Legislature(1997 - 1998)
04/01/1997 02:20 PM Senate STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 150 | TELECONFERENCED | |
| *+ | SB 151 | TELECONFERENCED | |
| HB 65 | |||
SB 150 PUB. EMPLOYEES: MOVING, COMP TIME & PERS
and
SB 151 PUBLIC EMPLOYMENT LABOR RELATIONS
The committee took up SB 150 and SB 151.
CHAIR GREEN announced a brief at-ease. When the meeting came back
to order, CHAIR GREEN notified committee members that neither the
person who was scheduled to explain the bills, nor a representative
of the Administration, was present to testify at this time. She
asked Mr. Ludwig if he would like to present his testimony.
BRUCE LUDWIG , Business Manager of the Alaska Public Employees
Association, and Secretary-Treasurer of the State AFL-CIO, made the
following comments on SB 150. Even though he does not believe in
trying to make a bad piece of legislation better, he is unable to
ignore this bill because it will do bad things to good people. SB
150 is one of the worst pieces of legislation he has ever seen.
There is some room for improvement in the way unions operate, along
the lines of auditing or other controls, however SB 150 is designed
to hit a gnat with a sledgehammer. Every section of the bill
contains problems, and some of it makes no sense at all.
Mr. Ludwig said he did not understand why the Legislature would
bother with SB 150 since it will only affect the moving expenses of
a few employees. The union has language in its contract that allows
it to bargain the right for reimbursement of moving expenses for
employees under certain circumstances. To get that right, the
union gave up other provisions of the contract during negotiations.
SB 150 would prohibit the union from bargaining for moving expenses
any time there is a voluntary nature to the transfer.
Mr. Ludwig felt the provision regarding compensatory time to be
confusing and circular and is intended to take overtime
compensation away from PERS employees. Many state employees rely
heavily on overtime wages. University blue collar workers work
overtime for two weeks during the winter break and consider those
wages as part of their annual wage. Mr. Ludwig said if Mayor
Mystrom has a problem with overtime for the Anchorage police, he
ought to put controls on it, not pass the problem on and affect
other people.
Regarding SB 151, Mr. Ludwig said parts of the bill are not
problematic, others are ludicrous. SB 151 provides that a union
that represents police officers cannot represent public employees
and a union cannot represent police officers if it represents
public employees. The definition in the bill includes a
prohibition on representation by a national union. ASEA is
affiliated with the American Federation of Teachers, which covers
police officers in some of their bargaining units outside, as well
as non-police officers. The only two unions that would fit under
the requirements in SB 151 are the Public Safety Employees'
Association, that is made up of peace officers, and the NEA, which
has no peace officers. Mr. Ludwig believed the fact that ASEA would
be precluded from representing employees is unconstitutional. The
Alaska Supreme Court ruled, in a case in the mid 1970s when the
Kenai Borough allowed employees to form a union but not to
affiliate with a bigger union, that the Borough was violating the
constitutional right to associate.
Another part of the bill requires bargaining units to be split out
based on class, arbitration classes, and whether the employees are
peace officers. That provision would probably create five or six
other bargaining units within the state government, and a lot more
within political subdivisions. For example, ASEA represents the
police officers in the City of Fairbanks. Clerks and dispatchers
also belong to that unit. Several bargaining units would have to
be created and the City of Fairbanks would have to spend more
resources bargaining. Likewise, the City of Petersburg has one
bargaining unit for all city employees. That unit would have to be
split into two or three units. In the past, the City of Petersburg
has hired outside management consultants to negotiate at a cost of
$80,000 to $100,000 per contract. Under SB 151 that cost could
increase to $300,000.
Mr. Ludwig noted Section 6 pertains to what an employer can do to
de-certify a union but does not require the employer to provide a
showing of interest or to sign a sworn statement. Under current
law, to force an election, the union must collect cards from 30
percent of the members. The employer should be required to provide
some proof that the union represents the majority's interests.
Section 7 deals with mutual recognition and allows one employee to
force an election. Mr. Ludwig suggested allowing the Labor
Relations Agency to determine whether a question of representation
exists before the expense of an election is incurred.
Section 8, as well as other sections, refers to AS 23.40.400, and
creates a very burdensome system of financial disclosure. If SB
151 passes, ASEA would have to provide receipts for every penny it
spends. He believed that requirement is an infringement upon
employees' right to organize.
SENATOR MACKIE asked Mr. Ludwig which section he was referring to.
MR. LUDWIG thought that requirement started in Section 36. He
explained Section 8 prohibits a union from representing employees
unless it fulfills the requirements of AS 23.40.400. CHAIR GREEN
clarified Mr. Ludwig was referring to page 5, line 30.
MR. LUDWIG questioned Section 9 of SB 151 since it is inappropriate
for an employer to take sides or aid and assist a union. Unions
often negotiate a release time for employees. For instance, in
almost all bargaining units, employee representatives are allowed
time off to investigate grievances, which is beneficial to both
management and employees. In University negotiations, employees
gave up one holiday in exchange for a leave bank for the
investigation time. He questioned whether those employees will
regain the holiday time they traded if SB 151 passes.
Section 10 seems to absolve legislators or city councils of any
responsibility for their conduct when it relates to a union. If an
entire city council decided against union representation or a
particular business agent in its town, it should be held
accountable for its actions. The elected officials provide
guidelines to negotiators and have final approval to reject or
accept a contract.
Sections 19 and 20 determine who can/cannot strike and the
allowable time periods for strikes. One group omitted from class
1 employees, those who cannot strike, are the youth corrections and
parole and probation officers. Mr. Ludwig believed those
professions should be included as they are an integral part of the
criminal justice system.
Section 21 will not impact the state workload substantially, but
will impact smaller towns because they will need three or four
contracts. Section 28 addresses the arbitration process and
requires any decision by an arbitrator to be public record. Mr.
Ludwig felt any violation of a contract provision can be heard in
arbitration, including disciplinary actions. AS 39, the
confidentiality statute, establishes that certain information
remain confidential.
Number 295
SENATOR MACKIE asked which section Mr. Ludwig was referring to.
Mr. Ludwig noted he was referring to Section 29. SENATOR MACKIE
asked Mr. Ludwig if he had the committee substitute. Mr. Ludwig
replied he did not.
SENATOR WARD moved to adopt CSSB 151 (STA). SENATOR MACKIE asked
if anyone was present to explain the changes made in the committee
substitute. CHAIR GREEN explained the committee was waiting for
the sponsor to arrive, and noted the current witness would be able
to testify again on the committee substitute after the sponsor
explained the measure.
SENATOR DUNCAN questioned when the committee substitute was
distributed. CHAIR GREEN replied it was available that morning.
MR. LUDWIG continued. Sections 32 and 33 require employees to sign
up for a new dues deduction annually. Currently, all ASEA
contracts in the State have an agency-shop clause. That clause
requires employees to either belong to the union or pay an agency
fee to contribute to the cost of administering the contract. This
requirement is problematic for ASEA because employees are not
always willing to part with their money. He believed this
provision to be the crux of the legislation: to create problems for
unions. He suggested this requirement will create problems for
more than just unions, because rather than go through several steps
to collect dues or an agency fee clause from employees before
terminating them, the union will ask the Division of Personnel to
act as its collection agency.
Section 34 includes the definition of an employee but specifically
excludes temporaries, non-permanents, and part-time employees who
work less than 20 hours. Mr. Ludwig said ASEA has currently filed
cards for a University bargaining unit, the adjunct faculty
employees, who may teach only one class per semester. Section 34
would disenfranchise that entire bargaining unit, and another 5,000
to 7,000 employees who currently enjoy collective bargaining
rights. It would also exclude a significant number of people
working in the personnel community who belong to a bargaining unit
that is not affiliated with anyone else.
Mr. Ludwig concluded his testimony by explaining that Section 37
and the remainder of the bill deal with reporting requirements. He
said ASEA is required, by its national union, to have an annual
audit conducted by a CPA, and to provide a copy to the national
union. Any union member is allowed to review those audits. He
questioned why the Legislature would require ASEA to spend staff
time copying receipts that no one will ever look at. He felt that
section to be unnecessary, unreasonable, and unconstitutional.
Number 369
JOHN CYR , President of the National Education Association - Alaska
(NEA), stated many of NEA's concerns are the same as those
addressed by Mr. Ludwig, so he would focus his remarks on
additional concerns. He questioned whether Section 2, which
refers to a political subdivision that participates in collective
bargaining, would include a school board and whether a school board
could abrogate a contract it has negotiated with its employees via
a policy decision. He also questioned whether NEA would have to
negotiate with both the school board and the city assembly, if the
phrase "political subdivision" refers to the city assembly. NEA is
unclear how that section would be applied and how the process would
work.
