Legislature(1995 - 1996)
03/21/1996 03:07 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HR 12 - UNIV. COLLECTIVE BARGAINING CONTRACT Number 2154 WENDY REDMAN, Vice President, Statewide University System, University of Alaska, said this piece of legislation was confusing to her, but as she understands it, HR 12 directs the University to pay for a salary increase, through reductions in their current programs, for a bargaining unit whose request for a pay increase was already turned down by the legislature last year. She commented that this sets sort of odd precedents, but one that presents some problem is a kind of ignoring the collective bargaining process the university is involved in with their collective bargaining units, and a rewriting of legislative history and intent after the fact, which causes some problems. The biggest problem however, is the serious financial impact on the current university budget. She hadn't planned to go into a long history of what the arbitration was, but stated she would do so if the committee desired. She explained that what happened with this arbitration ruling was that in effect, the arbitration froze in place a 1993 Board of Regents' policy that asked for a 3 percent salary increase for all faculty. The arbitrator said that even though the contract states the bargaining unit faculty will get the same thing that all the other faculty get (keep in mind this bargaining unit is about 254 members out of a total of 1200 faculty) the board changed the policy, and the arbitrator said they couldn't do that; they would be frozen in place with the board policy at the time they signed their contract. MS. REDMAN distributed a document to committee members which gave an overview of the UA/ACCFT Arbitration Award, the UA/ACCFT Collective Bargaining Agreement and the State Employee Collective Bargaining Law. She pointed out that in Reference 1 the arbitrator's award states "The University shall pay the bargaining unit members the pay increase provided by the collective bargaining agreement." Reference 2 indicates what the collective bargaining agreement is with this unit; that is "that any compensation increases shall be subject to legislative appropriations in accordance with the provisions of AS 23.40.215 and shall be requested separately from compensation increases requested for other employees of the University." Additionally, Article 12.5 (B) says implementation of monetary terms will not become effective unless there is approval given for the additional funds by the legislature. That did not happen. She stated that Mr. Jermain yesterday referenced a letter from Terry Cramer, legislative attorney, on what to do when the legislature isn't going to fund the contracts. Basically, her final determination for the legislature was that you should go in and say you're not going to fund it and take the money away. She said that Mr. Jermain did not read the last paragraph of Terry Cramer's letter, which states, "If there were a monetary term of a contract that required a separate appropriation, unrelated to other budget items, then, given the language in AS 23.40.215, that monetary term would be considered to have failed unless the legislature made an appropriation for that purpose. However, I believe that this is an unlikely factual situation. The safer course for the legislature, if it wishes to disapprove a monetary term, is to state its disapproval specifically." Ms. Redman said the other state contracts are not written like the university's. Their collective bargaining contract is very clear - it does require a separate appropriation, it does require additional funding and that was not given. MS. REDMAN said she argued before the legislature for funding of the contracts last year and is doing so again this year. The university believes a good contract was negotiated, their faculty are not overpaid inasmuch as the average university faculty pay, including the collective bargaining unit, is about what the average is for a K-12 teacher in this state. They do not feel that is appropriate for the level of education and the level of responsibility for these faculty. It is the university's belief that a 3 percent salary increase is warranted. The request was made last year, is being made again this year and a fiscal note is attached to the resolution. She does not think it is appropriate, and urged the committee not to set the precedent, to convey to the university we're not... TAPE 96-31, SIDE B Number 001 MS. REDMAN continued... expect you to go back, regardless of the collective bargaining agreement you have, and cut programs in order to pay for this. She said that is not appropriate. That may be something that could be negotiated in a future contract, but that is not the way it's been done thus far. CO-CHAIR BUNDE said based on the amount of contact he has heard on this piece of legislation, he believes he was either contacted by all 257 members of this bargaining unit or there are other people affected by this. He asked if the 3 percent included everyone in the university system or only the bargaining unit? MS. REDMAN replied it was only the bargaining unit. Number 042 REPRESENTATIVE VEZEY said he didn't care what the contract said, what was being talked about was the process. Apparently there is a provision in the contracts to arbitrate disputes and that process was followed. Generally under Alaska law, either party to an arbitration can appeal to the district court. He asked if that had been done in this case? MS. REDMAN said, "No. What the arbitration ruling was, as you can see in Reference 1, was the arbitrator said to the university, you must pay the increase provided by the collective bargaining agreement, so the requirement - we then go back to the collective bargaining agreement, and the requirement for the university under the collective bargaining agreement is to go to the legislature and get the money." REPRESENTATIVE VEZEY asked if it was the university's position that they have complied with the arbitrator's decision? MS. REDMAN responded affirmatively. REPRESENTATIVE