Legislature(1997 - 1998)
04/01/1997 02:20 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE STATE AFFAIRS COMMITTEE April 1, 1997 2:20 p.m. MEMBERS PRESENT Senator Lyda Green, Chairman Senator Jerry Ward, Vice-chair Senator Jerry Mackie Senator Mike Miller Senator Jim Duncan MEMBERS ABSENT None COMMITTEE CALENDAR HOUSE BILL NO. 65 am "An Act relating to partial-birth abortions." MOVED HB 65 am OUT OF COMMITTEE SENATE BILL NO. 150 "An Act relating to moving expenses of state employees, to compensatory time for state employees, and to calculation of compensation for the public employees' retirement system." MOVED SB 150 OUT OF COMMITTEE SENATE BILL NO. 151 "An Act relating to public employment labor relations; relating to the protection of the rights of public employees under the Public Employment Relations Act; establishing ethical standards for union representatives of public employees; and establishing disclosure requirements for public employee labor organizations." HEARD AND HELD SENATE BILL NO. 129 "An Act relating to the employer's required savings under the retirement incentive plan; and providing for an effective date." SCHEDULED BUT NOT HEARD PREVIOUS SENATE COMMITTEE ACTION HB 65 - No previous Senate committee action. SB 150 - No previous Senate committee action. SB 151 - No previous Senate committee action. WITNESS REGISTER Bruce Ludwig Alaska Public Employees Association 211 4th St. Suite 306 Juneau, AK 99801 POSITION STATEMENT: Opposed to SB 150 and SB 151. John Cyr National Education Association - Alaska 114 Second Street Juneau, Alaska 99801 POSITION STATEMENT: Commented on SB 151. Art Chance Labor Relations Group 8486 Thunder Mountain Rd. Juneau, AK 99801 POSITION STATEMENT: Provided a sectional analysis on SB 150 and SB 151. Don Valesko Public Employees Local 71 2510 Arctic Boulevard Anchorage, AK 99503 POSITION STATEMENT: Opposed to SB 151. John Winters Juneau, Alaska POSITION STATEMENT: Opposed to SB 150. Ed Flanagan Deputy Commissioner Alaska Department of Labor P.O. Box 21149 Juneau, AK 99802-1149 POSITION STATEMENT: Opposed to SB 151. John Gaguine Assistant Attorney General Alaska Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Commented on SB 150. Mano Frey Alaska AFL-CIO 2501 Commercial Drive Anchorage, AK 99501 POSITION STATEMENT: Commented on SB 151. Kelly Brown ASEA Local 52 315 Barnette Fairbanks, AK 99701 POSITION STATEMENT: Opposed to SB 151. Gary McGeorge P.O. Box 307 Palmer, AK 99645 POSITION STATEMENT: Opposed to SB 150. Chuck O'Connell AFSCME 3510 Spenard Rd. #201 Anchorage, AK 99503 POSITION STATEMENT: Opposed to SB 150 and SB 151. Craig Persson Public Safety Employees Association P.O. Box 82324 Fairbanks, AK 99708 POSITION STATEMENT: Opposed to SB 150, commented on SB 151. Kathy Dietrick ASEA/AFSCME 315 Barnette Fairbanks, AK 99701 POSITION STATEMENT: Opposed to SB 151, commented on SB 150. Rick Dupuis P.O. Box 83897 Fairbanks, AK 99708 POSITION STATEMENT: Opposed to SB 150. Harriet Lawlor ASEA Local 52 1834 E 26th Ave. Anchorage, AK 99502 POSITION STATEMENT: Opposed to SB 151. Michael Gault 6620 E. 11th Ave. Anchorage, AK 99504 POSITION STATEMENT: Opposed to SB 150. Ben Siefert Box 351 Glennallen, AK 99588 POSITION STATEMENT: Opposed to SB 150. Dick Isett P.O. Box 33773 Juneau, AK 99803 POSITION STATEMENT: Opposed to SB 151. Ann Hayes International Brotherhood of Electrical Workers (IBEW) 124 Front Street Juneau, AK 99801 POSITION STATEMENT: Commented on SB 151. Mike McMullen Personnel Manager Division of Personnel Alaska Department of Administration P.O. Box 110201 Juneau, Alaska 99811-0201 POSITION STATEMENT: Commented on SB 150 and SB 151. ACTION NARRATIVE TAPE 97-16, SIDE A Number 00 HB 65 PARTIAL-BIRTH ABORTIONS CHAIRMAN LYDA GREEN called the Senate State Affairs Committee meeting to order at 2:20 p.m. Present were Senators Green, Ward, Miller and Duncan. The first order of business before the committee was HB 65, introduced by Representative Kott. Chair Green stated committee packets contained a great deal of information on the bill, and because repeated testimony has been heard in House committees and on Gavel to Gavel, she did not intend to take further public testimony on HB 65, but to move the bill. SENATOR WARD moved HB 65 and its accompanying fiscal notes out of committee with individual recommendations. SENATOR DUNCAN objected to the motion and stated the purpose of standing committees is to review legislation and take public testimony to hear the public's view as well as the Administration's view. He expressed concern about the lack of a public process that is occurring on major pieces of legislation in the Senate State Affairs Committee and emphasized the importance of taking testimony. SENATOR WARD responded he has been following the legislation for some time and has heard enough about it. He called for the question. SENATOR DUNCAN said the purpose of a committee hearing and public testimony is not solely for the benefit of committee members. He added there may be members of the public who did not have the opportunity to testify in the House committees. He did not feel it is acceptable for committee members to not take public testimony because they have made up their minds. A roll call vote was taken. Senators Ward, Green and Miller voted in favor of HB 65, Senator Duncan voted against the measure, and Senator Mackie abstained from voting. The motion to move HB 65 from committee carried. The committee took a brief at-ease. 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.