Regarding Section 6, lines 10-12, Mr. Cyr asked whether current law
is being changed and how NEA would establish bargaining units with
school districts. He questioned what the school district would
have to show, and whether the employer would have the right to
interfere with the union on a continuing basis.
Mr. Cyr asked if one member could call for an election under
Section 7 and whether a petition would have to be submitted to the
Labor Relations Board. He said he could foresee an election being
requested after an unpopular contract has been approved.
In regard to Section 9 which provides that service fees can only
include reimbursement for collective bargaining activities, Mr. Cyr
explained NEA has an annual arbitration during which an arbiter
reviews all of NEA's books. Some of NEA's activities are non-
chargeable, for example, membership recruitment, political action,
public relations, lobbying and legal fees. For those who elect not
to become members, NEA charges an amount determined by the arbiter
which covers the bargaining service, contract enforcement, and
grievances for non-members. He questioned whether NEA would be
obligated to represent non-members and to process their grievances.
Mr. Cyr said when NEA bargains a contract with a school district,
it bargains with the school board. He questioned how Section 29
will impact the current process.
Mr. Cyr felt Section 32, which requires a yearly membership, will
not affect union membership substantially, but will seriously
impact what NEA can accomplish because more time will be required
to process annual memberships. Without that requirement, NEA is
able to spend more time focussing on educational issues that impact
students.
Section 34 will deny NEA membership to many of its employees,
primarily to those who need NEA's help the most; those at the
bottom of the pay scale. He did not understand why the Legislature
would want to deny the ability to join a union to employees only
because they work 18 hours per week.
Mr. Cyr addressed Article 3, page 21, Section 23.40.300, and stated
his belief that the right of membership is the right to vote on the
bargaining contract and the policies and provisions of the
association or union itself and should not be extended to non-
members. On page 22, Section 23.40.310, Mr. Cyr noted the
membership dues provision appears to require a full membership vote
on dues. That provision does not pose a problem for the local
branches because their memberships are less than 3,000, but the
dues structure for NEA-Alaska is set by representatives from each
of the local agencies. For NEA to hold an election of 10,000
members will be expensive and counterproductive.
Mr. Cyr clarified copies of the collective bargaining unit
agreement are already made public, as required in Section 23.40.230
on page 23. He questioned whose responsibility it is to make those
agreements available. Currently, that function is bargained in
most units, and is done by either the school district, NEA or
jointly. NEA believes that function should remain a subject of
bargaining.
Mr. Cyr discussed Article 4 which pertains to disclosure. NEA is
a private corporation and provides full disclosure to shareholders
and members. NEA's annual audit report is made available to both.
He questioned whether Article 4 will conflict with a private
company's right to privacy among shareholders. Mr. Cyr believed
the requirement in lines 28-31 is already covered under APOC.
Mr. Cyr said the remainder of the bill, beginning with Section
23.40.410, is language from the National Labor Relations Act, and
is problematic because it would place NEA under certain sections of
that Act, but not all. If NEA is to be included under Landrum-
Griffith, it believes it should have all of the rights accorded to
any private sector union. NEA is under PERA as the result of a 20-
year struggle to come to some kind of finality in bargaining.
Prior to that time, NEA was under Section 14. The Legislature and
all parties involved compromised by agreeing on PERA. The
bargained agreements around the State have not hurt school
districts, and have been very reasonable; in all but one instance,
they have been arrived at in an amicable fashion.
Number 526
SENATOR WARD moved to adopt CSSB 151(STA). There being no
objection, the motion carried.
ART CHANCE, a consultant to the Senate Finance Committee, prefaced
his commentary with a history of the original act as follows.
[THE FOLLOWING TESTIMONY IS VERBATIM]
"If you look at the litigation and disputes that have occurred
under the Public Employment Relations Act (PERA) you will find
several statements by Courts where they say it has no legislative
history. It actually has very little, but there is an anecdotal
history of the law. It was introduced in 1972 as a committee
substitute in the Senate Judiciary Committee for a rather
inconsequential bill on imposing some filing requirement on
workers' compensation. It basically sprung from whole cloth.
There was minimal debate in that committee where the original
exclusion of teachers and non-certificated employees of school
districts took place. There was a session law enacted that said
that certain political subdivisions under certain circumstances
could opt out and there was virtually no debate. Research
indicates the law was very similar to a piece of model legislation
that was floating around at that time - very similar to the Hawaii
law as it existed in the early 70's - very similar to the Rhode
Island law that existed in the early 70's; both of which have been
extensively modified since that time.
PERA has only been amended, in any consequential manner, three
times since it was enacted 25 years ago. The piece in Section 210
imposed a cost-of-living differential on certain employees. The
piece in Section 215, which came at the behest of the Blue Ribbon
Committee of the late 70's, which attempted to resolve some of the
issues of legislative oversight of the bargaining process. It was
an attempt which has not been uniformly successful. There have
been minor modifications to incorporate other enactments such as
family leave and injured workers, and then, I believe, a 1993
amendment to the Act where teachers were brought under the Act and
some additions were made to accommodate their particular
circumstances. With the exception of Section 200, or 23.40.200,
very much like the original Wagner Act which was the first version
of the National Labor Relations Act passed in 1935 - Section 200 is
about the only portion which is different in - the section of the
law is 23.40.200, not a section in the bill - about the only part
which is really different from private sector organizing and
collective bargaining rights and duties as it was envisioned in
1935.
By contrast, the National Labor Relations Act has been extensively
amended, both in 1947 with what are called the Taft-Hartley
amendments, and then in 1959 with what are called the Landrum-
Griffin amendments, or the Labor and Management Reporting and
Disclosure Act. So you have essentially two bills which start kind
of in the same place but which have a very different history. What
was sought to be accomplished in this process was to try to bring
about the lessons of 25 years of disputes and adjudication under
PERA and 60 years of disputes and adjudications under the National
Labor Relations Act and try to tailor it to the circumstances of a
modern workplace. As we all know the workplace for the State of
Alaska, and its political subdivisions, changed dramatically in 25
years and certainly the workplace has changed dramatically in the
60 years since the original Wagner Act, from which PERA springs,
was originally enacted.
SENATOR DUNCAN : I just want to get those dates straight - so, I
guess - I just want to be sure I understood the dates you're
referring to - this has been billed as a modernization of the Labor
Employment Relations Act, and the modernization of an Act that was
passed in 1972 is being based on an Act that was passed first in
1935 and then secondly in 1959. That's modernization?
MR. CHANCE : I'm trying to respond a bit less argumentatively and
my answer to the question - none of the then, fairly modern changes
in the National Labor Relations Act, were incorporated in PERA when
it was originally passed in 1972 - none of the provisions of the
changes in the National Labor Relations Act. There are significant
other modifications based on case law, particularly court
decisions, Labor Relations Agency and National Labor Relations
Board, which depending on exactly how one would define as modern,
are fairly recent. I could probably really bore everybody by going
through section by section. I will try to hit only the major
sections.
I don't think the CS, which I haven't had the opportunity to go
through and incorporate all of the line changes, changes the
section numbers until we get to the back of the Act, so I will try
to keep that straight if you will help me, because I've not been
able to change my notes. And again - I'll highlight pieces and
I'll entertain any questions afterwards.
Section 2 provides that parties may not negotiate terms contrary to
a statute except as such terms are specifically made subject to
bargaining by the Act. That's fairly self-explanatory.
TAPE 97-16, SIDE B
Number 000
MR. CHANCE continued.
...be bargained the Legislature gives that power. Some things
cannot be unless the Legislature has specifically given that power.
Section 3 is just a statement of the retained rights of managerial
control and prerogatives by public employers and that is
essentially to require that any diminution or abrogation of those
rights by a public employer is to be narrowly construed by
arbitrators, the Labor Relations Agency, or the Courts, analogous
to a management's rights clause provision in a contract.
Section 5 incorporates Alaska Labor Relations Agency regulations
and decisions regarding composition of bargaining units and adds
definitions of supervisory, confidential, and law enforcement
employees based on ALRA decisions. These are based directly - the
definitions of confidential and supervisory are those which already
exist in the Labor Relations Agency regulations. It requires that
peace officers, including correctional officers, must be separate
[indisc.]. This mirrors the guards units provisions in the federal
National Labor Relations Act.
