the Legislative Budget and Audit (LBA)
Committee for review.
* Requiring the Commissioner of Administration
to report all agreements, settlements and
arbitrators' awards that substantively modify the
reported terms to the Legislature for approval.
* Empowering the legislative bodies of
political subdivisions to promulgate approval
procedures.
Section #23 would prohibit irrevocable check-off dues for
periods longer than one year and would explicitly provide
that check-off authorization must be voluntary and renewed
annually.
In response to Representative J. Davies' comment, Mr. Chance
noted that an ability to stop the delaying tactic was
available and would remain available under the "refuse to
bargaining charge" in a labor relations agency. The State
could hear those charges quite quickly. Representative J.
Davies pointed out there have been long term negotiations
and which were not heard quickly because of an unfair labor
practice. He asked if during the time of negotiations,
would there be a payment of fees. Mr. Chance replied that
would be determined by the parties.
(Tape Change HFC 97-131, Side 1).
Mr. Chance continued, Section #24 would prohibit check-offs
from service fee payers outside the term of an agreement and
would include the same irrevocability provisions. It would
require affirmative notice on the check-off form that
employees not be required as a condition of employment to be
or become a member of the union or to contribute financial
support to its social, political and fraternal activities.
Section #25 would clarify the definition of "monetary terms"
to include changes from the predecessor agreement or
statutory terms which would require the expenditure of
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public money and would exempt certain types of employees
from the Act's coverage.
The major additions to the Act are modeled on the Taft-
Hartley and Landrum-Griffin amendments to the National Labor
Relations Act. These are essentially identical to the
requirements imposed on private sector unions bargaining
under that Act.
Section #27 would articulate the rights of union members to
participate democratically in the operation of the union.
It would require that service fee payers be allowed to vote
in contract ratification elections and other elections or
referendums which might effect a fee payer's terms and
conditions of employment. Also, it would require that dues
may only be increased in a democratic, secret ballot
election. The section would prohibit union restrictions on
member's right to sue the union and to participate in other
forms of adjudication. Mr. Chance concluded that Section
of their rights under this Act.
Article #4 would require public employee unions to register
with the Commissioner of Labor and report their structure
and finances. It would require annual financial reports by
public employee unions and disclosure of all expenditures
made for the purpose of influencing the outcome of an
election. It would require that such a report be maintained
in the State and be made available to members. Article #4
would also provide that a labor organization comply with the
reporting requirements by submitting a copy of the decision
or order with the Commissioner.
Article #5 would prohibit certain financial transactions,
including contribution to political campaigns, between
officer, agents and employees of unions and officers and
officials of public employers where the intent is to
influence the exercise to employees of their rights under
the Act.
Section 23.40.410 would exempt attorney-client and certain
deliberative communications from reporting and disclosure.
Section 23.40.420 would make reports a public record.
Section 23.40.430 would make violation of reporting
requirements a Class A misdemeanor.
Article #5 would prohibit certain financial transactions,
including contribution to political campaigns, between
officers, agents and employees of unions and officers and
officials of public employers where the intent is to
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influence the exercise by employees of their rights under
the Act.
Section 23.40.620 would provide an exemption form reporting
requirements for labor organizations that are subject to the
federal Labor-Management Reporting and Disclosure Act.
Section #30 would repeal all pre-PERA bargaining
authorization.
Section #33 would exempt established bargaining units in
political subdivision from the bargaining unit definition
changes in Section #4.
Representative Kelly questioned how the bill was formulated.
Mr. Chance replied that the bill has changed from it's
original form. That type of organization would be exempt
now except for providing a copy of their federal forms which
would be addressed in Section #27 and Section 23.46.20.
Representative Kelly referenced Section #23, and asked how a
trade union currently would address the situation. Mr.
Chance advised that very few trade unions have a service fee
arrangement. They mostly have membership arrangements which
is allowable under the federal law. Representative Kelly
asked if an employee had a member who was not forced to pay
the fee, between contracts, would the service payer be
exposed. Mr. Chance explained that in the process an
employer can not direct-deal with an employee who is in a
bargaining unit and who has a certified representative.
Also, all mandatory terms must be maintained at the status
quo until such time that there is a valid stated impasse.
At impasse, all bets end regarding terms and conditions.
