Fraught with peril: State workers clocking in at home - Must Read Alaska
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Friday, October 15, 2021
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Fraught with peril: State workers clocking in at home

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Art Chance

By ART CHANCE

I read with interest the MRAK story about Superior Court Judge Matthews siding with the State in denying the Alaska State Employees’ Association’s motion to basically shut down State government and let ASEA members “work” from home.

ASEA represents the General Government Bargaining Unit (GGU) of State employees. Technically they are defined as “classified, non-supervisory employees.”

There are 8,000 or so of them; they are by far the largest unit of State employees. The reality is that they really are the unit of State employees who couldn’t get themselves put in another unit.

The law says that bargaining units are to be defined by “community of interest” and unnecessary fragmentation is to be avoided (AS 23.40.090).

Yet, bargaining unit determinations have always been sloppy and political and the GGU is no exception. They try to represent employees with general equivalency diplomas who work in entry- level jobs as well as people with PhDs making over $100,000 a year.

One of their national representatives lamented to me back in the 1990s that it was “hard to find a sense of social justice in engineers making over $50,000 a year.” That salary would buy you a couple of decent pick-ups back then.

Leaving aside the ferry system unions and their unique obstinacy, if you’re going to have labor problems in the State workforce, they’re likely to start in the GGU/ASEA.

ASEA is an affiliate of the American Federation of State, County, and Municipal Employees, AFL-CIO (AFSCME). ASEA was also the first of the State’s white and gray collar units to affiliate with an AFL-CIO union, and when AFSCME came to Alaska in 1988, they brought Saul Alinsky with them.

By the early Nineties, those leather-bound hornbooks and treatises in my office were gathering dust and had been replaced by well-thumbed copies of Alinsky’s “Rules For Radicals.”

ASEA couldn’t do labor relations very well, but they sure knew how to make noise and raise hell. Being soundly thrashed by the State on numerous occasions has made them somewhat more circumspect, but even today, if there is going to be labor strife, it is likely to start with ASEA.

There is a plaintive wail in the comments to the MRAK story from a commenter claiming to be a conservative Republican and Dunleavy supporter going on about how unfair the State’s position on working at home is. For a conservative Republican and Dunleavy supporter, the commenter sounds amazingly like an ASEA shop steward parroting the party line.

The Democrat-led House Majority called for the governor to essentially shut down state government and send workers home.

The State has never embraced telecommuting, and especially not for the sort of employees ASEA represents. Most ASEA members are direct service employees; they provide direct services to citizens at front desks or at Division of Motor Vehicles, Department of Health and Social Services, or support professionals who provide direct services. Some, but only a minority, are degreed professionals who don’t have supervisory duties.

Professionals who don’t have supervisory duties can telecommute if they’re trust-worthy, high-performing employees, and even with those, you make them clock in and clock out and watch their work production.

LIABILITY

It is an enormous liability for the State to let an employee work at home. If you are “at work,” the State has the same liabilities for your health and safety in your home as it does in a State office and it has little control over the health and safety conditions in your home.

If I work at all, I work from home, and my wife telecommutes under federal rules. Our home office is actually better equipped than the typical government office, but it isn’t ADA compliant and would never withstand a Division of Occupational Safety and Health inspection.

Were I working for the State and got up from my desk to go to the restroom, there is an unsecured throw rug over fairly slick ceramic tile, a cord under the throw rug that runs the recliners and another cord in front of the bathroom door that goes to a surround-sound speaker and that I’ve been too lazy to get behind a cover on the wall. Should I slip or trip during that 10-foot distance to the bathroom, my injuries are the State’s liability.

If I’m a State employee working at home, I’m working on my home computer and a home network. If the State insists on a specific security protocol, it has to provide it and require me to use it.

But how does that work out if your teenage son also uses the same network? I’m not the only one who has had to clean up a teenage boy’s virus-infected computer. You don’t want to try to convince his mother that her son, not you, downloaded that stuff.

State management is the same way.

The State has a somewhat objective definition of an “essential employee,” one whose services cannot be done without for the shortest period of time. That definition is from the Public Employment Relations Act and defines those employees who are prohibited from striking because the strike would pose a threat to public health and safety.

As I discussed above regarding bargaining unit definitions, the application of the law has been both sloppy and political, but at least it is a written definition that can be objectively contested.

However, using the strike class definition doesn’t really answer the question in ASEA’s suit. ASEA does have employees that are prohibited from striking, such as Alaska Psychiatric Institute and Pioneer Home employees and some administrative workers in Corrections and Public Safety, but the real issue is with the employees at the Department of Health and Social Services — the ones who take welfare applications, or Labor and Workforce Development workers who take unemployment insurance applications, and other direct service and front desk employees.

The State should make the determination based on the function, not the employee. The State can say that there will be no driver’s license renewals or registration renewals for 30 days and no enforcement for expired licenses and registrations.

Then, it can just lay off the employees associated with that function. The unions have never meaningfully cooperated with furlough arrangements so it’s best to just lay them off, pay them off, and maybe call them back if you ever need them again; you reap what you sow.