Section 6 reflects our decisions in federal law in permitting
public employers to challenge the composition of a bargaining unit
and the question of majority status and immunity. That is already
a matter of regulation but it is also a matter of considerable
controversy as to how that comes about. It does not allow - I
listened to one person testify - one person at any time to disrupt
the unit. One person could petition the agency in the case of a
mutual recognition but only in that circumstance and then the
agency could rule on that petition based upon its regulatory
authorities.
Section 9 makes it an unfair labor practice for a public employer
to contribute financial or other support to a union and that's
taken almost directly, word for word, from the federal law. I do
not believe that the union business league schemes, which many
organizations use, would be in conflict with this because that is
just the means whereby the employee contributes to the support of
the union with the employer only as an intermediary. However, a
direct contribution by the employer would violate this. Section 9
also allows a public employer to confer with its employees over
work-related matters without incurring unfair labor practice
charges. This is predicated on the National Labor Relations Board
decision in the Electromation Corporation case which prohibited
such management techniques as quality circles and work teams.
There have been complaints filed under the theory of this case
before the Alaska Labor Relations Agency, but none have yet been
decided. There has not been an on-point case directly in this
jurisdiction but the domination and interference language of PERA
is the same as that under the federal law. Section 9 also
eliminates the current law's authorization for compulsory
membership, retaining the authorization for compulsory fees for
collective bargaining services. This is based on a long line of
Supreme Court cases holding that an employee may not be compelled
to contribute to a union's social, political, or fraternal
activities as a condition of employment. I don't like to make
conclusions as to how something might come out above the Court, but
certainly - before a Court - but certainly everytime similar
language has been before a Court it has been found
unconstitutional. This section also prohibits a union from
involving a secondary employer in a labor dispute that's picketing,
boycotting, or otherwise interfering with a private employer's
result of a dispute with a public employer. This is based on the
federal secondary boycott and hot cargo provision. [INDISC] not
reasonably related to the cost of providing representation and
provides that an employee may bring such charges to the Labor
Relations Agency. This is based on court cases, principally Hudson
v. Chicago Teachers Union and Beck v. Communications Workers,
holding that fee payers may only be compelled for the cost of
collective bargaining and grievance adjustments. It prohibits the
union and an employer from agreeing to refrain from doing business
with another employer and this is also based on federal secondary
boycott and hot cargo provisions.
Section 10 provides that statements by legislators, judges, and
certain municipal officials may not constitute an unfair labor
practice, so long as that person is not specifically responsible
for relations with employees.
Section 19 narrows the scope of employees prohibited from striking
...
CHAIRMAN GREEN : In the CS I think part of the language you were
looking for was added under 18.
MR. CHANCE : Okay I'll go back and explain that ...
CHAIRMAN GREEN : Correct me if I'm wrong.
MR. CHANCE: Yes, that is the added language in Section 18 and I'll
explain that. Labor relations is a fairly arcane body of
knowledge. There are only certain people who have the experience
to be a practitioner in that. The Administrative Procedure Act
specifically requires that a hearing examiner or a hearing officer
under the APA must be an attorney. This empowers the Labor
Relations Agency to seek out people such as panel arbitrators or
other labor relations professionals to hear disputes as a hearing
officer, rather than solely limit it to attorneys.
Section 20 narrows the scope of employees who can be enjoined from
striking. This is so-called Class 2 and it adds the class of
residential care employees to reflect changes in pioneer home
missions to assisted living. Previously all of those were
considered Class 1. That's probably a designation that wouldn't
stand scrutiny with the new structure of the Pioneer Homes. It
also removes postsecondary education employees from Class 2 to
Class 3, such as K-12 teachers are already placed.
SENATOR MACKIE: Madam Chair, there was one question earlier from
a previous witness that asked about youth correction facilities and
other things. Are those ...
MR. CHANCE : They've in the past been considered to be - I think
the language in Section 200(a)(1) talks about jail, prison, and
other kinds of employees. They've been considered Class 1
historically under that jail and prison definition. I'm not going
to sit here and guarantee how a court might see that but they have
historically been considered, even though the term is not used - we
like to say youth correction facility rather than kiddie jail, but
most people would recognize kiddie jail. They have been considered
to be jail or prison employees in the past and are Class 1
employees now. Certain probation officers - if I recall the
question - there was also some concern about probation officers.
Institutional probation officers currently are, as jail or prison
employees, Class 1, non-institutional, are not now to my knowledge.
SENATOR MACKIE : If I can ask one other question and that is -
there were a number of sections that there were questions asked
about - did you happen to note those and when you're done going
through the CS do you intend to address those questions?
MR. CHANCE : I'll try.
SENATOR MACKIE : Okay then I don't need to - I won't raise them as
we go then.
CHAIRMAN GREEN : I think it would be better if we could just get
through the testimony and then come back ...
SENATOR MACKIE : If you could eventually address the questions that
were raised by previous witnesses then I won't interrupt you
anymore.
MR. CHANCE: I'll try. Section 21 reflects a recent court holding
that ferry system employees are Class 3 employees. There's been
some controversy over that between two and three and it states
explicitly that employees may only lawfully strike after an impasse
in bargaining.
Section 22 provides a reliable means of selecting arbitrators for
interest arbitration [INDISC.] if they have specific Alaska or
Pacific Northwest experience. Interest arbitration is arbitration
to seek a success or agreement. It is not the arbitration of a
grievance arising under a contract. But where the parties - in our
case employees who cannot strike - where the parties cannot arrive
at a voluntary agreement they have a right to go to what's called
interest arbitration and the arbitrator sets the terms of the
success or agreement subject to legislative approval. It just sets
out a reliable criteria. There have been disputes in the past over
how you select the arbitrator; it's based on a pretty common
selection process but does require that they have Alaska or Pacific
Northwest experience.
Section 24 prohibits agreements longer than three years and
automatic renewal clauses. It provides that employees may resort
to a binding grievance arbitration only under the terms of an
agreement. It prohibits a labor organization that has failed to
file required financial reports from enforcing the agreement. It
requires the Labor Relations Agency, rather than the Commissioner
of Administration, will promulgate regulations governing residency-
based pay differentials in recognition of the fact that the PERA
applies to all public employers, not just to the State.
Section 27 establishes arbitrator selection criteria for binding
grievance arbitration and requires Alaska-Pacific Northwest
experience.
Sections 29 - 31 increase legislative oversight authority over
collective bargaining by doing the following things: define
monetary terms to include extensions, modifications, and interest
arbitrator's awards; it specifically empowers the legislative body
of a political subdivision to review and approve the monetary terms
of an agreement. And, to try to answer a question earlier - that's
predicated on the authority to appropriate - that's what Section
215 is - so whatever body of a political subdivision has the
authority to appropriate would have that authority. It provides
that no monetary term is effective or enforceable until approved by
the Legislature or the legislative body of a political subdivision.
That captures what the courts have already said - a similar case on
that having been Local 71 v. State in the mid 80's. It requires
the parties to resume negotiations in the event of legislative
disapproval of a contract. That resumption of negotiations may be
just long enough to say we don't have anything else to talk about
and we are at impasse. But at least it requires that the parties
get face-to-face and arrive at proper impasse as the rest of the
law would require before parties could use whatever means are
available to them, such as implementation or strike. For the State
only it requires the Commissioner of Administration to report all
State agreements, settlements, arbitrator's awards costing over
$10,000 to the Legislative Budget and Audit Committee for review.
That is not an approval authority, but only a review. Requiring
the Commissioner of Administration to report all agreements,
settlements and arbitrator's awards that substantively modify the
reported terms to the Legislature for approval and it empowers the
legislative bodies of political subdivisions to promulgate approval
procedures consistent with the Act.
Section 32 prohibits irrevocable dues check-offs for periods longer
than one year and provides explicitly that check-off authorizations
must be voluntary and renewed annually. Section 33 prohibits
check-offs from service fee payers outside the term on an agreement
and includes the same irrevocability provisions. It requires
affirmative notice on the check-off form that employees may not be
required, as a condition of employment, to be or become, a member
of the union or to contribute financial supports for social,
political, or fraternal activities. This is based on the Supreme
Court's decision in Beck v. Communication Workers.
Section 34 clarifies the definition of monetary terms to include
changes from the predecessor agreement or statutory terms which
will require the expenditure of public money. There have been many
arguments in several court cases in the past over what constitutes
a change or what requires an appropriation and the words in the
current law mean. This tries to be a little more explicit. It
exempts certain types of employees from the Act's coverage
including temporary and non-permanent employees, part-time
employees who work less than 20 hours per week, legislative
employees, employees responsible for certain collective bargaining
activities, and certain employees of the legislative bodies of
political subdivisions and of the Courts. It also includes
employer groups in the definition of public employer.