VEZEY asked if anyone, subsequent to that, had filed action in court? MS. REDMAN said the union is in court now, but not on that issue. She added that has been the process the university has had with this bargaining unit for over 20 years, so it is a well established process. However, the unions are suing the university over the issue of whether or not the university has to absorb the salary increase from existing funds. It is the union's contention that even though the legislature did not fund the contracts last year, the fact that the legislature did fund anything at the university, means the university should pay the increase. REPRESENTATIVE VEZEY stated since the award was dated April 14, 1995, he assumed it had to address some year other than 1995. He asked what fiscal year it was addressing? MS. REDMAN said it represents the current year in which the award was given - FY 95, the current year 96, and 97. The university has requested the 96 and 97 as well and are before the legislature again for consideration this year. REPRESENTATIVE VEZEY commented he was somewhat confused as to what action and reaction prompted the arbitration and prompted the arbitrator's decision. MS. REDMAN said, "The issue that prompted the actual arbitration was the board's - the contract with the ACCFT has a provision that says on compensation, promotion, tenure, essentially all faculty matters, that they will follow the same policies that apply to non- organized faculty. Subsequent to the signing of that contract in 1992, in 1993 the Board of Regents suspended a policy that had been in place which said they would seek 3 percent pay increases for their faculty every year. The union filed a grievance one year later in 1994, and their argument and the arbitrator agreed with them, is that the reason they filed it a year later is we gave a pay increase and we got money from the legislature for the bargaining unit during that 1994 year - FY 94. The union waited a whole year to file a grievance because they weren't sure what the impact of the cessation of the board's policy would have on them. They thought - I guess - am I saying it correctly? I don't want to misrepresent it. But the board - because they gave the pay increase during the year which they canned the policy, so it wasn't going to be until the next year that the non-increase took place. So, the union waited a year to see whether or not the board would change their mind or whether they would apply it differently to the union...." REPRESENTATIVE VEZEY verified that a raise was given in 1993. MS. REDMAN responded yes. The union and the nonunion both got a 3 percent increase. REPRESENTATIVE VEZEY asked what happened when 1994 came? MS. REDMAN responded that was in 1994. The university gave a 3 percent pay increase that began January 1, 1994, through June 30, 1994. She emphasized that both the collective bargaining unit and the non-bargaining unit received that pay increase. In FY 95, the non-organized faculty did not get an increase, the university was in the arbitration with the bargaining unit during that year; in April 1995, the arbitration ruling was received. REPRESENTATIVE VEZEY asked when the arbitration was filed. MS. REDMAN thought the arbitration was filed in August 1994. REPRESENTATIVE VEZEY verified the arbitration proceeding was started after fiscal year 94 started. MS. REDMAN interjected FY 95. REPRESENTATIVE VEZEY verified that FY 95 started in July 1, 1994, arbitration proceedings were initiated and the arbitrator's decision came out in April 1995. MS. REDMAN stated that was correct. Number 259 REPRESENTATIVE VEZEY commented that so far all the dispute provisions have all been followed. He understood there's an arbitration award and apparently there is a dispute over how the award is administered. He asked Ms. Redman if that was correct. MS. REDMAN said the legal dispute the university continues to have with the union has to do with whether or not the interpretation of the contract which was specified in Reference 2 of the document she had distributed to committee members. She added everyone agrees they are bound by the terms of the contract and the contract says for pay increases, the university comes to the legislature and must receive a specific appropriation. That's where the point of contention is and what is being argued in court. The university believes the language that states, "specific appropriation subject to provision of additional funds" means that it has to be a specific appropriation. On the other hand, the union's stand is that if there is any appropriation to the university, that is sufficient to then pay the contract. That is the issue that will be argued in court. REPRESENTATIVE VEZEY said it was his understanding there was an arbitrator's decision and there is a difference of opinion in how to interpret that decision. MS. REDMAN reemphasized the university does not disagree with the arbitrator's decision; the university carried out the arbitrator's decision and she doesn't think the union has any difference of opinion as to whether or not the university carried it out. She went on to say, "Now, they dropped a sentence. They say that the arbitrator said we must pay the increases and they put the period at the end of that piece of the decision. We say the arbitrator said we pay the increase provided by the collective bargaining agreement. We've had a collective bargaining agreement for 25 years and that agreement is that we come to the legislature to get the new money that's required to implement the terms of the contract. And that's what we did." Number 348 CO-CHAIR BUNDE thought the two points of contention were: The university is saying they aren't paying because they got a general university appropriation, not a specific appropriation for the raise; and the union is saying the university got an appropriation that should have included the amount for the raise. REPRESENTATIVE VEZEY said the point he was trying to get at was there was a dispute over how to interpret the arbitrator's decision or how to interpret