Legislature(2003 - 2004)

2004-02-23 Senate Journal

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2004-02-23                     Senate Journal                      Page 2264
SB 352                                                                                            
SENATE BILL NO. 352 BY THE SENATE RULES COMMITTEE                                                   
BY REQUEST OF THE GOVERNOR, entitled:                                                               
          "An Act amending the Public Employment Relations                                          
          Act to exclude from collective bargaining individuals                                     
          who perform confidential or managerial duties for a                                       
          public employer and relating to those exclusions; and                                     
          providing for an effective date."                                                         
was read the first time and referred to the State Affairs Committee.                                
The following fiscal information was published today:                                               
 Fiscal Note No. 1, zero, Department of Fish and Game                                               
 Fiscal Note No. 2, zero, Department of Law                                                         
Governor's transmittal letter dated February 20:                                                    
Dear President Therriault:                                                                          
 Under the authority of article III, section 18, of the Alaska                                      
Constitution, I am transmitting this bill to amend the Public                                       
Employment Relations Act (PERA). Specifically, the bill would                                       
exclude public employees in upper-level ("managerial") or sensitive                                 
("confidential") positions from collective bargaining. Allowing                                     
employees in these positions to participate in bargaining creates a                                 
conflict of interest and could allow employees in managerial or                                     
confidential positions to benefit from the inherent advantage they have                             
over other employees. When managerial and confidential employees                                    
bargain they have access to information and key officials that is                                   
unavailable to other employees.                                                                     

2004-02-23                     Senate Journal                      Page 2265
Amending PERA resolves the conflict of interest and reduces the                                     
opportunity for unfair gain by those employees. Bargaining laws for                                 
public employees would be aligned with the labor laws that apply to                                 
private industry, federal law, and the majority of state's that have                                
chosen to exclude confidential and managerial employees from                                        
The bill provides legislative findings setting out the concerns the bill is                         
intended to address. These findings were drawn mainly from the work                                 
of the Blue Ribbon Commission (Commission) on the State Personnel                                   
The Commission reviewed state employment laws from 1977 through                                     
1980. The Commission recognized that allowing managers to                                           
participate in bargaining could hamper labor negotiations and that the                              
state's managers needed to be politically responsive to the chief                                   
executive. The Commission recommended that assistant and deputy                                     
directors and certain chiefs be excluded from bargaining. Report of the                             
Blue Ribbon Commission on the State Personnel Act to the Eleventh                                   
Alaska State Legislature 14 (1/9/1980).                                                             
The exclusion for confidential employees is based upon case law from                                
the National Labor Relations Board (Board) and existing state                                       
regulation. B. F. Goodrich Co., 115 N.L.R.B. 722, 37 L.R.R.M.(BNA)                                  
1383 (1956); 8 AAC 97.990(a)(1). The Board has consistently                                         
recognized an exclusion from bargaining for "persons who assist and                                 
act in a confidential capacity to persons who formulate, determine, and                             
effectuate management policies in the field of labor relations." The                                
Alaska Labor Relations Agency adopted this definition as regulation                                 
in 8 AAC 97.990(a)(1); although, rather than exclude these employees                                
from bargaining entirely, the agency requires them to bargain in a                                  
separate unit when they are employed by the state. 8 AAC 97.090.                                    
Bargaining in a separate unit, however, does not remove the conflict of                             
interest created when a public employer is forced to bargain the wages                              
and working conditions of employees responsible for actually                                        
developing and implementing the employer's labor policy.                                            
Recognizing this problem, the agency excluded the confidential                                      
positions of labor analyst and human resource manager from                                          
bargaining completely in State of Alaska v. Confidential Employees                                
Ass'n, Decision & Order No. 157 (04/07/1993). The agency's                                        

2004-02-23                     Senate Journal                      Page 2266
decision, however, was reversed on appeal, State of Alaska v.                                     
Confidential Employees Ass'n, case no. 1JU-93-0656 CI (9/1/1994, as                               
clarified on 10/12/1994), necessitating a legislative solution to the                               
The exclusion for managers is based on National Labor Relations                                   
Board v. Bell Aerospace Co., 416 U.S. 267, 287-88 (1974). In that                                 
case the United States Supreme Court affirmed the Board's                                           
longstanding exclusion from bargaining of employees "who formulate                                  
and effectuate management policies by expressing and making                                         
operative the decisions of the employer." The exclusion was based on                                
the Board's interpretation of Congressional intent.                                                 
I urge your prompt and favorable action on this measure.                                            
Sincerely yours,                                                                                    
Frank H. Murkowski