The following things could be considered additions to the Act
whereas everything that's gone before it is a change in some pre-
existing portion. They are all modelled, as some people hinted at
earlier, on the Taft-Hartman and Landrum-Griffin amendments to the
National Labor Relations Act and as much as they can be,
recognizing the fact that this is a public employer and the
National Labor Relations Act applies to private employers, they
mirror as close to exactly as we could. It is petitioned
differently so most of my comments apply in groups and they go by
Article.
Article 2, and I think that starts with Section 37, articulates the
rights of union members to participate democratically in the
operation of the union. That's taken directly from what's called
a union member's bill of rights on the federal law. It requires
that service fee payers be allowed to vote in contract ratification
elections and other elections or referenda which effect the fee
payers terms and conditions of employment. As was pointed out
earlier, currently in most organizations they are not allowed to
vote. This does not give them voting power in any other operation
of the union, but only on those things which they can already be
compelled to pay for in negotiation of a contract. They're given
the right to vote for the ratification of the contract if they are
in a compelled fee situation. It requires that dues may only be
increased in a democratic secret ballot election. It prohibits
union restrictions on a member's right to sue the union or to
participate in other forms of adjudication that's commonly bringing
some sort of pressure on an employee for testifying in an
arbitration, or something of that sort. It prohibits employers
from surreptitiously participating in suits against the union. If
the employer's going to do that they have to come out front and be
a party. It prohibits arbitrary discipline of members by the union
and provides for due process for discipline of members by the
union. It requires unions to make available in the State copies of
all collective agreements without charge to members and fee payers
and makes agreements the public record. It requires unions to
inform members of their rights under the Act.
Article 4 requires unions to register with the Commissioner of
Labor and report their structure and finances. Currently all are
merely state chartered non-profit corporations subject to little or
no regulation in this State. This is virtually identical to the
reporting requirements under the federal law, and virtually
identical to the reporting requirements all the private sector
unions already have to meet. Essentially the most significant
thing that was done was change the reference from Secretary of
Labor to Commissioner of Labor. It requires annual financial
reports by unions categorized in such a manner as to permit the
identification of costs associated with social, political, and
fraternal activities. Some organizations already have fairly
sophisticated fee determination processes. This would probably
have little or no effect on them - some have very little in the way
of process for fee determination and this would probably have a
fairly significant effect on them. It requires disclosure of all
expenditures made for the purpose of influencing the outcome of an
election, ballot proposition, or the passage or defeat of
legislation. It requires that such report be maintained in the
State and made available to members and fee payers at no cost. It
requires union officers, agents and employees, including their
spouses, co-habitants, and minor children, to report their income
or other financial dealings with any employer with which the
organization has a collective bargaining relationship. It requires
similar reporting of financial dealings by an officer with the
union itself. It requires disclosure by officers, agents and
employees of all payments or exchanges, the intent of which is to
influence the outcome of an election and it provides certain
exceptions and this is the other part of the CS, although I'm not
sure what section it comes in, to make it clear that those things
which are done in the normal course of ordinary business and
ordinary duty of an officer or an employee are not covered by this.
CHAIR GREEN : That area is included on page 45, lines 16-20.
MR. CHANCE : Section 23.40.420 and the following language requires
similar reporting by officers and elected and appointed officials
of public employers and their financial dealings with labor
organizations and employees. It makes all such reports public
record. It exempts attorney-client and certain deliberative
communications from reporting and disclosure and it makes
violations of the reporting requirements a class A misdemeanor.
Article 5 establishes criteria for establishing trusteeship of a
labor organization. This is the sort of thing that probably would
never have occurred to anyone back in the early days when virtually
all of the public employee organizations in the state were
independent associations. Now virtually all of them are affiliates
or are locals of large organizations where trusteeship could be a
reality. This is also taken from the trusteeship language of the
National Labor Relations Act. It provides processes for removal of
union officers for certain misconduct.
Article 6 establishes criteria for democratic election of union
officers. It prohibits the use of dues money to influence the
outcome of a union election. It establishes standards of fiduciary
responsibility of union officers and employees. It requires
bonding of certain union officers and employees. It specifically
makes embezzlement from a union a crime. It prohibits felons and
certain misdemeanants from holding union office or acting in a
labor relations capacity for a public employer.
At Article 9, it prohibits certain financial transactions,
including contributions to political campaigns between officers,
agents, and employees of unions and officers and officials of
public employers, where the intent is to influence the exercise of
employees of their rights under the Act, or to influence the
outcome of an adjudication or negotiation. It requires that any
employee benefit trust be a joint employer/union trust. I don't
know much about the situation at the local level, but currently all
state trust arrangements have no state involvement although the
state contributes considerable sums of money. Section 51 repeals
all the pre-PERA bargaining authorization at the State level, and
prior to 1972 ferry employees had the right to bargain under some
vestigal legislation at 23.40.020, 030, and 040, I believe, and
that is repealed. There was a court case - 1978 - IBU v. Haffling
- that said they bargained under PERA - they do so that is surplus
language. I can take a look at may some of the notes.
I think we addressed the youth corrections issue. On the
arbitration as a public record, I don't believe that's inconsistent
with the provisions of 39.25.080. Certainly if it were a
disciplinary arbitration, and I don't know what - I know that many
political subdivisions have some kind of confidentiality provisions
but I'm not familiar with them. I am familiar with the State's,
which is 39.25.080 and the general way in which arbitrations are
made public at the State level is by blinding the name of the
employee. I don't know that this language is inconsistent with
39.25.080 though the blinding may still be required as a general
matter. The other way that they are made public is the employer or
the union releases them to the paper but that's only if the
arbitrator found in their favor.
With regard to temporary, non-permanent employees, where those
employees are employed as the act envisions - that is for work
which is not the ongoing work of an agency - and certainly I
wouldn't sit here and say that every non-permanent employee of the
State - I don't know about other public employers - is really
employed as that Act envisions - but if the employees are employed
as the Act envisions - that is not to do the ongoing work of an
agency, they have a very tangential relationship with the employer
and with the union. Even in those situations where, speaking again
only to the State, the employer has voluntarily recognized the
union as their representative, the union has only fairly minimal
representation duties for those employees. For example, non-
permanent employees do not have access to the grievance procedure
except on perhaps certain issues under the State agreements now.
Low hours, part-time employees must only apply to less than 20 hour
per week employees, likewise have a fairly tangential relationship
with the employer. With regard to people whose primary function is
the collective bargaining or labor relations function, the Labor
Relations Agency found a direct conflict in certain kinds of that
work with being in bargaining. I know from my own experience that
the conflicts are almost untenable to be a member of a bargaining
unit as well as representing the public employer and dealing not
only with your own bargaining unit, but with others. Someone will
probably point out eventually that I'm the one that caused that at
one point in time, but there are good reasons. I think that's all
of the exclusions other than from fairly obvious ones for
particular kinds of public officials.
There was a question - I think it was a question - about what was
meant by political subdivision and I think, as I took notes on that
question, that was really addressing who had the approval authority
and I think I answered that but I'll go back over. Section 215,
where those changes are, addresses appropriation authority so to
the extent that there is an appropriation authority, the
legislative body of a political subdivision has that limited
approval authority.
I think the other question that I wrote down that I haven't already
covered - well perhaps I did cover it but - on the who can vote
pieces in union elections. This only gives a fee payer a right to
vote in a contract ratification or the ratification of a
modification to the contract which affects their wages, hours and
terms and conditions. If the union wants to let fee payers vote in
officers' elections, that's a private matter and up to them.
[END OF VERBATIM TRANSCRIPT OF MR. CHANCE'S TESTIMONY.]
CHAIRMAN GREEN announced teleconference participants from
Anchorage, Mat-Su, and Fairbanks, were on-line.
Number 332
SENATOR DUNCAN asked Mr. Chance, if Section 5 mirrors the National
Labor Relations Act and Section 9 is word for word from federal
law, whether that federal law was last amended in 1959. MR. CHANCE
replied that is correct, the last major amendment was in 1959.
SENATOR DUNCAN asked why the Legislature would want to go back with
a state law that was passed in 1972 and mirror language that was
passed on a national level in 1959 and think that we are taking a
step forward.
MR. CHANCE replied those particular provisions of the National
Labor Relations Act were not incorporated in 1972 for unknown
reasons but there is a tremendous body of adjudication under the
National Labor Relations Act up to today. He believed today's
decisions do serve to modernize the Act.
Number 299
SENATOR DUNCAN asked Mr. Chance if he could provide the dates of
the court decisions.