the contract. Neither party went back to the arbitrator for clarification, but rather one of the parties went to court. He asked when the court suit was filed? CO-CHAIR BUNDE noted that Representative Williams, the sponsor of HR 12 was in attendance. REPRESENTATIVE ROBINSON thought she had been told that $500,000 was put into the budget to fund these contracts and asked what happened to that money? CO-CHAIR BUNDE asked if Representative Vezey wished to continue his questioning? REPRESENTATIVE VEZEY said he was trying to find out where we are in the process of determining how to interpret a contract. MS. REDMAN responded we're in court and she believed the briefs would be filed within the next weeks. REPRESENTATIVE VEZEY stated, "So, we're being asked to intervene in a court proceeding?" MS. REDMAN said that is what it looked like to her. Number 436 RALPH McGRATH, President, Alaska Community Colleges' Federation of Teachers, said the arbitration process we concluded with under the collective bargaining agreement is final and binding; it states in the agreement that arbitrator's awards are final and binding. The arbitrator did specifically say the university shall pay the compensation owed under the Regent's policy. The university, after the decision came down in April... REPRESENTATIVE VEZEY interrupted and said, "You have an arbitrator's decision - the way you enforce an arbitration decision is you go to court and you get a judgment, so that's what you're trying to do at this time. Is not the legal -- how does anybody enforce an arbitrator's decision and not go to court and get a judgment? MR. McGRATH said at some point, yes. REPRESENTATIVE VEZEY noted that's the process that is going on now; we haven't gotten there yet. MR. McGRATH commented that's right. REPRESENTATIVE VEZEY surmised that somebody was asking the legislature to intervene in a court proceeding. The court has not ruled yet, and a court can overrule an arbitrator's decision under certain guidelines. MR. McGRATH said he believed that was correct. The university did request the arbitrator, for the university's purposes, to clarify that his decision meant that all the university had to do was request it of the legislature. The arbitrator took no action on it; he said that never came before him in the arbitration process. The university repeatedly says the arbitrator in his decision simply meant that the university, now that they have lost the case, would have to come to the legislature. The university did come to the legislature last year and what occurred was the Office of Management and Budget came forward with a letter to Representative Mark Hanley, House Finance Committee, which essentially stated that $500,000 was needed to fund the FY 95 and the FY 96 costs. Out of that particular process, there was no action by the legislature. In that same period of time, Terry Cramer of the Division of Legislative Legal Services, interpreted PERA for the House Finance Committee and included in that definition the essence of almost all of the Resolution, with the exception of the bottom line, and in their specific case they were not treated properly. In other words the interpretation that came from legislative counsel was that if the legislature takes no action and appropriates personal services, then the terms of the agreement have been met and it is up to the agency, or in this case, the university to pay out of their existing budget. The legislature didn't say they were rejecting the agreement or rejecting the terms, which is certainly within their power, but they did not say that. CO-CHAIR BUNDE announced that he wanted to give the people on teleconference an opportunity to testify at this time. REPRESENTATIVE ROBINSON said she was under the impression that Mr. Jermain had testified in an earlier meeting that there had been an appropriation made that was to fund these contracts, at least partially. MR. McGRATH said they may not be correct in that; they've had discussions with the university on that issue. They don't see that as necessarily being a part of the resolution; their bottom line is the university has the obligation to pay. It's the university's responsibility and they must meet the terms of the arbitrated award and the contract. Number 646 MS. REDMAN said the committee at the last meeting had been left with the last statement of Mr. Jermain that the university had somehow stolen money. She clarified that was absolutely untrue and Professor McGrath now understands that. She explained the university had a bill in the 1994 legislative session to cover the 3 percent from January to June. In addition, there was a base adjustment for the next year, as there is with any pay increase, to carry that 3 percent forward into the second year. She believed that people thought there were two 3 percent increases given, when in fact it was the same 3 percent carried into the second year. The bargaining unit members all received the full 3 percent and still have it in the base budget. Number 702 PHIL SLATTERY, Faculty Member, Sitka Campus, testified via teleconference, that he didn't have much to add to what the union had already said. He thought basically the arbitrator referred to the regent's policy and payments according to regent's policy, not payments (indisc.) contract, but there seems to be an ongoing pattern of delay. He thought the university may not be making the best effort on the faculty's behalf if they represent people as community college faculty who are overpaid rather than as university faculty who are about average in pay across the United States. He was hopeful they would win it in court, but said it's difficult when an arbitrator arbitrates an award and makes a decision and then the decision is further challenged by people who agreed to abide by it. CO-CHAIR BUNDE observed there were two points of view: The legislature could appropriate additional money or expect the university to absorb the cost out of the university's current budget. He asked Mr. Slattery if he would support closing down some of the smaller, less efficient