Representative Kelly questioned the State's benefit with
inclusion of that clause. Mr. Chance stated that it would
guarantee that the parties negotiate a contract.
JOHN YARBOR, CONSULTANT, ALASKA STATE EMPLOYEES ASSOCIATION,
JUNEAU, spoke in opposition to SB 151. He pointed out that
the State has had the same reporting requirements since the
late 1970's, and that the proposed legislation intends to
"correct". He questioned the need to rewrite PERA. The
legislation will reduce an employees right both politically
and for bargaining in good faith. He emphasized that the
legislation treads on individuals rights. It will most
certainly restrict correctional officers.
Representative Mulder pointed out that the legislation would
allow a choice in representation. Mr. Yarbor replied that
Section #4 would dictate which employees could work together
in the same bargaining unit. Representative Mulder
respectfully disagreed. He stated that there it is based on
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logic and that there is a community of interest within the
units that deserve the opportunity to have their own unit
and interest represented.
Representative J. Davies asked if problems have resulted
with having different classification of employees. Mr.
Yarbor commented that he represents a specific community of
interest and that it would not be prudent for the State to
be bargaining with a larger number of units. Having three
units within one union makes for less expense to the State
and for the employee.
In response to Representative Mulder's query, Mr. Yarbor
commented that there are no elections scheduled. The Labor
Relations Board ruled that correctional officers were an
entity of their own and could, therefore, bargain their own
contract. Since that ruling, there has been no election
scheduled by the Labor Relations Board.
Representative Mulder suggested that at times ASEA develops
a split personality. He noted that correctional officers in
his community have expressed frustration with the fact that
they have different needs than clerical workers and would
prefer to have their own voice. He thought the best public
policy decision would be passage of the legislation.
Representative J. Davies countered that the best public
policy would be the one that would allow the most
flexibility, thus providing employees options.
DON ETHERIDGE, REPRESENTATIVE LOCAL 71, JUNEAU, voiced
opposition to the proposed legislation. He added that every
labor organization throughout the State of Alaska opposes
the legislation. He believed that the current system is not
broken and should not be fixed; it is protected by either
the federal government or by established court cases. The
State should not be involved in union operations.
Representative G. Davis pointed out that there have been
several court cases which indicate a need for clarification.
Mr. Etheridge stated that those areas are not the problem.
He noted that the good parts of the legislation have not
been included.
Representative Mulder asked if there were problems existing
in the bill which clarify what a union is and does for the
continued purpose of being protected through PERA. Mr.
Etheridge replied that many portions of the bill are
included in the union by-laws. He noted that the union
council is currently scrutinizing the prepared work draft.
Representative Mulder requested that those findings be
submitted to the Legislature, stressing that it was the
legislative intent to create a good public policy.
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ED FLANAGAN, DEPUTY COMMISSIONER, DEPARTMENT OF LABOR, noted
that the Department opposes the proposed legislation because
it creates a cumbersome and unneeded new bureaucracy and
will disrupt rather than improve public sector labor
relations in the State of Alaska.
The so-called "modernization" is, in a large part, an
adoption of provisions of two federal laws, the Taft-Hartley
Act of 1947 and the Landrum-Griffin Act of 1959, both of
which were extended at the time of PERA's enactment in 1972.
The Department would submit that the legislation understood
the ramification of those provisions in PERA.
Section #1 is a declaration of findings and purpose. The
Legislature finds that legislation is necessary to eliminate
or prevent improper practices on the part of labor
organizations, public employers and their officers or
representatives. He pointed out that in four public
hearings in three committees, the only person to speak in
support of the bill was the paid consultant to the House and
Senate Fiance Committees, and he did not provide evidence or
documentation to support the findings.
Section #2 would add a fifth "item not subject to
bargaining" which would allow political subdivisions under
PERA to limit the scope of collective bargaining by merely
passing an ordinance.
Section #4 is the most problematic section and would allow
individual employees to file grievances outside of the union
process, removing the "filtration" of non-meritorious
complaints which the union provides and would increase the
workload for public employers. It would also explode the
current bargaining unit system by prohibiting inclusion of
peace officers and non-peace officers and strike eligible
and non-strike eligible employees in the same unit which
would result in the State going from nine bargaining units
to twenty-one.