MR. CHANCE answered the Seminole Case on union dues issues is
probably Hudson v. Chicago Teachers' Union which occurred in the
late 1970's. The most recent big case on dues issues at the
federal level is Beck v. Communications Workers which is a 1988
case which resulted in a 1991 Executive Order which has been
rescinded by President Clinton. As to why the holdings of the
Supreme Court have not been incorporated in the conduct of public
employee unions and employers, he could not speculate.
SENATOR DUNCAN asked Mr. Chance to provide him with a list of the
court cases he referred to in his testimony. He noted SB 151 is a
major piece of legislation and he assumed the committee would have
time to have additional hearings on it. He asked whether Section
37 is directly from federal law.
MR. CHANCE said he tried to avoid using the words "word for word"
because one can't directly interpret it, however it is pretty close
to the federal bill of rights for union members from 1959.
SENATOR DUNCAN repeated his comment that the Legislature would be
modernizing its labor laws based on a federal law from 1959.
Number 276
DON VALESCO , business manager of Public Employees Local 71,
testified via teleconference in opposition to SB 151 and made the
following comments. He takes tremendous offense at SB 151 because
Section 1 says that the Legislature finds that there have been
instances of disregard for the rights of individual employees and
failure to serve high standards of responsibility and ethical
conduct. Furthermore, it says "these instances require legislation
to provide protection for the rights and interests of employees and
the public generally as those rights and interests relate to the
activities of labor organizations, public employers, and their
officers and representatives." He said the Legislature will have
to hold hearings to determine where there has been disregard for
individual rights and failures to observe high standards and
ethical conduct and he did not believe any instances one could find
warrant the majority of the changes made in the bill. He doubted
they could find three such instances. Regarding Mr. Chance's
comment that there is a tremendous body of adjudication on the
National Labor Relations Agency, including ongoing cases, he
believed the Legislature would be involving the State in the body
of adjudication if it passes this legislation. He said he was
puzzled as to why SB 151 was introduced if the goal is to get
government out of people's lives because this bill will create a
greater need for more bureaucracy and cost. He hoped the committee
will provide adequate time for public review of SB 151 and noted
had he had time to review its 51 pages, he alone could testify on
it for two hours. He questioned how many union members have come
forward to testify in support of this bill and he believed unless
there are dozens of them, there is not need for this legislation.
Number 208
JOHN WINTERS , a Juneau resident representing himself and other
seasonal forestry technicians who provide wildland fire protection,
expressed several concerns. SB 150 would remove overtime from the
retirement calculations for an employee's highest three years.
Alaska's wildland fire fighting workforce is made up of seasonal
employees and the overall quality of the profession is dependent on
experienced workers who can work as a team. Because of budget
cutbacks over the years, what were 10 month positions are now 7 or
8 month positions and a larger portion of seasonal workers' annual
income is from overtime wages. More important, fires do not occur
according to a schedule, therefore overtime work is necessary. The
possible long term effect is that if the retirement becomes less
and less over the years, a loss of experienced fire fighters may
occur. In addition, in Alaska, more residential and recreational
development is taking place in the outlying reaches of communities
and wildfires are occurring in that wildland/urban interface.
Those fires will have more serious potential impacts and will
require the workforce to have local knowledge and experience. Mr.
Winters said overtime wages are often reimbursed by entities other
than the State of Alaska therefore no savings to the State of
Alaska will result from passage of SB 150.
MR. CHANCE responded SB 150 specifically excludes overtime pay from
the calculation for retirement benefits however that change would
be prospective only and would depend on the tier an employee is in.
SENATOR MACKIE remarked it does not effect current employees but
will only apply to new employees, but noted Mr. Winters' concern
was that overtime wages comprise a substantial part of
firefighters' income and loss of those wages in the retirement
calculation will have a substantial impact. In addition, Mr.
Winters asked how the state would save money since the actual
amount of money they earn, including overtime, is less than or
equal to what a full-time employee would earn.
MR. CHANCE repeated it is his understanding this provision is
prospective only and it will reduce the amount of compensation an
employer will have to pay to match benefits therefore a cost
savings will result. Regarding the issue of the amount fire
fighters are paid, there are many ways to define a work week that
are not predicated on the standard 37.5 hour work week. There are
ways to structure the compensation that would make more of their
income straight wages as opposed to overtime. Those structures are
governed by the Federal Fair Labor Standards Act which has its own
particular body of rules for police and fire employees that
recognize the nature of emergency work.
Number 047
SENATOR DUNCAN felt the committee should get a legal opinion on
that question. He felt Mr. Chance was correct in assuming that
provision could not be retroactive, but he expressed concern that
it could impact the future compensation of current employees.
MR. CHANCE replied he does not know, as a question of law, how that
provision can be applied, but he understood it to be prospective
only.
SENATOR DUNCAN asked whether he meant it would apply prospectively
to new employees only.
MR. CHANCE said it is his understanding that changes to eligibility
under PERS can only be applied in the future.
TAPE 97-17, SIDE A
Number 000
ED FLANAGAN , Deputy Commissioner of the Department of Labor,
testified in opposition to SB 151 as it flies in the face of both
the Administration's and Legislature's goal of creating a leaner,
meaner, more efficient government. SB 151 overlards the existing
system that works for public sector labor relations in the State,
with a wholesale adoption of largely irrelevant federal law. In
1972 the revisions and improvements upon the Wagner Act were made
for good reason. The Taft-Hartley of 1947 and Landrum-Griffin of
1959 were extant, and had been for 25 and 15 years at the time of
PERA, and were purposely excluded.
Mr. Flanagan felt one of the most ludicrous examples of an
inappropriate appropriation of federal law is the peace officer
parallel that Mr. Chance mentioned, with the prohibition in federal
labor law that security guards, namely the Pinkertons, the goons
that beat up the union people on strikes, could not be in the same
unit as the workers. To equate a peace officer with a security
guard, in the context of a public sector employer, really doesn't
make sense unless the intent was the effect. The bill says that
any labor organization that is directly or indirectly affiliated
with a labor organization that represents peace officers, which by
definition in the bill includes correctional officers, cannot
represent non-peace officer employees. This would effectively
prevent three of the larger bargaining representatives, APEA, which
is affiliated nationally with AFT, Local 71, which is affiliated
with the Laborers International, and ASEA which is affiliated with
ASME, from representing peace officers in the State of Alaska.
That is one example of a myriad of defects in the bill; there are
50 pages and in the Department's internal review every reader found
a different question, none of which have been addressed. Mr.
Flanagan presented some of those questions as follows.
The findings included in Section 1 mimic the federal law. Those
findings were placed in federal law after extensive hearings, some
televised. Certain unions had been thrown out of the AFL-CIO for
not cleaning up corrupt practices and the federal government had to
intervene. There was a long and copious public record to back up
those findings. There is no evidence of the kinds of crimes or
violations of ethical standards in Alaska that are alluded to in SB
151. Any effort to find evidence would create a lean record. The
Department would be aware of any violations through existing
activities of the agency. The findings section of SB 151 is a big
sledgehammer looking for a nail that may not exist.
If the findings cannot be substantiated, the basis of the bill is
questionable. In response to Mr. Chance's comment that it is
straightforward that the parties may not negotiate terms contrary
to terms of statutes or ordinances unless the subject matter of the
statute or ordinance is made subject to bargaining, Mr. Flanagan
said that section is not at all clear; specific examples of why
many of these provisions are necessary would be very helpful to the
people that will have to administer this law should it pass. The
Department could not think of problems or illegal clauses that
might have motivated the provision and illegal clauses in contracts
cannot be enforced anyway. A contract for public, or any,
employees cannot violate state or federal law.
Section 3 reserves managerial rights prerogatives and functions
which are already reserved to the public employer under AS
23.40.250. Individual employees may present their own grievances.
This would greatly increase the workload of the Alaska Labor
Relations Agency and, with other provisions of the bill, the
Commissioner's Office. The Alaska Labor Relations Agency is one of
the most productive agencies in state government, and is comprised
of 4 people who are the PERA equivalent of the National Labor
Relations Board. They have a high workload already. SB 151 would
make it and the Commissioner's Office the enforcement arm of the
U.S. Department of Labor, getting right into a union's business and
removal of officers. Currently they are a neutral body that
investigates unfair labor practice charges and then they are
adjudicated by a board. To allow individual employees to bring
grievances without the filter of a union will increase the workload
of agencies and field-level management. In a collective bargaining
environment the union serves the purpose of explaining to members
whether a contractual violation occurred.