Layoff is expensive; you have to pay off the laid-off employees’ benefits, but the unions bought a Legislature and got the State’s personal services budget fully funded; it doesn’t cost any more to get rid of them that it does to keep them. Be careful what you ask for.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon. 

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  • Exactly. Lay them off. Later let’s determine how many are really needed back. I have visions of several of them now that I know that didn’t do a damn thing pre-covid and it makes me sick how they are depositing pay checks to continue to nothing at home while catching up on their reading. Don’t have to take leave, nothing. Just getting paid.

  • Great Post as usual Art!
    Does the Governor has the authority under law and bargaining agreements to decide to lay off instead of furlough or LWOP if state offices or certain positions in them are closed for a disaster? Half of the programs are likely not essential and probably ineffective during this crisis (or any time in my opinion). Shutting those programs down now is a good idea.

    Looking at the cost/benefit it seems better to just lay off everybody in those programs and just take the hit and pay-outs now, then develop a plan to re-structure the programs (hopefully more efficiently) with available funds after the crisis is past.

    My question is whether Dunleavy has that authority under law and bargaining agreements. Seems like he should, but I’m not familiar enough with the laws to know.

    • There isn’t an easy answer. The State has only a very limited right to furlough a unionized employee or place that employee on leave without pay. The State can lay an employee off for lack of work or lack of funds. If the Governor decides that some or another function is not going to be carried out at this time, that meets the lack of work criterion. But, there is an AKSC decision, Kelly v. Hammond that says if the Legislature appropriates money for a program, the Governor has no discretion as to whether to carry out that program. So, it comes down to an AKSC decision, really. If the Governor uses emergency powers to shut down, say, the DMV, and lays the employees off, but yet has the money to keep them working. That winds up before the AKSC and the people in black robes decide if the Governor’s emergency powers trump the Legislature’s appropriation powers. You pays your money and take your chances.

  • Note that this bargaining unit, ASEA, is the same one that is being sued in FEDERAL court under the Janus decision. Go here for more info: http://alaskapolicyforum.org/2020/03/pr-workers-sue-state-union/

  • Art’s columns are always marvelous and insightful. I doubt there are many that have the knowledge and experience of Art on Alaska labor subject(s).
    Nice work.

    • Thank you for the kind words.

  • The ASEA is the Defacto Alaska Democratic Party. They are the largest campaign cash donor in the state. Yes more than even the oil companies. They are essentially an organized crime unit funneling state funds into democratic campaigns. A thorough investigation into their activities would result in a RICO act indictments but the state Law Enforcement and FBI won’t go after them because they are seen as being too powerful. The State will never get their fiscal house in order until this organization is gone…

    • I always referred to them, only partly in jest, as the Storm Trooper Wing of the Democrat Party. It isn’t coincidental that their current head is the former head of the Democrat Party and his predecessor was a former Democrat Senator and Commissioner of Administration.

      I never feared them, actually hardly respected them, at a bargaining table or in a hearing room, but I was definitely afraid of them on Election Day. They have a hard kernel of maybe 500 – 1000 members Statewide, but concentrated in Juneau, who see themselves as true heroes of the proletariat and they’re always trying to foment “the revolution.”

      I’m a child of the Sixties as were most of my co-workers when ASEA came on the scene; we understood college radicals because some of us had been one, but had more or less recovered. Our experience was that you had to go after that hard core of support; if they misbehaved, you thrashed them and did it noisily to show the others that the union could do nothing to protect them. They went wild early in the Knowles Administration because they thought with some justification that they owned the administration. By the second term even the Knowles people had figured out that they couldn’t make them happy; they truly were Trotskyites dedicated to the continuing revolution. They didn’t want solutions they simply wanted to process of continuing conflict. When I came back to the Executive Branch in late ’99, my then-boss told me that he wanted ASEA off his back and out of his buildings. I replied that he, then, would have to cover my back. We did it and continued it through the Murkowski Administration and gave the State a decade of labor peace. Don’t know how much of that is left now.

  • Will the state be liable if they get COVID 19 at home (the workplace) and die as a result? Wrongful death suit against the state?

    • Generally, you can find 12 morons that get a PFD who are willing to convict the State of anything. I know I’d be inclined to settle before I’d face a jury.

  • Looks like time to contract out, or abolish, ASEA bargaining-unit jobs performed from union members’ homes.
    .
    Sure, severance packages will redefine extortionate but, effectively negotiated, severance is a once and done deal, after which productive Alaskans will be largely rid of one public-sector union-management team which looks more like a tail wagging the dog than anything critically necessary for the State of Alaska to serve the public.
    .
    If nothing else, productive Alaskans might start wondering how they managed life before the ASEA union-management team showed up to manage life for them.
    .
    It could happen.

  • So the governor’s request that people work from home when possible and shelter in place does not apply to state workers?
    I’m starting to imagine what kinds of lawsuits will occur when state workers working at the office start to get Covid-19.
    Musta been that person who sneezed on them a week ago in the grocery store.

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