Legislature(1997 - 1998)
05/08/1997 02:10 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 8 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, 9 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. 10 * 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 11 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 12 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 13 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. 14 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 15 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, 16 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. 17 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. 18 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 19 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.