With regard to the prohibition on merging employees, many small
city employers have 16-17 employees under PERA. One of the major
differences between PERA and the national act is where the national
act says, a unit appropriate for purposes of collective bargaining,
PERA says, the largest possible unit appropriate for purposes of
collective bargaining. It is an express purpose of the Act to
avoid fragmenting of units for purposes of efficiency and the
convenience of the public employer so they do not have to negotiate
every month with a different unit. By separating employees who can
strike from those who cannot, enactment of SB 151 will double six
or eight existing bargaining units.
Union members would be allowed to challenge the consent of a union
and could also challenge the appropriateness of the unit which is
currently determined by the agency in a hearing, based on case law
and the provisions of the Act regarding the largest appropriate
unit. SB 151 sets up elections for unit determination, which could
result in units that are entirely incongruent to the statutory
provisos. The annual renewal of the dues or service fee deduction
authorization will create mayhem for the unions and public
employers. He did not know what that provision is supposed to fix.
There are ample provisions for this, and other provisions, under
law; the Hudson and Beck decisions are law. The union members have
recourse through them without involving the Labor Relations Agency
and more than the current examination of them under a ULP. To
actually require the agency to get into those procedures for
setting them up is uncalled for.
Many of the provisions - the secondary boycott, the hot cargo
agreement - have no relation to public employment. Those are
private sector items or occurrences. He asked if anyone could
explain where those situations have had relevance under PERA in the
last 25 years. Many employees within the Pioneers Homes, API, and
the Corrections Institutions that are currently prohibited from
striking would be given the limited Class 2 right to strike under
SB 151.
Mr. Flanagan emphasized the Department of Labor's major concern, as
an agency, is the increased workload SB 151 will create and he
apologized for not providing the fiscal note prior to the meeting.
He said there are probably 25 unions that represent employees under
PERA. This might go down to one building trades union in Fairbanks
that has one member in a joint crafts agreement at the City of
Fairbanks. The Department of Labor does not want to be the NLRB,
the U.S. Department of Labor, or APOC. SB 151 takes reporting
disclosure down to the steward level. In a unit the size of the
GGU, there are hundreds of stewards. He again questioned what
abuse is occurring in the current system that SB 151 will fix. He
noted virtually all of the unions that represent state employees
are affiliated with national unions right now. Those national
unions have election protest devices and internal controls and
procedures. An employee can exhaust their internal procedures,
then go to their national union and possibly to the U.S. Department
of Labor if an election issue is involved.
Mr. Flanagan again emphasized the Department of Labor's concern
with the increased workload SB 151 will impose. He stated the
funding required by SB 151 will be the least productive, least
important public dollars spent in the Department of Labor's budget.
He stated he would provide the committee with a more detailed
written response to the bill.
Number 270
CHAIR GREEN responded she was able to surmise Mr. Flanagan's
position on the bill and extended an invitation to all participants
to submit written testimony.
SENATOR MACKIE asked Mr. Flanagan to provide to the committee a
sectional analysis, with examples of the effects, if possible.
MR. FLANAGAN responded the Department is working on one and will
provide it. He made an additional comment on the bill. Half-time
employees cannot be members of unions under SB 151 and Mr. Chance
referred to that relationship as tangential. He clarified those
employees are half-time and often job share. The Department of
Labor believes in an inclusive, rather than exclusive, policy when
it comes to allowing people the right to organize for purposes of
collective bargaining.
SENATOR MACKIE asked if that provision would disqualify two
teachers who job share for maternity reasons from belonging to NEA
or any union.
MR. FLANAGAN replied it would depend on how their work week is
defined. SB 151 sets a minimum of 20 hours for the right to belong
to a union.
JOHN GAGUINE , Assistant Attorney General, Department of Law,
responded to former questions about the overtime/retirement
calculation provision. The Department of Law believes that
provision would be prospective and only apply to new hires.
SENATOR MACKIE asked if a current employee has a new high three
year calculation for the purpose of retirement several years from
now will still be eligible because of their current employment.
MR. GAGUINE replied that is correct and would apply to anyone who
is employed now and is a member of PERS.
SENATOR MACKIE asked for the definition of a person who is not a
member of the system now. MR. GAGUINE answered the employee would
have to be considered permanent. It would apply to permanent part-
time employees but not to temporaries.
SENATOR MACKIE asked if a permanent seasonal worker would fall in
that category. MR. GAGUINE said that is correct.
SENATOR DUNCAN said his concern is that even though the retirement
system is not being changed for current permanent seasonal
employees, the way their high-three years is being computed is
being changed. He confirmed with Mr. Gaguine that even though
overtime cannot be used in the calculation for new employees,
current employees will be able to do so. MR. GAGUINE stated no
matter whether an employee has been doing so in the past, employees
who were hired before the effective date of the bill will be able
to use overtime in retirement calculations.
Number 350
MANO FREY , President of the Alaska AFL-CIO, testified via
teleconference from Anchorage and made the following comments. He
finds many sections of SB 151 problematic and believes a bill of
this size and breadth requires additional hearings. The following
sections are of the most concern.
Language on page 4 states: A labor organization may not be
certified as the representative of employees who are not peace
officers if the organization (3) is affiliated directly or
indirectly with a labor organization that represents or has members
or fee payers who are peace officers. The AFL-CIO is an umbrella
organization that every other labor organization in the state
belongs to, except the Public Safety Employees Association and NEA.
That language means that no other labor organization in the state
could represent any state employee because AFL-CIO affiliation
would preclude them from doing so.
A second concern is the fiscal impact of SB 151. The state will
have to duplicate what nearly every organization already has to
comply with under federal law. The Departments of Labor and
Justice have oversight of union elections.
Mr. Frey referred to the following provision on page 35 that
states:
"Every bona fide candidate has the right, once within the 30 days
before an election of a labor organization in which the candidate
is standing for election or a labor organization in which the
candidate is standing for election, to inspect and copy a list
containing the names and last known addresses of all members of the
labor organization who are subject to a collective bargaining
agreement requirement membership in the organization or payment of
a service fee."
He stated that provision goes above and beyond what is currently in
federal law. He insisted he would not allow the copying of his
membership list. The Alaska AFL-CIO holds elections every three
years. The League of Women Voters supervised the last election
process and the Department of Labor has supervised the process and
helped the AFL-CIO to ensure the elections were fairly conducted.
At no time would he ever allow a candidate running for office in
the local union to copy a membership list. The candidate does have
the right to communicate with the members but an impartial group is
set up to handle those mailings. He does not believe he is the
only union leader in the state who would violate this provision of
the law, if enacted.
A greater concern with that same section (23.40.600) is that
federal law provides supervision and instruction on how to conduct
an election. He asked why the state would want to intercede in
that process. The section also limits the term of office to three
years which also flies in the face of federal law. Some offices
allow four years under federal law, and some five years. The State
is trying to restructure the whole system of how locals, nationals,
and international unions conduct their internal process. He
questioned why the State would want to stick their nose in
something that is already highly regulated and create another layer
in the process.
Mr. Frey concluded by saying he hoped the committee is not in a
rush to pass the bill out as he would review the bill by section
and explain the myriad of problems the bill will create at a later
time.
Number 443
KELLY BROWN testified from Fairbanks on behalf of the Alaska State
Employees Association Local 52 which represents approximately 8,000
members who comprise the general government unit. Local 52 finds
the tenor of SB 151 untenable. She asked that facts be provided to
justify the rationale for imposing changes to the existing Public
Employee Relations Act as stated in Section 1. As President of
Local 52, she believes she would have heard comments from her
membership if they felt her standards were lacking in
responsibility and ethics.
Regarding the provision about peace officers, Ms. Brown thought the
intent was to adopt the Plant Guard rule from the NLRA which
prohibits unions from representing guards. That rule is a remnant
of a bygone era in the private sector. She questioned how often
labor disputes become violent in the 1990's? That provision is
inapplicable because peace officers would not be involved in
restoring the peace in the event of a violent strike.
Section 23.40.100 (2) (B) and (C) allows for employers to file de-
certification petitions. Local 52 believes this could be
disruptive to the labor-management relationship that they are
currently striving to reach, and encourages union busting.
Section 23.40.110 (D) and (F) provides employees with immunity to
conduct union avoidance campaigns. It allows public officials
leeway to make threatening and coercive anti-union statements.
These statements are appropriate if this official is not directly
involved or is the employer's bargaining representative. However,
the fact that an individual who makes such a statement is a
responsible management official is more significant than whether
the individual is the employer's bargaining representative.
Threatening statements from elected officials clearly influence and
coerce employees in the exercising of their rights.