Section #6 would allow a single member of a bargaining unit
or the union representative of which was recognized by
consent to challenge, the appropriateness of the unit and
the majority status of the union.
Section #8 would remove from PERA even the reference to
allowing parties to bargain clauses requiring union
membership as an option or alternative to "service fees".
It also includes a number of irrelevant federal law
prohibitions on secondary boycotts, "hot cargo" clauses, and
recognition or jurisdictional strikes. Section #8 would put
the ALRA rather than the courts in the business of
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adjudicating service fees for "dissenters" who do not wish
to support the political, social, or fraternal activities of
the union.
(Tape Change HFC 97-131, Side 2).
Mr. Flanagan continued, Section #9 could be construed to
prohibit "subcontracting clauses" in the public sector
agreements, which removes a "mandatory" subject of
bargaining from the table.
Sections #12, #13, and #14 would alter the current "classes"
of employees with regard to strike eligibility. Many
employees in institutions who are currently barred from
striking, such as food service, maintenance and custodial,
administrative and non-licensed medical personnel, would now
have the right to strike.
Section #15 would limit the "interest arbitrator" selection
to members of Federal Mediation Conciliation Service (FMCS),
precluding use of arbitrators who are only affiliated with
American Arbitrators Association (AAA).
Section #16 would prohibit "automatic renewal" of agreements
and would presumably prohibit parties from continuing to
work under the terms of an expired collective bargaining
agreement until a successor agreement is negotiated, a
precess which can take months or even years. This section
would terminate the grievance procedure during an interim
between contracts further promoting disharmonious labor
relations in direct contradiction to the declared purpose of
PERA and the legislation.
Mr. Flanagan explained the difference between Class I, 2,
and 3 employees. He pointed out that the public sector
employees do not have the right to strike in forty-nine
states; PERA allows for alternatives. Class 1 employees are
forbidden from striking with an alternative of binding
arbitration. Class 2 employees have a limited right to
strike and the employer can join the strike if it is in the
public's best interest. Current law provides some
flexibility of who should be able to strike, while this
legislation would eliminate that right.
Section #17 would transfer responsibility for establishing
cost-of-living allowance (COLA) for non-resident employees
from the Commissioner of Administration to ALRA.
Section #19 would prohibit parties from utilizing American
Arbitrator Association (AAA) arbitrators and would make the
arbitrator awards under PERA subject to the Administrative
Procedures Act for the purpose of appeal, thereby,
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subjecting all awards to court review; current law only
allows for appeal to the court in the event of gross error
or violation of public policy. Increased litigation is not
in the best interest of either employers or employees.
Sections #20-22 expands legislative review and/or approval
to include arbitration awards (both interest and grievance),
contract extensions and modifications. Grievance
arbitration awards interpret and enforce contractual
commitments inherent in negotiated agreements which have
already been approved by the legislature.
Section #24 would end service fee payment by non-members
during any interim between agreements. In addition to
denying funds to a union at the time when collective
bargaining expenditures are likely to be at their highest, a
public employer wishing to break their union could do so by
protracting negotiations over a long period of time.
Section #25 would exclude temporary or non-permanent
employees from the definition of public employee, thereby,
denying them union representation or the benefits of a
collective bargaining provision. The bill drafter has
stated that the relationship of these employees, some of
whom work for the State or political subdivisions for years
before attaining permanent status to the bargaining unit is
"tangential". The Department strongly disagrees.
Section #27 adds new articles to PERA:
Article 3 goes beyond federal law in giving non-member
fee payers a right to vote in contract ratification
elections or dues referendums.
Article 4 would require extensive reporting by labor
organizations to the Commissioner of Labor of detailed
information regarding all aspects of the organization's
operations and finances. This section allows some
exemptions from the reporting requirements of AS
23.40.400 in which may rise issues of equal protection.
Article 6 contains the fore-mentioned exemption from
reporting requirements for unions filing with United
States Department of Labor (USDOL) under LMRDA.
Section #32 would grandfather existing political subdivision
bargaining units from the fragmenting effects. The
viability of this exemption in future proceedings regarding
unit clarification or challenges is unclear, since the
Agency will presumably be obliged to adhere to the revised
statute at that time.