programs to fund the salary increase. MR. SLATTERY said he would prefer not to shut down any of the programs unless there is a better program assessment than what they've had in the past, to look at where the cuts could be made and where they couldn't. He finds any budget cut made across the university offensive. He prefers the idea of looking at where money could be taken out of the system, if necessary. CO-CHAIR BUNDE remarked that people may be asking the legislature to demand that the university fund this salary increase, and to do it out of their existing budget, the university will have to take money from somewhere else. That's one of the realities the legislature is being asked to address when they are requested to address this contract. MR. SLATTERY acknowledged it was reality, but it is his belief that parties should live up to the terms of a contract. Number 881 JOLI MORGAN, Professor of Applied Business, testified via teleconference from Bethel that he has been an Alaskan resident since 1967 and with the University of Alaska since 1976. He supports HR 12 and the enforcement of the contract. The contract language under Article 4, Section (indisc.-coughing) states the decision of the arbitrator shall be final and the parties shall abide by it. He said if we feel the university has the obligation to go before the legislature and ask for the money, Article 12 of their contract states that the university shall request and actively support full funding of this agreement. He does not feel the university has actively supported the funding of the arbitrated award. He commented that the union had four issues when they went to arbitration; they lost on three of those issues and they have abided by that loss. Number 951 ROBERT WARNER, Associate Professor of Library Science, University of Alaska Southeast, testified from Ketchikan that he had been with the university since 1972. He expressed his appreciation to Representative Williams for bringing this issue to the attention of the legislature. He said there have been a long series of difficulties in labor negotiations between the University of Alaska and the Alaska Community Colleges' Federation of Teachers, and this resolution brings to light one area of difficulty. He asked the legislature to take a positive look at trying to resolve this matter so the university professors and university administration can get back to doing the important work they need to do for the citizens and the state of Alaska. Number 1024 PETER PINNEY testified via teleconference from Fairbanks in support of HR 12. He said the legislature could save money with HR 12 because it wouldn't cost the state any additional money. It should not be confused with other appropriations coming before the legislature in terms of pay increases; it's basically a stand to follow the rules of a negotiated contract which is in place. Number 1105 GEORGE GUTHRIDGE, Associate Professor, University of Alaska, testified from Dillingham. He has been with the university since 1990 and supports HR 12. From his point of view, it is simply a matter of ethical laws. He thought it was contradictory to say now there are fiscal problems at the university and programs may have to be cut if this pay increase is funded. The same thing could be said on the other side; maybe programs will have to be cut in order to pay for the court proceedings. It is the university's job to look at the future and to satisfy the legal obligations they undertake. Number 1157 BILL JERMAIN, Attorney, Jermain, Dunnagan and Owens, representing ACCFT, testified from Anchorage. He said he was sorry if he misled the committee on the 1995 appropriation; apparently that sum was built into the base of the salary schedule. The arbitration (indisc.) that the contract required 3 percent; whatever happened to the rest of the university was irrelevant to that. The 3 percent was owed and the university refused the pay that and the 3 percent is being enforced through the courts. That's a legal issue that will resolve itself. He said what is misleading is the statement about contract interpretations; there is no issue of contract interpretation in any of the litigation. The litigation deals with the constitutional issue (indisc.-coughing) interpretation of AS 23.40.215 and includes the enforcement of the arbitration award. The university is taking the position that with the nonrepresented faculty, they can give increases without any appropriation from the legislature. However, with represented people, even if there is an arbitrator's award as with this case, they will not give that out of the general appropriation for personal services, and say that AS 23.40.215 precludes them from doing that. That's despite the opinion of Ms. Cramer, which Mr. Jermain believes is very well-reasoned and agrees with. He quoted from that opinion, "...a collective bargaining contract may call for a salary increase. By appropriating money for the personal services for positions in that bargaining unit, the legislature is acting on that contract term. Unless the legislature also states its disapproval of the salary increase, the increase will take effect, even if the amount appropriated is insufficient to fully fund all of the positions in the department...." He said they need to be on the same level as the university (indisc.) give out general appropriations to other faculty members (indisc.) the right to do it. How at the same time can they ignore an arbitrator's award which they say they don't disagree with, and say that it requires a specific appropriation. Number 1333 ERIC LEEGARD, Representative, Alaska Community Colleges' Federation of Teachers, pointed out that he had submitted written testimony to the committee. He emphasized that all the ACCFT members in Juneau support HR 12. CO-CHAIR BUNDE closed the meeting to public testimony. Number 1377 REPRESENTATIVE ROBINSON moved to pass HR 12 from committee with attached fiscal note and individual recommendations. Hearing no objection, it was so ordered.
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