Section 23.40.200 limits the selection of an arbitrator to those
appearing on the FMCS list. Local 52 feels this could be
problematic for both parties. In many cases, both parties may
mutually agree on an arbitrator with whom they are familiar if both
parties benefit. Although there is no basis for disallowing
selections from the Triple A list, all Triple A list arbitrators
are eligible for the FMCS list but the opposite is not true. The
Triple A list is more exclusive. The parties should have the
discretion to mutually agree to the method of appointing an
arbitrator.
Section 23.40.215 prohibits an agreement from going into effect for
at least 30 days after it is negotiated and until it is approved by
the Legislature. To the extent the time limits are put into the
bill, the law should also place a deadline to submit the grievance
to the Legislature, and a deadline for the Legislature to act on
that agreement.
Ms. Brown said any action on this bill should include continued
debate. She reminded committee members ASEA is a democracy and
officials can be voted out of office if the membership so chooses.
Members have the right to vote on, and create, their by-laws and
bill of rights. SB 151 would restrict those rights.
GARY MCGEORGE testified via teleconference from Mat-Su. He has
been involved in firefighting since 1976 and has been a seasonal
firefighter for the last nine seasons with the State of Alaska.
With the overtime conversion, he has just barely accumulated five
years toward retirement. If he retired at this time, he would
receive about $300 per month. He is funded for four months per
season; two years ago, his position was funded for six months.
Currently, under FSLA standards, he can convert 320 hours of
overtime to compensatory time, which equals 64 days. Combined with
the four month work season, he earns a little more than six months
of PERS credit per year. Not being able to convert overtime for
the purpose of applying it to the high three year retirement
calculation will effectively gut his retirement - from one-third to
75 percent. His current salary, about $15 per hour, totals $12,000
per year. Without overtime he will not have a retirement nor an
adequate income to pay basic expenses in the Mat-Su Valley where
his family lives and spends its money. He asked committee members
to leave firefighters' retirement alone, as they earn little enough
and are the best bargain in the state for fire fighting.
Number 538
CHUCK O'CONNELL , AFSCME, testified from Anchorage and stated he
agrees with Mr. George's comments. SB 150 tries to address a
situation of perceived abuse in the PERS and TERS retirement
systems. Everyone is aware of the stories about rural
superintendents and University professors with exorbitant
retirements who worked for very few years to earn it. SB 150 will
hurt the little person, the front line worker, the people who earn
$12,000 per year. If the target is to curb excessive overtime, he
suggested the Legislature consider a fair and equitable limit to
the amount of income that can apply toward retirement credit.
Second, Mr. O'Connell said he finds SB 151 redundant and burdensome
for both labor and management. The Legislature will find itself in
a constitutional crisis with the Executive Branch if it considers
this legislation. SB 151 is an effort to bring NLRA cases,
precedents, and language into statute because the NLRA does not
apply to state employees: it mixes oil and water. PERA will be 25
years old on July 1 and has worked well. There have been no
prolonged bitter labor disputes under PERA and there is no need to
fix it. SB 151 would exacerbate the relationship between employees
and employers in the State and would allow employees to present
grievances of their own, regardless of merit. He suggested there
are disgruntled employees who raise frivolous issues. The unions
almost consistently do not advance these harassment kinds of issues
to the employer. If employers have to respond to every grievance,
they would be inundated with frivolous issues which will create a
tremendous fiscal impact. SB 151 represents an incredible
increase in government regulation and a significant unfunded
mandate on employers.
At present, employees cannot use state equipment. Section
23.40.110 would change that. Subsection (b) pertains to something
already covered by the United States Supreme Court. At present, an
employee can be a fee payer. Fee payers are advised of funds spent
annually on things that do not directly benefit them and can
request a rebate. All unions in the State presently comply with
that federal requirement; the proposed changes in this section are
absolutely unnecessary.
TAPE 97-17, SIDE B
Mr. O'Connell felt the annual enrollment requirement for union
membership would create a paperwork nightmare. Personnel cutbacks
in all 15 departments have left a lean staff. AFSCME's membership
spans over 186,000 miles. To conduct an election, AFSCME must use
a mail ballot. That method is not provided for in Section
23.40.250. This new requirement would significantly disenfranchise
hundreds of members during an election.
Section 23.40.300 allows nonmembers to participate in union
decision making regarding collective bargaining. AFSCME's
international affiliate's research department could find no other
public or private sector U. S. labor relations law that allows
nonmembers the right to vote in union decision-making. He
suspected this provision originated with the Virginia National
Right to Work group and should not be in statute.
Regarding Mr. Frey's comment on copying membership rosters for
candidates, Mr. O'Connell said AFSCME has corrections officers,
youth counselors, probation officers, and many other people who are
terrified that their home addresses will be made public. AFSCME
finds itself in court up to 12 times per year trying to protect its
corrections officers members from frivolous lawsuits by inmates
seeking to find out their home addresses and family members' names
to harass them. This provision would do incredible harm.
CRAIG PEARSON , Vice President of the Public Safety Employees
Association (PSEA), testified. PSEA represents State Troopers,
forest service officers, airport safety officers and the Juneau
Police Department. The provision regarding the reimbursement of
moving expenses in SB 150 would not be conducive to good employer-
employee relationships. PSEA's collective bargaining agreement
currently provides for reimbursement of some moving costs for its
members, many of whom are transferred to rural areas for three to
five years. Many State Troopers work a lot of overtime hours
because a shortage of positions exists as a result of budget cuts
during the last 15 years. Those who work overtime, because their
agencies are understaffed, will be penalized. PSEA remains
adamantly opposed to SB 150.
Regarding SB 151, Mr. Pearson said none of PSEA's members have
complained of wrongdoing. PSEA sees no need to revamp PERA at this
time since it is not broken.
KATHY DIETRICK , a business agent with the Alaska State Employees
Association Local 52, testified via teleconference. Regarding SB
150, she stated if the goal is to reduce overtime, more employees
need to be hired which will require more funding. She is opposed
to SB 151 in its entirety. It is unnecessary, unwarranted, and
represents excessive bureaucratic regulation and interference. It
is an outright attack on organized labor and working people. SB
151 is being spun as a bill of rights for public employees but in
reality it creates a bureaucratic nightmare unprecedented in labor
relations. To pretend this bill is there to protect employees from
disreputable union leaders and officers is an affront to the
intelligence of working people. At the least, it is an unfunded
mandate of rules and regulations no entity will have time to
enforce. At worst it is a government intrusion on working people's
rights to organize, and a clear abuse of power. Ms. Dietrick said
she would expect something like this from the coal mine owners of
yester-year but not from the Alaska Legislature in the 1990's and
she also resented Mr. Chance's description of ASEA's relationship
with its members as tangential. If the intent of unions was to be
legalistic, they would be in court, not in arbitration. She
questioned Mr. Chance's motive for this bill and asked the
committee to vote against it.
Number 529
RICK DUPUIS made the following comments via teleconference from
Fairbanks. He is a Forester 1 with the State of Alaska Division of
Forestry and has been involved in the forestry program since 1977.
In the 1990's there have been about 40 fatalities nationwide in the
firefighting environment. The firefighters being killed in the
line of duty are not overpaid employees; they are the equivalent of
Alaska's range 7 - 11 employees. When the State was organizing its
fire organization in the 1980s, it determined it would be cheaper
to cut the work staff and have existing employees work overtime.
Firefighters work from four to five months per year; at that rate
it would take about 65 fire seasons to get a full retirement from
the State. Firefighters deserve a pension. They work 14 to 18
hours per day all summer. Regarding the previous discussion about
the retirement calculation in SB 150 being prospective, Mr. Dupuis
felt there is no reason to treat future employees differently than
the current firefighting workforce. He said he is very opposed to
SB 150.
HARRIET LAWLOR , an ASEA Local 52 business agent, and former
President of the Anchorage Central Labor Council and Vice President
of the Alaska State AFL-CIO, testified via teleconference and made
the following remarks in opposition to SB 151. SB 151 is a gross
violation of the heart of labor. The language that has been
brought forward in SB 151 has a significantly different meaning
than it does in the NLRA. It is a specific attack on employees and
their rights for mutual aid and protection. SB 151 allows the
employer, the State of Alaska, to determine the organizations its
employees can connect with.
The provision that allows employees to file their own grievances is
in direct conflict with the Personnel Board's latest ruling that
prohibits employees represented by a union from coming directly
before the board. When employees are denied the right to grievance
protection and to gather together for mutual aid and protection in
a group of their own choosing, those cases will be brought to court
and courts routinely grant punitive damages in those cases. The
Personnel Board's latest ruling was because it cannot afford to
hear grievances directly from employees. Previous legislatures
have gutted their funding and it can no longer afford an attorney.