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Representative J. Davies MOVED that work draft, 0-LS0675\P,
Cramer, 5/08/97, be the version before the Committee. There
being NO OBJECTION, it was adopted.
JIM SAMPSON, MAYOR, FAIRBANKS NORTH STAR BOROUGH, FAIRBANKS,
noted that the proposed legislation would cause long term
disruptions in labor/management negotiations. He pointed
out that the North Star Borough has been subject to the laws
of PERA since the legislation was introduced twenty-five
years ago.
Mr. Sampson warned that there has not been enough discussion
with public employers covered by the proposed act. Many
political subdivisions are not informed that this debate is
occurring. Mr. Sampson believed that the legislation would
cause excessive fragmentation in the bargaining units which
will cause serious problems for labor relations. The
legislation stills allows filing of grievances by employees
without going through the bargaining representatives. As an
employer, one does not want to deal with hundreds of
individuals, but rather an exclusive bargaining
representative.
Mr. Sampson respectfully disagreed with some of the findings
in the bill; specifically, the one which eliminates or
prevent proper practices for public employers. The
legislation would limit the labor board's ability to
classify employees under the act.
Representative Mulder pointed out that Section 17 of the
legislation reference to the FMCS. Mr. Sampson explained
that originally, the State of Alaska did not have qualified
and trained arbitrators. That was twenty-five years ago.
At the current time, the State does have the resources
necessary for qualified arbitrations to occur without going
outside to the Pacific Northwest. Alaska has used the
Federal Mediation Conciliation Services (FMCS) list for
years. Better decisions could be made by hiring people in
Alaska who understand the issues locally. He noted that the
American Arbitrator Association (AAA) would be his
preference as they understand our issues. Representative
Mulder noted that the intent of the legislation was how to
select an arbitrator.
Mr. Sampson stated that Section 14 does make reference to
AAA. He reiterated that the problem that the State has had
is that they do not use arbitrators who live in Alaska and
which results in lost arbitrations. Mr. Sampson stressed
that the proposed legislation was a full employment bill for
outside arbitrators.
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Representative J. Davies questioned the financial impact
that the legislation would have on the municipalities. Mr.
Sampson responded that the smaller unit political
subdivisions would have much more work in retaining counsel
and arguing clarification petitions, often ending in
litigation in Supreme Court.
Representative J. Davies recommended that the Department of
Community and Regional Affairs (DCRA) develop a fiscal note
on the proposed legislation. He knew that a number of
municipalities were not aware of discussion on the proposed
legislation and that it would have a significant impact on
them.
Representative Kelly asked if there were any advantages in
the proposed legislation. Mr. Sampson replied "not
particularly".
MIKE MCMULLEN, PERSONNEL MANAGER, DIVISION OF PERSONNEL,
DEPARTMENT OF ADMINISTRATION, noted that the Department's
fiscal note had not been passed to the House Finance
Committee from the Senate Body. That fiscal note remains
unchanged in both versions of the bill and needs to be
attached.
He explained that a new bargaining unit would be created.
Forming a bargaining unit results in submitting a petition.
The Public Safety Association filed such a petition during
an open period choosing separate officers as a separate
bargaining unit. The labor relations agency heard that
request and decided that the correctional officers have a
separate community of interest. Until the question of what
a unit is can be resolved, no election date can be
established.
Representative Mulder inquired if those costs were being
paid by the Department. Mr. McMullen explained that there
has been a flood of grievances. Representative Mulder asked
if Commissioner Boyer had developed a cost of living
allowance (COLA) in the past two years. Mr. McMullen noted
that the legislation which passed established the
definition.
Mr. McMullen commented that Amendment #1 would remove the
items from the bill which would cause the Department extra
work and the need for the fiscal note. [Copy on file].
(Tape Change HFC 97-132, Side 1).
In response to Representative Martin's comment regarding
arbitration selection, Mr. McMullen agreed with Mayor
Sampson that Alaska has a core of qualified arbitrators
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developed over the past twenty-five years. He pointed out
that the State does use Alaska arbitrators. He agreed that
at the present time, the State could exclusively use Alaska
arbitrators. Representative Martin supported that change.
SB 151 (FIN)am was HELD in Committee for further
consideration.
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