The enforcement aspects of SB 151, which will fall to the
Department of Labor, will require more funding which is contrary to
what this Legislature is trying to do. In addition, the
supervisory language in SB 151 is significantly different than that
in the NLRA. The NLRA does not even represent supervisors. The
type of employee considered to be a supervisor, described in the
bill, would triple the supervisory unit size and include one out of
every three or four employees. This, too, is contrary to a
legislative effort to provide more front line services and less
bureaucracy. She asked the committee to reject SB 151 completely.
Number 441
MIKE GAULT , a DOTPF employee since 1977, and an ASEA member,
testified from Anchorage on SB 150. During his first eight years
with DOTPF, he was a seasonal employee employed six to eight
months. During many of those seasons, he did not earn what
equivalent full-time employees earned even with overtime pay. To
remove overtime wages from retirement calculations would seriously
disadvantage seasonal employees. Regarding moving expenses, many
DOTPF employees are promoted to different jobs around the State.
Limiting employee mobility will be unfair to both the employee and
employer.
BEN SIEFERT , a Forestry Technician with the Division of Forestry in
the Copper River area, testified against SB 150. This bill impacts
the little guy who relies on overtime to make it through the year.
He questioned the difference between an employee who works 9 to 5
during 12 months of the year, and seasonal employees who may work
from 5:00 a.m. to midnight for four or five months during the year.
He added overtime work is not a luxury, it is required.
Number 373
DICK ISETT , an Employment Security Specialist with the Department
of Labor, and member of ASEA Local 52, testified on behalf of
himself. His finds the following provisions of SB 151 to be the
most meddlesome:
Arbitrators awards must be submitted to the Legislature;
public employers will be able to write statutes to opt out of
PERA;
the requirement to annually reauthorize dues withholding;
deletion of part-time employees;
non-member voting;
financial reporting that makes no sense; and
facilitates employers' ability to file de-certification
petitions.
SB 151 destabilizes the collective bargaining process and weakens
the unions' role in that process. It facilitates an intrusion into
the administrative area of government by the Legislature and
abridges very important contractual rights of employees, including
the right to effective representation and the collective bargaining
process. The U.S. Supreme Court recognizes property rights of
public employees in their jobs and acknowledges that these rights
are created by states and should not be revoked without due
process, which is not the same as the legislative process. The
legislative process would reduce very important rights of
employees. The Alaska Supreme Court has specifically held broad
policy issues apart from the collective bargaining process in that
it has not made it a mandatory subject that if the employer does
not want to negotiate over matters such as classification and pay,
there is no negotiation. SB 151 does not fix any of the problems
with collective bargaining, it merely weakens the process.
ANN HAYES , representing IBEW, said more than one-third of IBEW's
5,000 members will be impacted by SB 151. IBEW represents police
officers, health care workers, and electrical craft workers who
work in municipally-owned utilities. IBEW has not had time to
determine how SB 151 will put IBEW in conflict with the terms of
its bargaining agreements. IBEW will be providing a sectional
analysis on SB 151 to the committee from the perspective of the
bill's statewide impacts on its members.
Number 302
MIKE MCMULLEN, Director of the Division of Personnel, said he can
describe what the bill does, but does not know what problem SB 150
fixes.
Section 2 will require an employee who is transferred to repay full
costs, including interest, if the employee moves again within five
years. The employee could quit to avoid an obligation or not move
again as an employee. There are cases where the State has entered
into agreements to pay moving costs for employees who are
transferred regularly because of departmental needs. SB 150 would
have a considerable impact on fulfilling those agreements. The
other new section pertains to compensatory time as a means of
overtime pay and prohibits the state from paying it unless there is
a written agreement, including whether there is bargaining unit
representative. Currently the State is subject to the Fair Labor
Standards Act. It requires agreement in advance of the work being
performed by the employer and employee and whether there will be a
representative. SB 151 will additionally require a written
agreement.
Section 3 creates a Tier 4 retirement program. It will not affect
TERS. The Division of Retirement will provide a statement on the
impact of that section.
MR. CHANCE responded to testimony about SB 151 setting a precedent
by allowing non-members to vote and explained current law allows
non-members to vote in strike-ballot elections. The notion that
fee payer non-members can vote to ratify that contract follows on
the same logic. No extraordinary precedent will be set.
SENATOR WARD moved CSSB 151(STA) and its accompanying fiscal notes
out of committee with individual recommendations.
SENATOR DUNCAN objected and said the only fiscal note that has been
submitted by the Department of Law. CHAIR GREEN stated she was
sure the Department of Labor will have its fiscal note ready before
the bill is referred to the Finance Committee for a hearing.
SENATOR DUNCAN said the Uniform Rules require that fiscal notes be
available before the bill is moved from the first committee of
referral. That would include fiscal notes from each department
impacted by the legislation.
SENATOR WARD believed the bill was properly noticed, and he added
one department was able to submit a fiscal note in the proper
amount of time. He said he was satisfied that the Department of
Labor did a yeoman's job and he was ready to pass it on. SENATOR
DUNCAN responded the fiscal note prepared by the Department of Law
was prepared for SB 151, not the committee substitute. Also, other
departments have testified this is a massive piece of legislation
and they are still in the process of reviewing it. Many problems
were presented during testimony, and he has not had time to digest
that testimony, as well as the committee substitute, and to be able
to propose amendments to the bill. Second, he repeated his concern
about the Uniform Rules. He thought it was wrong to imply that any
agency was dragging their feet on providing fiscal notes; they
simply were unable to digest the bill in that period of time.
The committee took a brief at ease.
Number 104
CHAIR GREEN announced the bill would be held over until Thursday,
and she extended the request to all departments to submit fiscal
notes by that time. If departmental fiscal notes are not
submitted, the committee will construct fiscal notes.
SENATOR WARD repeated his question about whether the bill was
properly noticed. SENATOR MILLER responded it was properly
noticed. SENATOR WARD asked who was at fault for not providing the
fiscal notes. SENATOR MILLER said he believed it was the
departments' responsibility, however because CSSB 151 is an
important piece of legislation, the committee would grant Senator
Duncan's request.
SENATOR WARD noted SB 150 has no committee substitute and has no
accompanying fiscal notes. He asked whether CHAIR GREEN noticed
the bill properly. CHAIR GREEN replied the bill was noticed
properly and there is a fiscal note in committee packets.
SENATOR WARD moved SB 150 out of committee with individual
recommendations and accompanying fiscal notes. SENATOR DUNCAN
objected for the purpose of asking Mr. McMullen whether the
Department of Public Safety, the department that submitted the
fiscal note, is the only department that will be impacted by SB
150. MR. MCMULLEN replied every department has the potential to b
impacted by the moving provision. He repeated the Division of
Retirement will be submitting a separate analysis on the impact to
the retirement system.
SENATOR DUNCAN asked whether the Division of Retirement has
concerns about the fiscal impact of SB 150. MR. MCMULLEN answered
he still does not have a clear picture of the problem Section 2 is
trying to address. He said the Division can discuss the impacts
but cannot say whether they will be beneficial without knowing what
problems exist. Section 3 creates Tier 4 retirement and will have
an impact on people hired after the effective date by not including
overtime in their retirement calculations.
Number 140
SENATOR DUNCAN remarked SB 150 looks like a simple bill but it
could have a substantial impact. Since SB 150 was introduced one
week ago, he asked that it be held with SB 151 to get a clear
analysis of the impacts of both pieces of legislation before it
leaves the State Affairs Committee.
SENATOR WARD responded SB 150 does not have a committee substitute
and was noticed properly. He called for the question. SENATOR
DUNCAN repeated the Uniform Rules requires that the fiscal notes be
addressed before the bill moves on, and SB 150 has only one fiscal
note. The committee has the right to draw its own fiscal notes,
but has not done so. SENATOR WARD stated the Uniform Rules will
not be violated if all 15 departments do not submit fiscal notes,
which is what Senator Duncan is suggesting. SENATOR DUNCAN
clarified he was referring to fiscal notes from the departments
that will be affected. SENATOR WARD said it is not up to the
committee to drag fiscal notes out of the departments.
A roll call vote was taken. The motion to move SB 150 from
committee carried with Senators Ward, Green and Miller voting in
favor, and Senator Duncan voting against.
CHAIR GREEN announced the committee will hear SB 151 on Thursday,
in addition to the committee's scheduled calendar. She adjourned
the meeting at 5:23 p.m.
| Document Name | Date/Time | Subjects |
|---|